dissenting: I respectfully disagree with the majority’s decision to affirm Reyna’s sentence for the off-grid version of aggravated indecent liberties with a child under K.S.A. 2006 Supp. 21-3504.1 believe Reyna should have been sentenced for the crime with which he was charged and of which he was convicted by the jury, i.e., the severity level 3 version of the offense.
First, I believe the majority may have missed the point of appellant’s argument about the charging document when it declares that “Reyna failed to file a motion for arrest of judgment,” and then proceeds to apply the defective complaint test from State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Reyna, 290 Kan. at 677. The statute governing a motion for arrest of judgment provides: “The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does *691not charge a crime or if the court was without jurisdiction of the crime charged.” K.S.A. 22-3502. Reyna made it explicitly clear in his brief that he is not claiming that his complaint was defective and that he does not believe that Hall is applicable. To the contrary, Reyna asserts that the complaint against him is absolutely valid in charging the crime of severity level 3 aggravated indecent liberties with a child and that the district court was definitely invested with jurisdiction of that charged crime. In other words, the complaint in this case did not fall within the parameters of K.S.A. 22-3502, and the district court could not have granted relief under the plain language of that statute because the complaint did charge a crime and the court did have jurisdiction of the crime charged. I understand that Hall may have purported to change that plain statutory language, but the statute says what it says.
Reyna’s principal complaint is that he was sentenced for a different and more severe crime than the one which was charged in the valid complaint and of which he was convicted. To clarify his point, Reyna likened his circumstance to a person who was validly charged with and convicted of intentional second-degree murder but was then sentenced for premeditated first-degree murder. In that instance, the error would occur at sentencing.
The majority does not explain the logistics of using a motion to arrest judgment to correct a sentencing error. Normally, a sentence will be imposed well after the deadline for filing a motion to arrest judgment, which is 10 days after the guilty verdict. K.S.A. 22-3502. I would not require a defendant to be prescient or so cautious as to file a prophylactic motion to arrest judgment simply to guard against the possibility that the district court might impose an improper sentence. In short, I do not believe that a motion to arrest judgment was a prerequisite in this instance or that Hall is applicable.
Next, I disagree that the jury instructions in this case were erroneous. They set forth each and eveiy element of severity level 3 aggravated indecent liberties with a child. For that crime, which was charged in tire complaint, there was no omitted element, as was the case in State v. Daniels, 278 Kan. 53, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004), upon which the majority relies. If the *692district court had sentenced Reyna for a severity level 3 felony, there would be no talk of a defective complaint or erroneous jury instructions.
The problem here is that, after the verdict, the State declares that it intended to prosecute Reyna for the off-grid version of the offense and, therefore, it should get the more severe sentence that it wanted. Granted, the complaint does identify the severity level as an off-grid felony, which would tend to corroborate the State’s intention to charge the more severe crime. However, we have not previously permitted charging by implication.
“We have held that the citation to the statute cannot substitute to supply a missing element of the charge. Incorporation by reference cannot be implied or inferred. It must be explicit. [Citation omitted.] A proper instruction does not remedy the defect in the complaint. [Citation omitted.]” State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992).
Again, the error was in sentencing Reyna for a different, and more severe, crime than that with which he had béen charged and convicted. As the majority notes, a Sixth Amendment violation occurred under Blakely v. Washington, 542 U.S. 296, 303, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), because Reyna’s sentence exceeded the statutory maximum sentence permitted “ ‘solely on the basis of the facts reflected in the jury verdict.’ ” Reyna, 290 Kan. at 680-81. The strong message conveyed by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and its progeny has been that judicial factfinding impermissibly usurps the province of the jury, in contravention of a defendant’s right to jury trial.
However, subsequently, in Washington v. Recuenco, 548 U.S. 212, 218, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006), the United States Supreme Court declared that a Blakely error — failing to submit a sentencing factor to the jury — is not structural error and, therefore, could be subject to a harmless error analysis. Recuenco relied heavily upon the Court’s prior decision in Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999), which found that the failure to submit to the jury an element of the crime was not structural error, but rather the error could be .harmless. The test for harmlessness was stated as whether “the omitted el*693ement was uncontested and supported by overwhelming evidence, such that the juiy verdict would have been the same absent the error.” 527 U.S. at 17.
