State v. Hardy

1
NOT DESIGNATED FOR PUBLICATION

No. 113,942

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN M. HARDY,
Appellant.


MEMORANDUM OPINION

Appeal from Pottawatomie District Court; JEFF ELDER, judge. Opinion filed July 1, 2016.
Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, for appellee.

Before GREEN, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Sean M. Hardy pled guilty to one count of indecent liberties with a
child and one count of lewd and lascivious conduct. Under K.S.A. 2015 Supp. 22-3717,
his indecent liberties with a child conviction required a sentence of lifetime postrelease
supervision. Hardy filed a motion to challenge the sentence as unconstitutional under § 9
of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States
Constitution. The trial court denied his motion and imposed lifetime postrelease
supervision as part of his sentence. Hardy appeals, arguing the sentence is
unconstitutional as applied under the Kansas Constitution and United States Constitution
and categorically under the United States Constitution. We disagree and affirm.
2
According to law enforcement, in June or July of 2014, 26-year-old Sean Hardy
and 14-year-old M.C.G. were on a camping trip with other family and friends at the
Carnahan Recreational Area in Pottawatomie County, Kansas. One night, the two stayed
up talking after everyone had gone to sleep. Hardy gave M.C.G. some beer to drink. The
two started kissing, then got into Hardy's car. Once there, they had sexual intercourse,
which M.C.G. described as placing his penis into her vagina. According to M.C.G.,
Hardy wore a condom, and they both took off their own clothes. Some months later,
M.C.G. left her house after midnight on September 28, 2014, to meet Hardy on the
playground of the Olsburg Grade School in Pottawatomie County, Kansas. The two had
sexual intercourse again, this time outdoors on the ground. M.C.G. said Hardy penetrated
her vagina, but he did not wear a condom that time.

On October 15, 2014, law enforcement arrested Hardy and took him to the
Pottawatomie County Sherriff's Office for questioning. Hardy admitted to giving M.C.G.
alcohol on the camping trip and having sex with her on both occasions. Hardy had known
M.C.G. for a while, and knew she was only 14 years old when he had sex with her. He
also told police the two had exchanged nude pictures of each other but he had erased
them from his phone.

On October 21, 2014, the State charged Sean Hardy with two counts of aggravated
indecent liberties with a child and one count of furnishing alcoholic liquor to a minor. On
February 10, 2015, the State amended the charges to one count of indecent liberties with
a child and one count of lewd and lascivious behavior. On Feburary 19, 2015, Hardy pled
guilty to the amended charges.

Before sentencing, Hardy filed a motion challenging lifetime postrelease
supervision as unconstitutional under § 9 of the Kansas Constitution Bill of Rights and
the Eighth Amendment to the United States Constitution. He argued that he had no prior
sex offenses, that he was under the influence of alcohol when the offenses were
3
committed, and that the acts, though unlawful, were consensual. He also argued that the
possibility of lifetime imprisonment because of a new conviction while on lifetime
postrelease supervision made the sentence disproportionate to other more serious offenses
in Kansas. He further argued that lifetime postrelease supervision is disproportionate to
sentences imposed for the same crime in other jurisdictions.

At sentencing, M.C.G.'s mother spoke, telling the trial court:

"I just want you and him to understand that our group of friends is like a family, and I
have my friends here. Between us we have 13 kids we let him be around.

"And he waited until we all fell asleep and got my daughter drunk and had sex with her
within 200 yards of all of us, including our other children. He then took her to a
playground and did it again without a condom.

"She has now had to go through OB appointments and med checks and therapy as a
result, and every memory we have that included him is disgusting to me."

At the hearing, Hardy asserted that he was an alcoholic and was intoxicated when
the incident occurred, thus impairing his judgment. He also argued that lifetime
postrelease supervision is unconstitutional as applied. He specifically mentioned that
based on his age, if he returned to prison for a new conviction while on lifetime
postrelease supervision, he might be required to serve significantly more prison time than
someone convicted of murder.

After reviewing State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012), and
State v. Reed, 51 Kan. App. 2d 107, 341 P.3d 616 (2015), the trial court noted that our
Supreme Court considered crimes against minors to be "particularly heinous," even if
they were consensual. In drawing guidance from the Mossman holding, the trial court
observed that the Mossman court indicated that such crimes "present a special problem
4
and danger to society, and their actions produce particularly devastating consequences,
which include both physical and psychological harm to the minor." The trial court also
stated that the Mossman court recognized that the Kansas Legislature treated these crimes
as violent felonies, which was consistent with other jurisdictions. Furthermore, the
Mossman court determined that lifetime post-release supervision served several valid
penological goals. The trial court also referenced the Reed decision, where this court held
that lifetime postrelease supervision was not unconstitutional for a defendant convicted of
attempted indecent liberties with a child. The trial court determined that the analysis in
Mossman applied in Hardy's case. Moreover, Hardy's case involved more than an
attempt, as in Reed. The trial court ultimately concluded lifetime postrelease supervision
was not unconstitutional in Hardy's case.

