State v. Proctor - Kansas Judicial Branch

felony convictions. Those cases obviously did not apply Freeman or the United States
Supreme Court authority of the modern era. As a result, they are not especially persuasive
or illuminating. But the results would be compatible with, for example, the 25-years-to-
life sentence upheld for the recidivist offender in Ewing. See Cipolla, 207 Kan. at 824
(citing sentence of 20 to 42 years imposed on a habitual offender for robbery in Scoggins
v. State, 203 Kan. 489, 454 P.2d 550 [1969], and the same sentence imposed for the same
offense on a second-time felon in State v. Shaw, 201 Kan. 248, 440 P.2d 570 [1968], as
illustrative of constitutionally permissible punishment). In short, there is little Kansas
appellate authority directly applicable to the issue before us.
In concluding Proctor's sentence violates § 9 of the Kansas Constitution Bill of
Rights, we do not replicate the Eighth Amendment analysis here. Because of the common
components in the narrow proportionality test and the Freeman factors, the rationale
finding Proctor's punishment cruel and unusual under the Eighth Amendment is sufficient
to require the same result under § 9 of the Kansas Constitution Bill of Rights. We do,
however, emphasize that we have separately reviewed and applied the Kansas
constitutional prohibition of cruel or unusual punishment in arriving at that conclusion.
VII. CONCLUSION
We vacate Proctor's sentence to the extent it calls for lifetime postrelease
supervision. That portion of the sentence violates the protections against cruel and
unusual punishment in the Eighth Amendment to the United States Constitution and § 9
of the Kansas Constitution Bill of Rights. The result requires remand to the district court
so that Proctor may be resentenced to a fixed period of postrelease supervision consistent
with Kansas law apart from those statutes pertaining to or requiring lifetime postrelease
supervision.
Sentence vacated in part and remanded with directions for resentencing.
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