State v. Malmstrom, 249 P.3d 1

Malmstrom pled guilty to two counts of attempted aggravated indecent liberties with a child under 18, April 2007–Jan 2008, age 50.
Jessica's Law imposes life with 25-year mandatory minimum; departure possible under K.S.A. 21-4643(d).
Plea agreement anticipated downward departure to presumptive guidelines (grid level 1) with debates on histories.
PSI revealed criminal history D for Count 1 and I for Count 2, affecting grid outcomes.
District court departed from off-grid life sentence to guidelines, then could not further depart for Count 1’s history.
Court remands for resentencing under correct off-grid starting point and permissible grid departure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court started departure off-grid	Malmstrom argues off-grid is improper starting point due to 21-3301(c)	State contends departure from off-grid life/minimum may be allowed	Yes, district erred by starting off-grid; remand for proper grid-based departure.
Whether rule of lenity resolves the statutory conflict between Jessica's Law and the attempt statute	Horn-like conflict requires lenity to favor off-grid attempt-graded result	No lenity reversal; upholds statutory scheme	Yes, apply lenity; vacate off-grid sentence and remand for grid-based sentencing.
Appropriate baseline for sentencing on remand given the attempt statute governs	Starting point should be severity level 1 nondrug under 21-3301(c)	Consideration of current histories and guidelines on remand	Remand to district court to sentence under severity level 1 nondrug guidelines with possible departure.

State v. Horn, 288 Kan. 690 (2009) (conflict between Jessica's Law and attempt statute; rule of lenity applied)
State v. Ballard, 289 Kan. 1000 (2009) (unlimited review on statutory interpretation; sentencing guidelines context)
State v. Riley, 259 Kan. 774 (1996) (conviction sentenced under law in effect when crime committed)