State v. Riffe

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NOT DESIGNATED FOR PUBLICATION

No. 120,667

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHNATHAN L. RIFFE,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 27,
2019. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE and POWELL, JJ.

PER CURIAM: After the Kansas Supreme Court remanded Johnathan L. Riffe's
case for resentencing of his postrelease supervision term, the district court imposed,
without conducting an evidentiary hearing, a term of lifetime postrelease supervision
after determining the sentence did not violate the Eighth Amendment to the United States
Constitution or § 9 of the Bill of Rights to the Kansas Constitution. On appeal, Riffe
complains the district court violated his procedural due process rights by not allowing
him to present evidence. Finding no error by the district court, we affirm.


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FACTUAL AND PROCEDURAL BACKGROUND

In 2011, a jury convicted Riffe of aggravated sexual battery, and the district court
sentenced Riffe to 47 months' imprisonment and 24 months' postrelease supervision. A
panel of this court affirmed his conviction on appeal. State v. Riffe, No. 107,486, 2013
WL 1943061 (Kan. App. 2013) (unpublished opinion).

Subsequently, the State filed a motion to correct an illegal sentence, claiming that
under K.S.A. 2010 Supp. 22-3717(d)(1)(G) and (d)(5), Riffe's conviction required
lifetime postrelease supervision. Riffe opposed this motion, arguing lifetime postrelease
supervision would violate his rights under the Eighth Amendment and § 9 of the Kansas
Constitution Bill of Rights.

At the hearing on the State's motion, the district court did not hold an evidentiary
hearing but heard arguments from counsel. Relying on the factors provided in State v.
Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the district court ultimately imposed
10 years' postrelease supervision on the grounds that a longer period of postrelease
supervision would be excessive. In support of its holding that any postrelease supervision
period beyond 10 years would be excessive, the district court found: (1) Riffe's prior
convictions were 22 years old; (2) Riffe had married and was raising two sons from a
prior marriage; (3) Riffe was required to register as a sex offender; (4) Riffe did not have
a history of sexual crimes; and (5) Riffe had had no problems in prison or on postrelease
supervision. The State appealed the decision.

Our court vacated the district court's decision, finding the district court's factual
findings did not entirely support its legal conclusion and the second and third Freeman
factors weighed in the State's favor based on Kansas caselaw. See, generally, State v.
Riffe, No. 113,746, 2016 WL 937869 (Kan. App. 2016) (unpublished opinion), rev'd 308
Kan. 103, 418 P.3d 1278 (2018).
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The Kansas Supreme Court granted Riffe's petition for review and concluded the
district court had made insufficient factual findings regarding the first Freeman factor
and committed legal error when it failed to consider factors two and three. State v. Riffe,
308 Kan. 103, 110, 418 P.3d 1278 (2018). The Supreme Court remanded the case and
directed the district court

"to look to the record or conduct a new evidentiary hearing, at its discretion, to make new
and complete factual findings that are consistent with the guidance provided in Freeman.
We note that the Court of Appeals concluded that some of the factual findings were not
supported by substantial competent evidence and therefore [we] caution the district court
to ensure that its findings are based on the evidence presented by the parties, not the
arguments submitted by the attorneys. We further direct the district court to consider all
three factors in its analysis." 308 Kan. at 112.

At the remand hearing, the district court determined an evidentiary hearing was
not required because the record was fully complete. Riffe reiterated his arguments from
the first resentencing hearing. The district court found the relevant considerations under
the first Freeman factor were 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. It found the second and third Freeman factors weighed
against Riffe as a matter of law but refused to consider the statements of Riffe's counsel
regarding the improvements Riffe had made in his personal life. Based on the evidence in
the record, the district court found: (1) Riffe's crime of aggravated sexual battery was a
violent sexual offense; (2) the nature of the offense was a threat to society; (3) Riffe was
culpable for the victim's injury; and (4) society had a strong interest in punishing sexually
violent crimes. As a result, the district court imposed lifetime postrelease supervision
because all three Freeman factors weighed against Riffe.

Riffe timely appeals.
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DID THE DISTRICT COURT ERR WHEN IT IMPOSED LIFETIME POSTRELEASE SUPERVISION
WITHOUT HOLDING AN EVIDENTIARY HEARING?

Riffe's sole argument on appeal is that the district court violated his procedural due
process rights by not holding an evidentiary hearing on remand to determine if lifetime
postrelease supervision violated his rights under the Eighth Amendment and § 9 of the
Kansas Constitution Bill of Rights. Riffe's due process claim is a question of law over
which we exercise unlimited review. See State v. Redding, 310 Kan. 15, 21, 444 P.3d 989
(2019).

