280 P.3d 784
Kan.2012Background
- Wilson pled no contest to one off-grid Jessica’s Law aggravated indecent liberties count after dismissal of other charges.
- He was originally charged with two counts of aggravated indecent liberties and two counts of aggravated criminal sodomy, all off-grid Jessica’s Law felonies.
- The district judge denied departure from the 25-year mandatory minimum and granted the State’s motion to double the minimum under the persistent sex offender statute.
- The district court imposed a hard 50 life sentence rather than a hard 25, effectively doubling the minimum.
- Wilson argues the persistent sex offender statute does not apply to off-grid Jessica’s Law offenses; and alternatively seeks parole eligibility adjustments.
- The court determines the persistent sex offender statute cannot apply to double the mandatory minimum for an off-grid Jessica’s Law offense and vacates/remands for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 21-4704(j) applies to off-grid Jessica’s Law offenses. | Wilson: statute does not apply to off-grid Jess. Law crimes. | Wilson: statute should double maximum term for persistent offender regardless of grid/off-grid. | Statute cannot apply to double the mandatory minimum for off-grid Jess. Law crimes; remand for resentencing. |
Key Cases Cited
- State v. Ballard, 289 Kan. 1000 (2009) (grid sentence after departure not presumptive)
- State v. Ortega-Cadelan, 287 Kan. 157 (2008) (hard 25 life not presumptive under 21-4703)
- State v. Jacobs, 293 Kan. 465 (2011) (context of rejecting appellate jurisdiction; Jessica's Law sentence described as presumptive)
- State v. Hyche, 293 Kan. 602 (2011) (adverse to defendant on related issue)
- State v. Cash, 293 Kan. 326 (2011) (inmate on off-grid indeterminate life; parole not court-ordered postrelease supervision)