State v. Malmstrom

Summary

The Supreme Court of Kansas held that, under the version of the attempt statute in effect when James Malmstrom committed the offenses, attempted aggravated indecent liberties with a child was ranked as a nondrug severity level 1 felony. Applying the rule of lenity and its precedent in State v. Horn, the court concluded that the district court improperly began with the Jessica's Law life sentence and treated the subsequent sentencing as a departure. The court vacated Malmstrom's sentences and remanded for sentencing under the sentencing guidelines, while noting that the district court could depart from the applicable gridbox.

Holdings

1. For offenses committed before the 2010 amendments, the attempt statute controls over Jessica's Law when the statutes prescribe conflicting sentencing treatment for an attempt to commit an off-grid felony. The conflict is resolved in the defendant's favor under the rule of lenity.
2. The district court erred by initially treating Malmstrom's offenses as off-grid and applying Jessica's Law's life sentence and mandatory minimum as the starting point for departure analysis.
3. On remand, the district court may consider a departure from the gridbox sentence based on the severity level 1 offense and Malmstrom's criminal-history score.
4. The offense was not a severity level 5 felony; because the underlying offense became an off-grid person felony when committed by an offender age 18 or older, the attempt statute required severity level 1 treatment rather than a two-level reduction from severity level 3.

Questions Presented

1. Whether, under the versions of the attempt statute and Jessica's Law in effect when Malmstrom committed the offenses, the attempt statute or Jessica's Law controlled the sentencing classification for attempted aggravated indecent liberties with a child.
2. Whether the district court erred by treating the offense as off-grid and beginning its departure analysis with Jessica's Law's life sentence and mandatory minimum.
3. Whether Malmstrom's attempted offense was a severity level 5 felony rather than the severity level 1 felony prescribed for an attempt to commit an off-grid felony.

Disposition

vacated