State v. Williams ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,571
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ELIATHAN PHILLIP WILLIAMS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed October
2, 2020. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: In this sentencing appeal, Eliathan Williams contends the court
erred when it used one of his prior convictions to both elevate his criminal history to A
and classify him as a persistent sex offender. Because the Legislature changed the law,
Williams is wrong. We hold the court did not err—we affirm. And we reject his claim
that his sentence to lifetime postrelease supervision is unconstitutional.
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In June 2017, Williams used online services to try to convince 11-year-old girls in
the United Kingdom to show him their genitals. According to the affidavit of probable
cause, he had several videos of pornography depicting young children on his cell phone.
Having agreed with the State, Williams pled guilty to attempted sexual exploitation of a
child, and the State dismissed the other charge. As the factual basis for the plea, Williams
admitted he had requested nude photos of A.H. and B.M. for the perpetration of sexual
exploitation of a child.
The presentence investigation report set Williams' criminal history score as B. The
State objected, contending it should have been A. The record shows that Williams had
three prior person felonies: one conviction for aggravated indecent liberties with a child
and two convictions for indecent liberties with a child.
The issue thus arose regarding whether one of the prior offenses could be used
both to enhance Williams' criminal history score and to classify him as a persistent sexual
offender. The district court ruled it could. Thus, the court scored Williams' criminal
history as A and found him to be a persistent sex offender.
Before sentencing, Williams challenged lifetime postrelease supervision as
unconstitutional. The court rejected his challenge and sentenced him to 68 months in
prison with lifetime postrelease supervision.
This appeal focuses on the use of Williams' prior convictions. Williams contends
that the prior conviction used to classify him as a persistent sex offender could not also be
used to calculate his criminal history score.
Williams had three prior convictions for sexually violent crimes. The district court
used the same conviction to both elevate his criminal history score to A and to classify
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him as a persistent sex offender. If only two of Williams' prior person felonies could be
counted in his criminal history, his score would be B rather than A.
Some definitions are helpful at this point. A persistent sex offender is a person
who, at the time of conviction of a sexually violent crime, already had a conviction for at
least one sexually violent crime. K.S.A. 2016 Supp. 21-6804(j)(2). The sentence of a
persistent sex offender is double the maximum presumptive prison term for the offender's
current crime of conviction. K.S.A. 2016 Supp. 21-6804(j)(1).
Examining the controlling statute sets this issue to rest. Generally, when deciding
a defendant's criminal history, all prior adult felony convictions are considered and
scored for criminal history purposes. But under K.S.A. 2016 Supp. 21-6810(d)(9), prior
convictions that "enhance the severity level, elevate the classification from misdemeanor
to felony, or are elements of the present crime of conviction" are excluded from an
offender's criminal history.
Williams' prior conviction was not used to enhance the severity level of his current
offense. It did not change his current offense from a misdemeanor to a felony, and it was
not used as an element of his current offense. Thus, under the plain language of the
statute, the prior conviction cannot be excluded from Williams' criminal history. We hold
the court correctly computed his criminal history score.
We acknowledge that the field of excluded convictions was broader in the
predecessor statute to K.S.A. 2016 Supp. 21-6810(d)(9). In fact, several older cases on
scoring the criminal history of persistent sex offenders differ from our ruling today. But
the statutory change means a change in the answer to the question presented in these
cases.
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In State v. Zabrinas, 271 Kan. 422, Syl., 24 P.3d 77 (2001), the court held it was
error to use the same prior criminal conviction to compute the offender's criminal history
score and to double the offender's sentence as a persistent sex offender. The court held
that "[u]nder K.S.A. 21-4710(d)(11), prior convictions cannot be used to calculate the
criminal history if they enhance the applicable penalties of the present conviction."
(Emphasis added.) 271 Kan. at 443. Then the court specifically approved and applied the
analysis and holding of this court's decision in State v. Taylor, 27 Kan. App. 2d 62, 998
P.2d 123 (2000). Zabrinas, 271 Kan. at 444.
In Taylor, the court relied on the plain language of K.S.A. 21-4710(d)(11), which
prohibited use of a prior conviction to determine the criminal history score if the prior
conviction enhanced the severity level or the applicable penalty of the current crime. 27
Kan. App. 2d at 64-65. The court said:
"There can be no doubt that classification as a persistent sex offender enhances the
applicable penalties—[the persistent sex offender statute] requires that the presumptive
sentence be doubled for this class of offenders. Accordingly, K.S.A. 21-4710(d)(11)
forbids additional use of the prior conviction when determining the criminal history score
of a persistent sex offender." 27 Kan. App. 2d at 65.
But in State v. Pearce, 51 Kan. App. 2d 116, 121-22, 342 P.3d 963 (2015), this
court held that the rulings in Zabrinas and Taylor had been abrogated by a statutory
change. See State v. Fowler, 311 Kan. 136, 145-46, 457 P.3d 927 (2020). The Pearce
court considered whether an offender's past burglary conviction could be used both to
apply a statute that made prison the default sentence for recidivist burglars and to
calculate the offender's criminal history score. 51 Kan. App. 2d at 116-17.
