                           NOT DESIGNATED FOR PUBLICATION

                                              No. 118,790

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         In the Matter of J.S.P.

                                    MEMORANDUM OPINION

        Appeal from Wyandotte District Court; DELIA M. YORK, judge. Opinion on remand filed July 31,
2020. Affirmed.


        Michael Duma, of Duma Law Offices, LLC, of Olathe, for appellant.


        Daniel G. Obermeier, assistant district attorney, Sheri L. Courtney, assistant district attorney,
Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.


Before GARDNER, P.J., HILL and SCHROEDER, JJ.


        PER CURIAM: In this case, J.S.P. appeals the imposition of his adult prison
sentence after the district court found he had violated the terms of conditional release on
his juvenile sentence. We previously found that we lacked jurisdiction over this appeal.
In re J.S.P., 56 Kan. App. 2d 837, 439 P.3d 344 (2019). The Kansas Supreme Court
reversed that decision and remanded the case to the Kansas Court of Appeals. In re J.P.,
311 Kan. __, 466 P.3d 454 (2020). We now address J.S.P.'s three arguments: (1) He was
denied due process because his conditional release contracts failed to advise him a
violation could lead to imposition of his stayed adult sentence; (2) insufficient evidence
showed he violated the terms of his conditional release; and (3) imposing his adult
sentence constitutes cruel and unusual punishment under both the state and federal
Constitutions. Finding no error, we affirm.




                                                     1
Factual and Procedural Background


       J.S.P. pleaded no contest to two counts of criminal discharge of a firearm at an
occupied vehicle, two counts of aggravated assault, and one count of aggravated battery.
Those crimes occurred when J.S.P was 14 years old. The victim of one of J.S.P.'s crimes
was left paralyzed, but the facts of J.S.P.'s underlying crimes are not relevant here.


       J.S.P. was sentenced in an extended juvenile jurisdiction proceeding (EJJP). In
such a proceeding, a juvenile is given both a juvenile sentence and an adult sentence. The
adult sentence is stayed pending successful completion of the juvenile sentence. If the
juvenile either violates the terms of his juvenile sentence or commits a new offense, the
adult sentence may be imposed in some circumstances. J.S.P. agreed to an aggravated
sentence of 72 months in the Kansas Juvenile Correctional Facility (KJCF) in exchange
for the State's promise that it would not seek adult prosecution. The district court
sentenced J.S.P. to 72 months in KJCF followed by 24 months of conditional release and
a stayed adult sentence of 237 months in prison.


       When the district court sentenced J.S.P. in 2011, the court, J.S.P.'s attorney, and
the prosecuting attorney advised him repeatedly about the adult sentence he could be
facing. Defense counsel stated that she had "explained to [J.S.P.] that if he does not
follow the juvenile program in KJCF and afterwards that he could serve around 19.75
years as opposed to the six years which we're asking the court to sentence him here
today." The prosecutor stated: "If he does comply with all the terms, then he'll never
have to serve that EJJP sentence. However, it will be hanging over his head the entire
time and could be imposed for something as little as being suspended from school or
smoking marijuana."


       The court warned J.S.P., saying:


                                              2
      "[V]ery importantly, the law is very strict. A violation of probation—like—like the
      attorney said, let’s say you get out and you're on probation, conditional release, and you
      skip school, simple as that, smoke marijuana, simple as that. The law says that this court
      shall revoke your juvenile case and shall order you to go to the adult Department of
      Corrections. It doesn't say I may, doesn't say I can, it says if there is a violation that’s
      shown, whether it's simple or not, it says the court shall revoke your juvenile sentence
      and you shall go to the correctional facility. I just want you to know how important it is
      that this is hanging over your head, and it's a heck of a hammer, okay.
              ....
              ". . . In other words, you cannot possess or consume alcohol or drugs. You will
      have to provide breath tests, blood tests and/or UA's. And as I indicated, a dirty UA is
      going to have a tremendous effect on what happens to you so make sure it's not.
              ....
              ". . . So just to make sure everybody understands, he's facing two different things:
      One, the one that's applying right now. 72 months minus what he's already been in jail
      for. That's all he'll have to do as long as he does well and doesn't get in trouble. But if he
      gets in basically any trouble—it's almost any trouble—he's looking at twice, more than
      his age, 19 plus years. So for your hope and your sake, and I mean this, I hope you don't.
      I don't look at anybody age 14 and wish they were going for 19 and three-quarter years,
      but the court can also—cannot also look away from the crimes involved."


