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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. 214643(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 stepgranddaughter, 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. 214643(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. 214643(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 hard25 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.

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