– State v. Patterson –

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,180

STATE OF KANSAS,
Appellee,

v.

LONDRO EMANUEL PATTERSON III,
Appellant.

SYLLABUS BY THE COURT

1.
The felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), requires proof that
the defendant engaged in dangerous, felonious conduct and that a death occurred as a
result of that conduct. Intent to kill is not an element of felony murder.

2.
The Kansas felony-murder statute does not operate as an unconstitutional,
conclusive presumption that invades the jury's province.

3.
A trial judge's jury instruction that states, "It is my duty to instruct you in the law
that applies to this case, and it is your duty to consider and follow all of the instructions.
You must decide the case by applying these instructions to the facts as you find them," is
legally correct.

4.
It is not prosecutorial error to state to a prospective juror, "So we don't have that
luxury as a juror when it comes to jury instructions. And what that means is at the end of

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the trial you will get a packet of jury instructions and that is the law in the case. You don't
get to go back and debate that."

5.
The test for a disproportionality challenge based on § 9 of the Kansas Constitution
Bill of Rights includes both legal and factual inquiries. An argument that a sentence
violates § 9 because it is cruel or unusual cannot be raised for the first time on appeal.

6.
A hard 25 life sentence is not categorically disproportionate when applied to
young adults convicted of felony murder.

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed January 10,
2020. Affirmed.

Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause, and Carol
Longenecker Schmidt, of the same office, was on the brief for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Londro Patterson appeals from his convictions and sentence arising
from an armed robbery in which a victim was killed by an accomplice. He argues: (1) his
felony-murder conviction violates due process because a jury was not required to
determine he possessed a particular criminal mental state; (2) the district court's
instructions to the jury and a prosecutor's voir dire comments improperly prevented the
jury from exercising its nullification power; (3) his hard 25 life sentence for felony
murder is disproportionate to his crime in violation of § 9 of the Kansas Constitution Bill
2
of Rights and the Eighth Amendment to the United States Constitution; and (4) his Sixth
Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), were violated when prior convictions were used to elevate his
sentence without being proved to a jury beyond a reasonable doubt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Patterson and three accomplices—De'Anthony Wiley, Hakeem Malik, and
Nicquan Midgyett—tried to rob a Shawnee gun store, She's A Pistol, at gunpoint. Jon
Bieker and his wife, Rebecca, were the store's proprietors. Jon was killed.

The incident began when Wiley entered the store dressed as a female and feigned
interest in some merchandise. Rebecca attended to him. Wiley pulled out a phone from
his pocket and began speaking into it. Patterson, Malik, and Midgyett then entered the
store. Wiley and Patterson pointed weapons at Rebecca. Midgyett punched Rebecca and
knocked her unconscious. Jon emerged from the store's back room with a gun. The
robbers fled as shots were exchanged.

Wiley fatally shot Jon. Wiley was shot and found inside the store. Midgyett was
shot and found with Malik at a nearby house. Patterson sustained two gunshot wounds.
Police found him lying in the grass near the store. Jon fired at least one bullet that hit
Patterson. The State charged Patterson with felony murder, attempted aggravated
robbery, conspiracy to commit aggravated robbery, and aggravated battery.

During trial, Patterson's counsel admitted Patterson conspired and attempted to rob
She's A Pistol but argued he should not be liable for Jon's death because his participation
ended when he left the store. The jury convicted Patterson of felony murder, conspiracy

3
to commit robbery, attempted aggravated robbery, and a lesser form of aggravated
battery.

At a separate sentencing proceeding, the jury declined to find two aggravating
circumstances alleged by the State: Patterson was not amenable to probation and he
presented a danger to the community. The only additional evidence introduced at this
sentencing proceeding was testimony from an administrator in the office that supervised
Patterson's Missouri probation and Patterson's mother. The probation administrator
testified Patterson was on probation for a weapons violation, failed to report several
times, and traveled outside the state without permission. His mother testified Patterson
was 19 when he committed the crimes at She's A Pistol and had outgrown his clothes
while in jail awaiting trial.

The district court sentenced Patterson to life imprisonment with 25 years before
parole eligibility for the murder conviction and consecutive 47-, 34-, and 13-month
prison terms for the remaining three convictions.

Patterson timely appealed. Jurisdiction is proper. K.S.A. 2018 Supp. 22-
3601(b)(3) (Supreme Court has jurisdiction over life imprisonment cases); K.S.A. 2018
Supp. 22-3601(b)(4) (Supreme Court has jurisdiction over off-grid crimes); K.S.A. 2018
Supp. 21-5402(b) (felony murder is an off-grid crime).