              J.S.P. completed his time in KJCF. Just before J.S.P.'s term of conditional
release began, he signed three documents acknowledging the conditions of his release
and potential consequences for violating them. The first was the Unified Government's
Department of Community Corrections Supervision Conditions (UG contract).


      That contract notified J.S.P. of the conditions of his release and any potential
punishments. Among its required conditions were:


           • "obey all laws and . . . report any contacts with law enforcement officers
               . . . the following working day";


                                                     3
            • "refrain from the purchase, possession or consumption of drugs (to include
                'bath salts' and incense such as 'K-2' and other legally or illegally sold
                synthetic stimulants) and alcohol and refrain from presence at any location
                where alcohol and illegal drugs are located";
            • "submit to random urine (UA) and breath analysis (BA) tests at the request
                of [his] probation officer";
            • "complete a substance abuse evaluation within 2-4 weeks as directed by
                [his] probation officer" if J.S.P. tested positive for drugs;
            • refrain from possessing or being around weapons or ammunition or those
                who possess such items; and
            • not participate in "any gang-related activity or associate with known gang
                members."


       But this UG contract did not advise J.S.P. that the court could impose the stayed
237-month prison term if he violated his conditional release. Instead, it stated that a non-
compliant juvenile could be subject to internal sanctions or could be returned to court on
a violation of supervision. It then stated:


       "If a juvenile is returned to Court on a violation of supervision, the Judge may:
           1. Re-sentence the juvenile to a new disposition (Juvenile Justice Authority
               Custody, Juvenile Intensive Supervision, or a Commitment to the Juvenile
               Correctional Facility.)
           2. Impose one or more of a combination of sanctions such as: house arrest,
               detention, community service work, extending time on supervision etc."


The UG contract mentioned no other options, such as revoking J.S.P.'s conditional
release and imposing his stayed adult sentence.




                                                    4
       In fact, the UG contract suggested that the consequences for J.S.P.'s violation of
the conditions were exclusively those "listed above." Above J.S.P.'s signature on the
contract were these warnings:


       "I understand that if I violate the conditions I may be taken into
       custody by police and detained at least until such time as the Court
       conducts a detention hearing."
       ....
       "I ALSO HAVE READ AND UNDERSTAND THE POSSIBLE RANGE
       OF CONSEQUENCES FOR NOT OBEYING THESE CONDITIONS
       THAT CAN BE IMPOSED BY MY OFFICER OR BY THE JUDGE AS
       LISTED ABOVE."


       J.S.P. signed two similar documents: (1) a conditional release contract with the
State of Kansas Department of Corrections (KDOC contract); and (2) a Juvenile Intensive
Supervision Contract with the Johnson County Department of Corrections (JCDC). Both
prescribed certain conditions of J.S.P.'s release but neither referred to his stayed adult
sentence or explained when it could be imposed. Instead, his KDOC contract stated:


       "Any violation of the Conditional Release Contract is a violation of State Law (K.S.A.
       38-2375) and may result in court action to extend the terms of your Release Contract
       and/or to modify the conditions of your Conditional Release Contract, or to return you to
       the Juvenile Correctional Facility."


       Similarly, his JCDC contract stated:


       "The Respondent may be placed in confinement at the Juvenile Detention Center (or
       Adult Detention Center if over the age of 18), placed on House Arrest, placed in the
       Evening Reporting Center (ERC) or directed to appear before the Review Board, if



                                                   5
       he/she does not comply with the Supervision Contract, Case Supervision Plan, Probation
       Plan and/or Conditional Release Contract."


       J.S.P. began serving his 24-month conditional release in July 2015. One week
before his conditional release was to expire, the State moved to revoke J.S.P.'s juvenile
sentence and to impose his adult sentence. The State argued that J.S.P. had violated his
conditional release by several acts: testing positive for marijuana in November 2015;
failing to get a substance abuse treatment evaluation within two to four weeks after his
positive test; being in a car on January 7, 2016, with marijuana, firearms, and two known
gang members; and failing to notify his probation officer that he had had "negative law
enforcement contact."


       The State moved to revoke J.S.P.'s conditional release and impose J.S.P.'s adult
sentence. The court found cause to execute the adult sentence on the EJJP. J.S.P. then
requested and received an evidentiary hearing on the matter. After that April 2016
hearing, the district court found J.S.P. had violated the conditions of his conditional
release so it revoked his juvenile sentence and imposed his adult sentence—a 237-month
prison term.


