The opinion of the court was delivered by
Rаymond Ruggles pleaded guilty to two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(R). Because Ruggles was over 18 years old when he committed these crimes, the district court, pursuant to K.S.A. 21-4643(a)(1)(C), imposed a life sentence with a mandatory minimum term of 25 years’ imprisonment for each count and ordered the sentences to run consecutively. On appeal, Ruggles argues that K.S.A. 21-4643(a)(l)(C) violates the proscription against cruel and unusual punishment of the Eighth Amendment to the United States Constitution because a hard 25 life sentence is disproportionate to the crime K.S.A. 21-3504(a)(3)(B) defines, i.e., soliciting a child under 14 years of age to “engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.”
Facts
On May 12, 2009, the State charged Ruggles with four off-grid crimes: one count of rape in violation of K.S.A. 21-3502(a)(2), one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1), and two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(B). According to the probable cause affidavit filed with the complaint, on May 5, 2009, Ruggles’ 11-year-old stepdaughter, J.L.S., reported to law enforcement that Ruggles had been sexually molesting her since she was 5 years old. J.L.S. described the sexual molestation as Ruggles having sexual intercourse with her, placing his penis inside her mouth, and performing oral sex on her. Additionally, J.L.S. told law enforcement that Ruggles had attempted to have her and her 13-
Pursuant to a plea agreement, Ruggles pleaded guilty to the two counts of aggravated indecent liberties with a child in exchange for the State dismissing the rape and aggravated criminal sodomy charges. At the plea hearing, the prosecutor gave the following factual basis for the guilty pleas:
“This case started out as a report to the school counselor ... on May 5th of this year-. At that time one of the stepdaughters of [Ruggles] mеt with [the counselor] and told her that she was being sexually abused by her father.
“At that time this victim knew [Ruggles] as her father. She did not know that she was a stepchild.
“She told the counselor while she’s crying that she’s not a virgin anymore, that her father had told her not to tell anyone because if she did her mother would go to jail along with him. This 13-year-old told the counselor about [Ruggles] molesting her repeatedly since she was five or six years old, sometime two to three times a week. This occurred here in Montgomery County on numerous occasions.
“We also have a report regarding another stepdaughter named [K.A.B.] who reports the same type of activity from [Ruggles]. It talks—she also talked with other counselors and gave an interview in regard to a situation where [Ruggles] asked her and her sister—the previous stepsister—to masturbate [Ruggles], and this also occurred here in Montgomery County within the statute of limitations.
“At the time Aat all these events occurred, boA of these victims were under 14 years of age. All of Aese offenses occurred after July 1, 2006, and [Ruggles] was over 18 years of age at the time Aese offenses were committed.”
The district cоurt accepted Ruggles’ guilty pleas and found him guilty of the two counts of aggravated indecent liberties with a child.
Prior to sentencing, Ruggles filed a document entitled “Notice of Defendant’s Objection to Sentencing Pursuant to K.S.A. 21-4643,” wherein Ruggles argued that based on the three factors found in State v. Freeman,
At sentencing, the district court asked defense counsel for comments or evidence in support of his written objection to sentencing. Defense counsel did not present any evidence, noting that his “pleading kind of speaks for itself’ and stating that imposing hard 25 life sentences in this case would constitute cruel and unusual punishment primarily because “under Kansas law there exists other more serious offenses that are punished less severely than these offenses under this statute. Namеly, if Mr. Ruggles had committed involuntary manslaughter or second degree murder he would receive less punishment than he would under [K.S.A. 21-4643].” Defense counsel went on to argue that the district court should impose concurrent rather than consecutive life sentences.
After hearing arguments from the State, the district court ruled that K.S.A. 21-4643 did not violate either the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights. Accordingly, the district court proceeded to impose a hard 25 life sentence for each of Ruggles’ convictions and ordered the sentences to run consecutively. Ruggles filed a timely notice of appeal.