Ironically, under the guise of harmless error, a constitutional error of trial court factfinding may be cured by performing appellate court factfinding. A reviewing court cannot declare that the jury would have found the omitted element or sentencing enhancement factor without doing what we often say that an appellate court cannot do — make factual findings by reweighing the evidence and passing on the credibility of witnesses. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). The very term “overwhelming evidence” suggests a weighing of the evidence in the record that favors the fact in issue. Further, a fact which may have been uncontested is not necessarily credible. For instance, if an 80-year-old rape victim testifies that she was 8 years old at the time of the rape and the complaint does not charge the defendant with raping a victim under the age of 14, there would have been no incentive for the defense to challenge the age testimony because it was both obviously incredible to the jury and irrelevant to the charges being prosecuted. Yet, if the district court sentences tire defendant under Jessica’s Law, see K.S.A. 2006 Supp. 21-4643, we would be compelled to affirm the conviction and sentence because, in the words of Daniels, the age element was “essentially uncontested and, as a result, overwhelming.” 278 Kan. at 63.
Recently, United States Supreme Court Justice Stevens observed that “imposing criminal sanctions for nonproscribed conduct has always been considered a hallmark of tyranny — no matter how morally reprehensible the prosecuted party.” United States v. Marcus, 560 U.S. 258, __, 130 S.Ct 2159, 176 L. Ed. 2d 1012 (2010) (Stevens, J., dissenting). I would submit that imposing an additional criminal sanction for an uncharged crime of which the defendant was not convicted is no less tyrannical.
Nevertheless, Recuenco and Neder are binding precedent with regard to the character of a Sixth Amendment violation as not being structural error. However, Recuenco clarified that its holding did not foreclose the possibility “that, as a matter of state law, the Blakely ... error was not harmless.” 548 U.S. at 218 n.1. Therefore, *694I would find that under the law of diis state, tíre sentencing error in this case was not harmless.
To start, “[i]n Kansas, all crimes are statutory.” Sanford, 250 Kan. at 601. K.S.A. 2006 Supp. 21-3107(2), instructs us that “[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” Here, the off-grid offense was not the crime charged and was not a lesser included crime of the charged severity level 3 offense. Accordingly, Reyna’s conviction for the uncharged off-grid offense was statutorily prohibited.
Moreover, we have declared that a district court does not have jurisdiction to convict of an uncharged crime. “ ‘[I]f a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.’ ” (Emphasis added.) State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000) (quoting State v. Horn, 20 Kan. App. 2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 [1995]). It seems nonsensical to permit the district court to acquire jurisdiction to convict a person of an uncharged crime after the trial has concluded based upon a failure to file a motion to arrest judgment within 10 days after the verdict. Essentially, that creates retroactive jurisdiction via an implicit postconviction waiver. See Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (“Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court’s jurisdiction does not invest the court with the requisite subject matter jurisdiction.”). If, as I contend, the district court lacked jurisdiction to convict Reyna of the off-grid offense, this court cannot acquire jurisdiction for the purpose of reviewing the evidence to determine whether the error was harmless. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) (if district court lacks jurisdiction, appellate court does not acquire jurisdiction over subject matter on appeal).
On a different level, we have held that a sentence which does not conform to the term of imprisonment authorized by the statute is an illegal sentence. See State v. Davis, 283 Kan. 767, 769, 156 *695P.3d 665 (2007). An illegal sentence may be corrected “at any time.” K.S.A. 22-3504(1). Based upon the elements charged in the complaint and the elements found by the jury, Reyna’s sentence does not conform to the prison term authorized by the aggravated indecent liberties with a child statute. Such an “any time” correction cannot be subject to harmless error.
Finally, we have a court-created rule in this state known as the identical offense sentencing doctrine. Recently, in State v. Thompson, 287 Kan. 238, 258, 200 P.3d 22 (2009), we reiterated that “[i]f the elements in overlapping provisions are identical, the due process considerations involved in Kansas’ identical offense sentencing doctrine apply and a defendant may only be sentenced to the lesser punishment provided for in the identical, overlapping provisions.” Here, Reyna was actually charged with and convicted of a lesser included offense of the crime for which he was sentenced. See K.S.A. 2006 Supp. 21-3107(2)(b) (lesser included crime is one where all elements of the lesser crime are identical to some of the elements of the crime charged). I find it inconsistent and illogical to heed the due process considerations in the context of an identical offense, but to ignore the same due process concerns when the defendant is sentenced for an aggravated degree of a crime after being charged with and convicted of a lesser degree of that offense. To me, the latter scenario provides less notice and opportunity to be heard than the identical offense situation, and I would not condone it in this state.
Accordingly, I would find that Reyna was erroneously sentenced pursuant to Jessica’s Law and that the error was not harmless under Kansas state law.