State v. EspinozaState v. Espinoza
SYLLABUS BY THE COURT
A defendant making an as-applied challenge to the constitutionality of a sentence under
Appeal from Wyandotte District Court; ROBERT W. FAIRCHILD, judge. Opinion filed April 24, 2020. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.
Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
STEGALL, J.: The State charged Filiberto B. Espinoza Jr. with one count of premeditated first-degree murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery for the killing of Louis Scherzer. During the trial, Espinoza pleaded guilty to first-degree felony murder—an off-grid person felony mandating a hard 25 sentence. See
Before the district court, Espinoza acknowledged his offense mandated the hard 25 sentence. See
Espinoza continued to assert his constitutional claims orally at sentencing. He argued that the three-pronged proportionality test announced in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), required the district court to assess the specific facts of his case to determine the constitutionality of his sentence under
The district court denied this request, finding Espinoza‘s hard 25 sentence constitutional:
“As both parties have acknowledged, the statute
K.S.A. 21-6620 provides that the Court should not make any suspension, modification, or reduction of the sentence. The Court is bound by that statute and I have no reason to believe that it‘s unconstitutional. So the defendant‘s motion to depart is denied.”
In making this decision, the district court did not make any factual findings concerning Espinoza‘s as-applied constitutional challenge. On appeal, Espinoza argues the district court erred when it failed to make such findings. He requests a remand to the district court to develop the necessary factual record.
Disproportionality challenges based on
This responsibility goes beyond merely raising a constitutional claim. Our decision in Seward controls the outcome here. There, as here, Seward filed a motion for a downward departure and raised the constitutional claim at sentencing. The Seward court recognized that Seward had—at least in part—preserved the issue by calling the district court‘s attention to his constitutional challenge. 289 Kan. at 718. But his efforts “stopped short of moving under
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute 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.
We have enforced this rule consistently against other defendants. In State v. Reed, 300 Kan. 494, 332 P.3d 172 (2014), the defendant argued his hard 40 sentence violated the Eighth Amendment to the United States Constitution and
“Reed ignores the fact that he neither objected to the judge‘s insufficient findings at the hearing, nor subsequently filed a motion under
Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) or otherwise asked the sentencing judge to make factual findings.. . . .
“Because of the factual components of Reed‘s arguments, Reed should have been aware that he was responsible for making sure there were adequate findings on the record. Having failed to do so, Reed‘s state and federal constitutional challenges fail, and we affirm the sentencing judge‘s imposition of concurrent life sentences without the possibility of parole for 40 years.” 300 Kan. at 514.
The outcome must be the same here. Espinoza did not object to the district court‘s failure to make factual findings at sentencing and he did not file a motion under
Affirmed.
PATRICK D. MCANANY, Senior Judge, assigned.1