WHAT IS THE SPECIAL SENTENCING RULE FOR PERSISTENT SEX OFFENDERS?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Campbell, No. 113,005, 2016 WL 1274482 (Kan. Ct. App. Apr. 1, 2016).
This case answers the following question:
What is the special sentencing rule in regards to persistent sex offenders?
What is the difference between the designation of an “aggravated habitual sex offender” and a “persistent sex offender”?
The issue in this case included whether appellant should be classified as an “aggravated habitual sex offender” under K.S.A. 21-4642 and K.S.A. 2012 Supp. 21-6626 or as a “persistent sex offender” under K.S.A. 21-4704(j)(1) and K.S.A. 2012 Supp. 21-6804(j)(1). Id. at 1. An aggravated habitual sex offender under K.S.A. 21-4642 and K.S.A. 2012 Supp. 21-6626 is defined as “any person who, on or after July 1, 2006: (A) has been convicted in this state of a sexually violent crime …; and (B) prior to the conviction of the felony under subparagraph (A), has been convicted of two or more sexually violent crimes.” Id. at 10-11. Further, the definition of a “sexually violent crime” includes rape, aggravated indecent liberties with a child, and aggravated criminal sodomy. The consequence of being defined as an “aggravated habitual sex offender” includes that the offender “shall be sentenced to imprisonment for life without the possibility of parole.” Id. at 11. In addition, under K.S.A. 21-4643(b)(2)(A) and K.S.A. 2012 Supp. 21-6627(b)(2)(A), the trial court may choose to impose a life sentence without the possibility of parole if the defendant is an aggravated habitual sex offender. Id. at 13. A “persistent sex offender” is defined as a person who has been convicted in this state of a sexually violent crime while having at least one prior sexually violent crime conviction. Id. at 11. The term of “sexually violent crime” includes the same list of crimes as previously stated above. Id. Under K.S.A. 21-4704(j)(1) and K.S.A. 2012 Supp. 21-6804(j)(1) a persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. Id.
The appellant in this case was sentenced as an aggravated habitual sex offender after having three prior convictions of aggravated indecent liberties with a child before being convicted in the current case under the following charges: two counts of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. Id. at 1. The appellant argues that he should have been sentenced as a persistent sex offender under the rule of lenity, because the two statutes – persistent sex offender and aggravated habitual sex offender – are equally applicable, thus the court should follow the statutory provision that is most favorable to the accused. Id. at 11-12. This court found that the plain language of the persistent sex offender statute only applies when the defendant is being sentenced to a presumptive term of imprisonment. Id. at 12. Further, this court noted that the Kansas Supreme Court has previously found that the persistent sex offender statute permits the doubling of a maximum presumptive sentence, however, it is not applicable to the doubling the mandatory minimum of 25 years’ imprisonment for an off-grid Jessica’s Law offense. Id. This court held that due to the fact that the defendant was convicted of all off-grid Jessica’s Law offenses the rule of lenity does not apply and, therefore, the appellant was rightfully defined as an aggravated habitual sex offender. Id. at 12-13. Due to this finding, the sentence of six consecutive life sentences without the possibility of parole was correct. Id. at 13.