State v. Kelsey

51 Kan.App.2d 819

356 P.3d 414

STATE of Kansas, Appellee

v.Jason D. KELSEY, Appellant.

111,598.

Court of Appeals of Kansas.

Aug. 21, 2015.

Janine Cox, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., HILL and ATCHESON, JJ.

Opinion

HILL, J.

Jason Kelsey argues that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates that people in the State's custody that are similarly situated must be similarly treated unless there are good reasons to treat them differently. Kelsey, sentenced under Jessica's Law, is serving two concurrent mandatory life sentences for two counts of aggravated indecent liberties with a child under the age of 14, both off-grid sex crimes. He now contends that the law which permits postconviction DNA testing, K.S.A. 21–2512, violates the Equal Protection Clause because it permits testing for those serving sentences for rape or aggravated criminal sodomy, also off-grid sex crimes, but not to offenders convicted of his crimes. He asks us to reverse the district court's summary dismissal of his motion asking for DNA testing.

Because the law mandates identical sentences for someone who is 18 or older and convicted of aggravated indecent liberties with a child under the age of 14 with those offenders sentenced for rape or aggravated criminal sodomy, we hold that K.S.A. 21–2512 does violate the Equal Protection Clause. The two classes of offenders are similarly situated, and there is no rational basis for treating them differently. We reverse the district court's summary dismissal of Kelsey's motion and remand to the district court to make findings on whether the three threshold requirements of K.S.A 21–2512(a) are met here, requiring DNA testing.

Kelsey pled guilty.

Kelsey pled guilty to two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A). The court sentenced him under Jessica's Law, K.S.A. 21–4643(a)(1)(C), to concurrent mandatory hard 25 life sentences with no possibility of parole for 25 years and also ordered lifetime postrelease supervision. He is now serving his sentences.

Kelsey moved for postconviction DNA testing under K.S.A. 21–2512. The court summarily denied his motion for a lack of standing. Simply put, since Kelsey stood convicted of neither murder nor rape, in the court's view, he was not entitled to testing.

Kelsey appeals this ruling by challenging the constitutionality of Kansas' postconviction DNA testing scheme. Specifically, he argues K.S.A. 21–2512 violates the Fourteenth Amendment's Equal Protection Clause because the statute treats similarly situated offenders differently without any justification for such treatment.

We note that Kelsey did not raise his constitutional argument in his pro se motion in the district court, but it appears for the first time here in his brief to this court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). However, we address it now under an exception set forth in State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200 (2012) —specifically, Kelsey's newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. See State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). In Denney, the court addressed the constitutionality of K.S.A. 21–2512 for the first time on appeal. We follow the Supreme Court's lead in Denney.

Our standard of review and guiding principles.

Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. And we must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).

The Fourteenth Amendment to the United States Constitution provides “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause of the Fourteenth Amendment “requires that states treat similarly situated individuals similarly.” State v. Cheeks, 298 Kan. 1, Syl. ¶ 3, 310 P.3d 346 (2013). Kansas courts evaluate equal protection challenges using a three-step process:

“First, the court considers whether the legislation creates a classification resulting in different treatment of similarly situated individuals.Second, if the statute does treat ‘arguably indistinguishable’ individuals differently, then the court examines the nature of the classification or right at issue to determine the appropriate level of scrutiny. Finally, the court applies the proper level of scrutiny to the statute.” (Emphasis added.) Cheeks, 298 Kan. 1, Syl. ¶ 2, 310 P.3d 346.

The level of such scrutiny is based on the rights involved. There are three levels—strict scrutiny, intermediate scrutiny, and the differential scrutiny of the rational basis test. State v. Salas, 289 Kan. 245, Syl. ¶ 3, 210 P.3d 635 (2009). The Supreme Court has previously determined that because K.S.A. 21–2512 does not burden a fundamental right or involve a suspect class, it would analyze the equal protection question using a rational basis test. Cheeks, 298 Kan. at 8, 310 P.3d 346 ; Denney, 278 Kan. at 654, 101 P.3d 1257. We will as well.

Kelsey, as the party challenging the law's constitutionality, has the burden to prove he is similarly situated to other members of a class receiving different treatment, and in conducting our review, we are limited by the distinctions Kelsey argues. See Salas, 289 Kan. at 249, 210 P.3d 635. The Salas court held that “the parameters of a court's consideration of whether individuals are similarly situated [are] set by the distinctions argued by the complaining party.”

The statute in question is limited.

By its own terms, K.S.A. 21–2512 permits only offenders convicted of premeditated first-degree murder or rape to receive postconviction DNA testing of biological materials. The statute permits DNA testing if three conditions are met:

“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder in the first degree as defined by K.S.A. 21–3401, and amendments thereto, or for rape as defined by K.S.A. 21–3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:

“(1) Is related to the investigation or prosecution that resulted in conviction;

“(2) is in the actual or constructive possession of the state; and“(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.” K.S.A. 21–2512.

We do not know if the three conditions listed above are satisfied because the court summarily dismissed the motion. If Kelsey prevails on this equal protection attack on the statute and we extend the statute to those convicted of his crime and serving a similar sentence to his, he will be entitled to a remand of the issue to the district court for a hearing to determine whether he can establish these three statutory conditions.

Historically, our Kansas Supreme Court has on three occasions examined this statute when it was dealing with equal protection questions—Denney, 278 Kan. 643, 101 P.3d 1257 ; Salas, 289 Kan. 245, 210 P.3d 635 ; and Cheeks, 298 Kan. 1, 310 P.3d 346. Collectively, the opinions give us clear guidance on how to proceed in this case. In looking for similarities, the court, at first, examined the elements of the crimes charged but has since moved on to an examination of the terms of the different offenders' sentences. Reading these opinions makes it clear that the sentences being served by the offenders are now determinative of our inquiry.

First, in Denney, the Supreme Court held that K.S.A. 21–2512 violated the Equal Protection Clause for offenders convicted of aggravated criminal sodomy involving penetration of another female bodily orifice by the male sex organ. 278 Kan. at 649–61, 101 P.3d 1257. The court entertained the question for the first time on appeal as it was not raised in Denney's pro se motion to the district court.

The Denney court focused on the similarity of the elements between the crimes of rape and aggravated criminal sodomy under the facts of that case and found no rational basis for differing treatment existed. The court concluded that Denney committed his crime by penetrating his victims' anuses with his male sex organ, a crime the court found to be arguably indistinguishable from an offender convicted of rape by penetrating a female sex organ with his male sex organ. 278 Kan. at 653–54, 101 P.3d 1257. Going further, the court rejected arguments that a rational basis for differing treatment could be based on the cost of testing or the differential of the severity levels of rape and criminal sodomy. 278 Kan. at 651–56, 101 P.3d 1257.

To remedy the constitutional violation, the court declined to strike down K.S.A. 21–2512. Instead, it extended the statute to include postconviction DNA testing for offenders in a similar situation as Denney's. Denney, 278 Kan. at 660, 101 P.3d 1257. Obviously, the similarity of the criminal acts and elements of the crimes were uppermost in the court's analysis in Denney.

Next, in Salas our Supreme Court again focused on the elements of two crimes—premeditated first-degree murder and intentional second-degree murder. Limiting itself to considering only the offenders that Salas claimed to be similarly situated, the court held that K.S.A. 21–2512 providing postconviction DNA testing if an offender is convicted of first-degree premeditated murder does not violate equal protection by not extending the same...