State v. Kemp

NOT DESIGNATED FOR PUBLICATION
No. 122,123
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HERSHEL ALFONZO KEMP,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed July 1, 2022.
Affirmed.
Brian L. Williams, of Emporia, for appellant.
Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., HURST, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: After a jury convicted Hershell Kemp of numerous child sex
crimes, the district court imposed four consecutive hard 25-year sentences and three
additional hard 25-year consecutive sentences as well as an additional 51 months. For all
practical purposes, Kemp was sentenced to prison for the remainder of his life. He now
appeals his final three consecutive hard 25-year sentences as a violation of the Eighth
Amendment to the United States Constitution and the abuse of the district court's broad
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sentencing discretion. Finding that Kemp failed to preserve his Eighth Amendment claim
and no error in the district court's sentencing, this court affirms.
FACTUAL AND PROCEDURAL BACKGROUND
The factual allegations of Kemp's convictions are detailed in his direct appeal in
which his convictions were affirmed by a panel of this court and are unnecessary to the
analysis and decision in this sentencing appeal. See State v. Kemp, No. 115,812, 2018
WL 671182 (Kan. App. 2018) (unpublished opinion). Kemp does not challenge his
convictions, but rather attacks the sentences imposed by the district court. In December
2014, the State charged Kemp with the following offenses:
Count 1 – aggravated indecent solicitation of a child;
Count 2 – aggravated criminal sodomy;
Count 3 – aggravated indecent liberties with a child;
Count 4 – rape;
Count 5 – rape;
Count 6 – rape;
Count 7 – promote obscenity to a minor;
Count 8 – sexual exploitation of a child; and
Count 9 – rape.
At trial, the jury convicted Kemp of all nine counts, but upon Kemp's request the district
court set aside the guilty verdicts for the three rape charges in Counts 4, 5, and 6.
The district court sentenced Kemp to 51 months' imprisonment for Count 1, four
consecutive hard 25-year sentences in accordance with Jessica's Law for Counts 2, 3, 8,
and 9, and a concurrent term of imprisonment for 12 months for Count 7. Jessica's Law
is the informal name for the statutes governing sentencing for adult defendants convicted
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of certain sex crimes against children that imposes a mandatory minimum of 25 years'
imprisonment before parole eligibility. K.S.A. 2021 Supp. 21-6627. In enacting Jessica's
Law, the Legislature's intent was "to protect children by removing perpetrators of sexual
crimes against children from society" and therefore the State "has a particularly
compelling interest in using incarceration as a means of protecting its youth from sexual
offenders." State v. Ruggles, 297 Kan. 675, 687, 304 P.3d 338 (2013) (quoting State v.
Woodard, 294 Kan. 717, 722, 280 P.3d 303 [2012]). Therefore, the district court
essentially sentenced Kemp to 100 years' imprisonment for Counts 2, 3, 8, and 9 before
he is eligible for parole.
Kemp appealed his convictions and the State cross-appealed, challenging the
district court's decision to set aside Kemp's convictions on Counts 4, 5, and 6. A panel of
this court upheld Kemp's convictions, reversed the district court's ruling on Counts 4, 5,
and 6, and remanded for the district court to reinstate and sentence Kemp on those
Counts. Kemp, 2018 WL 671182, at *18. Upon remand, the district court upheld Kemp's
prior sentences and added three additional hard 25-year sentences in accordance with
Jessica's Law for Counts 4, 5, and 6. The district court ordered the additional life
sentences be served consecutive to one another, and consecutive to the hard 25-year
sentences previously imposed for Counts 2, 3, 8, and 9. Kemp appealed, arguing the
district court erred in ordering the additional three hard 25-year sentences for Counts 4, 5,
and 6 to run consecutively. As a matter of clarity, Kemp inaccurately calculated the
district court's original sentence in Counts 2, 3, 8, and 9 as 75 years—but the district
court assigned hard 25-year sentences to each of those counts, which is 100 years.
