Age of defendant is an element of Jessica's Law offense

Randall Hodgkinson won in State v. Bello , No. 99,225 (Kan. July 2, 2009), reversing a Hard-25 life sentence imposed pursuant to K.S.A. 21-4643 (Jessica's Law). The KSC affirmed Mr. Bello's convictions for aggravated criminal sodomy and aggravated indecent liberties with a child, but reversed the life sentence because the State failed to charge and the trial court failed to instruct the jury that Mr. Bello was over 18 years old at the time of the offenses.

The court rejected the State's argument that statutory citations in the charging document gave sufficient notice of the penalty. Citing Apprendi, the court also rejected the State's argument that the age of the defendant was "an element in a sentencing statute" and not an element of the offense. The court held:

At Bello's trial, the State presented no evidence as to his age, and the trial court did not instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the facts reflected in the jury verdict, without the sentencing judge finding the additional fact of Bello's age, the statutory maximum sentences prescribed for the crimes of aggravated indecent liberties of a child and aggravated criminal sodomy were to be found in the KSGA nondrug offense sentencing grid along the lines for a severity level 3 felony and a severity level 1 felony, respectively. See State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 (2001) ("A judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the jury."). To increase the penalty beyond that, i.e., to sentence Bello for an off-grid offense under K.S.A. 21-4643, the fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt. See Gould, 271 Kan. 394, Syl. ¶ 2.

The KSC remanded the case for resentencing on the convictions as on-grid felonies pursuant to the KSGA.

[Update: this case was voted 2009 ADO case of the year.]