THE FELONY-MURDER CONVICTION

Patterson argues for the first time on appeal that his due process rights were
violated when he was convicted of first-degree murder under the felony-murder statute.
He claims this occurs because felony murder does not require proof beyond a reasonable
doubt that the defendant "intentionally, knowingly, or recklessly" caused the victim's

4
death. See K.S.A. 2018 Supp. 21-5202(a). The essence of Patterson's claim is that Kansas
law requires an intent-to-kill element for homicide that the jury is not informed about in
the felony-murder context because, he alleges, that intent is conclusively presumed based
only on the jury's finding the defendant was participating in an inherently dangerous
felony.

Preservation

Patterson acknowledges this issue is advanced for the first time on appeal, which
raises a preservation concern. Generally, the court declines to address constitutional
issues for the first time on appeal. State v. Thach, 305 Kan. 72, 81, 378 P.3d 522 (2016).
But an appellate court may do so if the party attempting to raise the issue demonstrates at
least one of three recognized exceptions:

"'(1) [T]he newly asserted claim involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) the claim's consideration is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court's judgment may be upheld on appeal despite its reliance on the wrong
ground or reason for its decision.' State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200
(2012)." State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019).

See Thach, 305 Kan. at 81 (party asserting issue must explain why exception applies).

Patterson invokes the first exception. And the State does not object. But the State's
failure to object does not control. Deciding whether due process has been afforded is a
question of law over which a court has unlimited review. Stewart v. State, 310 Kan. 39,
43, 444 P.3d 955 (2019). In this instance, we have decided to proceed to the merits.

5
Discussion

Due process demands the State prove every element of the charged crime. State v.
Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017) (citing In re Winship, 397 U.S. 358,
361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). The United States Supreme Court has
held that when intent is an element of an offense,

"the trial court may not withdraw or prejudge the issue by instruction that the law raises a
presumption of intent from an act. . . . A conclusive presumption which testimony could
not overthrow would effectively eliminate intent as an ingredient of the offense. . . .
[T]his presumption would conflict with the overriding presumption of innocence with
which the law endows the accused and which extends to every element of the crime."
Morissette v. United States, 342 U.S. 246, 274-75, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

And the Court has held that in a prosecution for deliberate homicide requiring
proof the defendant "purposely or knowingly" caused the victim's death, it was improper
to instruct the jury that "'the law presumes that a person intends the ordinary
consequences of his voluntary acts.'" Sandstrom v. Montana, 442 U.S. 510, 512, 99 S. Ct.
2450, 61 L. Ed. 2d 39 (1979). The Court reasoned that,

"Upon finding proof of one element of the crime (causing death), and of facts insufficient
to establish the second (the voluntariness and 'ordinary consequences' of defendant's
action), [the jury] could reasonably have concluded that they were directed to find against
defendant on the element of intent. The State was thus not forced to prove 'beyond a
reasonable doubt . . . every fact necessary to constitute the crime . . . charged' and
defendant was deprived of his constitutional rights . . . . [Citation omitted.]" 442 U.S. at
523.

Patterson claims the felony-murder statute operates in this prohibited manner. In
Kansas, "[m]urder in the first degree is the killing of a human being committed: (1)

6
Intentionally, and with premeditation; or (2) in the commission of, attempt to commit, or
flight from any inherently dangerous felony." K.S.A. 2018 Supp. 21-5402(a). Our
caselaw has long recognized that,

"[i]n felony-murder cases, the elements of malice, deliberation, and premeditation which
are required for murder in the first degree are deemed to be supplied by felonious conduct
alone if a homicide results. To support a conviction of felony murder, all that is required
is to prove that a felony inherently dangerous to human life was being committed and that
the homicide which followed was a direct result of the commission of that felony." State
v. Hobbs, 248 Kan. 342, 345-46, 807 P.2d 120 (1991), overruled on other grounds by
State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011).

See also State v. Hoang, 243 Kan. 40, 41-42, 755 P.2d 7 (1988) (same).

The court has explained that "[f]elony murder . . . transfers the intent to commit an
inherently dangerous felony to an unintended death that occurs during the commission of
the underlying felony. It is felonious intent, rather than homicidal intent, that provides the
malice and intent required for a first-degree felony-murder conviction." State v. Seba, 305
Kan. 185, 196, 380 P.3d 209 (2016).

Patterson points out that under Kansas law, "[e]xcept as otherwise provided, a
culpable mental state is an essential element of every crime defined by [the criminal]
code. A culpable mental state may be established by proof that the conduct of the accused
person was committed 'intentionally,' 'knowingly' or 'recklessly.'" K.S.A. 2018 Supp. 21-
5202(a). And "[i]f the definition of a crime does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly dispenses with
any mental element." K.S.A. 2018 Supp. 21-5202(d). Patterson contends that by
"transferring the intent to commit the underlying felony to prove the intent required to
commit felony murder, Kansas formally retains a mens rea element for felony murder."
7
He adds that withholding this element from the jury amounts to a violation of his rights to
due process and to a jury trial.