DISCUSSION
Kemp contends that the district court's imposition of three additional hard 25-year
sentences that run consecutive to each other and to his prior sentences violates the Eighth
Amendment to the United States Constitution's prohibition against cruel and unusual
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punishment and also constitutes an abuse of the court's discretion. As a preliminary
matter, the State contends that Kemp's appeal is moot because Kemp's existing sentences,
which are not appealed here, are of such length that the three additional sentences will
have no effect. Essentially, the State argues that Kemp will likely not live long enough to
serve any of the three consecutive hard 25-year sentences he currently appeals. Although
this court cannot fault the State's logic, the State has failed to make a legal showing of
mootness.
In an appeal challenging only the defendant's sentence, the party asserting
mootness bears the burden of demonstrating the issue is legally moot. State v. Roat, 311
Kan. 581, 590-93, 466 P.3d 439 (2020). A case is moot when "'it is clearly and
convincingly shown the actual controversy has ended, the only judgment that could be
entered would be ineffectual for any purpose, and it would not impact any of the parties'
rights.'" 311 Kan. at 584. The party asserting mootness must make a prima facie
demonstration of mootness, which is typically done by showing that the defendant has
fully completed the terms and conditions of their sentence. Once that prima facie showing
is made, the burden shifts to the party opposing mootness to show that a substantial
interest would be impaired by dismissal or that an exception prevents dismissal for
mootness. 311 Kan. at 593. Here, the State has not met its burden to show that Kemp
completed his sentence or that some other factor, such as Kemp's sentence length alone,
could be used to demonstrate a prima facie case of mootness. As the State has not met its
burden, its mootness claim fails.
I. Kemp failed to preserve his Eighth Amendment claim or identify an exception
excusing such failure.
Before reaching Kemp's Eighth Amendment argument, this court must determine
if it is properly preserved for appeal. The State contends that Kemp failed to preserve his
claim that the three additional consecutive hard 25-year sentences and his prior sentences
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violated the Eighth Amendment to the United States Constitution. At Kemp's
resentencing hearing for Counts 4, 5, and 6, he asked the district court to consider
running his sentences concurrent to each other, and not impose consecutive life
sentences. However, after the district court announced its decision that Kemp's hard 25-
year sentences would all run consecutive to each other, Kemp failed to object or raise any
Eighth Amendment argument. This court finds no record of Kemp raising his
constitutional argument to the district court, nor has Kemp alleged such facts on appeal.
Kemp asserts what appears to be an Eighth Amendment proportionality argument,
alleging that the district court's imposition of consecutive sentences for Counts 4, 5, and 6
constitutes cruel and unusual punishment because the additional sentences are not
graduated and proportional to his offense and do not serve a legitimate penological goal.
The United States Supreme Court has identified two classifications of Eighth
Amendment proportionality challenges: (1) case-specific claims challenging the length
of term-of-years sentences given all the circumstances in a particular case; and (2)
categorical claims where the court applies categorical rules to define proportionality
standards, like barring capital punishment for nonhomicide crimes. Graham v. Florida,
560 U.S. 48, 59-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. Williams, 298
Kan. 1075, 1084, 319 P.3d 528 (2014).
Defendants are generally prohibited from raising constitutional claims, including
Eighth Amendment claims, for the first time on appeal. Williams, 298 Kan. at 1084. As
with most general prohibitions, exceptions exist that permit this court to resolve
constitutional claims brought for the first time on appeal. Among those exceptions is
"when the claim involves only questions of law, arises on proven or admitted facts, and is
determinative of the case." 298 Kan. at 1084. The Kansas Supreme Court has held that
this particular exception can be applied to permit this court to hear an Eighth Amendment
categorical proportionality challenge for the first time on appeal. 298 Kan. at 1084-85;
Ruggles, 297 Kan. 675, Syl. ¶ 1; State v. Cervantes-Puentes, 297 Kan. 560, 565-66, 303
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P.3d 258 (2013). However, case-specific proportionality claims "are inherently factual"
and thus cannot be raised for the first time on appeal. Williams, 298 Kan. at 1084-85.