Section 9 of the Kansas Constitution Bill of Rights prohibits cruel or unusual
punishment. This prohibition includes any punishment that "although not cruel or unusual
in its method . . . is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity." Freeman, 223 Kan.
at 367. Our Supreme Court has set forth three factors to be considered when determining
whether a sentence is so disproportionate as to violate § 9:

"(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
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." 223 Kan. at 367.

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No one factor controls, "and a court must address all three factors in its analysis." Riffe,
308 Kan. at 109. Moreover,

"[w]hen considering the first Freeman factor, a court should make factual
findings regarding '[t]he nature of the offense and the character of the offender . . . with
particular regard to the degree of danger present to society.' . . . '[R]elevant to this 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.' [Citations omitted.]" 308 Kan. at 110.

Riffe argues he was deprived of due process because the district court did not hold
an evidentiary hearing to develop facts to support its weighing of the Freeman factors.
Riffe claims a hearing would have allowed him to provide the evidence regarding his
character and circumstances that the district court considered in its original resentencing
ruling. The State responds that our Supreme Court's instruction gave the district court the
discretion to make findings either based on the existing record or after a new evidentiary
hearing. The State posits that no evidentiary hearing was needed as the record was
sufficient and Riffe never asked for an evidentiary hearing.

"Procedural due process imposes constraints on governmental decisions which
deprive individuals of 'liberty' or 'property' interests." Mathews v. Eldridge, 424 U.S. 319,
332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). "The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a meaningful manner." In re
J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).

The problem with Riffe's due process argument is that even if we assume Riffe's
due process rights were implicated here, the onus was on Riffe to ensure the district court
made sufficient factual findings when he challenged his sentence for violating the Eighth
Amendment and § 9 of the Kansas Constitution Bill of Rights. See State v. Reed, 300
Kan. 494, 513, 332 P.3d 172 (2014), cert. denied 135 S. Ct. 1566 (2015). In Reed, the
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district court did not make findings regarding Reed's assertions that he was a hard
working husband and father and gainfully employed. Reed asked the Kansas Supreme
Court, without citations to the record, to make those factual findings or remand the case
to the district court to make those findings. The Kansas Supreme Court rejected Reed's
request, noting Kansas appellate courts do not "address a defendant's appellate argument
regarding cruel and/or unusual punishment when the defendant has failed to develop the
record below or, at least, cite to the record." 300 Kan. at 513. Reed's argument failed
because he did not object to the district court's factual findings or file a motion under
Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) requiring the district court to
make findings of fact. Raising or filing a motion that a sentence is unconstitutional at the
defendant's sentencing hearing is not enough. 300 Kan. at 514. Riffe's appeal contains the
same infirmities.

In essence, Riffe asks us for a third bite at the apple. For his first bite, in response
to the State's motion to correct an illegal sentence, Riffe filed a motion alleging lifetime
postrelease supervision was unconstitutional as applied to him. Riffe did not ask for an
evidentiary hearing or attempt to create a factual record. Instead, Riffe relied on his
attorney's arguments. Riffe partially won the day as the district court found lifetime
postrelease supervision would be unconstitutional but did sentence him to 10 years'
postrelease supervision.

For his second bite, following the remand by our Supreme Court, the district court
again held a hearing to determine if a sentence of lifetime postrelease supervision was
constitutional. Again, Riffe did not ask for an evidentiary hearing or seek to create a
factual record. Riffe did not object to the lack of an evidentiary hearing or to the district
court's refusal to consider his lawyer's arguments about Riffe's character from the first
resentencing hearing. Riffe never asked the district court to make written, explicit
findings of facts to support the lifetime postrelease supervision sentence. Unfortunately
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for Riffe, this time the district court ruled against him and found that imposing a term of
lifetime postrelease supervision on Riffe was constitutional.

Now, for his third bite, Riffe asks us for another remand so he can have his
evidentiary hearing, claiming the district court lacked adequate evidence in the record to
determine the constitutionality of lifetime postrelease supervision. But the purpose of a
remand is not to give the appellant another chance to argue his case. State v. Baber, 44
Kan. App. 2d 748, 752-53, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). Riffe
has never sought an evidentiary hearing until now. Under Reed, 300 Kan. at 513, he is not
entitled to one.

