State v. Hyche

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,912

STATE OF KANSAS,
Appellee,

v.

RICKY G. HYCHE,
Appellant.


SYLLABUS BY THE COURT

1.
Under Jessica's Law, K.S.A. 21-4643(a)(1) prescribes a mandatory minimum term
of imprisonment of not less than 25 years before a defendant becomes eligible for parole.

2.
Imposition of parole conditions, including lifetime electronic monitoring, is the
province of the parole board and lies outside the jurisdiction of the district court.

3.
The appellate standard of review of the denial of a motion to depart under K.S.A.
21-4643(d) is abuse of discretion.

4.
Under the facts of this case, the district court did not abuse its discretion in
denying defendant's motion to depart under K.S.A. 21-4643(d).

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed December 2,
2011. Sentence affirmed in part and vacated in part.

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Rachel L. Pickering, of Kansas Appellate Defender Office, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: Ricky Hyche pled guilty to a Jessica's Law offense, i.e., aggravated
indecent liberties with a child, and received a hard 25 sentence pursuant to K.S.A. 21-
4643(a)(1). He now raises three sentencing issues on appeal: (1) he should be eligible for
parole after 20 years, not 25, pursuant to K.S.A. 22-3717(b)(2); (2) lifetime electronic
monitoring is an invalid component of his sentence under State v. Jolly, 291 Kan. 842,
249 P.3d 421 (2011); and (3) his motion for a downward departure from the hard 25
sentence should have been granted. We have jurisdiction under K.S.A. 22-3601(b)(1).

Because the district court has no authority to impose lifetime electronic
monitoring, we vacate that component of Hyche's sentence; we affirm the balance of his
sentence.

FACTS AND PROCEDURAL BACKGROUND

According to a police affidavit, Hyche was alone at his residence with his step-
granddaughter, 7-year-old B.S.T., when he "put his hand into her pants and touched the
outside of her vagina." B.S.T. stated that Hyche, whom she called "Papa," laid her on her
side, removed her pants, and put "his penis inside her anus and she stated that it hurt her."
B.S.T. began to cry and then left the room. When B.S.T. returned, Hyche did not touch
her again.

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Hyche pled guilty to a single charge of aggravated indecent liberties with a child
in violation of K.S.A. 21-3504(a)(3)(A). At sentencing, he sought a downward departure
sentence pursuant to K.S.A. 21-4643(d), which the State opposed. The district court
denied the motion and sentenced Hyche to the hard 25 sentence prescribed in K.S.A. 21-
4643(a)(1).

Additional facts will be added as necessary.

ANALYSIS

Issue 1: Hyche is not eligible for parole after serving only 20 years.

Standard of Review

To the extent this issue requires this court to interpret language of the Kansas
Sentencing Guidelines Act, K.S.A. 21-4701 et seq. (KSGA), this court exercises
unlimited review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).

Discussion

Hyche essentially acknowledges that for his admitted offense, K.S.A. 21-
4643(a)(1) prescribes "a term of imprisonment for life with a mandatory minimum term
of imprisonment of not less than 25 years," i.e., no parole eligibility for 25 years. But he
argues that his parole eligibility fits within the statutory language of two other provisions:
K.S.A. 22-3717(b)(2) and K.S.A. 22-3717(b)(5). Consequently, he contends the rule of
lenity dictates that he be sentenced to the shorter mandatory minimum term of
imprisonment contained in those statutes: 20 years.

This court has already rejected this identical argument in a number of recent
opinions. Hyche has provided us with no reason to retreat from that position now:

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"Notwithstanding the overlap in the parole eligibility rules contained in K.S.A. 2008
Supp. 22-3717(b)(2) and (b)(5), an inmate sentenced to an off-grid, indeterminate hard-
25 life sentence pursuant to K.S.A. 21-4643 shall not be eligible for parole until that
inmate has served the mandatory 25 years in prison." State v. Cash, 293 Kan. 326, Syl. ¶
1, __ P.3d __ (2011).

See State v. Chavez, 292 Kan. 464, 254 P.3d 539, 541 (2011); State v. Pace, 292 Kan.
937, 258 P.3d 381 (2011); State v. Mendoza, 292 Kan. 933, 258 P.3d 383 (2011).

Issue 2: The district court erred in imposing lifetime electronic monitoring.

