NOT DESIGNATED FOR PUBLICATION
No. 123,403
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NANNI F. CASTELLI,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed May 27, 2022.
Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Nanni F. Castelli appeals the district court's imposition of lifetime
postrelease supervision, arguing the punishment is cruel and unusual and thus
unconstitutional as applied to him. Finding no error, we affirm.
Factual and Procedural Background
The State charged Castelli with two counts of aggravated criminal sodomy of a
child under 14 and one count of aggravated intimidation of a witness or victim in 2018,
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based on statements from his 8-year-old relative, for crimes committed over a one-year
period beginning in August 2012. Castelli pleaded no contest to three amended charges—
one count of aggravated indecent solicitation of a child and two counts of lewd and
lascivious behavior. The district court sentenced Castelli to 40 months in prison and 24
months of postrelease supervision.
The State later moved to correct an illegal sentence, arguing aggravated indecent
solicitation of a child constituted a "sexually violent" crime, so K.S.A. 2012 Supp. 22-
3717(d)(l)(G) required a mandatory term of lifetime postrelease supervision. In response,
Castelli challenged the constitutionality of imposing lifetime postrelease supervision
under the facts of his case. The district court held a hearing. Although the judge had no
transcript of Castelli's sentencing hearing, she had reviewed the record and had presided
over Castelli's presentencing proceedings. As Castelli had requested, the district court
applied the factors outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978),
to the facts. After considering Castelli's argument, the district court determined lifetime
postrelease supervision did not violate any constitutional prohibition against cruel and
unusual punishment and thus denied Castelli's motion. The district court then granted the
State's motion to correct Castelli's illegal sentence and ordered Castelli's sentence
amended to include lifetime postrelease supervision.
Castelli timely appeals.
Is Lifetime Postrelease Supervision Unconstitutional as Applied?
Castelli acknowledges our Supreme Court's holding in State v. Cameron, 294 Kan.
884, 895-98, 281 P.3d 143 (2012), finding mandatory lifetime postrelease supervision for
aggravated indecent solicitation of a child convictions is not facially unconstitutional. See
also State v. Mossman, 294 Kan. 901, 921, 281 P.3d 153 (2012) (rejecting same
categorical challenge for aggravated indecent liberties with a child). But he raises an as-
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applied challenge to the constitutionality of the mandatory penalty, maintaining its
imposition to him constitutes cruel and unusual punishment under our state and federal
Constitutions.
Alternatively, Castelli asks us to "reconsider" Cameron's holding. But we are
"duty bound to follow Kansas Supreme Court precedent absent some indication that the
court is departing from its previous position." State v. Meyer, 51 Kan. App. 2d 1066,
1072, 360 P.3d 467 (2015). Because we find no indication that the court is departing from
its position, we summarily deny Castelli's request to reconsider Cameron. See Meyer, 51
Kan. App. 2d at 1072; see also McCullough v. Wilson, 308 Kan. 1025, 1032, 426 P.3d
494 (2018) ("'[O]nce a point of law has been established by a court, that point of law will
generally be followed by the same court and all courts of lower rank in subsequent cases
where the same legal issue is raised.'"); State v. Creed, No. 122,609, 2021 WL 219248, at
*1 (Kan. App.) (applying these principles in rejecting similar categorical claim for
aggravated indecent solicitation of a child conviction), rev. denied 314 Kan. 856 (2021).
Preservation
Generally, a defendant must raise a specific constitutional challenge to the statute
before the district court to preserve the issue for appeal. State v. Robinson, 306 Kan.
1012, 1025, 399 P.3d 194 (2017).
Castelli correctly states that he preserved an as-applied constitutional challenge to
the district court's imposition of lifetime postrelease supervision. But Castelli asks this
court to make factual findings based on an argument he did not raise in the district court.
