NOT DESIGNATED FOR PUBLICATION
No. 123,161
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KENNETH EMMANUEL HOPKINS,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed December 17, 2021.
Affirmed.
Jennifer Bates, of Kansas Appellate Defender Office, for appellant.
Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: Kenneth Hopkins entered an Alford plea for the crime of attempted
aggravated sexual battery. After mistakenly imposing 12 months' postrelease supervision,
the district court corrected its error by ordering lifetime postrelease supervision. Hopkins
challenges that order, arguing his postrelease term is disproportionate to his crime of
conviction, violating the Kansas and United States Constitutions. While we appreciate the
marked difference in these two supervision terms, our decision on this question is
constrained by the precedent of our reviewing courts. We therefore affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
According to a police affidavit, in December 2017, 14-year-old H.N. attended a
house party in Emporia, which Hopkins, then 18 years old, also attended. While there,
H.N. consumed alcohol. She later explained that she could not remember what happened
after she did so. Other attendees noted H.N. and Hopkins went into a bedroom together,
and Hopkins later returned and intimated that he had sex with H.N. Later that evening,
someone recorded Hopkins slapping H.N. across the face while she was passed out on a
couch. At some point, H.N. received a copy of that video, and her friends told her what
occurred. During a police interview, Hopkins stated he had sex with H.N., explaining that
she initiated physical contact and that he knew she was drunk but did not know her age.
He could not recall slapping H.N.
In March 2018, the State charged Hopkins with aggravated indecent liberties with
a child. Following plea negotiations, Hopkins entered an Alford plea the next month to an
amended charge of attempted aggravated sexual battery, a severity-level 7 felony. The
district court found him guilty based on the facts contained in the police affidavit. At
sentencing, the court found Hopkins had a criminal history score of D based on juvenile
convictions for theft, a nonperson misdemeanor, and conspiracy to commit aggravated
robbery, a person felony. It subsequently sentenced him to 24 months' probation, with an
underlying 24-month prison term and 12 months' postrelease supervision. The court
imposed multiple probation violation sanctions over the next several months before
revoking Hopkins' probation in December 2019.
In July 2020, the Kansas Department of Corrections informed the court that
Hopkins' conviction requires lifetime postrelease supervision. See K.S.A. 2020 Supp. 22-
3717(d)(1)(G)(i). Before the hearing on his sentencing modification, Hopkins filed a
motion arguing lifetime postrelease supervision would be disproportionate to his
conviction, violating state and federal constitutional protections. His argument relied on
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the facts in the police affidavit; he did not present or refer to any additional evidence.
After reviewing the three factors from State v. Freeman, 223 Kan. 362, 574 P.2d 950
(1978), the court denied his motion and imposed lifetime postrelease supervision. The
court explained H.N.'s age and unconsciousness made the crime particularly egregious,
and though some more serious crimes have less severe consequences, the postrelease
term was not unconstitutional.
DISCUSSION
On appeal, Hopkins argues lifetime postrelease supervision is disproportionate to
his underlying crime and violates the Eighth Amendment to the United States
Constitution and section 9 of the Kansas Constitution Bill of Rights. After reviewing the
underlying facts and comparing Hopkins' postrelease term to sentencing requirements
used in Kansas and other states, we conclude that Hopkins' lifetime postrelease
supervision term does not violate state or federal constitutional protections.
The Eighth Amendment to the United States Constitution and section 9 of the
Kansas Constitution Bill of Rights prohibit cruel or unusual punishment. See U.S. Const.
amend. VIII (prohibiting "cruel and unusual" punishment); Kan. Const. Bill of Rights, §
9 (prohibiting "cruel or unusual" punishment). Both aim to prevent punishments that are
disproportionate to the underlying crime—the Eighth Amendment guards against grossly
disproportionate punishments, while section 9 bars those that are so disproportionate that
they "shock[] the conscience and offend[] fundamental notions of human dignity." State
v. Gomez, 290 Kan. 858, Syl. ¶¶ 5, 9, 235 P.3d 1203 (2010).
