State v. Levy, 253 P.3d 341

Levy was convicted of rape of a child under 14, aggravated criminal sodomy of a child under 14, and aggravated indecent liberties with a child, and sentenced to three life terms under Jessica's Law, with the third term running concurrent to the first two.
On appeal Levy argues: (1) the sentence is cruel and unusual punishment under the Eighth Amendment, (2) the Confrontation Clause was violated by admitting a Safetalk video interview at the preliminary hearing when the victim did not testify, and (3) his trial counsel were ineffective.
At the preliminary hearing the victim did not testify; the Safetalk interview was admitted and later played for the court; the defense did not raise a Confrontation Clause objection then or at trial.
A KBI forensic DNA test tied Levy to semen found on the victim’s underwear; the Safetalk interview described the abuse; the victim testified at trial.
Before sentencing Levy sought a downward departure arguing the mandatory 25-year terms were excessive given his age and lack of prior offenses; the court denied the motion and imposed two consecutive life terms and one concurrent life term with 25-year minimums.
The Supreme Court held issues I and II were not preserved for appeal and declined to address issue III as an ineffective-assistance claim raised for the first time on appeal; the convictions and sentences were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Cruel and unusual punishment preservation	Levy argues the sentence is cruel/unusual under Eighth Amendment	Levy contends departure motion and sentencing statements preserved the issue	Not preserved; issue dismissed on preservation grounds
Confrontation Clause preservation	Levy contends Safetalk recording at preliminary hearing violated Confrontation Clause	Dukes controls; failure to object at trial/HD waiver; no preservation	Not preserved; issue dismissed on preservation grounds
Ineffective assistance of counsel preservation	Levy argues trial counsel ineffective for failing to challenge witnesses/exhibit	Rowland/Van Cleave require preservation and investigation before appeal; not preserved	Not preserved; issue not reviewed on direct appeal

State v. Freeman, 223 Kan. 362 (1978) (three Freeman factors for cruel and unusual punishment)
State v. Garza, 290 Kan. 1021 (2010) (preservation required for Eighth Amendment challenges)
State v. Morningstar, 289 Kan. 488 (2009) (preservation requirement for cruel and unusual punishment)
State v. Seward, 289 Kan. 715 (2009) (exceptional preservation in cruel and unusual challenge)
State v. Dukes, 290 Kan. 485 (2010) (Confrontation-Clause issue not preserved; Dukes v. State)
State v. Rowland, 289 Kan. 1076 (2009) (ineffective assistance not reviewed on direct appeal absent preservation)
State v. Van Cleave, 239 Kan. 117 (1986) (guidelines for remand on ineffective assistance claims)