There, Castelli focused his argument on his lack of a significant criminal history. He
emphasized that he had never committed violent or sexual offenses and that his
solicitation conviction was a "mid-box felony." But on appeal, Castelli also alleges he
had a drinking problem when he committed his crimes. He thus suggests that he was
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somehow less culpable or less likely to recommit his crimes because at that time, he
regularly consumed alcohol to the point of blacking out or forgetting entire days.
We will not make the type of factual finding Castelli's argument requires on
appeal. And as this court explained in State v. Taylor, No. 118,859, 2019 WL 3242200, at
*2-3 (Kan. App. 2019) (unpublished opinion), it is a defendant's responsibility to ensure
the district court makes adequate factual findings to allow appellate review of this as-
applied constitutional claim:
"Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) requires the district court to
make adequate findings of fact and conclusions of law on matters submitted to it without
a jury. In Seward, our Supreme Court held that the responsibility for a lack of adequate
findings and conclusions regarding the Freeman factors is shared between the district
judge, the defendant, and the defense counsel. Seward, 289 Kan. at 720.While the claim
that lifetime postrelease supervision constituted cruel or unusual punishment was
relatively new at the time of Seward, the court stated:
"'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.
"Appellate courts have followed the warning in Seward and declined to review
constitutional challenges to sentencing statutes when the litigant failed to ensure the
district court made adequate findings and conclusions on the Freeman factors to ensure a
sufficient record for review. See, e.g., State v. Reed, 300 Kan. 494, 513, 332 P.3d 172
(2014) ('[T]his court has consistently declined to address a defendant's appellate
argument regarding cruel and/or unusual punishment when the defendant has failed to
develop the record below.'); State v. Reed, 50 Kan. App. 2d 1133, 1138-39, 336 P.3d 912
(2014) (defendant's failure to ensure district court made adequate findings and
conclusions on Freeman challenge foreclosed this court's review); State v. Beck, No.
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109,657, 2014 WL 2871322, at *2-3 (Kan. App. 2014) (unpublished opinion) (where 'the
district court made no factual findings in relation to Beck's specific case,' appellate court
held 'it is impossible for this court to review Beck's case-specific challenges to the
constitutionality of lifetime postrelease supervision, and these claims on appeal must be
dismissed')."
Applying these principles, we dismiss Castelli's unpreserved factual claim about his
alcohol consumption, while reaching the merits of his preserved claims. See 2019 WL
3242200, at *3.
We also note that Castelli does not claim that K.S.A. 2012 Supp. 22-3717 is vague
or contradictory, so we consider that issue waived or abandoned. See State v. Davis, 313
Kan. 244, 248, 485 P.3d 174 (2021) (an issue not briefed is considered waived or
abandoned).
Standard of Review and Basic Legal Principles
We apply a bifurcated standard of review to the district court's ruling. We review
the district court's factual findings for substantial competent evidence and its legal
conclusions de novo. State v. Funk, 301 Kan. 925, 933, 349 P.3d 1230 (2015); State v.
Ross, 295 Kan. 424, 425-26, 284 P.3d 309 (2012).
The constitutionality of a sentencing statute is a question of law subject to
unlimited appellate review. State v. Mattox, 305 Kan. 1015, 1019, 390 P.3d 514 (2017).
We presume statutes are constitutional and resolve all doubts in favor of a statute's
validity. We must interpret a statute in a way that makes it constitutional if any
reasonable construction would maintain the Legislature's apparent intent. State v.
Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018); but see Hilburn v. Enerpipe Ltd., 309
Kan. 1127, 1132-33, 442 P.3d 509 (2019) (presumption of constitutionality does not
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apply to a statute dealing with "'fundamental interests'" protected by the Kansas
Constitution).
Applicable Test
We review Castelli's claim under section 9 of the Kansas Constitution Bill of
Rights by considering the three factors set out in Freeman, which include:
(1) consideration of the nature of the offense and the character of the offender, examined
with particular regard to the degree of danger presented to society; (2) a comparison of
the punishment with punishments imposed in this jurisdiction for more serious offenses;
and (3) a comparison of the penalty with punishments in other jurisdictions for the same
offense. 223 Kan. at 367. No one factor controls, and we must address all three factors to
complete this analysis. State v. Riffe, 308 Kan. 103, 109, 418 P.3d 1278 (2018).