Kansas law has contained a provision much like K.S.A. 2018 Supp. 21-5202 since
1970. Its predecessor, K.S.A. 21-3201 (Ensley), stated:

"Except as provided . . . a criminal intent is an essential element of every crime defined
by this code. Criminal intent may be established by proof that the conduct of the accused
person was willful or wanton. Proof of willful conduct shall be required to establish
criminal intent, unless the statute defining the crime expressly provides that the
prohibited act is criminal if done in a wonton manner."

The 1968 Judicial Council note on the statute explains,

"At common law, it was the general rule that acts are criminal only when they are
accompanied by a blameworthy state of mind—specific intent, knowledge, willfulness,
culpable negligence, general mens rea, etc. These concepts are vague and often
misunderstood. Kansas decisions establish three categories of blameworthy conduct: to
wit, willfulness, wantonness and negligence. The section seeks to codify and clarify the
Kansas law." K.S.A. 21-3201 (Ensley).

Malice aforethought against the deceased was not an element of felony murder at
common law. Seba, 305 Kan. at 195. And Kansas caselaw predating the adoption of
K.S.A. 2018 Supp. 21-5202 has consistently construed the felony-murder statute to mean
that the evidence of the underlying felony will stand in place of the malice, intent,
premeditation, and deliberation otherwise required to commit first-degree murder. See,
e.g., State v. Wesson, 247 Kan. 639, 643, 802 P.2d 574 (1990); State v. Bradford, 219
Kan. 336, 343, 548 P.2d 812 (1976); see also State v. Thomas, 302 Kan. 440, 446, 353
P.3d 1134 (2015) (Explaining in discussing the predecessor to the current first-degree

8
murder statute that "[i]n interpreting the plain language of K.S.A. 21-3401, we have long
held that the 'statute merely provides alternative methods of proving the deliberation and
premeditation required for a conviction of first-degree murder.'"). Cast in the terminology
of the first-degree murder formulation in K.S.A. 2018 Supp. 21-5402, the underlying
felony required for a conviction under subsection (a)(2) suffices to prove first-degree
murder. Proof of the intent and premeditation required under subsection (a)(1) is not
required under subsection (a)(2).

But this statutory formulation does not carry with it a presumption that offends
due process or jury trial guarantees. Both state and federal courts have rejected arguments
that the felony-murder rule presumes the existence of an intent to kill, or any other intent
necessary for the crime of murder, in violation of the Due Process Clause. State v.
Wanrow, 91 Wash. 2d 301, 311-12, 588 P.2d 1320 (1978). One court has observed that
"the courts which have addressed this issue universally held" that felony-murder statutes
are constitutional notwithstanding the "'presumption'" arising from the fact that
"'malicious and premeditated intent . . . [is] by implication of law transferred from'" an
underlying felony to the homicide. People v. Benson, 125 Misc. 2d 843, 847, 480
N.Y.S.2d 811 (N.Y. Sup. Ct. 1984). "The rationale of these decisions is that since intent
is not an element of the crime in reality there is no presumption of intent. Other courts
hold their statute constitutional because the presumption is a rule of law and not a true
presumption." 125 Misc. 2d at 848.

In Wanrow, the Washington Supreme Court reasoned that

"intent to kill is not an element of [the crime.] The intent necessary to prove the felony-
murder is the intent necessary to prove the underlying felony. That intent must be proved
by the state as a necessary element of the crime, and the question whether it was present
is presented to the jury." Wanrow, 91 Wash. 2d at 311.

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 In State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652 (1976), the North Carolina
Supreme Court concluded the felony-murder rule

"is a rule of law and not a presumption. If [the statute] is compared with murder in the
first degree based on premeditation and deliberation, it might be said that the practical
effect of [the statute] is that premeditation and deliberation are presumed when a murder
is committed in the perpetration of a felony . . . . However, [the statute] actually involves
no presumption at all. Under [the statute] premeditation and deliberation are not elements
of the crime of felony-murder. . . . The only requirement for purposes of [the statute] is
that the felony involved be one of the specified felonies or an unspecified felony within
the purview of [the statute]."

