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State v. Riolo

Court of Appeals of Kansas

May 23, 2014

State of Kansas, Appellee,
v.
George Riolo, Appellant

Appeal from Sedgwick District Court; Eric A. Commer, judge.

SYLLABUS

BY THE COURT

1. When a person is convicted of a sexually violent crime and he or she has a prior Kansas conviction for a sexually violent crime or a conviction for a comparable offense in another state, the court is required to double the person's prison sentence. This rule is known as the persistent sex offender rule. See K.S.A. 21-4704(j).

2. When discussing the classification of out-of-state offenses for criminal history purposes, a comparable offense need not contain elements identical to those of the out-of-state crime. Instead, the two offenses must be similar in nature and cover a similar type of criminal conduct.

3. The Colorado crime of sexual assault on a child in violation of Colo. Rev. Stat. § 18-3-405(1) (1986) is comparable to the sexually violent crime of indecent liberties with a child under K.S.A. 1985 Supp. 21-3503.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, C.J., Hill and Arnold-Burger, JJ.

OPINION

Page 1121

Arnold-Burger, J.

When a person is convicted of a sexually violent crime and he or she has a prior Kansas conviction for a sexually violent crime or a conviction for a comparable offense in another state, the court is required to double the person's prison sentence. This rule is known as the persistent sex offender rule. See K.S.A. 21-4704(j). George Riolo pled guilty to two different charges, both of which constituted sexually violent offenses under Kansas law. The State asserted that, due to a prior conviction in another state for a comparable crime, this special sentencing rule should apply. Riolo countered that this prior conviction--a Colorado [50 Kan.App.2d 352] offense from 1986--was not comparable to other sexually violent crimes in Kansas and that the persistent sex offender rule should not apply. The district court disagreed and applied the rule. Because we find that Riolo's crime of conviction in Colorado was comparable to the Kansas sexually violent crime of indecent liberties with a child, we affirm.

Factual and Procedural History

Pursuant to an agreement with the State, Riolo pled guilty to one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A) and two counts of aggravated indecent solicitation of a child in violation of K.S.A. ...


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