Courts consider three factors—often called the Freeman factors after Freeman,
223 Kan. 362—to assess whether a punishment is disproportionate under section 9. State
v. Riffe, 308 Kan. 103, Syl. ¶ 2, 418 P.3d 1278 (2018). These include:
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"(1) The nature of the offense and the character of the offender should be examined with
particular regard to the degree of danger present to society; relevant to this inquiry are the
facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability
for the injury resulting, and the penological purposes of the prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this jurisdiction for
more serious offenses, and if among them are found more serious crimes punished less
severely than the offense in question the challenged penalty is to that extent suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the same
offense." Freeman, 223 Kan. at 367.
The Eighth Amendment entails a similar analysis, though it requires a preliminary
determination of gross disproportionality under the first factor before addressing the
others. Gomez, 290 Kan. 858, Syl. ¶¶ 5, 9. These factors require the district court to make
factual and legal determinations. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153
(2012). Although no individual factor necessarily controls, one factor may be so weighty
in a particular case that it dictates the outcome of the analysis. State v. Funk, 301 Kan.
925, 935, 349 P.3d 1230 (2015).
Appellate courts review a district court's factual findings for substantial competent
evidence and its ultimate legal conclusions de novo. Riffe, 308 Kan. 103, Syl. ¶ 4. And
because a challenge to the statute requiring lifetime postrelease supervision—K.S.A.
2020 Supp. 22-3717(d)(1)(G)(i)—is an indirect attack on the statute's constitutionality,
appellate courts must presume the statute is constitutional. Mossman, 294 Kan. at 906-07.
Hopkins entered an Alford plea for attempted aggravated sexual battery, a sexually
violent crime. K.S.A. 2020 Supp. 22-3717(d)(5)(I), (O). Individuals convicted of a
sexually violent crime that they committed when they were at least 18 years old must
serve a lifetime term of postrelease supervision after completing a prison term. K.S.A.
2020 Supp. 22-3717(d)(1)(G)(i). When under postrelease supervision, a prisoner review
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board determines if a person has violated a postrelease condition and whether release
should be revoked. K.S.A. 2020 Supp. 75-5217(b). Revocation based on the commission
of a new felony or misdemeanor requires a term of imprisonment not to exceed the
remaining postrelease period. K.S.A. 2020 Supp. 75-5217(c)-(d).
Hopkins argues the first two Freeman factors weigh in favor of disproportionality.
Under the first factor, he notes that he was a teenager, the underlying conduct occurred at
a party where teenagers were drinking, no evidence showed H.N. was injured, he has no
prior convictions for sex crimes, and lifetime postrelease supervision will pose a
significant burden to his reintegration into society. Under the second factor, he could face
the prospect of up to life imprisonment for committing a severity level 7 felony—a
situation that does not apply to many crimes with higher severity levels. And under the
third factor, he acknowledges that other states have imposed similar lifetime postrelease
periods for sex offenders.
Acknowledging that many other crimes have shorter postrelease periods, the State
concedes that this consideration weighs in Hopkins' favor under the second and third
factors. But it argues, under the first factor, that significant penological interests (such as
deterrence) support imposing lifetime postrelease supervision. And under the second
factor, crimes with shorter postrelease periods generally have greater underlying
sentences. So Hopkins can undergo postrelease supervision in the community rather than
serving a longer term in prison.
Factually, this case is similar to Funk. There, Cody Funk, then 18 or 19 years old,
was in his friends' college apartment when his friends returned with 14-year-old H.D.,
though she told them she was 16 years old. Everyone drank and huffed from an aerosol
can and encouraged H.D. to do so. At some point, someone recognized H.D. as being 14
years old, though it is unclear whether Funk knew this. H.D. performed oral sex on Funk
before everyone left and attended another party. Funk was charged with criminal sodomy,
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accepted a plea for attempted indecent solicitation of a child and placed on probation, but
challenged his lifetime postrelease supervision requirement. Funk did not present
additional evidence concerning his background; he simply relied on the facts contained in
a probable-cause affidavit.