       J.S.P. appeals the revocation of his juvenile sentence and the imposition of his
adult sentence under K.S.A. 2019 Supp. 38-2364. We consolidated his three juvenile
cases for purposes of this appeal.


Were J.S.P.'s Due Process Rights Violated?


       J.S.P. first argues that his due process rights were violated because he was
incorrectly informed of the consequences of violating his conditional release.




                                                    6
       Lack of preservation


       The State responds that J.S.P. failed to preserve this issue for appeal because he
did not argue any due process violation at the trial court level. Issues not raised before the
district court generally cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971,
318 P.3d 987 (2014).


       J.S.P. replies that he raised this due process claim by making arguments at his
2016 revocation hearing about "ambiguities and inconsistencies" in his multiple
probation contracts. But that characterization of J.S.P.'s argument is broader than the
record reflects. J.S.P.'s argument to the district court was a narrow one—that the
requirement for him to report negative law enforcement contact was ambiguous if he was
not arrested.


                "Judge, yes, thank you. First of all, the probation contracts indicate that clients
       are—that [probationers] are to report negative law enforcement contact. I've always
       found that to be ambiguous if a person is not arrested, certainly they could think that
       wasn't negative. He did report a speeding ticket. He was cited for a speeding ticket and
       reported that. So if the contract said report any law enforcement contact, that would be
       one thing, but it says negative law enforcement contact. So it's reasonable to assume that
       he did not know that that contact was negative since he was not himself arrested."


The State responded that the contracts required J.S.P. to report any law enforcement
contact, and the court agreed. J.S.P.'s assertion that certain language in his contract was
ambiguous did not raise any due process claim to the district court. Constitutional
grounds for reversal asserted for the first time on appeal are not properly before the
appellate court for review. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).


       Still, J.S.P. maintains that this issue meets an exception to the general rule
requiring preservation. We recognize three exceptions to the general rule that a party

                                                      7
cannot assert a new legal theory for the first time on appeal. See State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014) (stating exceptions). J.S.P. claims that he meets two
of the exceptions that allow this court to consider this issue for the first time on appeal:


       (1) The newly asserted theory involves only a question of law arising on
       proved or admitted facts and is finally determinative of the case, and
       (2) consideration of the theory is necessary to serve the ends of justice or
       to prevent denial of fundamental rights.


       But J.S.P. simply lists these exceptions to the general rule and does nothing more
to explain how they apply here. To accept this scant reference as sufficient would
essentially render the preservation rule meaningless. See State v. Richmond, 289 Kan.
419, 429-30, 212 P.3d 165 (2009). And Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct.
R. 34) requires an appellant to explain why we should consider for the first time on
appeal an issue not raised earlier. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d
1068 (2015). J.S.P. fails to do so.


       The Kansas Supreme Court has warned litigants who skirt Rule 6.02(a)(5) "risk a
ruling that an issue improperly briefed will be deemed waived or abandoned." State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Our Supreme Court has
emphasized that we should strictly enforce Rule 6.02(a)(5) and that failure to follow it
could cause abandonment of the claim. See Godfrey, 301 Kan. at 1044; Williams, 298
Kan. at 1085. In his brief, J.S.P. fails to identify which exception he relies on, nor does he
explain how that exception applies to his new argument on appeal. As stated by one
federal appellate court, "[a] party may not 'sandbag' his case by presenting one theory to
the trial court and then arguing for another on appeal." McPhail v. Municipality of
Culebra, 598 F.2d 603, 607 (1st Cir. 1979). The district court was not given the
opportunity to address J.S.P.'s due process theory.


                                              8
       Appellate courts are not courts of first resort—our role is not to make findings but
merely review those made by the district court. See State v. Thomas, 288 Kan. 157, 161,
199 P.3d 1265 (2009). J.S.P. got the chance to present his due process argument to the
district court; his failure to do so deprived the trial judge of the opportunity to address the
issues in the context of this case. That analysis would have benefitted our review.