And in State v. Burkhart, 325 Mont. 27, 103 P.3d 1037 (2004), the Montana
Supreme Court distinguished the felony-murder rule's transfer of felonious intent from
the presumptions disapproved by the United States Supreme Court. The court first noted
that under the rule, the defendant's "purpose and knowledge to commit felony-murder
was presumed when he assaulted [the victim] . . . , causing [the victim's] death." 325
Mont. at 40-41. And because a felony-murder defendant's conduct creates a dangerous
circumstance, "'the intent to commit the felony supplies the intent for all the
consequences, including homicide, arising therefrom.'" 325 Mont. at 41 (quoting State v.
Nichols, 225 Mont. 438, 449, 734 P.2d 170 [1987]). The court explained,

"[E]ven if the [felony-murder] statute is viewed as creating a presumption, the
presumption at issue here is not analogous to that derided in Sandstrom. The quote from
our holding in Nichols, which the dissent uses to validate its contention the felony-murder
rule creates and retains a conclusive presumption of the defendant's murderous intent,
actually strengthens our holding here. If the felony-murder rule creates a presumption, it
does not operate to shift a burden from the state to the defendant, but rather 'substitute[s]
proof of the mental state necessary to commit a homicide with proof of the mental state

10
 required to commit the underlying felony.' Nichols, 225 Mont. at 450. The Legislature
has determined a killing committed during a felony is deliberate homicide, felony-
murder, and we are not convinced the statute, were it to be challenged facially, may be
unconstitutional simply because it creates criminal liability for deliberate homicide when
the state has not shown the accused had the intent to kill. See also State v. Reeves (1990),
234 Neb. 711, 453 N.W.2d 359 (felony murder requires only the intent to commit the
underlying felony; once that intent is proved, it is imputed to the killing, and Sandstrom
is inapplicable), vacated on other grounds, 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d
409 (1990); People v. Benson (N.Y. 1984), 125 Misc. 2d 843, 480 N.Y.S.2d 811 (intent is
not an element of the crime of felony murder, and Sandstrom not implicated);
Commonwealth v. Rawls (1984), 328 Pa. Super. 469, 477 A.2d 540 (equating of intent to
kill with intent to commit a serious felony is permissible legislative decision reflecting
the gravity of killing during a serious felony); State v. Sheffield (Tenn. 1984), 676 S.W.2d
542 (statute makes killing during a felony first degree murder and does not have the
effect of shifting burden of proof to defendant). Thus, because the felony-murder rule
does not in fact raise a presumption of the existence of an element of the crime, it does
not violate the due process clause." 325 Mont. at 42.

The Kansas felony-murder rule does not operate as an unconstitutional, conclusive
presumption that invades the jury's province. As the State points out, intent to kill is not
an element of felony murder in this state. The statute expressly requires proof the
defendant engaged in dangerous, felonious conduct and that a death occurred as a result
of that conduct.

By codifying participation in the felony as a statutory alternative for the intent and
premeditation otherwise required for a first-degree murder conviction, the statute imposes
a rule of law. It does not remove from the jury's consideration an intent element required
by a criminal statute.

11
 INSTRUCTING THE JURY TO APPLY THE LAW

Patterson argues the district court committed clear error when it instructed the jury
it had a "duty" to follow the law as set out in the instructions and that it "should find the
defendant guilty" if the State proved all elements of the charged offenses. He contends
this undermined the jury's nullification power. His argument has no merit.

Additional facts

Before trial, the district court issued preliminary instructions to the jury, which
included:

"Now that you have been chosen as jurors for this trial, you are required to
decide this case only on the evidence admitted. At the end of the case, I will instruct you
on the law that you must apply to the evidence in order to reach a verdict. For your
verdict to be fair, you must not be exposed to any information about the case, the law, or
any of the issues involved in this trial beyond that which is admitted during the trial."
(Emphasis added.)

After both parties presented their evidence, the court instructed the jury, "It is my
duty to instruct you in the law that applies to this case, and it is your duty to consider and
follow all of the instructions. You must decide the case by applying these instructions to
the facts as you find them." (Emphasis added.) The court also told the jury,

"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless you are
convinced from the evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required

12
 to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find the defendant guilty." (Emphasis added.)

Patterson did not object to either instruction.

Standard of review

"'Generally, an appellate court reviewing a jury instruction challenge must
determine whether the issue was preserved; whether the instruction was legally and
factually appropriate; and whether any error was harmless.' Preservation and reversibility
are interrelated. When a party fails to object to a jury instruction at trial, we only reverse
if the instruction is clearly erroneous, meaning, [the reviewing court] must be '"'firmly
convinced that the jury would have reached a different verdict had the instruction error
not occurred.'"' [Citations omitted.]" State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416
(2019).

