Appeal Begins For Teen Sentenced To Prison For Gay Sex

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MATTHEW R. LIMON,
Appellant.

MEMORANDUM OPINION

Appeal from Miami District Court; RICHARD M. SMITH, judge. Opinion filed February 1, 2002. Affirmed.

Paige A. Nichols and Daniel C. Estes, assistant appellate defenders, Randall L. Hodgkinson, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellee.

Amy L. Harth, assistant court attorney, David L. Miller, county attorney, and Carla J Stovall, attorney general, for the appellant.

Julie M Carpenter and Nicole G. Berner, of Jenner & Block, L.L.C., of Washington, D.C., amicus curiae for the DKT Liberty Project.

Tamara Lange and James D. Esseks, of American Civil Liberties Union, of New York, New York, and Kevin Loeffler, of ACLU of Kansas and Western Missouri, of Kansas City , Missouri, amici curiae for Lesbian and Gay Rights Project.

Before KNUDSON, P.J., PIERRON and GREEN, JJ.

Per Curiam: Matthew R. Limon was convicted of criminal sodomy, a severity level 3 person felony in violation of K.S.A. 21-3505(a)(2). He was sentenced to 206 months, the lowest presumptive prison sentence on the sentencing grid for that level, with a 60-month period of postrelease supervision based upon a finding that the crime was sexually motivated.

Limon has been diagnosed in the intellectual range between "borderline intellectual functioning" and "mild mental retardation." This means he does not function at the level of a normal 18 year old. He had been admitted to the Lakemary Center (Lakemary), a Kansas residential school for developmentally disabled children. The center focused on serving students with developmental disabilities and psychiatric disorders or behavioral problems. Limon was a resident of Lakemary from July 1999 to February 2000. Limon had been previously placed in the Parkview Passages Residential Treatment Center in Topeka, He had also been previously treated at St. Francis in Ellsworth.

At the time of the allegations in this case, Limon had just had his eighteenth birthday. Limon met another male student at Lakemary, M.A.R., who consented to Limon performing oral sex upon him. When M.A.R. requested that Limon stop, he stopped. It is not clear from the record how the police became involved in this case. Upon their intervicw ofLiroon at the school, he admitted to having had consensual oral sexual contact with M.A.R.

M.A.R. was evaluated by Earl Robert Kilgore, Jr., of Lakemary, who also evaluated Limon. M.A.R. was found to function in the upper limits of the range of mild mental retardation, which represented a slightly lower functioning than Limon. M.A.R. was 14 years and 11 months old at the time of the incident. Limon was 3 years, 1 month, and a few days older than M..A.R.

K.S.A. 21-3505(a) reads: "Criminal sodomy is. . . (2) sodomy with a child who is
14 or more years of age but less than 16 years of age."

K.S.A. 2000 Supp. 21-3522 reads:

"(a) Unlawful voluntary sexual relations is engaging in voluntary: (1) sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and child and the offender are the only parties involved and are members of the opposite sex. (Emphasis added.)

(b)(1) Unlawful voluntary sexual relations as provided in subsection (a)(1) is a severity level 8, person felony.

(2) Unlawful voluntary sexual relations as provided in subsection (a)(2) is a severity level 9, person felony.

(3) UnlawfuJ voluntary sexual relations as provided in subsection (a)(3) is a severity level 10, person felony."

Prior to trial, defense counsel filed a "Motion to Dismiss and Prevent Manifest Injustice." In the motion, he argued that due to alleged inequitable and unconstitutional discrimination against a certain group of people (homosexuals) codified into K.S.A. 2000 Supp. 21-3522, Limon was charged under a far more severe statute than the one which, had it been constitutionally drawn by the legislature, would have applied in Limon's case. Defense counsel argued that excluding Limon from the lesser penalties of prosecution under 21-3522 because of sexual orientation denied him the equal protection of the law under our federal and state Constitutions. He asserted that strict scrutiny must be given to the statute's exclusion of persons on the basis of sexual orientation.

After a hearing, the district court denied Limon's motion and set the case for trial. Limon waived his right to a jury trial and proceeded to a bench trial upon stipulated facts that admitted the substance of the charge on criminal sodomy. Accordingly, the court found Limon guilty. As a result of Limon's previous juvenile adjudications for criminal sodomy 2 years earlier, he was sentenced to 206 months' imprisonment. If the provisions of K.S.A. 2000 Supp. 21-3522 would have been applicable, Limon's sentence would have been in the range of 13 to 15 months.

By means of a supplementary argument which we have allowed Limon to submit, he also argues that the district court's reliance on his prior adjudications to increase his sentence violated the constitutional rights recognized in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. ___, 23 P.3d 801 (2001).

In addition to Limon's brief, we have also received amici curiae briefs from the DKT Liberty Project and the ACLU of Kansas and Western Missouri with the American Civil Liberties Union.

K.S.A. 2000 Supp.21-3522 is popularly known in Kansas as the "Romeo and Juliet Law." This refers to Shakespeare's literary masterpiece whose central story concerns the love between a noble 13-year-old Veronese maiden, and a young adult Veronese nobleman just a few years older than she.