       J.S.P.'s due process claim asserts that because his probation contracts and
supervisors did not notify him that a violation could lead to imposition of his adult
sentence, he lacked the notice due process requires. But the record also shows that J.S.P.
was notified of that very consequence multiple times—by the district court at sentencing,
by his own attorney at sentencing, and by the prosecutor at sentencing. Nothing in the
record suggests that J.S.P. forgot those warnings. And after J.S.P. was released from
KJCF and put on conditional release, he was reminded by his permanency plan that prior
orders of the court remained in effect. Whether J.S.P.'s probation officers ever told him
that a violation could trigger his adult sentence is not in the record on appeal. J.S.P. never
asked them that question at the revocation hearing, which would have been the natural
time to pursue any claim of lack of notice. So J.S.P.'s due process claim here depends on
facts that we don't have. Under these circumstances, we would be unwise to review this
unpreserved claim.


       "The decision to review an unpreserved claim under an exception is a prudential
one. Even if an exception would support a decision to review a new claim, this court has
no obligation to do so." See State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020).
We decline to review J.S.P.'s unpreserved due process claim under any potentially
applicable exception.




                                               9
Does Sufficient Evidence Show J.S.P. Violated His Conditional Release?


       J.S.P. next argues that the revocation of his juvenile sentence was not supported by
substantial competent evidence. This issue is properly raised for the first time on appeal.


       Before imposing the adult sentence in this EJJP, the district court had to find that
J.S.P. violated the conditions of his juvenile sentence by a preponderance of the evidence.
See K.S.A. 2016 Supp. 38-2364(b). "Because this is a question of fact, this court's review
is limited to determining whether substantial competent evidence supports the district
court's finding." In re A.D.T., 306 Kan. 545, 550-51, 394 P.3d 1170 (2017). Substantial
evidence refers to legal and relevant evidence that a reasonable person could accept as
adequate to support a conclusion. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258
(2015).


               "'When sufficiency of the evidence is challenged in a criminal case, the standard
       of review is whether, after reviewing all the evidence in a light most favorable to the
       prosecution, the appellate court is convinced a rational factfinder could have found the
       defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
       resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
       omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).


See In re J.A.B., 31 Kan. App. 2d 1017, 1022, 77 P.3d 156 (2003).


       The State's motion to revoke J.S.P.'s juvenile sentence and impose his stayed adult
sentence alleged J.S.P. had violated his juvenile sentence by:


       (1)     "having negative law enforcement contact and failing to report it to
       his probation officer within the following workday;"
       (2)     "associating with people who were involved in illegal actives;"


                                                   10
       (3)      "using illegal drugs and failing to refrain from being at a location
       where illegal drugs are located;" and
       (4)      "failing to get a substance abuse evaluation within the required
       time."


Testimony at the revocation hearing


       At the hearing, the State called J.S.P.'s supervising officers Tom Truax and Kelly
Neisen, Merriam Police Officer Corey Herron, and Detective Andy Seal to testify. The
State also presented evidence showing UA results, a summary of J.S.P.'s lab results, and
J.S.P.'s Johnson County probation contract. J.S.P. did not call any witnesses on his behalf
and offered only a clinical assessment showing a recommendation for outpatient
treatment after J.S.P. failed a UA.



       Truax testified about J.S.P.'s behavior while supervising him during his
conditional release. Truax was J.S.P.'s supervising officer from July 2015 to November
2015. J.S.P. tested positive for marijuana on November 13, 2015, and the UA results
were eventually confirmed. As a result, Truax told J.S.P. that he would have to receive a
drug assessment. As a condition of J.S.P.'s supervision, J.S.P. had to notify his
supervising officer of any contact with law enforcement, and J.S.P. once reported that he
had received a speeding ticket.


       In November, Neisen took over as J.S.P.'s supervising officer. She testified about
J.S.P.'s behavior up to the date the district court revoked his juvenile sentence and
imposed his adult sentence. Neisen told J.S.P. he would need to start drug treatment
because of his failed UA on November 13. She spoke with J.S.P. on December 14, 2015,
to discuss his required treatment and assessment and J.S.P. obtained the assessment on
January 6, 2016. J.S.P. may have tried to get the evaluation a week earlier but was told by


                                               11
the clinic to return on January 6. She told J.S.P. he would also need to schedule another
UA. After that, he admitted to using marijuana once during his conditional release. J.S.P.
submitted to another urinalysis (UA) on January 4, 2016, but his results were negative for
any drug use. J.S.P. submitted to yet another UA on January 13 and tested positive for
marijuana use for a second time.