Discussion

While a jury has "'the raw physical power' to nullify, or disregard, the law," there
is no "'right' to jury nullification." Boothby, 310 Kan. at 630-31. The court has "long held
that an instruction telling the jury that it may nullify is legally erroneous . . . because 'it is
the proper function and duty of a jury to accept the rules of law given to it in the
instructions by the court, apply those rules of law in determining what facts are proven
and render a verdict based thereon.'" 310 Kan. at 630. But an instruction that essentially
forbids the jury from exercising its nullification power is not legally appropriate. See
State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).

In Smith-Parker, the court instructed that the jury "'will enter a verdict of guilty'"
absent a reasonable doubt that the state had proven its claims. 301 Kan. at 150. This

13
instruction, the court held, appeared to "[direct] a verdict for the State," because "[a]
judge cannot compel a jury to convict, even if it finds all elements proved beyond a
reasonable doubt." 301 Kan. at 164. In reaching its conclusion, the court disapproved of
prior caselaw holding "must" and "should" could be used interchangeably in the
reasonable-doubt jury instruction, commenting that an instruction that the jury "must"
convict would have the same improper effect. See 301 Kan. at 164 (discussing State v.
Lovelace, 227 Kan. 348, 607 P.2d 49 [1980]).

But in Boothby, the court distinguished Smith-Parker and held there was no error
instructing the jury that its "'verdict must be founded entirely upon the evidence admitted
and the law as given in [the] instructions.'" 310 Kan. at 631. The Boothby instruction did
"not, even arguably, direct the jury to choose a certain verdict," and it was legally correct
because the principle that the jury's verdict must be founded on the admitted evidence
and law as given in the instructions "is an accurate—and bedrock—statement of law that
mirrors the juror's oath; upholds the role of judge and jury; and most importantly, protects
the accused." 310 Kan. at 631.

In Patterson's trial, the preliminary instruction and Instruction No. 1 informed the
jury it must reach its verdict by applying the law provided in the instructions. Those
instructions, which are substantively identical to those approved in Boothby, were legally
appropriate for the same reason—it is the jury's duty to follow the court's instructions.

Also missing the mark is Patterson's claim that it was error to instruct the jury it
"should" convict absent reasonable doubt, because he believes the word "should"
discouraged the jury from exercising its nullification power. He argues no statute requires
or says the jury should enter a guilty verdict if the State proves the charges beyond a
reasonable doubt. In Patterson's view, the jury must only be told that it "may" convict
upon such proof.
14
 But these contentions are undercut by Boothby, which emphasizes it is improper to
tell the jury that it may nullify. And the instruction given to Patterson's jury does not raise
the "directed verdict" concerns underlying the Smith-Parker decision. The district court
did not err in giving these jury instructions.

THE PROSECUTOR'S VOIR DIRE

Patterson makes a related claim that a prosecutor committed error during voir dire
by saying that an empaneled jury could not "debate" the law. This argument suffers from
the same misunderstandings already discussed.

Additional facts

During voir dire, a prosecutor had the following exchange with a prospective
juror:

"[The Prosecutor]: Okay. The obligation to follow the law, that is a benefit
we have in the United States is that we can sit and we can debate about the fairness
of laws. You know, you hear it on TV ad nauseum, politics and things like that, and
there is no consequences.

"True, Juror No. 62, do you feel like you can express your views about things
and contradict things during conversations and that is okay? So that was a bad
question.

....

"Like if you are at your work, and it's lunch, you can have a conversation and
you can disagree with co-workers, state your own opinion.

15
 "Prospective Juror No. 62: Yes.

"[The Prosecutor]: Okay. So we don't have that luxury as a juror when it
comes to jury instructions. And what that means is at the end of the trial you will get
a packet of jury instructions and that is the law in the case. You don't get to go back
and debate that." (Emphases added.)

Standard of review

"In considering a claim of prosecutorial error, [the court] follow[s] a two-step
analysis. [It] first determine[s] whether an error occurred. Second, if an error has been
found, [it] evaluate[s] the prejudice [the error] caused to determine whether it was
harmless. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step,
error occurs if the appellate court determines the prosecutor's actions or statements 'fall
outside the wide latitude afforded prosecutors to conduct the State's case and attempt to
obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial.' 305 Kan. at 109. A criminal defendant establishes the first prong by
establishing the prosecutor misstated the law or argued a fact or factual inferences with
no evidentiary foundation. See State v. Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018);
State v. Hilt, 307 Kan. 112, 124, 406 P.3d 905 (2017)." State v. Ballou, 310 Kan. 591,
596, 448 P.3d 479 (2019).

Discussion

Patterson contends the italicized portions of the prosecutor's comments misstated
the law. He relies on the cited arguments and authorities advanced in support of his jury
nullification issue, which we already have discounted. There was no error.