Castelli's claim under the Eighth Amendment to the United States Constitution
requires a similar analysis. But, under this test, we will reach the second and third factors
only if we determine a gross disproportionality exists under the first factor. See State v.
Gomez, 290 Kan. 858, Syl. ¶¶ 4-5, 235 P.3d 1203 (2010); see also Mossman, 294 Kan. at
924-25 (noting that unlike Eighth Amendment inquiry, section 9 analysis "requires
consideration of all three factors").
The district court found all three factors weighed against Castelli. After reviewing
each of the factors, we agree.
First Freeman Factor
When reviewing an offender's character under the first Freeman factor, we
consider:
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• degree of danger the defendant presents to society;
• facts of the crime;
• violent or nonviolent nature of the offense;
• extent of culpability for the resulting injury; and
• penological purposes of the prescribed punishment. 223 Kan. at 367.
In the district court, Castelli compared his case to the facts presented in State v.
Proctor, 47 Kan. App. 2d 889, 280 P.3d 839 (2012) (Proctor I), and State v. Proctor, No.
104,697, 2013 WL 6726286, at *4-8 (Kan. App. 2013) (unpublished opinion) (Proctor
II). The panel in Proctor I found that lifetime postrelease supervision was
unconstitutional as applied to Proctor based in part on the lack of physical harm to the 12-
year-old victim, Proctor's age (19 years old), his lack of criminal history, and his
willingness to participate in available and likely effective treatment for sex offenders. 47
Kan. App. 2d at 923. Proctor was also sexually abused as a child but had never received
counseling or treatment for it.
After granting review in Proctor I, our Supreme Court remanded the case for
reconsideration because of Mossman and Cameron. On remand, the Proctor II panel
again found that mandatory lifetime postrelease supervision was unconstitutional as
applied to the defendant based on his personal history and circumstances. 2013 WL
6726286, at *4-8. When addressing the first Freeman factor, the Proctor II panel found:
"Proctor was barely an adult himself at the time of the offenses. He had no
juvenile or adult criminal record and, thus, no demonstrated incorrigibility. And nothing
indicated Proctor was a serial sex offender with a trail of victims. Proctor had been a
victim of sexual abuse in his adolescence and went without any professional help in
coping with that trauma. None of that, of course, in any way excuses Proctor's actions in
victimizing T.C. Nor does it undo the trauma to T.C. But it does suggest a defendant
who, as the district court found, would very likely benefit from mental health therapy and
counseling and sex offender treatment more than from incarceration. Moreover, as the
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State agreed and the district court found, that disposition was compatible with the public
safety." 2013 WL 6726286, at *4.
Here, the district court distinguished Proctor I and Proctor II from the facts. The
district court found that Castelli's age, relationship to his victim, and lack of evidence
showing he suffered similar abuse or trauma established that Castelli was dissimilar to
the defendant in Proctor II.
The record supports these findings. According to the State's probable cause
affidavit and complaint, Castelli was around 24 years old when he committed his crimes
against his then 8-year-old victim, A.L. At Castelli's preliminary hearing, A.L. testified
that Castelli was a relative, and she identified Castelli as one who lived in the same house
as she did when the abuse occurred. So, unlike Proctor, Castelli had a familial
relationship with his victim. The record is also void of evidence of past abuse or a
willingness to participate in counseling services. See Proctor I, 47 Kan. App. 2d at 891,
923.
Castelli does not address these distinguishing facts but focuses on the penological
goals of lifetime postrelease supervision. Our Supreme Court has explained that those
goals include retribution, deterrence, incapacitation, and rehabilitation. Mossman, 294
Kan. at 902.
