State v. Toahty-Harvey, 298 P.3d 338

Toahty-Harvey pled no contest to aggravated indecent liberties with a child (12-year-old victim) and was found guilty based on the State’s factual proffer.
The default grid sentence for this offense is life with a 25-year mandatory minimum, but the district court departed to 60 months and imposed lifetime postrelease supervision.
The parties agreed to the 60-month departure; there was no explicit agreement on the lifetime postrelease supervision portion.
The district court later held that lifetime postrelease supervision applied after the departure, not lifetime parole with electronic monitoring.
Toahty-Harvey challenged the lifetime postrelease supervision as unconstitutional under Kansas Constitution § 9; the State challenged appellate jurisdiction to review the challenge.
The court applied Freeman’s three-factor test to evaluate the proportionality of the sentence under § 9 and affirmed the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is lifetime postrelease supervision unconstitutionally disproportionate under § 9?	Toahty-Harvey argues it shocks conscience as disproportionate given the crime and offender.	Toahty-Harvey asserts lack of proportionality due to offender’s characteristics and lack of physical harm.	Not disproportionate; factors support continued lifetime postrelease supervision.
Does appellate review of the postrelease sentence exceed jurisdiction due to the departure agreement?	State argues the plea/departure agreement bars review under K.S.A. 21-4721(c).	Toahty-Harvey contends the postrelease portion is reviewable as constitutionality of the sentence.	Jurisdiction exists; the postrelease portion is reviewable.
Under Freeman, is the sentence cruel or unusual punishment under § 9?	State contends the sentence is consistent with the offense and purposes of punishment.	Toahty-Harvey contends the length is excessive given mitigating factors.	Not cruel or unusual; Freeman factors support the sentence.

Mossman v. State, 294 Kan. 901 ((2012)) (lifetime postrelease supervision upheld; three Freeman factors applied)
State v. Freeman, 223 Kan. 362 ((1978)) (three-factor test for cruel-punishment review)
State v. Woodard, 294 Kan. 717 ((2012)) (clarifies Freeman factors and non-control of any single factor)
State v. Ortega-Cadelan, 287 Kan. 157 ((2008)) (discusses proportionality considerations in context)
State v. Cameron, 294 Kan. 884 ((2012)) (context for proportionality and postrelease supervision for same offense)
In re Mossman, 294 Kan. 901 ((2012)) (see Mossman for legislative treatment of lifetime postrelease supervision)
Ellmaker v. State, 289 Kan. 1132 ((2009)) (jurisdictional and standard-of-review framework cited)
State v. Johnson, 286 Kan. 824 ((2008)) (jurisdiction related to sentencing challenges under statute)