State v. Jolly, No. 101,512.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by NUSS, C.J.:
Citation249 P.3d 421,291 Kan. 842
Decision Date18 March 2011
Docket NumberNo. 101,512.
PartiesSTATE of Kansas, Appellee,v.William JOLLY, Appellant.

291 Kan. 842
249 P.3d 421

STATE of Kansas, Appellee,
v.
William JOLLY, Appellant.

No. 101,512.

Supreme Court of Kansas.

March 18, 2011.


[249 P.3d 421 , 291 Kan. 842]

Syllabus by the Court

1. Statutory interpretation is a question of law over which an appellate court has unlimited review.

[249 P.3d 422]

2. K.S.A. 21–4643(d) provides that in the presence of substantial and compelling reasons, the district court may impose a departure sentence pursuant to the sentencing guidelines.

3. Once sentencing has shifted to the sentencing guidelines, nothing precludes the district court from granting a departure, either dispositional or durational.

4. Under the facts of this case, the district court imposed an illegal sentence when it departed from life imprisonment in Jessica's Law without first proceeding to the sentence pursuant to the sentencing guidelines.

5. K.S.A. 22–3717(u) provides that the parole board shall order electronic monitoring as a condition of parole for inmates sentenced to imprisonment pursuant to K.S.A. 21–4643.

6. Under the facts of this case, when the district court sentenced defendant to less than imprisonment for life under K.S.A. 21–4643(a)(1), it incorrectly imposed electronic monitoring as a condition of sentence pursuant to K.S.A. 22–3717(u).

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the briefs for the appellant.Ellen H. Mitchell, county attorney, argued the cause, and Christina Trocheck, assistant county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by NUSS, C.J.:

William Jolly pleaded guilty to one count of rape, an off-grid person felony pursuant to K.S.A. 21–3502(a)(2) and (c). [291 Kan. 843] Per K.S.A. 21–4643(a) (Jessica's Law), the prescribed sentence was life imprisonment with a mandatory minimum of 25 years. The district court instead ordered Jolly to serve 300 months' incarceration with lifetime postrelease supervision and lifetime electronic monitoring. Our jurisdiction to hear Jolly's appeal of his sentence is under K.S.A. 22–3601(b)(1).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court follow statutory authority to impose a 300–month sentence? No.

2. Did the district court err by imposing lifetime electronic monitoring as a condition of Jolly's sentence? Yes.

Accordingly, we vacate Jolly's sentence and remand for resentencing.

Facts

William Jolly was charged with the off-grid person felony of rape (sexual intercourse with a child under 14 years old) pursuant to K.S.A. 21–3502(a)(2) and (c). He was additionally charged with the off-grid person felony of aggravated indecent liberties with a child pursuant to K.S.A. 21–3504(a)(3)(A) and (c). Under Jessica's Law, both offenses carry a sentence of imprisonment “for life with a mandatory minimum term of imprisonment of not less than 25 years.” K.S.A. 21–4643(a)(1)(B) and (C).

On February 11, 2008, Jolly pleaded guilty to the rape charge. In exchange, the State agreed to drop the charge of aggravated indecent liberties with a child. During the plea hearing Jolly stipulated that the State's exhibits, the probable cause affidavit, and his written confession provided the factual basis through which the court could accept his plea.

According to the plea hearing exhibits, on July 15, 2007, 12–year–old C.E. came over to play with Jolly's son. At some point during the day, Jolly lay down in his bed and C.E. later joined him. Jolly stated that he was curious as to how desensitized C.E. was from a previous sexual assault, and he began touching her to see “how far she would let [him] go.” Jolly placed his hands up C.E.'s shirt and began touching her breasts. According to Jolly, C.E.'s only reaction [291 Kan. 844] was a “blank stare.” Jolly then began rubbing the outside of C.E.'s vagina and then penetrated her vagina with his finger.

Jolly stated that at this point his whole “mindset changed” from “clinical exploration to more the lover attitude to make her feel good.” He then pulled his penis out of his pants and rubbed it on C.E. to become erect. Jolly penetrated C.E.'s vagina with his penis

[249 P.3d 423]

and only removed it when he heard a noise that caused him to “snap back to reality.” C.E. then left Jolly's residence and later reported the incident to her grandmother.