       Neisen met with J.S.P on January 7, 8, 12, and 13, 2016, but J.S.P. never reported
that he had any interaction with the police during those meetings or at any other time.
Neisen learned of it from a third person. But J.S.P. did tell Neisen that his home life was
good, he was looking for work, and he had received a drug and alcohol evaluation.


       Officer Herron testified about his interaction with J.S.P. on January 7, 2016. On
that date, Herron responded to a traffic complaint that a vehicle had been stopped for
some time in a turn lane with its turn signal on. The vehicle had apparently sat through a
few cycles of the traffic light. Herron saw that the vehicle was running but could not see
into the heavily tinted windows. Herron approached the passenger side of the vehicle and
peered through a crack in the window to see that two men were asleep in the front seat
and passenger seat and had guns in their laps. Herron also noticed a strong odor of
marijuana and so called for back-up officers and medical assistance.


       Additional officers arrived. One reached through the window and unlocked the
doors. Once the driver's door was opened, they saw J.S.P sitting in the backseat with the
driver's three-year-old son. The officers secured the handguns and woke everyone up.
They then handcuffed, searched, and placed all the men, including J.S.P., in the back of
police patrol cars.


       Herron testified that the driver of the vehicle was Oscar Patricio and the front seat
passenger was Jesus Carmona. Patricio was holding a fully loaded .45 caliber
semiautomatic, Glock handgun. Carmona was holding a loaded .380 semiautomatic,
                                             12
Ruger handgun. The vehicle contained a large amount of marijuana—around 200 grams,
empty gallon sized Ziploc baggies with marijuana residue in them, a scale, and rolling
papers, some of which were in the back seat. The police also found a gun cleaning kit and
a loaded magazine for a .40 caliber, Glock handgun, but did not find the gun itself. J.S.P.
did not have a handgun and he was not arrested as a result of the incident.


         Seal, a detective for the Kansas City Police Department and Juvenile Unit/Gang
Intelligence testified about the January 7 incident and related gang affiliation. In 2009
Patricio admitted to a police officer that he was a member of the gang "F13's." Then in
2010, Patricio was assaulted by a possible rival gang.


         The district court took the matter under advisement, then ruled in April 2016 that
J.S.P. had violated the conditions of his conditional release. It affirmed imposing his
adult sentence, finding the violations we review below.


Failing to Report Contact with Law Enforcement


         J.S.P. first argues that the use of the term "negative" in the condition requiring him
to report contact with the police was unconstitutionally vague so it inadequately warned
him of what conduct he needed to report, citing State v. Bollinger, 302 Kan. 309, 352
P.3d 1003 (2015). J.S.P. also argues that the word "negative" "opens a door to arbitrary
and unreasonable enforcement of the condition." The State, however, shows that although
its motion to revoke did allege "negative law enforcement contact," J.S.P.'s conditional
release contracts required him to report "any" contact with law enforcement. The district
court agreed. Our review of the contracts supports that conclusion, so Bollinger does not
apply.


         J.S.P also generally contends that the district court's decision to revoke his juvenile
sentence was not supported by sufficient evidence. At the revocation hearing, the State
                                               13
presented testimonial evidence that J.S.P. had contact with police officers on January 7,
2016. According to police, J.S.P. was found in a car with two men and one child. The car
contained drugs, drug paraphernalia, guns, and ammunition. The driver and passenger of
the vehicle were passed out with loaded guns in their laps. The driver was also a known
gang member by his own admission. And because of the encounter, J.S.P. was
handcuffed, searched, and placed in the back of a patrol car, although he was not arrested.


       The State also presented evidence that J.S.P. met with his supervising officer in
person on January 8—the very next day—and on January 12, and he spoke to his
supervising officer over the phone on January 13. But J.S.P. never reported the January 7
incident to her.


       This evidence was sufficient to show that J.S.P. had contact with the police and
that he failed to report it. Because his contracts required him to report "any" police
contact, this violated the terms of his conditional release, warranting imposition of his
adult sentence.


Associating with People Involved in Illegal Activities and Known Gang Members


       J.S.P. argues that associating with people who are involved in illegal activities
and/or who are known gang members could not serve as a basis for revoking his juvenile
sentence because the State failed to present evidence that he knew Patricio was a gang
member.