Did Hardy's Sentence of Lifetime Postrelease Supervision Violate § 9 of the Kansas
Constitution Bill of Rights and the Eighth Amendment to the United States Constitution?

Insufficient Record for Appellate Review of Case-Specific Challenge

Case-specific challenges to the constitutionality of a sentence under § 9 of the
Kansas Constitution Bill of Rights and the Eighth Amendment require the trial court to
make both factual findings and legal conclusions. State v. Mossman, 294 Kan. 901, 906,
281 P.3d 153 (2012); State v. Gomez, 290 Kan. 858, 865-67, 235 P.3d 1203 (2010).
Under Kansas Supreme Court Rule 165 (2015 Kan. Ct. R. Annot. 257), trial court judges
have the primary responsibility for creating a record of these findings and conclusions for
appellate review. State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009), disapproved
on other grounds State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). A litigant who
wishes to appeal a trial court judge's ruling, however, also has a duty to ensure any
findings and conclusions by a trial court judge are sufficient to enable appellate review,
even if this means filing a motion to invoke the judge's duty under Rule 165. Seward, 289
Kan. at 721. Appellate courts have declined to review constitutional challenges to
5
sentencing statutes when the appellant has failed to take the steps necessary to ensure a
sufficient record for review. See, e.g., State v. Reed, 50 Kan. App. 2d 1133, 1139, 336
P.3d 912 (2014); State v. Beck, No. 109,657, 2014 WL 2871322 (Kan. App. 2014)
(unpublished opinion).

In this case, the trial court made virtually no findings of fact in reaching its
conclusion that lifetime postrelease supervision was constitutional in Hardy's case. The
trial court briefly stated that sex crimes with minor victims are heinous, violent, and
cause physical and psychological damage. The trial court, however, did not address any
of the specific facts of the incident. The closest the trial court came to any case-specific
findings was when it referenced M.C.G.'s mother's statements at the sentencing hearing,
noting "even if [this crime] would be considered consensual, which based upon the
victim's mother it does not appear to me that it would be . . ." The trial court did not
address any of the possibly mitigating facts Hardy raised in his motion or at the hearing.
The court did not specifically address the three State v. Freeman, 223 Kan. 362, 367, 574
P.2d 950 (1978), factors as part of its § 9 constitutionality analysis. Moreover, the record
does not indicate that Hardy made any attempt to create a more sufficient record for
appellate review. Because the trial court's factual and legal findings are so scant and
because Hardy did not take action to provide an adequate record for appellate review, we
determine that our appellate review is precluded concerning Hardy's § 9 challenge.

We turn now to Hardy's challenge to his sentence of lifetime postrelease
supervision under the Eighth Amendment to the United States Constitution. The Eighth
Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, prohibits imposing cruel and unusual punishment. The United
States Supreme Court has held the Eighth Amendment does not require strict
proportionality between a crime and a sentence, but it does forbid a sentence that is
grossly disproportionate to a crime. State v. Woodard, 294 Kan. 717, 719-21, 280 P.3d
203 (2012) (citing Ewing v. California, 538 U.S. 11, 20-21, 123 S. Ct. 1179, 155 L. Ed.
6
2d 108 [2003]). There are two types of proportionality claims under the Eighth
Amendment. The first type is case-specific and challenges the sentence as
disproportionate "'given all the circumstances in a particular case.'" United States v.
Williams, 636 F.3d 1229, 1233 (9th Cir. 2010) (quoting Graham v. Florida, 560 U.S. 48,
59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 [2010]). The second type is categorical and must
show that an entire class of sentences is unconstitutionally disproportionate given the
severity of the sentence, the gravity of the crime, and the type of offender. See 636 F.3d
at 1233.

Case-specific Challenge

In analyzing a case-specific Eighth Amendment challenge, courts will first
compare the gravity of the offense with the severity of the sentence. State v. Ross, 295
Kan. 424, 428-29, 284 P.3d 309 (2012). In determining whether a proportionality
challenge passes this threshold determination of gross disproportionality, courts may
consider the defendant's mental state and motive in committing the crime, the actual harm
caused to the victim or to society by the defendant's conduct, the defendant's prior
criminal history, and the defendant's propensity for violence. 295 Kan. at 429.