The court noted that a prior version of K.S.A. 21-6810 provided an exclusion not
only when the prior conviction "enhanced the severity level of the crime but also when it
enhanced the applicable penalties" of the present crime of conviction. Pearce, 51 Kan.
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App. 2d at 121; see K.S.A. 2006 Supp. 21-4710(d)(11). The recidivist burglar statute
enhanced the offender's applicable penalty. But the "or applicable penalties" language
was removed from the statute in 2010. See L. 2010, ch. 36, § 1. Thus, the Pearce court
held a prior burglary conviction could now be used both to classify an offender as a
recidivist burglar and for criminal history purposes. 51 Kan. App. 2d at 120-21. The same
analysis applies to classifying offenders as persistent sex offenders.
Williams argues that we should instead apply the 2006 version of the statute with
the "or applicable penalties" language included because his prior convictions were
committed in 2006. He cites no authority to support this view. We decline his invitation.
A person convicted of a crime is sentenced in accordance with the sentencing
provisions in effect at the time that crime was committed. State v. Keel, 302 Kan. 560,
Syl. ¶ 9, 357 P.3d 251 (2015). The classification of a prior offense to determine an
offender's sentence turns on the law in effect when the current crime for which the
offender is being sentenced was committed. 302 Kan. at 589-90.
Williams was sentenced for a crime he committed in June 2017—well after the
"applicable penalties" language was removed. By applying the law in effect when he
committed this crime, the sentencing court was correct.
We hold that the lifetime postrelease supervision term of the sentence is constitutional.
We must decide whether the postrelease supervision component of Williams'
sentence is constitutionally appropriate not only for Williams individually, but also
categorically. We hold that imposing this term is not disproportionate. But certain legal
principles provide a context for our ruling.
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To answer this question, we must review some fundamental points of law dealing
with proportionality of sentences. There are constitutional limits on punishment in
Kansas. Cruel or unusual punishment is prohibited by § 9 of the Kansas Constitution Bill
of Rights. A punishment may be constitutionally impermissible if "'it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.'" State v. Spear, 297 Kan. 780, 799, 304
P.3d 1246 (2013).
The Eighth Amendment to the United States Constitution also prohibits "cruel and
unusual punishments." U.S. Const. amend. VIII. Defendants may raise two types of
challenges under the Eighth Amendment:
(1) a case-specific challenge in which the defendant claims, given the
circumstances of the case, the length of his or her sentence is grossly
disproportionate to the offense; or
(2) a categorical challenge in which the defendant claims the punishment is
inherently disproportionate for a specific category of offenders, involving the
nature of the offense or the characteristics of the offender.
Graham v. Florida, 560 U.S. 48, 59-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
The test for disproportionality under the Kansas Constitution is similar to the case-
specific analysis under the Eighth Amendment to the United States Constitution. See
State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012).
To determine proportionality under the Kansas Constitution, we look to the so-
called Freeman factors:
"'(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
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inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"'(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and
"'(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense.'" State v. Mossman, 294 Kan. 901, 908, 281 P.3d 153 (2012) (quoting State
v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 [1978]).
No one factor is controlling. Ultimately one factor may weigh so heavily that it directs
the conclusion. But before that conclusion is reached, consideration should be given to
each factor. State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).
We examine the facts here.
Williams contends lifetime postrelease supervision is disproportionate when
considering the specific facts and circumstances of his case. He argues that two factors
weigh in his favor. First, this was a nonviolent crime, there was no physical contact, no
physical force or injury, no evidence of any injury by the victim, and the danger was
"minimal at best." In his view, he just "asked for nude photos of underage girls on-line."
He then suggests the serious consequences of lifetime postrelease supervision—such as
the deprivation of his right to vote, his inability to serve on a jury, and being subjected to
warrantless searches—are too severe for this crime. He also argues that more serious
crimes like second-degree murder have less harsh punishments.
Williams does not challenge the district court's reliance on the probable cause
affidavit in its findings. Thus, this court can treat the district court's findings as supported
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by substantial competent evidence because an issue not briefed is deemed waived and
abandoned. State v. Funk, 301 Kan. 925, 933, 349 P.3d 1230 (2015).
Williams focuses on the nature of his offense, arguing that he did no harm because
there was no physical contact. But he forgets that on the other side of the computer screen
were real 11-year-old girls. They could suffer real psychological harm from his actions.
He was culpable for his crime—with full knowledge that he was acting only for his own
sexual gratification. And the Legislature has designated attempted sexual exploitation of
a child as a sexually violent offense. See K.S.A. 2016 Supp. 22-3717(d)(5)(H), (M).
More importantly, Williams ignores the second half of the first Freeman factor—
the character of the offender. This man has three prior convictions for aggravated
indecent liberties with a child and indecent liberties with a child. He poses a real danger
to society because of his recidivism. Williams is the type of offender for whom
postrelease supervision is needed—one who commits a new sexually violent offense
shortly after release. Such supervision can help facilitate intervention before Williams
can complete a crime, as seen in this case. Given the penological purposes of postrelease
supervision—rehabilitation, incapacitation, and deterrence—the first Freeman factor
weighs heavily against Williams.