The Kansas Supreme Court found that lifetime postrelease supervision for Funk
did not violate section 9. 301 Kan. at 942-43. The first factor did not weigh heavily in
Funk's favor as he presented no evidence about his risk of recidivism or personal history
that would undermine the deterrent justification of lifetime postrelease supervision as
applied to individuals who commit sexual offenses. 301 Kan. at 938-39. In this way, the
court distinguished Funk's case from instances where the defendant had offered
significant personal evidence. See, e.g., Mossman, 294 Kan. at 911 (discussing evidence
of psychological assessment that noted defendant's lack of criminal history, low
recidivism score, acceptance of responsibility for criminal conduct, and appropriate level
of remorse); State v. Proctor, No. 104,697, 2013 WL 6726286, at *5 (Kan. App.
2013) (unpublished opinion) (lifetime postrelease supervision unconstitutionally
disproportionate as applied based in part on defendant's showing he was sexually abused
himself and expert testimony indicating he would benefit from therapy and was not a
likely future offender), rev. denied 299 Kan. 1273 (2014). Without any evidence of this
type to consider, the court indicated it would "adhere to [its] previous observation that
'[p]ostrelease supervision is largely designed to act as a deterrent to future crime, a goal
that is particularly legitimate given sex offenders' higher rate of recidivism.'" Funk, 301
Kan. at 939 (quoting Mossman, 294 Kan. at 911).
The Funk court emphasized illegal sexual intercourse with a minor is a serious
crime, diminishing the impact of the minor's role in initiating the conduct, and cited prior
cases rejecting arguments that the minor had not been physically harmed. 301 Kan. at
939-40. The court also noted Funk encouraged H.D. to drink, leading to the illegal
conduct, and was serving probation for burglary, which should have acted as a deterrent
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for his illegal activity. 301 Kan. at 939-41. Additionally, Funk could not cite a more
serious sex crime that is punished less severely under Kansas law. 301 Kan. at 941-42.
And other states impose lifetime postrelease supervision on sex offenders. 301 Kan. at
942 (citing Mossman, 294 Kan. at 917-20). To the extent the first factor favored Funk,
the court determined it was outweighed by the other factors. Funk, 301 Kan. at 942-43.
The Court of Appeals is duty-bound to follow Kansas Supreme Court precedent
unless there is some indication that the Kansas Supreme Court is departing from its
previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). Thus,
Funk controls our analysis. As in Funk, Hopkins did not present any evidence of his
character, risk of recidivism, or personal history, so only the underlying facts contained in
the police affidavit guide this review. Those facts indicate Hopkins had sex with H.N. He
knew she was intoxicated, and the district court determined that, based on her condition
when Hopkins slapped her, H.N. was unconscious. See State v. Robinson, 306 Kan. 1012,
1023, 399 P.3d 194 (2017) (fact-finder may make reasonable inferences from the
evidence). Though Hopkins stated H.N. initiated the physical contact, as in Funk, that
does not weigh in his favor as minors are considered legally incapable of consenting to
sexual conduct. Funk, 301 Kan. at 939-40. Likewise, the lack of physical harm to H.N.
does not support Hopkins. 301 Kan. at 940. The State has a significant interest in
deterring Hopkins' actions. He has a prior conviction for conspiracy to commit
aggravated robbery, suggesting he may pose a risk of violence to society. And we cannot
consider the potential consequence of serving postrelease in prison based on committing
a new crime. 301 Kan. at 938.
We recognize that not all the evidence weighs against Hopkins' argument. Hopkins
and H.N. were both young, though H.N. was significantly younger and a minor. No
evidence showed that Hopkins encouraged H.N. to drink. Hopkins has no prior
convictions for sex crimes. And the district court initially placed him on probation—an
action another panel of our court has found is "difficult to meld with the harshest
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component of lifetime postrelease supervision"—indicating Hopkins may not pose a
threat to others. Proctor, 2013 WL 6726286, at *4. We also recognize the onerous
requirements a person must meet when he or she is subject to postrelease supervision and
are keenly aware of the myriad ways postrelease supervision alters a person's life. See
State v. Dull, 302 Kan. 32, 53-55, 351 P.3d 641 (2015) (listing the requirements of
postrelease supervision then in effect). We understand that even though he was only 18
years old when he committed his offense, "mandatory lifetime postrelease supervision is
a sentence that restricts [Hopkins'] liberty for life without any chance, hope, or legal
mechanism of having those restrictions lifted or even reduced." 302 Kan. at 55.