A jury's verdict must be founded "'entirely upon the evidence admitted and the law
as given in [the] instructions.'" Boothby, 310 Kan. at 631. It is not a misstatement of law

16
to "tell[] a jury to follow the law." 310 Kan. at 632. At most, that is all the prosecutor's
comment did—tell the jury to follow the law as given in the instructions.

THE HARD 25 LIFE SENTENCE

For the first time on appeal, Patterson lodges case-specific and categorical
challenges to his hard 25 life sentence under § 9 of the Kansas Constitution Bill of Rights
and the Eighth Amendment to the United States Constitution. We consider first the
obvious preservation problem.

Preservation

In State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), the court held a proportionality
challenge to a sentence's constitutionality raised for the first time on appeal was properly
limited to whether the sentence was categorically disproportionate in violation of the
Eighth Amendment. The court reasoned,

"[The Court of Appeals] identified that challenges to proportionality under the Eighth
Amendment are divided into two classifications: (1) the length of term-of-years
sentences given all the circumstances in a particular case; and (2) categorical restrictions
on the death penalty. This second classification also encompasses cases in which the
court implements the proportionality standard based on certain categorical restrictions.
See State v. Ross, 295 Kan. 424, 428, 284 P.3d 309 (2012).

"As a challenge under the first classification is case-specific, which requires
factual findings, it is precluded from being raised for the first time on appeal. See Gomez,
290 Kan. at 864-65. Likewise, a challenge under § 9 of the Kansas Constitution Bill of
Rights generally cannot be raised for the first time on appeal because of the factual
inquiries involved. 290 Kan. at 867-68 (application of State v. Freeman, 223 Kan. 362,

17
 367, 574 P.2d 950 [1978], factors in § 9 analysis involves both legal and factual
inquiries).

"The opposite is true under the second classification, a categorical proportionality
challenge under the Eighth Amendment. After identifying the nature of the offense and
the characteristics of the offender, the Graham Court applied a two-prong analysis in
considering a categorical challenge under the Eighth Amendment. This analysis considers
whether a national consensus against the sentencing practice exists and instructs the court
to use its own independent judgment taking into account precedent and the Eighth
Amendment. 560 U.S. at 61. As the factors assessed in a categorical proportionality
challenge are not case specific and generally raise questions of law, a categorical
proportionality challenge may be raised for the first time on appeal under certain
circumstances. Gomez, 290 Kan. at 866. Accordingly, the panel correctly concluded that
it could consider only Dull's Eighth Amendment categorical proportionality challenge
involving only questions of law." Dull, 302 Kan. at 38-39.

There are at least two reasons for a defendant to ensure adequate factual findings
are made in the district court to support appellate arguments on case-specific challenges.
One is that the court has repeatedly emphasized this is a prerequisite. See State v.
Cervantes-Puentes, 297 Kan. 560, 565, 303 P.3d 258 (2013) (citing cases). The other is
that addressing the issue for the first time on appeal deprives the State of the opportunity
to develop a record. State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009).

Patterson argues his case-specific challenge is appropriately before this court
because it involves only a question of law based on relevant facts established at his jury
trial and sentencing. He identifies those facts are that he did not fire the gun; had fled the
store when Wiley shot Jon; was only 19 years old; had two young children; and had
minimal criminal history.

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 But even if those facts are established, they do not tell the whole story needed to
evaluate a case-specific, § 9 challenge. And the State's response shows this by reciting
additional facts it believes relevant including the alleged circumstances of other crimes
Patterson was charged with—but apparently not yet convicted of—at the time of
sentencing.

We hold that Patterson has not shown why his case is an exception to the general
rule that case-specific challenges may not be raised for the first time on appeal. We
consider his categorical Eighth Amendment challenge next.

Standard of review

A categorical Eighth Amendment challenge is a question of law over which we
have unlimited review. Dull, 302 Kan. at 40.

Discussion

"The United States Supreme Court identifies three subcategories of categorical
proportionality challenges. The first considers the nature of the offense, such as a
prohibition on capital punishment for nonhomicide crimes against individuals. Graham
[v. Florida, 560 U.S. 48, 60-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)] (citing
Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 [1982]). The
second considers the characteristics of the offender, such as a categorical rule prohibiting
the death penalty for juveniles. Graham, 560 U.S. at 61 (citing Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]). The third, which was first recognized
in Graham, combines the two because it 'implicates a particular type of sentence as it
applies to an entire class of offenders who have committed a range of crimes.' 560 U.S. at
61." State v. Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014).

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 Patterson's claim fits within the third category. He argues a hard 25 life sentence is
unconstitutional for a class of offenders (19-year-olds) given the nature of his offense
(those convicted of felony murder for a killing committed by another). But this fails to
frame a valid categorical challenge.