       True, we find no admission from J.S.P. that he knew Patricio was a gang member.
Yet J.S.P.'s knowledge that he was associating with people involved in illegal activity
was shown by the circumstances—he was a passenger in a car emitting a strong odor of
marijuana, with two acquaintances or friends who were transporting drugs and drug


                                             14
paraphernalia, who were sleeping or passed out while driving, and who were carrying
loaded weapons on their laps.


Using and Being Around Illegal Drugs


       One of J.S.P.'s conditions of release was that he refrain from using or being around
illegal drugs. At the revocation hearing, J.S.P.'s two supervising officers testified that
J.S.P. tested positive for marijuana use on November 13, 2015, and on January 15, 2016.
The district court also admitted the State's exhibit showing those positive results.
Although J.S.P. argued that the results stemmed from only one use, that theory was
disproven by J.S.P.'s negative test result on an intervening date—January 4, 2016. But
even had J.S.P. tested positive only once, that is enough to show he violated the terms of
his conditional release. As a result, substantial competent evidence supports the district
court's finding that J.S.P. used illegal drugs.


Failure to Get a Timely Substance Abuse Evaluation


       J.S.P. argues that a failure to receive a timely substance abuse evaluation cannot
serve as basis for his revocation because his supervising officers lacked the authority to
impose that punishment and getting a drug evaluation was not a stated condition of his
release.


       We find it unnecessary to decide this issue. The district court's decision to revoke
based on any one of the first three violations discussed above is enough to support its
finding that J.S.P. violated the terms of his conditional release.




                                              15
Did Imposing J.S.P.'s Adult Sentence Violate the Eighth Amendment to the United States
Constitution or § 9 of the Kansas Constitution Bill of Rights?


       J.S.P. next argues that his adult sentence is unconstitutional because the district
court was required to impose his stayed adult sentence without considering both the
characteristics of the offender and the offense. J.S.P. also argues that his sentence is
unconstitutionally excessive. In making these arguments, J.S.P. cites Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) and Miller v. Alabama, 567 U.S.
460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The State argues that J.S.P. failed to
properly preserve this issue for appeal and that he improperly briefed the issue, so the
panel should not reach the merits of his claim.


       Preservation


       J.S.P. contends that he preserved this issue by arguing at his revocation hearing
about "ambiguities and inconsistencies" in his multiple probation contracts. We rejected
that contention as to J.S.P.'s due process argument, and we reject it in this context as well.
J.S.P.'s argument that the term "negative law enforcement" in his contracts is ambiguous
does not fairly raise a claim that the imposition of his adult sentence is unconstitutional.
That claim was not raised before the district court.


       Next, J.S.P. alleges that because this argument is constitutionally based and
involves only a question of law arising on proven or admitted facts and determines the
case, it meets an exception to the general rule that a party cannot raise a new issue on
appeal. J.S.P also claims that consideration of the claim is necessary to serve the ends of
justice or to prevent the denial of fundamental rights. But, as before, J.S.P. does not
explain why he did not raise this claim earlier, or tell us how it meets the stated
exceptions.


                                             16
        To the contrary, claims of this type generally cannot be raised for the first time on
appeal. The constitutionality of a sentence under § 9 of the Kansas Constitution Bill of
Rights turns on the proportionality test set forth in State v. Freeman, 223 Kan. 362, 367,
574 P.2d 950 (1978). State v. Gomez, 290 Kan. 858, 867, 235 P.3d 1203 (2010) (finding a
defendant was not entitled to appellate review of claim raised for first time on direct
appeal that sentence was cruel and unusual under Kansas Constitution Bill of Rights).
Under this test, the court conducts a three-part analysis that includes both legal and
factual inquiries. 290 Kan. at 867. "[A] challenge under § 9 of the Kansas Constitution
Bill of Rights generally cannot be raised for the first time on appeal because of the factual
inquiries involved." State v. Dull, 302 Kan. 32, 38-39, 351 P.3d 641 (2015).


"Disproportionality challenges based on § 9 of the Kansas Constitution Bill of Rights require both
legal and factual inquiries. State v. Patterson, 311 Kan. 59, 71, 455 P.3d 792 (2020). And a
factual record is required for any meaningful appellate review. 311 Kan. at 71 ('"[A] challenge
under § 9 of the Kansas Constitution Bill of Rights generally cannot be raised for the first time on
appeal because of the factual inquiries involved."'). We have repeatedly emphasized that it is the
defendant's responsibility to ensure the district court makes the factual findings necessary for
appellate review. See, e.g., 311 Kan. at 72 (stating that this court has 'repeatedly emphasized' that
the defendant bears the responsibility of ensuring that the district court makes adequate factual
findings); State v. Cervantes-Puentes, 297 Kan. 560, 565, 303 P.3d 258 (2013) (same); State v.
Seward, 289 Kan. 715, Syl. ¶ 3, 217 P.3d 443 (2009) (same)."State v. Espinoza, 311 Kan. 435,
436-37, 462 P.3d 159 (2020).