"'Rehabilitation and incapacitation are central purposes of the criminal justice system,
and they are particularly critical here given the propensity of sex offenders to strike
again. Supervised release can further the end of rehabilitating sex offenders. For instance,
in this case, the express conditions of supervised release will require [the defendant] to
receive sex offender treatment and to avoid situations where he may be tempted to offend
again. Relatedly, supervised release helps incapacitate sex offenders by keeping them
under the watchful eye of probation officers who may be able to detect problems before
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they result in irreparable harm to innocent children.' [Citations omitted.]" State v. Dull,
302 Kan. 32, 57, 351 P.3d 641 (2015).
Castelli argues that our Supreme Court has wrongly "justified postrelease
supervision of sex offenders in particular because of their supposed 'high rate of
recidivism.' Dull, 302 Kan. at 57." He references information in his motion in the district
court and contends that child sex offenders fit within a category of criminals least likely
to reoffend. He also argues that his lack of significant criminal history shows he is
particularly unlikely to commit another sexually violent offense.
But A.L. testified at the preliminary hearing that Castelli victimized her more than
once and in more than one way. And as our Supreme Court explained in Cameron,
aggravated solicitation of a child is a "very serious" crime that "can create significant
psychological harm." 294 Kan. at 892. And although we cannot make factual findings on
appeal about Castelli's alleged history or extent of alcohol abuse or his prospects of
sobriety in the future, Castelli did admit that he drank high volumes of alcohol before
abusing A.L.
Other than referring to his criminal history, Castelli fails to provide evidence of his
history, psychology, or individual likelihood of recidivism. In absence of such evidence,
"we adhere to our [Supreme Court's] 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.' [Citation omitted.]" Funk, 301
Kan. at 939; see State v. Hopkins, No. 123,161, 2021 WL 5992092, at *3-4 (Kan. App.
2021) (unpublished opinion) (finding lack of information regarding history, psychology,
and recidivism rendered case factually indistinguishable from Funk and denying section 9
claim based on analysis in Funk), petition for rev. filed January 13, 2022.
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As his final effort to show his sentence is grossly disproportionate, Castelli
highlights the significance of the penalty at issue:
"Lifetime supervision will inflict serious consequences on Mr. Castelli. It will
deprive him of the right to vote, serve on a jury, and hold public office for the rest of his
life. This will . . . add hurdles to block Mr. Castelli[] from reentering life and becoming a
productive citizen, presumably everyone's goal. These facts all weigh strongly in favor of
finding that imposing lifetime postrelease supervision was grossly disproportionate in this
case."
We recognize that lifetime supervision will prevent Castelli from enjoying certain
rights and privileges, but we will not reweigh the facts. See Mossman, 294 Kan. at 912.
Substantial competent evidence supports the district court's factual findings. In turn, those
findings support the district court's legal conclusion that the first Freeman factor weighs
against Castelli.
Because we find Castelli's sentence is not grossly disproportionate, his Eighth
Amendment argument also fails. Castelli, like the defendant in Cameron, fails to provide
a sufficient basis to support an Eighth Amendment claim:
"[T]he United States Supreme Court has emphasized that it is only the rare case where
the threshold comparison of the gravity of the offense and the harshness of the penalty
will lead to an inference of gross disproportionality. This case is not such a rare case
given the severity of the crime. Moreover, while the sentence is lengthy, lifetime
postrelease supervision is not as harsh a punishment as imprisonment and is aimed at
safely integrating a sex offender into society and protecting the public. Given the
seriousness of the offense, the vulnerability of [the] victim, the potential psychological
damage to the victim, and the penological goals of postrelease supervision, we conclude
[appellant's] case-specific arguments are unavailing. [Citations omitted.]" Cameron, 294
Kan. at 896.
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Second Freeman Factor
Next, we compare Castelli's lifetime postrelease supervision to punishments for
more serious offenses in this jurisdiction. "[I]f among them are found more serious
crimes punished less severely than the offense in question the challenged penalty is to
that extent suspect." Freeman, 223 Kan. at 367.