Cruel and Unusual Punishment
On appeal, Ruggles argues that based on a categorical proportionality analysis, see Graham v. Florida,
Notably, Ruggles did not raise an Eighth Amendment categorical challenge to his sentence before the district court. This is un
“[I]n contrast to issues involving a claim of cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or a case-specific proportionality claim of cruel and unusual punishment under the Eighth Amendment to the United States Constitution, a categorical proportionality analysis under the Eighth Amendment does not require a review of the district court’s factual findings. Instead, only questions of law are implicated.” (Emphasis added.) State v. Mossman,294 Kan. 901 , 925,281 P.3d 153 (2012).
Furthermore, in State v. Gomez,
Given the nature of a categorical challenge, we conclude that Ruggles can bring such a challenge for the first time on appeal. This court applies an unlimited standard of review to Ruggles’ categorical chаllenge to his sentence. See Mossman,
Ruggles’ challenge to his life sentences necessarily questions the constitutionality of Jessica’s Law, K.S.A. 21-4643, as applied to offenders in the same category as Ruggles. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. State v. Laturner,
The Eighth Amendment, which has been extended to the states under the Fourteenth Amendment, see Robinson v. California,
Regarding the concept of proportionality, the Graham Court recognized that its prior
“cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which tire Court implements the proportionality standard by certain categorical restrictions on the death penalty.”130 S. Ct. at 2021 .
The Graham Court went on to explain the group of cases falling within the second classification, which are applicable to this case:
“The second classification of cases has used categorical rules to define Eighth Amendment standards. The previous cases in this classification involved the death penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender. With resрect to die nature of the offense, the Court has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. [Citations omitted.] In cases turning on the characteristics of the offender, the Court has adopted categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18, [citation omitted], or whose intellectual functioning is in a low range. [Citations omitted.]
“In the cases adopting categorical rules the Court has taken the following approach. The Court first considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation omitted], the Court must determine in the exercise of its own independent judgment whether tire punishmentin question violates the Constitution.”130 S. Ct. at 2022 .
In Graham, the defendant was 16 yeаrs old when he and an accomplice attempted to rob a barbeque restaurant in Jacksonville,
While on probation and 34 days before his 18th birthday, the defendant, after fleeing from police, was arrested on suspicion that he had been involved in two robberies. The district court found that the defendant had violated his probation, found him guilty of the earlier crimes, and sentenced him to life imprisonment without the pоssibility of parole for the armed burglary and 15 years’ imprisonment for the attempted armed robbery.
The Graham Court framed the issue to be decided on appeal as whether the Eighth Amendment permitted a juvenile offender to be sentenced to life imprisonment without tire possibility of parole for a nonhomicide crime. Framing tire issue in this manner led the Court to conclude that the case before it was raising a “categorical challenge to a term-of-years sentence” because it implicated a particular type of sentence (a lifе sentence without the possibility of parole) as applied to an entire class of offenders (juveniles) who had committed a range of crimes (nonhomicide crimes).
For the second prong {i.e., determination in die exercise of the Court’s own judgment, whedier the punishment in question violates the Constitution), the Court noted that that “judicial exercise of independent judgment requires consideration of the culpability of the offender at issue in light of their crimes and characteristics, along with the severity of the punishment in question.”
In looking at the culpability of the offender, the Court noted that in Roper v. Simmons,
“sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate tire harshness of the sentence. [Citation omitted.] As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence ‘means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.’ [Citation omitted.]” Graham,130 S. Ct. at 2027 .
Based on the limited culpability of juvenile nonhomicide offenders and the severity of a life sentence without the possibility of parole, the Graham Court conсluded that there was not a legitimate penological reason for imposing such a sentence upon a juvenile nonhomicide offender. Accordingly, the Court held that sentencing a juvenile nonhomicide offender to life imprisonment without the possibility of parole violated the Eighth Amendment to the United States Constitution. In explaining its holding, however, the Graham Court stated:
“A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the*684 judgment at the outset that those offenders never will be fit to reenter society.” Graham,130 S. Ct. at 2030 .
After Graham, the Supreme Court held in Miller v. Alabama, 567 U.S_,
“categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See Graham,560 U.S. at _ [,130 S. Ct. at 2022-23 ] (listing cases). So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana,554 U.S. 407 ,128 S. Ct. 2641 ,171 L. Ed. 2d 525 (2008); Atkins v. Virginia,536 U.S. 304 ,122 S. Ct. 2242 ,153 L. Ed. 2d 335 (2002). Several of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense.” (Emphasis added.) Miller,132 S. Ct. at 2463 .