The purpose of the statute is to recognize the judgment that consensual sexual activity between a young adult and a not-quite adult, although wrong, is not as criminal as sexual activity between persons farther apart in age.

The legislature has restricted the scope of this mitigating provision to heterosexual activity and excluded homosexual activity. Literally, the statute criminalizes particular acts as opposed to sexual orientation. But practically, the argument that it is not aimed at homosexuals cannot be made with a straight face.

The main argument advanced on Limon's behalf is that this statutory scheme violates the Equal Protection Clauses of the United States and Kansas Constitutions. It allegedly does so by discriminating on the basis of gender. As noted above, had either Limon been a female engaging in consensual sexual activity with an adolescent boy in the group home, or had Limon's victim been female, the sentence would have been in the range of 13 to 15 months in prison. Instead, because he is a male engaging in the forbidden conduct with another male, he was sentenced to over 17 years in prison with 5 years of postrelease supervision.

The basic question presented to us is whether the United States and Kansas Constitutions allow the Kansas Legislature to so discriminate between homosexual and heterosexual activity.

The constitutionality of a statute is a question of law that is subject to de novo review. Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. 1,930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997). Whether a statute violates equal protection is a question of law over which this court has unlimited review. See Barrett v. U.S.D. No. 259, 272 Kan. ____, Syl. 2, 32 P.3d 1156 (2001). The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court's duty .to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. State ex rel. Tomasic v. Unzfied Gov. of Wyandotte Co./Kansas City, 264 Kan. 293,300,955 p .2d 1136 (1998).

The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Sections 1 and 2 of the Bill of Rights of the Kansas Constitution provide the state's counterpart to the federal Equal Protection Clause:

"§ 1. Equal rights. All men are possessed of equal and inalienable natural rights,
among which are life, liberty and the pursuit of happiness.

§ 2. Political Power; privileges. All political power is inherent in the people, and
all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency."

"[T]hese two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law." Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987). Specifically, Section 1 of the Kansas Constitution Bill of Rights applies in cases like ours when an equal protection challenge involves individual rights.

We do note that the Kansas Constitution can afford greater rights than the federal Constitution on issues that are addressed by both documents. However, for various reasons, Kansas generally follows the interpretation given to similar provisions in the United States Constitution by the United States Supreme Court. (See, e.g., State v. Easter, 217 Kan. 618,539 P.2d 294, (1975], overruled by State v. Fortune, 236 Kan. 248, 689 P.2d 1196 [1984] after the intervening case of South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 [1976]; Cf., State v. Morris, 255 Kan. 964, Syl. 3, 880 p .2d 1244 [1994]).

The only possible exceptions appear to be in the very limited and unrelated areas addressed in Wentling v. Medical Anesthesia Services, 237 Kan. 503,701 p .2d 939 (1985), and Ernest v. Faler, 237 Kan. 125, 697 p .2d 870 (1985), having to do with access to the courts and other ramifications of certain “tort reform” provisions.

This court follows the decisions of the United States Supreme Court and the Kansas Supreme Court, absent some indication the court would depart from that precedent. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998). We have no indication that the United States Supreme Court or the Kansas Supreme Court would adopt the position taken by Limon.

As argued by both parties, the United States Supreme Court applies three levels of scrutiny when examining legislative action which might be said to treat differently classified persons unequally. The class involved here is persons who engage in homosexual behavior.

Classifications involving "suspect" classes or fundamental rights are examined under "strict scrutiny," which shifts the presumption against the statute's usually presumed constitutionality , and requires the State to demonstrate that the classification is necessary to serve a compelling state interest. Shapiro v. Thompson, 394 U.S. 618,634,22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Fundamental rights recognized by the Supreme Court include voting, privacy, marriage, and travel. Loving v. Virginia, 388 U.S. 1,87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Hill v. Stone, 241 U.S. 289,44 L. Ed. 2d 172, 95 S. Ct. 1637 (1975). The suspect classes which the Court has recognized include race, ancestry, and alienage. Graham v. Richardson, 403 U.S. 365,29 L. Ed. 2d 534,91 S. Ct. 1848 (1971); McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222,85 S. Ct. 28j (1964); Oyama v. California, 332 U.S. 633,92 L. Ed. 249,68 S. Ct. 269 (1948).

A less stringent standard is "heightened scrutiny," which applies to "quasi-suspect" classes and requires the classification to substantially further a legitimate legislative purpose. Farley, 241 Kan. at 669.

The final and least stringent test of constitutionality is the "rational basis" test. Under this test the State must show the statutory classification bears some rational relationship to a valid legislative purpose. KPERS v. Reimer & Koger Assocs., Inc. , 261 Kan.17, 41-42,927 P2d 466 (1996).

