State v. Bybee ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,912
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERED WAYNE BYBEE,
Appellant.
MEMORANDUM OPINION
Appeal from Labette District Court; STEVEN A. STOCKARD, judge. Opinion filed August 23,
2024. Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 21-6820(g) and (h).
Before ISHERWOOD, P.J., WARNER and COBLE, JJ.
PER CURIAM: Jered Bybee challenges the district court's denial of his request for a
sentencing departure. He argues that the district court abused its discretion in denying his
departure request and asserts for the first time on appeal that his concurrent sentences for
life imprisonment without the possibility of parole violate the Eighth Amendment to the
United States Constitution. We granted Bybee's motion for summary disposition under
Supreme Court Rule 7.041A (2024 Kan. S. Ct. R. at 48). The State has not responded.
After reviewing the record and Bybee's motion, we affirm the district court's ruling.
In 2022, Bybee pleaded no contest to two counts of aggravated criminal sodomy,
stemming from sexually abusive conduct that took place between 2016 and 2019. These
offenses are off-grid crimes that carry presumptive hard 25 sentences—that is, life
1
imprisonment without the possibility of parole for 25 years. Before sentencing, he sought
a durational departure sentence, asking the court to impose consecutive terms of 165
months' imprisonment for a controlling term of 330 months in prison. The district court
denied this request, finding Bybee had not shown substantial and compelling reasons to
depart, and imposed concurrent hard 25 sentences.
Bybee asserts the district court erred in denying his departure motion. As we have
noted, Bybee's convictions carry presumptive sentences of life imprisonment without the
possibility of parole for 25 years. See K.S.A. 21-6627(a)(1). A district court may only
depart from that presumptive sentence if, "following a review of mitigating
circumstances," the court finds substantial and compelling reasons to do so. K.S.A. 21-
6627(d)(1). An appellate court will not reverse a district court's decision unless it resulted
from an abuse of discretion—if the court's decision was based on a factual or legal error
or if no reasonable person would take the view adopted by the judge. See State v. Jolly,
301 Kan. 313, 325, 342 P.3d 935 (2015).
Bybee does not argue that the district court's decision was unsupported by the facts
or went outside the legal framework governing departure motions. Instead, he asserts that
the district court acted unreasonably when it denied his request. But we are not persuaded
by this argument. Bybee was convicted of sexual offenses involving children under the
age of 14. The district court did not find the reasons Bybee offered for his request—that
his crimes were influenced by previous drug use and that he had a limited criminal
history—to be sufficiently substantial or compelling to warrant a departure. We cannot
say that no reasonable person could have agreed with the district court's decision to deny
Bybee's request for a dispositional departure.
Bybee also contends that his lifetime sentence constitutes cruel and unusual
punishment under the Eighth Amendment to the United States Constitution. Bybee
acknowledges that he did not raise this claim before the district court. Constitutional
2
claims generally cannot be raised for the first time on appeal. State v. Daniel, 307 Kan.
428, 430, 410 P.3d 877 (2018). While appellate courts sometimes consider claims that
have not been previously raised, an appellant attempting to raise a new argument on
appeal must explain why the issue warrants initial consideration by an appellate court and
why the current appellate record, without the benefit of any factual development or other
discussion by the district court, permits meaningful appellate review. State v. Johnson,
309 Kan. 992, 995, 441 P.3d 1036 (2019); Supreme Court Rule 6.02(a)(5) (2024 Kan. S.
Ct. R. at 36).
Bybee's motion for summary disposition does not discuss whether his new
constitutional argument meets either of these important criteria. And even if we were to
reach the merits of his claim, the Kansas Supreme Court has held that a life sentence for
aggravated criminal sodomy does not violate the Eighth Amendment. See State v.
Rodgers, 297 Kan. 83, 92, 298 P.3d 325 (2013) (citing State v. Woodard, 294 Kan. 717,
723-24, 280 P.3d 203 [2012]).
Bybee has not shown that the district court erred in imposing his sentence. We
affirm the district court's judgment.
Affirmed.
3