Castelli first compares his penalty to the penalty imposed for second-degree
murder, citing Proctor II, 2013 WL 6726286, at *7. But after acknowledging our
Supreme Court's rejection of that type of comparison, Castelli raises an alternative claim.
See State v. Swint, 302 Kan. 326, 345, 352 P.3d 1014 (2015). Castelli argues that because
more serious sex offenses in Kansas carry the same punishment of mandatory lifetime
postrelease supervision, his punishment is not proportionate to the seriousness of his
crime. But Castelli did not raise this argument in the district court, so it is unpreserved.
In the district court, Castelli instead claimed that it was unfair to compare his
punishment to punishments for other sex offenses. But this is the comparison our
Supreme Court has found most appropriate under these circumstances:
"Funk relies on a criminal penalties survey he presented to the district court,
which identified 22 offenses severity level 1-4 that carry only a 36-month postrelease
supervision term. Included within these offenses are aggravated human trafficking,
electronic solicitation of a child, and second-degree murder. Funk's offense carried only a
9-to 11-month prison sentence and presumptive probation for a person with his criminal
history score; however, the 22 offenses he identifies carry much longer prison terms of 38
to 653 months.
"But this comparison is not persuasive because the proportionality of Funk's
sentence cannot be judged solely by comparing his lifetime postrelease supervision
period to that imposed for other crimes. See 294 Kan. at 913-14. A more apt comparison
is that Kansas imposes a more serious punishment for more serious sex crimes. See, e.g.,
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K.S.A. 2014 Supp. 21-5506(b)(1) (aggravated indecent liberties—sexual intercourse with
child 14 or 15 years old—is a severity level 3 felony); K.S.A. 2014 Supp. 21-6804
(severity level 3 felony carries minimum term of 55 months' imprisonment); K.S.A. 2014
Supp. 22-3717(d)(1)(G), (d)(5)(C) (defendant convicted of aggravated indecent liberties
subject to lifetime postrelease supervision)." 301 Kan. at 941-42.
Castelli fails to show us a crime that is more serious than aggravated solicitation of
a child but carries a less severe, rather than equally severe, punishment. Cf. Funk, 301
Kan. at 942. And when addressing these types of claims, we do not consider only the
length of postrelease supervision. Rather, we look to the total length of the sentence,
including actual incarceration. Mossman, 294 Kan. at 912-13; Cameron, 294 Kan. at 892-
93. But Castelli does not provide this type of information.
Again, we are duty-bound to follow Kansas Supreme Court precedent absent an
indication of departure from that position. State v. Rodriguez, 305 Kan. 1139, 1144, 390
P.3d 903 (2017). We find no such indication here and thus deny Castelli's argument
under the second Freeman factor.
Third Freeman Factor
Under the final Freeman factor, we compare Castelli's punishment to punishments
in other jurisdictions for the same offense. Castelli references punishments for aggravated
solicitation of a child in Nebraska, Missouri, Oklahoma, and Colorado that appear to be
less severe. Castelli also correctly notes our Supreme Court's finding that "only a
minority of states impose a similar punishment." Cameron, 294 Kan. at 894. Still, our
Supreme Court has held that "the lifetime postrelease supervision sentence is
proportionate to sentences mandated in some other jurisdictions and is not grossly
disproportionate in light of the strength of the first Freeman factor." Cameron, 294 Kan.
at 894. We must follow this ruling and thus affirm the district court. Cf. State v. Sutton,
No. 114,646, 2016 WL 3460423, at *5 (Kan. App. 2016) (unpublished opinion) (finding
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appellant failed to present evidence under third Freeman factor to sufficiently oppose
analyses in Mossman and Cameron and affirming district court based on duty to follow
precedent).
Conclusion
After reviewing the record and considering the three Freeman factors, we find
substantial competent evidence supporting the district court's legal decision that the
imposition of lifetime postrelease supervision does not violate section 9 of the Kansas
Constitution Bill of Rights as applied to Castelli. We thus reject Castelli's argument under
the Eighth Amendment as well.
Affirmed.
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