The parties agree that Jolly had a criminal history score of I and if sentenced pursuant to K.S.A. 21–4701 et seq. , the Kansas Sentencing Guidelines Act (KSGA), his presumptive grid sentence would be between 147 and 165 months. At sentencing Jolly requested a departure from the life sentence and mandatory minimum of Jessica's Law pursuant to K.S.A. 21–4643(d). Dr. Robert W. Barnett, a clinical psychologist, testified on Jolly's behalf. Barnett did not consider Jolly a pedophile or sexual predator and felt Jolly's chances of recidivism were low. He ultimately recommended a sentence of probation. In additional support of departure, Jolly also argued that he accepted responsibility for his actions and did not put C.E. through a trial and the ordeal of testifying.

The State opposed the departure motion. It relied heavily on the facts outlined in Jolly's confession, noting that C.E. was a lifelong family friend and that Jolly continued to minimize and justify his actions as trying to help her heal from a previous sexual assault.

After hearing testimony and arguments, the court sentenced Jolly to 300 months' imprisonment with lifetime postrelease supervision and lifetime monitoring. The judge stated:

“Under the Jessica's Law statute, as...

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59 practice notes
  • State v. Smith, No. 104,245.
    • United States
    • United States State Supreme Court of Kansas
    • June 27, 2014
    ...we accept their joint representations. The State correctly concedes that lifetime electronic monitoring was improper under State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). In Jolly, this court held K.S.A. 22–3717(u) “plainly states that the parole board shall order electronic monitor......
  • State v. Gilliland, No. 102,265.
    • United States
    • United States State Supreme Court of Kansas
    • May 11, 2012
    ...under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq., of 586–months' incarceration. As we held in State v. Jolly, 291 Kan. 842, 846–47, 249 P.3d 421 (2011), a sentencing court departs from Jessica's Law if it does not impose a life sentence. If a different sentence is i......
  • State v. Brown, No. 105,678.
    • United States
    • United States State Supreme Court of Kansas
    • February 28, 2014
    ...1018]State v. Hyche, 293 Kan. 602, Syl. ¶ 2, 265 P.3d 1172 (2011), State v. Naputi, 293 Kan. 55, 67, 260 P.3d 86 (2011); State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). It is equally well settled that where the sentence announced from the bench differs from the sentence later descri......
  • State v. Naputi, No. 101,354.
    • United States
    • United States State Supreme Court of Kansas
    • September 2, 2011
    ...affirm the convictions but vacate the portion of the sentence ordering lifetime electronic monitoring in accordance with State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011).Factual Overview The charges against Naputi alleged that he lewdly fondled or touched six boys, five of whom were in the......
  • Request a trial to view additional results
59 cases
  • State v. Smith, No. 104,245.
    • United States
    • United States State Supreme Court of Kansas
    • June 27, 2014
    ...we accept their joint representations. The State correctly concedes that lifetime electronic monitoring was improper under State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). In Jolly, this court held K.S.A. 22–3717(u) “plainly states that the parole board shall order electronic monitor......
  • State v. Gilliland, No. 102,265.
    • United States
    • United States State Supreme Court of Kansas
    • May 11, 2012
    ...under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq., of 586–months' incarceration. As we held in State v. Jolly, 291 Kan. 842, 846–47, 249 P.3d 421 (2011), a sentencing court departs from Jessica's Law if it does not impose a life sentence. If a different sentence is i......
  • State v. Brown, No. 105,678.
    • United States
    • United States State Supreme Court of Kansas
    • February 28, 2014
    ...1018]State v. Hyche, 293 Kan. 602, Syl. ¶ 2, 265 P.3d 1172 (2011), State v. Naputi, 293 Kan. 55, 67, 260 P.3d 86 (2011); State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). It is equally well settled that where the sentence announced from the bench differs from the sentence later descri......
  • State v. Naputi, No. 101,354.
    • United States
    • United States State Supreme Court of Kansas
    • September 2, 2011
    ...affirm the convictions but vacate the portion of the sentence ordering lifetime electronic monitoring in accordance with State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011).Factual Overview The charges against Naputi alleged that he lewdly fondled or touched six boys, five of whom were in the......
  • Request a trial to view additional results

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