This quote from Miller clearly indicates that in order for an individual to successfully raise a categorical challenge to a sentencing practice, the individual must satisfy the second prong of a categorical proportionality analysis, i.e., he or she must show that, based on the characteristics of the class of offender he or she belongs to and the nature of the offense at issue, the sentencing practice is disproportionate with the offender’s culpability. See Graham,
Ruggles argues that Graham supports his claim that imposing a hard 25 life sentence upon an 18-year-old or older offender who merely solicits a child under 14 years of age to “engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the' sexual desires of the child, the offender or
Unlike the defendant in Graham—who belonged to a category of offenders (i.e., juveniles) traditionally considered as having a lesser culpability for criminal actions and, thus, less deserving of the harshest penalties—there is nothing distinguishable about the category of offender to which Ruggles belongs (i.e., adult offenders) that would warrant special consideration. The law clearly presumes that people 18 years of age or older have reached a level of maturity that renders them fully culpable for the crimes they commit. See K.S.A. 38-101 (“The period of minority extends in all persons to the age of eighteen (18) years . . . .”).
With regard to the nature of the offense, we held in Mossman that the crime of conviction should serve as the applicable category, which in that case was (like here) aggravated indecent liberties with a child.
The sentence at issue here, a hard 25 life sentence, is a severe penalty but certainly not as severe as the death penalty or a life sentence without the possibility of parole—the only types of sentencеs that the United States Supreme Court has thus far found categorically disproportionate and, therefore, unconstitutional when imposed in certain contexts not applicable here. See Graham,
In discussing the significance of these cases in Mossman, we noted that they indicated that
*687 “the Supreme Court allows considerable latitude to a legislature’s policy decision regarding the severity of a sentence. A statement made by Justice Kennedy in his concurring opinion in Harmelin provides insight into the Court’s view of the policy judgment inherent in a proportionality decision. He noted: ‘[A] rational basis exists for Michigan to conclude the petitioner’s crime [of possessing a large quantity of cocaine] is as serious and violent as tire crime of felony murder without specific intent to kill, a crime for which “no sentence of imprisonment would be disproportionate.” [Citation omitted.]’ Harmelin,501 U.S. at 1004 (Kennedy, J., concurring). For purposes of our analysis, it is reasonable to substitute aggravated indecent liberties with a child as the crime referred to in that statement because the Supreme Court has observed that sex offenders represent a particularly serious threat in this country given that drey are more likely than any other criminals to commit violent crimes following their release from prison. McKune v. Lile,536 U.S. 24 , 32-33,122 S. Ct. 2017 ,153 L. Ed. 2d 47 (2002).” Mossman,294 Kan. at 923-24 .
We made similar observations in State v. Woodard,
“The legislative intent underlying Jessica’s Law is to protect children by removing perpеtrators of sexual crimes against children from society. [Citation omitted.] The United States Supreme Court has observed that sex offenders represent a particularly serious threat in this country and that they are more likely than any other type of offender to commit violent crimes following their release. [Citation omitted.] The State therefore has a particularly compelling interest in using incarceration as a means of protecting its youth from sexual offenders.”
The Supreme Court and other courts have expounded at length on die severity оf crimes involving the sexual abuse of children and the extent of the harm caused by those crimes. See, e.g., Kennedy v. Louisiana,
A person who is 18 years of age or older who stands convicted of soliciting a child under the age of 14 to engage in lewd fondling or touching has committed a serious offense. Along with the category of offender that Ruggles belongs to, there is nothing discernible about the nature of the offense at issue here that would make us conclude that the Eighth Amendment categorically prohibits a hard 25 life sentence from being imposed in this case. Based on controlling United States Supreme Court precedent, it cannot be said that the legislature went beyond the bounds of the Eighth Amendment when it prescribed a hard 25 life sentence for violators of K.S.A. 21-3504(a)(3)(B) who are 18 years of age or older. Such a sentence naturally serves legitimate penological goals of deterrence and incapacitation. See Graham,
Affirmed.