For one, the class of offenders he identifies is too narrow. "As to the class of
offenders, the Supreme Court has categorized defendants by broad characteristics such as
those who committed their crimes before the age of 18 or whose intellectual functioning
is in a low range." State v. Mossman, 294 Kan. 901, 928, 281 P.3d 153 (2012) (holding
first-time offenders is valid category for Eighth Amendment analysis); see Williams, 298
Kan. at 1086-87 (holding first-time offenders over age 18 is valid category). And for
another, Patterson narrows the nature of the offense beyond the elements of the crime.
See Williams, 298 Kan. at 1087 (noting defendant's valid categorical challenge did not
narrow the crime of conviction). But see Mossman, 294 Kan. at 928 (noting Supreme
Court had discussed categories somewhat more narrow than the elements of the crime,
citing Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977] [plurality
opinion] [holding death penalty was grossly disproportionate to defendant's conviction
for rape of an adult]).

The substance of Patterson's argument focuses generically on the crime of felony
murder. So the analysis must address whether the hard 25 life sentence is categorically
disproportionate as applied to young-adult, felony-murder offenders.

"There is a two-prong test when a defendant raises a categorical proportionality
challenge to a term-of-years sentence:

'"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
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 issue. 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,' the Court must
determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution."'

"When applying these factors, community consensus is entitled to great weight
but it is not determinative. As [the court] noted in Mossman:

'"In accordance with the constitutional design, 'the task of interpreting the
Eighth Amendment remains [the Court's] responsibility.' The judicial
exercise of independent judgment requires consideration of the
culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in question. In
this inquiry the Court also considers whether the challenged sentencing
practice serves legitimate penological goals."' [Citations omitted.]"
Williams, 298 Kan. at 1087.

The first prong of the categorical analysis is whether there is a national consensus
against sentencing young-adult, felony-murder offenders to hard 25 life sentences.
Patterson identifies no authority suggesting any jurisdiction treats young adults
differently than other adults for sentencing purposes. See Graham, 560 U.S. at 63-64
(reciting nationwide data on number of nonhomicide, juvenile offenders serving life-
without-parole sentences).

Life imprisonment—with or without some form of parole—is a common
punishment for felony murder for offenders 18 years or older. It is authorized in Kansas,
40 other states, and the District of Columbia. See Ala. Code § 13A-6-2; Ariz. Rev. Stat.
Ann. § 13-1105; Ark. Code Ann. § 5-4-401; Cal. Penal Code § 190; Colo. Rev. Stat. §
18-1.3-401; Conn. Gen. Stat. § 53a-35a; Del. Code Ann. title 11, § 4209; D.C. Code §

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22-2104; Fla. Stat. § 782.04; Ga. Code Ann. § 16-5-1; Idaho Code § 18-4004; Iowa Code
Ann. § 902.1; 730 Ill. Comp. Stat. Ann. 5/5-4.5-20; La. Stat. Ann. § 14:30.1; Md. Code
Ann., Crim. Law § 2-201; Mass. Gen. Laws Ann. ch. 265, § 2; Mich. Comp. Laws §
750.316; Miss. Code. Ann. § 97-3-21; Mo. Rev. Stat. § 558.011; Mont. Code Ann. § 45-
5-102; Neb. Rev. Stat. § 28-105; Nev. Rev. Stat. § 200.030; N.H. Rev. Stat. Ann. §
630:1-a; N.J. Stat. Ann. § 2C:11-3; N.M. Stat. Ann. § 31-18-14; N.Y. Penal Law § 70.00;
N.C. Gen. Stat. § 14-17; N.D. Cent. Code § 12.1-32-01; Ohio Rev. Code Ann. § 2929.02;
Okla. Stat. tit. 21, § 701.9; Or. Rev. Stat. § 163.115; 18 Pa. Stat. § 1102; R.I. Gen. Laws
§ 11-23-2; S.C. Code Ann. § 16-3-20; S.D. Codified Laws § 22-6-1; Utah Code Ann. §
76-5-203; Vt. Stat. Ann. tit. 13, § 2303; Va. Code Ann. § 18.2-10(b); Wash. Rev. Code §
9A.32.040; W. Va. Code § 61-2-2; Wyo. Stat. Ann. § 6-2-101.

Other jurisdictions authorize lengthy term-of-years punishments, some arguably
equivalent to life sentences. Alaska Stat. § 12.55.125 (15-99 years); Ind. Code § 35-50-2-
3 (45-65 years); Me. Rev. Stat. tit. 17-A, § 1604 (30 years); Minn. Stat. § 609.19 (40
years); Tex. Penal Code Ann. § 12.32 (5-99 years); Wis. Stat. § 940.03 (15 years in
addition to maximum prison term for underlying crime).