Limon appears to contend that the Kansas Legislature is without constitutional authority to treat crimes of the nature involved here, (homosexual acts) differently from crimes involving heterosexual acts, as this involves unlawful discrimination. In fact, at oral argument, Limon's counsel acknowledged adoption of this reasoning would probably also call into question the constitutionality of K.S.A. 21-3505(a)(1), which criminalizes adult consensual homosexual behavior in Kansas.

The difficulty with Limon's position is that the United States Supreme Court and the Kansas Supreme Court have given no indication that they are willing to extend “strict scrutiny" analysis and protections to legislation involving homosexual acts.

In Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), a practicing homosexual brought an action challenging the constitutionality of Georgia's sodomy statute, which criminalized consensual homosexual sodomy. The Court considered the issue presented to be whether the United States Constitution confers a fundamental right upon homosexuals to engage in sodomy. 478 U.S. at 190.

The Bowers Court noted that prior decisions have not construed the United States Constitution to confer a right of privacy that extends to homosexual sodomy, contrary to the ruling in the decision of the Court of Appeals for the Eleventh Circuit in the case.

The Court, in analyzing the many cases involving privacy and sexual matters, among them Pierce v, Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571(1925), and Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (child rearing and education); Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944) (family relationships); Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed 1655, 62 S. Ct. 1110 (1942) (procreation); Loving v. Virginia, 388 U.S. 1 (marriage); Griswold v. Connecticut, 381 U.S. 479 and Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972) (contraception); and Roe v. Wade, 410 U:S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (abortion), noted that "we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." 478 U.S. at 190-91.

The Bowers court further stated: “precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U.S. at 191.

The impact of Bowers on our case is obvious. The United States Supreme Court does not recognize homosexual behavior to be in a protected class requiring strict scrutiny of any statutes restricting it. Therefore, there is no denial of equal protection when that behavior is criminalized or treated differently, at least under an equal protection analysis.

It should be noted that Bowers was a 5-4 decision. However, there is no present indication that the decision would be different today.

An argument might be raised that Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996), shows some shift in opinion. The Romer Court struck down an amendment to the Colorado Constitution that prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. While the decision did extend protection to homosexuals from state action, the issue was not one of protecting the right to engage in sodomy, but protecting the right to engage in the political process to seek protection from discrimination.

The Court noted that it is very clear that a law, such as Colorado's, which makes it more difficult for one group of citizens to seek aid from the government, is itself a denial of equal protection of the laws in the most literal sense. This is an entirely different issue than that in Bowers or the instant case.

The validity of antisodomy statutes was not questioned in Romer, and no indication was given that Bowers was no longer good law.

According to the excellent briefs filed on Limon's behalf, 24 states and the District of Columbia have statutorily struck down their sodomy statutes, and the courts of 7 other states have struck down their state sodomy laws, apparently on state constitutional grounds. As of July 2000, 18 states continue to have sodomy laws in force; 5 of those (including Kansas) outlaw only same-sex sodomy.

While these facts should be considered by legislatures in evaluating the fairness or humanity of their criminal laws, they have yet to succeed in the United States Supreme Court or the Kansas Supreme Court on constitutional equal protection grounds. This intermediate Court of Appeals is without proper authority to ignore the rulings of the United States Supreme Court or the federal constitutional provisions concerning equal protection jurisdiction, or the Kansas Supreme Court's likely adherence to them in interpreting our state constitutional provisions in that area.

We must, therefore, affirm the trial court's ruling.

Limon has been allowed to raise an additional argument concerning his sentencing. Limon was sentenced to 206 months of imprisonment, which is the lowest sentence in the grid box for a severity level 3 offense with a criminal history category of B. His history consisted of two prior juvenile adjudications for aggravated criminal sodomy. Without consideration of these offenses the presumptive sentence would have been 55 to 61 months.

Limon contends that the use of the prior juvenile adjudications to increase his sentence violated constitutional rights recognized in Apprendi and Gould.

In Apprendi, the defendant pled guilty to firearms offenses and was sentenced to an extended term under New Jersey's hate crime statute. On appeal, the United States Supreme Court ruled in part that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond that prescribed in the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490.

In Gould, Kansas followed Apprendi and struck down as facially unconstitutional those portions of our sentencing system in conflict with Apprendi. 23 P.3d at 814.

Limon argues that juvenile adjudications cannot be used for purposes of increasing a sentence. The fact that juvenile adjudications are not actually criminal convictions is argued to prevent them being so used.

Apprendi did not involve a juvenile or the use of prior juvenile adjudications to enhance an adult sentence. Neither issue was addressed there and apparently neither has been discussed in the United States Supreme Court. This specific issue was discussed in State v. LaMunyon, 259 Kan. 54, 63-65, 911 p .2d 151 (1996), and decided squarely against the appellant. We are bound by this determination. Juvenile adjudications can be used under present law to enhance adult sentences without implicating constitutional bars.

This decision does not deal with any possible Eighth Amendment issues that might be generated by the much greater sentence since this involves a homosexual as opposed to heterosexual encounter. This issue has not been raised.

Neither does this decision deal with the wisdom of the statute involved, as that is left to the legislature in our governmental system with its separation of powers.

Affirmed.