Attempted Jessica's Law is a grid offense

E. Jay Greeno won in State v. Horn, No. 100,373 (Kan. May 8, 2009), obtaining remand for new sentencing in a Butler County attempted criminal sodomy case. The KSC construed two different provisions noting that Jessica's Law purports to cover listed offenses and attempts to commit those listed offenses, but that the sentencing guidelines provides that attempt to commit an off-grid offense is a severity level 1 offense. The KSC concluded both statutory provisions apply:

The district court focused on the provisions of Jessica's Law, particularly noting that K.S.A. 21-4643(a)(2)(B) requires the sentencing court to impose the applicable guidelines sentence if it results in a longer prison term than the mandatory minimum of 25 years (300 months). That persuaded the district court that the legislative intent was to impose the longest possible prison term for the crimes listed in 21-4643(a)(1), including attempts. While that intuitive assessment of legislative intent is likely accurate, we cannot simply ignore the fact that the legislature did not clearly state its intent by amending K.S.A. 21-3301(c) to exclude K.S.A. 21-4643.

Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered. The general application of the rule is that "'[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.'"

Employing the rule of lenity in this case leads us to resolve the conflicting statutory provisions in favor of Horn. Specifically, aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) is an off-grid felony. K.S.A. 21-3506(c). Pursuant to K.S.A. 21-3301(c), the separate crime of attempted aggravated criminal sodomy is ranked as a nondrug severity level 1 felony. Therefore, we vacate Horn's hard 25 life sentence under 21-4643 and remand for appropriate sentencing for a severity level 1 nondrug felony under the KSGA.

Interesting--sort of like McAdam, but they sure never cite McAdam.