        Good reasons underlie the requirement that a defendant ensure factual findings are
made in the district court for this kind of claim:


        "There are at least two reasons for a defendant to ensure adequate factual findings are
        made in the district court to support appellate arguments on case-specific challenges. One
        is that the court has repeatedly emphasized this is a prerequisite. See State v. Cervantes-
        Puentes, 297 Kan. 560, 565, 303 P.3d 258 (2013) (citing cases). The other is that
        addressing the issue for the first time on appeal deprives the State of the opportunity to

                                                     17
       develop a record. State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009)." State
       v. Patterson, 311 Kan. 59, 72, 455 P.3d 792 (2020).


       The same is true for J.S.P.'s claim under the Eighth Amendment to the United
States Constitution. Constitutional challenges under the Eighth Amendment are divided
into two categories: (1) challenges to length-of-term sentences considering the
circumstances of a particular case; and (2) categorical proportionality challenges when
the defendant claims that a particular punishment is disproportionate for an entire class of
offenders. Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010). J.S.P. argues that the length of his sentence, measured against his conduct and
offender characteristics, is excessive punishment or manifest injustice. He thus makes
only a case-specific claim. A case-specific challenge requires factual findings, and for the
same reasons stated above, is not properly raised for the first time on appeal. See State v.
Reed, 300 Kan. 494, 514, 332 P.3d 172 (2014) (finding defendant's state and federal
constitutional challenges failed for lack of preservation).


       We set forth J.S.P.'s argument here. J.S.P. argues that the length of his sentence,
measured against his conduct and offender characteristics, is excessive punishment or
manifest injustice. He contends his sentence of 237 months is "an excessive sanction and
is not graduated and proportioned to the offender and the offense." He relates his three
consolidated juvenile charges in December 2010 and April 2011 that led to his sentence,
then argues that before those events, he had no criminal history. Yet his "criminal history
on each case was determined to be an 'A' because each case enhanced the criminal history
category for the other." J.S.P., aged 14, pleaded to all counts and agreed to EJJP
prosecution; in exchange, the State did not try to waive him to adult status. Despite
J.S.P.'s lack of other criminal history, the court sentenced him to the maximum term
under law by ordering all counts in all cases to run consecutive to one another, resulting
in a prison term of 237 months.



                                                 18
       J.S.P. then notes that one of the conditions imposed at sentencing was that he get a
drug evaluation and follow its results. This shows, he contends, that the court believed he
could benefit from that treatment in the juvenile justice system that was meant to
rehabilitate youth, and so his characteristics as an offender may have significantly
changed during his 72 months in juvenile custody. Yet the court could not consider any
change at the revocation hearing because the law required automatic imposition of his
adult sentence. Nor did the court have the power to graduate the sanction in accordance
with the behavior that triggered it. Rather, the court was forced to impose the sentence
upon any violation, even a technical one. It could not consider the characteristics of the
offender or the offense. J.S.P. concludes that his sentence of 237 months is excessive and
is not graduated and proportioned to the offender and the offense, so it is cruel and
unusual punishment in violation of the Eighth Amendment.


       J.S.P. thus does not raise a categorical claim, which generally raises questions of
law and may be raised for the first time on appeal in some cases. Gomez, 290 Kan. at
866; see Dull, 302 Kan. at 39 (addressing categorical proportionality claim for first time
on appeal). So his appeal is unlike those in Roper, 543 U.S. at 575 (2005) (finding that
the Eighth Amendment prohibits death penalty for juveniles); and Dull, 302 Kan. at 61
(finding mandatory lifetime postrelease supervision is categorically unconstitutional
under Eighth Amendment).


       J.S.P.'s case-specific challenges to his sentence under § 9 of the Kansas
Constitution Bill of Rights and the Eighth Amendment to the United Sates Constitution
are not amenable to appellate review. We decline to review J.S.P.'s unpreserved claim of
an unconstitutional sentence under any potentially applicable exception.


       Affirmed.




                                             19