We acknowledge that our Supreme Court did order a remand for additional factual
findings in State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009), disapproved on
other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). But the court found
that case was exceptional as the law at issue was new. Moreover, our Supreme Court put
defendants on notice that in order to appeal a constitutional challenge to a sentencing
statute, they "must ensure the findings and conclusions by the district judge are sufficient
to support appellate argument, by filing of a motion invoking the judge's duty under Rule
165, if necessary." 289 Kan. at 721; see Supreme Court Rule 165 (2019 Kan. S. Ct. R.
221). Because a constitutional challenge under the Eighth Amendment and § 9 requires
factual components, a defendant is "responsible for making sure there were adequate
findings on the record." Reed, 300 Kan. at 514. Failure to do so results in the failure of
the defendant's constitutional challenges. 300 Kan. at 514.

Here, the Kansas Supreme Court ordered the district court to make factual findings
on the Freeman factors either from the existing record or by holding a new evidentiary
hearing. Riffe, 308 Kan. at 112. The district court determined the record was sufficient to
consider those factors as instructed by the Kansas Supreme Court, rendering an
evidentiary hearing unnecessary. Riffe did not request an evidentiary hearing or object to
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the district court's decision not to hold an evidentiary hearing. Riffe did not ask for more
detailed finding of facts, as the State did after the first resentencing hearing.

Riffe also claims he had no notice that he needed to request an evidentiary hearing
or to object to the district court's decision not to hold one because he did not know the
district court would disregard his attorney's arguments about his character and
circumstances until after the ruling. We disagree. Both a panel of our court and the
Supreme Court directed the district court to consider only facts in the record, "not the
arguments submitted by the attorneys." 308 Kan. at 112; see Riffe, 2016 WL 937869, at
*10. As the district court observed at the second resentencing hearing, it had relied on the
arguments of Riffe's attorney in the first hearing to find lifetime postrelease supervision
unconstitutional. Riffe had the responsibility to ensure adequate factual findings existed,
and he knew his attorney's arguments about his character and circumstances were not
facts. Riffe's procedural due process rights were not violated because he failed to take the
steps necessary to ensure an adequate factual record.

Finally, even if the district court had held an evidentiary hearing, it is unclear what
additional facts Riffe could have offered. The first Freeman factor instructs courts to look
at the nature of the offense and the character of the offender by considering "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." 223 Kan. at
367. The district court considered these factors and found they all weighed against Riffe.

Riffe wanted the district court to consider other factors not listed in Freeman's first
prong, including that he had gotten married and was raising two sons from a previous
marriage; he had a good work history; he was required to register as a sex offender; he
did not have any other sex crimes beyond this conviction; and he had no problems in
prison or on postrelease. Evidence supporting these arguments was in the record except
for his lack of problems in prison or on postrelease. Even considering the evidence in the
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record of Riffe's arguments, the panel held the district court's factual findings did not
support its legal conclusion. Riffe, 2016 WL 937869, at *7-8. Riffe does not allege what
facts he can prove beyond what is already contained in the record. His main purpose
appears to be to show that mitigating circumstances exist to make lifetime postrelease
unconstitutional. That is not the purpose of the first Freeman factor. See State v. Miller,
297 Kan. 516, 521, 304 P.3d 1221 (2013) ("The first Freeman factor relates more to the
danger posed to society than to sympathetic aspects of the defendant's circumstances.").

Likewise, Riffe cannot provide additional facts at an evidentiary hearing to show
the second or third Freeman factors weigh in his favor. The second and third factors are
legal conclusions which weigh against Riffe's position. See State v. Ortega-Cadelan, 287
Kan. 157, 161, 194 P.3d 1195 (2008). The second factor requires courts to compare the
punishment with punishments in Kansas for more serious offenses. Freeman, 223 Kan. at
367. Lifetime postrelease supervision for a sexually violent offense "is not grossly
disproportionate" to more serious offenses when considering "the penological purposes,
the seriousness of the crime, and the other concerns discussed in relation to the first
Freeman factor." State v. Mossman, 294 Kan. 901, 917, 281 P.3d 153 (2012). The third
factor requires courts to compare the punishment in the case with punishments in other
jurisdictions for the same offense. Freeman, 223 Kan. at 367. Kansas courts have also
held lifetime postrelease supervision is not an outlier amongst other jurisdictions. See
Mossman, 294 Kan. 901, Syl. ¶ 5; State v. Cameron, 294 Kan. 884, 894-95, 281 P.3d 143
(2012). Because the second and third factors are legal conclusions already found to weigh
against Riffe's position, an evidentiary hearing would not have helped him. Riffe's due
process rights were not violated.

Affirmed.