Therefore, if Kemp is raising a categorical challenge, the issue could be saved, but
if he is raising a case-specific challenge, the issue is waived. Unfortunately, Kemp has
failed to identify the type of proportionality claim he is making on appeal, so this court is
left to surmise his intent. In Williams, the court found the defendant was asserting a
categorical challenge because he argued his sentence was disproportionate "as applied to
first-time offenders over age 18 convicted of crimes involving possession of
pornographic images of a person under age 18." 298 Kan. at 1086. Unlike the defendant
in Williams, Kemp has not provided a specific category with which to frame his
proportionality challenge. See 298 Kan. at 1085-86. Instead, his argument focuses on the
specific circumstances of his case—citing his prior consecutive hard 25-year sentences
and the charges stemming from a single victim as the sole reason his additional
consecutive hard 25-year sentences are disproportionate. Kemp appears to be asserting a
case-specific proportionality challenge—and has not stated otherwise or alleged any
exception to permit this court to hear his appeal—so Kemp's failure to preserve this issue
prevents him from raising it for the first time on appeal.
II. The district court did not abuse its discretion by ordering Kemp's sentences to
run consecutively.
Kemp argues the district court erred by imposing consecutive sentences and cites
an abuse of discretion standard, but only cites to legal authority related to his Eighth
Amendment argument. Jessica's Law hard 25-year sentences are considered "off-grid"
offenses, not presumptive, and can therefore be subject to appellate review. State v.
Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008). However, district courts
generally have broad discretion to determine whether to run sentences consecutively or
concurrently. See K.S.A. 2021 Supp. 21-6819(b); K.S.A. 2021 Supp. 21-6606(a); State v.
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Frecks, 294 Kan. 738, 741, 280 P.3d 217 (2012) (quoting State v. Jamison, 26 Kan. 564,
576, 7 P.3d 1204 [2000]). This court only disrupts the district court's decision when it
determines the district court has abused its discretion because the decision was (1)
arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error
of fact. Frecks, 294 Kan. at 741.
Kemp does not specifically argue how he contends the court erred by abusing its
discretion beyond alleging that the district court had no penological goal with adding 75
years to his existing 100-year sentence. The State argues that Kemp failed to properly
brief this issue and this court need not reach it because issues not adequately briefed are
deemed waived or abandoned. Additionally, a failure to support an argument with
relevant legal authority or show why it is sound despite lack of supporting authority is the
same as failing to brief an issue. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).
Assuming without deciding that Kemp met a bare minimum standard for briefing
his allegation that the district court abused its discretion by sentencing him to seven
consecutive hard 25-year sentences, his claim still fails. The district court has "discretion
to impose concurrent or consecutive sentences in multiple conviction cases" and it may
"consider the need to impose an overall sentence that is proportionate to the harm and
culpability and shall state on the record if the sentence is to be served concurrently or
consecutively." K.S.A. 2020 Supp. 21-6819(b). The Kansas Supreme Court has explained
that, "[w]hile it is certainly better practice for the district court to include an explanation
of its reasons when it imposes consecutive life sentences, a sentencing judge's failure to
engage in a lengthy colloquy does not amount to an abuse of discretion." Frecks, 294
Kan. at 742.
At Kemp's resentencing, the district court explained that "[t]he basis for the
consecutive sentence[s] is the evidence made it clear that these were totally separate
offenses in time; therefore, the consecutive sentence is appropriate." The district court's
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explanation here is similar to the "minimal justification" the district court provided in
Frecks when imposing two consecutive Jessica's Law sentences, which the Kansas
Supreme Court found did not constitute an abuse of discretion. See 294 Kan. at 742.
Additionally, the district court's imposition of seven consecutive hard 25-year
sentences—which is effectively a life sentence without parole—does not automatically
create an abuse of discretion. See State v. Noches-Padilla, No. 121,712, 2021 WL
3438505, at *12 (Kan. App.) (unpublished opinion), rev. denied 314 Kan. 858 (2021) (a
panel of this court upheld the district court's imposition of 15 consecutive hard 25-year
sentences); State v. Lippard, No. 114,588, 2017 WL 3837700, at *16 (Kan. App. 2017)
(unpublished opinion). Kemp was convicted of nine separate sex crimes against a child;
under the facts of his case, the district court's decision to run his three additional hard 25-
year sentences consecutive to his four prior hard 25-year sentences did not constitute an
abuse of discretion.
Affirmed.
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