There is no national consensus against the sentencing practice at issue.

The analysis' second prong is whether the court, in its independent judgment,
believes the sentencing practice violates the Constitution. On this prong, Patterson leans
heavily on the Graham Court's analysis, which culminated in the holding that life without
parole sentences are categorically disproportionate when juveniles commit nonhomicide
offenses. See Graham, 560 U.S. at 82. The Graham Court noted this factor requires
courts to consider the culpability of the offenders at issue in light of their crimes and
characteristics, along with the punishment's severity. 560 U.S. at 67.

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 In reaching its outcome, the Court concluded that juveniles are less culpable than
adults because they lack maturity, have an underdeveloped sense of responsibility, and
are more vulnerable to outside influence. As a result, they could not be classified among
the worst offenders. 560 U.S. at 68. The Court also determined that offenses in which
there was no killing, intent to kill, or foreseeable loss of life, were less deserving of the
more serious forms of punishment than murders. For these reasons, it concluded,
juveniles who committed such crimes had "twice diminished moral culpability" as
compared to adult murderers. 560 U.S. at 69.

And as to the punishment, the Court noted that life without parole is the second-
most severe punishment and, like the death penalty, is irrevocable because it leaves no
hope of restoration beyond the remote possibility of executive clemency. This sentence is
especially harsh for juveniles, who would potentially spend larger percentages of their
lives incarcerated than adult offenders. 560 U.S. at 69-70.

The Court concluded the punishment was not adequately justified by any of the
legitimate penological goals. The case for retribution was not as strong for juveniles as
for adults. Juveniles' lack of maturity and underdeveloped sense of responsibility and the
sentencing practice's rarity limited the practice's deterrent effect. Juveniles' capacity for
change undercut an incapacitation rationale. And the sentence's irrevocability rendered
rehabilitation inapplicable. 560 U.S. at 71-74.

But the Graham Court's rationale does not dictate the result Patterson seeks. We
already have held a hard 20 life sentence is not categorically disproportionate as applied
to a juvenile offender convicted of felony murder. State v. Brown, 300 Kan. 542, Syl. ¶ 8,
331 P.3d 781 (2014). And even if young adults have diminished moral culpability as
compared to older offenders, a young adult defendant convicted of felony murder does
not have the twice diminished moral culpability identified by the Graham Court.
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 The killing at She's A Pistol was a foreseeable consequence of Patterson's
participation in an inherently dangerous felony, despite his argument that he did not kill
or intend to kill. See State v. Gleason, 277 Kan. 624, 638, 88 P.3d 218 (2004) ("[W]here
the underlying felony is one inherently dangerous to human life, such as a burglary, the
foreseeability requirement is established as a matter of law.").

Moreover, the traditional penological justifications offer more support for the
sentence as applied to Patterson's class of offenders than in Graham. As to the sentence's
retributive purpose, the foreseeability of killing undercuts Graham's diminished-
culpability rationale. As to deterrence, there has been no showing the hard 25 life
sentence for felony murder is nearly as rare as the life-without-parole sentence for
juveniles convicted of nonhomicide offenses. And as to incapacitation, a hard 25 life
sentence is not based on the assumption the offender cannot reform, since an opportunity
for parole is built into the sentence. Likewise, the opportunity for parole means the
sentence does not "forswear[ ] altogether the rehabilitative ideal" like life without parole
does. See Graham, 560 U.S. at 74; see also Brown, 300 Kan. at 564 ("A hard 20 life
sentence does not irrevocably adjudge a juvenile offender unfit for society.").

While Patterson strains to put himself in the same position as a juvenile offender,
the nature of his offense and the punishment he challenges makes Graham the wrong
authority for him to rely on. Graham's central tenets—twice diminished culpability and
the sentence's irrevocability—are absent in Patterson's case. The hard 25 life sentence is
not categorically disproportionate as applied to young adults convicted of felony murder.

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 THE APPRENDI CHALLENGE

Patterson's Apprendi challenge requires only brief mention. This court has
"repeatedly rejected Apprendi challenges to the use of criminal history scores." State v.
Scuderi, 306 Kan. 1267, 1272, 403 P.3d 1206 (2017); see also State v. Shaylor, 306 Kan.
1049, 1050, 400 P.3d 177 (2017) (summarily dismissing claim in opinion's introductory
paragraphs). The district court did not err in this regard.

Affirmed.

MICHAEL E. WARD, District Judge, assigned.1

1
REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 118,180
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

25