Hardy relies on his argument regarding the Freeman factors as his case-specific
challenge under the Eighth Amendment. See Ross, 294 Kan. at 429 (noting analysis
under Freeman factors applies to threshold determination of Eighth Amendment
analysis). As noted earlier, however, the trial court made almost no factual findings, other
than perhaps that Hardy's crime was "heinous," "violent," and caused physical and
psychological harm to victims. Based on these limited factual findings, Hardy does not
pass the threshold determination of gross disproportionality, and his case-specific
challenge fails.

7
Categorical Challenge

Hardy did not raise a categorical challenge under the Eighth Amendment before
the trial court. Our Supreme Court has held, however, that categorical proportionality
challenges under the Eighth Amendment can be raised for the first time on appeal. State
v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013).

Hardy begins his categorical challenge by arguing "[t]he Eighth Amendment and
Sec. 9 of the Kansas Bill of Rights categorically prohibits imposition of lifetime
postrelease for indecent solicitation of a child." (Emphasis added.) He proceeds to make
an argument based on inclusion in a class defined by "a sex offense, not involving
pornography, where the offender and the victim do not engage in physical contact, much
less a physical sexual act." (Emphasis added.) Hardy did not plead to indecent
solicitation of a child, though—his conviction was for indecent liberties with a child. The
elements of his crime of conviction were as follows:

"engaging in any of the following acts with a child who is 14 or more years of age but
less than 16 years of age: . . . [a]ny lewd fondling or touching of the person of either the
child or the offender, done or submitted to with the intent to arouse or to satisfy the
sexual desires of either the child or the offender, or both." K.S.A. 2015 Supp. 21-
5506(a)(1).

The arguments Hardy makes are inapplicable to his actual crime of conviction because
indecent liberties with a child involves physical sexual contact.

Hardy does, at one point, note "the facts of his crime . . . involve[] only the lewd
fondling or touching of a child between the ages of 14 and 16." His argument based on
this statement, however, is limited to one paragraph. Because Hardy did not provide an
argument based on a class of offenders to which he actually belongs, this issue is not
adequately briefed, and we deem it waived and abandoned. See Boleyn, 297 Kan. at 633.
8
State v. Proctor

Finally, Hardy argues that under the holding in State v. Proctor, 47 Kan. App. 2d
889, 280 P.3d 839 (2012) (Proctor I), lifetime postrelease supervision in Hardy's case
should be found unconstitutional under both the Kansas Constitution and the United
States Constitution. In Proctor I, Proctor, a 19-year-old victim of sexual abuse, pled
guilty to aggravated indecent solicitation of a child, and the trial court sentenced him to
probation. The Proctor I court found lifetime postrelease supervision was
unconstitutional as applied to the defendant under the Kansas Constitution and the United
State Constitution. State v. Proctor, No. 104,697, 2013 WL 6726286, at *1 (Kan. App.
2013) (unpublished opinion) (Proctor II). Our Supreme Court summarily reversed
Proctor I and remanded it for reconsideration in light of the Supreme Court's recent
decisions in Mossman and Cameron. 2013 WL 6726286, at *1. This court issued a new
opinion reaching the same result, incorporating its reasoning from Proctor I. 2013 WL
6726286, at *1. In Proctor I and II, this court reasoned "the punishment exacted [i.e.,
lifetime imprisonment] if Proctor were placed on lifetime postrelease supervision and
then revoked for a nonperson felony conviction would be grossly disproportionate to the
triggering offense and to the whole of his criminal history." Proctor I, 47 Kan. App. 2d at
930; Proctor II, 2013 WL 6726286, at *4-7.

Hardy argues that much like Proctor, he faces life in prison not for his current
crime of conviction, but some future crime he may commit, even if that future offense is
not sexually violent. Neither Proctor I nor II are dispositive in Hardy's case, though. As
the State points out, the ruling in Proctor II was limited to "the facts of [that] case at the
time of Proctor's sentencing and decides only the constitutionality of lifetime postrelease
supervision as to Proctor alone." Proctor II, 2013 WL 6726286, at *1. Additionally, at
the time the court decided Proctor I and II, lifetime imprisonment upon the conviction of
a new felony was mandatory. K.S.A. 2009 Supp. 75-5217(c). Now, if someone commits a
new felony while on lifetime postrelease supervision, the prisoner review board has
9
discretion to decide how much time the offender will serve in prison. K.S.A. 2015 Supp.
75-5217. Last, our Supreme Court has already rejected attempts to rely on this argument
from Proctor I and II, noting "we have already disavowed considering what might
happen if a defendant happens to commit a subsequent felony." Funk, 301 Kan. at 938.
Because all of Hardy's constitutional challenges fail, and neither Proctor I nor Proctor II
provide a basis for relief, we determine that Hardy's sentence was not cruel or unusual.

Affirmed.