Standard of Review

To the extent this issue requires interpreting language of the KSGA, we again
exercise unlimited review. State v. Ballard, 289 Kan. at 1010.

Discussion

Hyche argues the imposition of lifetime electronic monitoring is prohibited by
State v. Jolly, an opinion released after he was sentenced. The State responds that Hyche's
judge was not imposing electronic monitoring but merely describing to Hyche the
consequences of a hard 25 sentence. At sentencing the judge stated:

"This is the only captioned case, aggravated indecent liberties, and it's an off-grid
person felony. The Court does sentence you to life in prison with eligibility of parole
after 25 years. You will be subject to lifetime electronic monitoring. You will be subject
to lifetime registration. There is no good time credit with regard to this." (Emphasis
added.)

In Jolly, the district judge had used almost identical language, which we treated as
imposing electronic monitoring in Jolly's sentence:

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"I'm going to impose a 25 years sentence, which would be 300 months, with the
Department of Corrections. And I'm going to impose life-time post-release supervision.
And the Court does find this to be a sexually motivated offense and the Court will order
that you register as a sex offender for life. And you'll be subject to life-time monitoring."
(Emphasis added.) Jolly, 291 Kan. at 844-45.

Under these circumstances, we readily conclude Hyche's judge did impose lifetime
electronic monitoring as a condition of Hyche's sentence. Because we held in Jolly this
was inappropriate and required vacation of that portion of the sentence, we likewise
vacate that portion of Hyche's sentence. See Jolly, 291 Kan. at 848; Chavez, 292 Kan. at
470.

Issue 3: The district court did not abuse its discretion in denying downward departure.

Standard of Review

When a sentencing court denies a defendant's motion to depart under K.S.A. 21-
4643(d), we review the denial for abuse of discretion. State v. Chavez, 292 Kan. at 469.
As we recently described this standard, judicial discretion is abused:

"[I]f judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an error of law, i.e.,
if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of
fact, i.e., if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based." State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234
P.3d 1 [2010]).

Discussion

Hyche acknowledges that under Jessica's Law, the prescribed punishment for his
offense—aggravated indecent liberties with a child—is a mandatory minimum sentence
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of the hard 25. See K.S.A. 21-3504(a)(3)(A) and (c); K.S.A. 21-4643(a)(1)(C). But he
points out that subsection (d) of 21-4643 authorizes downward departures from the
prescribed hard 25 sentence for substantial and compelling reasons. And Hyche argues
that the district court abused its discretion when it denied his motion for a downward
departure because he (1) had no prior criminal history, (2) was amenable to treatment, (3)
accepted responsibility for his actions, (4) cooperated with the police, and (5) was a
contributing member of society.

At sentencing, the court considered Hyche's statements and testimony from
members of Hyche's family, as well as Hyche's pastor. The judge stated he believed that
Hyche was "very sorry for what [he] did."

Yet the judge also observed that the 7-year-old victim, B.S.T., was Hyche's step-
grandchild, and that she referred to Hyche as "Papa." The judge also found that Hyche's
actions violated a trusting familial relationship.

When a sentencing court considers departures from an off-grid sentence, per
K.S.A. 21-4643(d) it reviews the mitigating circumstances. It also reviews aggravating
circumstances. But it does not simply add the total number of mitigators and then contrast
them with the total number of aggravators. Ballard, 289 Kan. at 1009. And while Hyche's
judge expressly reviewed the mitigators, he also considered valid aggravators before
denying Hyche's departure motion. These included the nature of the relationship between
the victim and the perpetrator, the vulnerability of the victim, and the special type of
harm the crime caused to the familial relationship.

We have affirmed the denial of a departure motion when its basis was because "the
relationship of the appellant to the victim was one of great trust." State v. Trevino, 290
Kan. 317, 323, 227 P.3d 951 (2010). Similarly, we have affirmed denials based upon a
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determination that defendant's action "destroyed [his] family" (Chavez, 292 Kan. at 470),
and because defendant was a friend of the family (Mendoza, 292 Kan. at 936).

Under these circumstances, we conclude the district court did not abuse its
discretion in denying Hyche's motion for a downward departure sentence.

The condition of Hyche's hard 25 sentence requiring lifetime electronic monitoring
is vacated. The remainder of his sentence is affirmed.