The second Freeman factor also weighs against Williams. Williams argues his
sentence is harsher than the punishment in Kansas for second-degree murder. But our
Supreme Court has rejected this challenge several times. In State v. Cameron, 294 Kan.
884, 892-93, 281 P.3d 143 (2012), the court held that while a defendant subject to
lifetime postrelease supervision is under a longer cumulative sentence than a defendant
sentenced for second-decree murder, a sentence of lifetime postrelease supervision for a
sexually violent offense in not grossly disproportionate when considering the penological
purposes of lifetime supervision and the seriousness of the crime. And the Mossman court
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rejected attempts to focus on what might happen if a defendant commits another felony
while on supervised release. 294 Kan. at 914-17.
We do not address the third Freeman factor as Williams did not mention it in his
argument.
Precedent directs our ruling on the categorical challenge.
Williams contends lifetime postrelease supervision is a categorically
disproportionate punishment when imposed on a conviction of attempted sexual
exploitation. He contends this court should "reevaluate the purpose and proportionality of
imposing lifetime postrelease on an attempted offense, notably in this case where the
offense is categorized as a severity level 7 offense."
He contends State v. Williams, 298 Kan. 1075, Syl. ¶ 8, 319 P.3d 528 (2014), was
wrongly decided. He compares his case to State v. Dull, 302 Kan. 32, 351 P.3d 641(2015). He argues society's need for retribution is far less when there is no physical
contact between the victim and offender. He notes that attempted sexual exploitation can
lead to probation depending on the offender's criminal history. He argues the way
criminal history is used to determine sentences in Kansas is a sufficient deterrent. He
argues lifetime postrelease supervision does not incapacitate or rehabilitate offenders.
In considering a categorical Eighth Amendment challenge, courts first consider
objective indicia of societal standards as conveyed in legislative enactments and state
practice to determine whether there is a national consensus against the sentencing rule at
issue. Second, guided by precedent and the Eighth Amendment's text, history, meaning,
and purpose, the court exercises its own independent judgment and determines whether
the punishment violates the constitution. Graham, 560 U.S. at 61. The court considers
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whether the sentencing rule at issue serves legitimate penological goals—retribution,
deterrence, incapacitation, and rehabilitation. 560 U.S. at 67, 71.
In Williams, the court held that lifetime postrelease supervision was not
categorically disproportionate for first-time offenders over age 18 who were convicted of
sexual exploitation of a child for possession of child pornography. The court cited a
Ninth Circuit Court of Appeals decision which held lifetime supervised release for receipt
of child pornography was not cruel and unusual punishment. 298 Kan. at 1088-89. That
federal circuit court stated:
"Here, 'objective indicia' suggest that society is comfortable with lifetime sentences of
supervised release for sex offenders, as such sentences are common. According to the
United States Sentencing Commission, in the last five years, federal courts have
sentenced 1875 defendants convicted of child pornography and child prostitution crimes
to lifetime supervised release. [Citation omitted.]" United States v. Williams, 636 F.3d
1229, 1233-34 (9th Cir. 2011).
We are duty bound to follow Kansas Supreme Court precedent unless there is some
indication that the Kansas Supreme Court is departing from its previous position. State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017).
Dull is distinguishable. In Dull, the court held that mandatory lifetime postrelease
supervision was categorically unconstitutional when imposed on juveniles. 302 Kan. 32,
Syl. ¶ 8. The court found the penological goals of lifetime supervision for juvenile sex
offenders were diminished because of juveniles' diminished culpability and lower risk of
recidivism. 302 Kan. at 61. The court's reasoning simply does not apply to an adult
offender on his fourth sexually violent offense.
Lifetime postrelease supervision is also not categorically disproportionate
punishment for attempted crimes. In State v. Reed, 51 Kan. App. 2d 107, Syl. ¶ 8, 341
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P.3d 616 (2015), this court held lifetime postrelease supervision was not
unconstitutionally disproportionate for attempted crimes because offenders guilty of
trying to commit a crime still have the intent required to commit it.
Lifetime postrelease supervision does serve legitimate penological goals.
Supervised release helps rehabilitate sex offenders. Further, supervised release can
incapacitate sex offenders because they are kept under the "watchful eye" of probation
officers. Cameron, 294 Kan. at 898. Rehabilitation and incapacitation are critical goals of
the criminal justice system given the propensity of sex offenders to reoffend. Mossman,
294 Kan. at 930. Lifetime postrelease supervision serves the combined penological goals
of rehabilitation, incapacitation, retribution, and deterrence. State v. Collins, No. 100,996,
2012 WL 6734500, at *8 (Kan. App. 2012) (unpublished opinion).
Williams has not shown that lifetime postrelease supervision is unconstitutional
categorically or as applied.
Affirmed.
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