In the end, however, the absence of personal evidence about Hopkins' history,
psychology, and likelihood of recidivism render this case and Funk indistinguishable.
The only evidence presented regarding the first Freeman factor indicates that Hopkins
took advantage of H.N., who was 14 years old, while she was intoxicated. The State has a
significant interest in deterring such behavior, and Hopkins did not present any evidence
that would undermine this interest or excuse or mitigate his conduct. See 301 Kan. at
938-39. Though certain considerations weigh in Hopkins' favor, they do not substantially
outweigh the legislative prerogative for imposing lifetime postrelease supervision. See
State v. Ross, 295 Kan. 424, 426-28, 284 P.3d 309 (2012) (noting conduct that was
unambiguously sexual supported lifetime postrelease supervision under first Freeman
factor).
Turning to the second Freeman factor, attempted aggravated sexual battery is a
severity-level 7 felony. This is certainly less severe than other sexually violent crimes
requiring lifetime postrelease supervision. See K.S.A. 2020 Supp. 21-5503(b)(1)
(depending on subsection, rape ranges from an off-grid crime to severity-level 1 or 2
felony); K.S.A. 2020 Supp. 21-5506(c)(2) (aggravated indecent liberties with a child is a
severity-level 3 or 4 felony); K.S.A. 2020 Supp. 21-5508(c)(1) (indecent solicitation of a
child is a severity-level 6 felony); K.S.A. 2020 Supp. 22-3717(d)(5)(A), (C), (F). But the
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Kansas Supreme Court explained in Funk that though all sexually violent offenses are
subject to lifetime postrelease supervision, those offenses that are less egregious—like
Hopkins' conviction for attempted aggravated sexual battery—carry shorter prison terms.
See Funk, 301 Kan. at 941. And though nonsex crimes that carry longer prison terms may
not mandate lifetime postrelease supervision, Hopkins has not pointed to any specific
offense and punishment that renders his sentence grossly out of proportion, as demanded
by our caselaw. See 301 Kan. at 942. Thus, the second Freeman factor does not weigh in
Hopkins' favor.
Finally, the third factor favors the State. In Mossman, the Kansas Supreme Court
reviewed postrelease practices in other states to conclude that Kansas' mandatory
postrelease term does not constitute cruel and unusual punishment. See 294 Kan. at 919-
20. As other states impose similar requirements for sex crimes committed against minors,
this factor does not support Hopkins.
Weighing these factors, Hopkins' lifetime postrelease supervision is not
disproportionate under the Kansas Constitution. The facts of the case and the State's
interest in deterring future sex crimes outweighs those circumstances supporting Hopkins'
argument. Though more severe crimes impose lesser postrelease terms, Hopkins will be
able to serve his term outside of prison. And lifetime postrelease is not unique to Kansas.
Because the three Freeman factors favor the State, Hopkins' lifetime postrelease term is
not so disproportionate that it shocks the conscience.
Similarly, under the Eighth Amendment, Hopkins has not shown the facts of his
case render his postrelease term grossly disproportionate to his offense. But even if he
had made that initial showing, the other factors we have discussed render his sentence
constitutional.
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In Funk, the Kansas Supreme Court concluded that "lifetime postrelease
supervision is not so disproportionate a punishment to an 18- or 19-year-old man's
participation in a sex act with a 14-year-old girl that the punishment is shocking to the
[conscience] or offensive to fundamental notions of human dignity." 301 Kan. at 943.
Under this precedent, Hopkins' lifetime postrelease supervision does not violate section 9
of the Kansas Constitution Bill of Rights or the Eighth Amendment to the United States
Constitution.
Affirmed.
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