concurring and dissenting: I agree with the majority that: (I) Fierro has standing, (2) he preserved his constitutional issues for appeal, and (3) he failed to show bias or prejudice at sentencing. I also agree that Fierro qualifies for retroactivity under K.S.A. 1993 Supp. 21-4724(b).
I dissent from the majority’s analysis for determining Fierro’s guidelines sentence and from the disposition of the case. I would reverse and remand for resentencing.
Supplemental Facts
Fierro pleaded nolo contendere to six counts of attempted indecent liberties with a child and was convicted as charged on March 29, 1993. He appeared for sentencing on July 9, 1993.
In determining the pre-guidelines sentence, the district court discussed the K.S.A. 21-4606 factors and imposed the maximum sentence for each count, which was 3 to 10 years. See K.S.A. 21-4501(d)(1). The six terms were made concurrent.
The district court then computed the guidelines sentence for each count (see K.S.A. 1993 Supp. 21-4704[a] for the guidelines grid for nondrug crimes). Fierro’s criminal history categoiy was “I.” The district court originally determined that the offense severity level for attempted indecent liberties was either 6 or 7, depending on the age of the victim at the- time of the offense (c.g., in counts 1 and 5 the victims were 14 or older at the time; therefore, the offenses were less severe under the sentencing statute applied by the district court). Thus, the district court noted that grid box 6-1 called for 18 months on counts 2, 3, 4, and 6, and grid box 7-1 called for 12 months on counts 1 and 5. The *653district court did not specifically take notice, however, that the grid boxes applicable to Fierro called for “presumptive probation.”
After announcing Fierro’s terms of imprisonment, the court addressed what it viewed as a “motion for probation.” The court concluded that Fierro should not be placed on probation.
Defense counsel argued that the court must consider the possibility of assignment to community corrections if it denied probation for Fierro. In pronouncing the sentence, the court did not expressly consider assignment to community corrections. The journal entry, however, stated that “the court denies the defendant’s motions for probation and community corrections.”
Several days later the State filed a motion to reconsider Fierro’s guidelines sentence. The State argued that the offense severity levels should have been lower (resulting in a greater sentence) based on the July 1, 1993, amendments to K.S.A. 1992 Supp. 21-3503 and K.S.A. 21-3504, which changed the penalties and modified the definitions of indecent liberties and aggravated indecent liberties. The district court granted the State’s motion. Accordingly, the court applied K.S.A. 1993 Supp. 21-3504, aggravated indecent liberties, and increased Fierro’s guidelines sentences to 32 months on counts 2, 3, 4, and 6 and to 18 months on counts 1 and 5.
Discussion
As the majority notes, the substantive criminal statutes that defined crimes before July 1, 1993, did not contain “severity levels,” which are necessary to compute a guidelines sentence under the KSGA. Severity levels are found only in the substantive criminal statutes that took effect July 1, 1993.
The legislature provided no guidance for courts trying to solve the crime comparison problem. The retroactivity statute simply instructs courts to determine the appropriate guidelines sentence for crimes as if they had been committed on or after July 1, 1993. K.S.A. 1993 Supp. 21-4724(b)(l), (c)(1). The legislature was silent as to whether the guidelines sentence should be based upon the name of the pre-guidelines crime, the elements of the pre-guide*654lines crime, or the sum of the criminal activity which led to the conviction.
Fierro was convicted of attempted indecent liberties with a child under K.S.A. 1992 Supp. 21-3503 and K.S..A. 1992 Supp. 21-3301. At the time of Fierro’s offenses, the indecent liberties and aggravated indecent liberties statutes provided as follows:
21-3503. Indecent liberties with a child.
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
(a) Sexual intercourse; or
(b) any lewd fondling or touching ... of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
(c) soliciting the child to engage in any lewd fondling or touching of . . . another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
“(2) It shall be a defense . . . that the child was married to die accused at the time of the offense.
“(3) Indecent liberties with a child is a class C felony.”
21-3504. Aggravated indecent liberties with a child.
“(1) Aggravated indecent liberties with a child is the. commission of indecent liberties with a child, as defined in K.S.A. 21-3503 and amendments thereto, by any guardian, proprietor or employee of any foster home, orphanage or other public or private institution for the care and custody of minor children, to whose charge the child has been committed or entrusted by any court, court services officer, department of social and rehabilitation services or other agency acting under color of law.
“(2) Aggravated indecent liberties with a child is a class B felony.”
Three observations regarding the pre-July 1, 1993, versions of these statutes are important. First, consent or lack of consent by the victim was irrelevant. Second, whether the victim was under 16 was the only relevant age factor. Third,, what distinguished aggravated indecent liberties from indecent liberties was strictly the nature of the relationship between the offender and the victim. Fierro did not have the necessary relationship with his victims to establish aggravated indecent liberties under K.S.A. 1992 Supp. 21-3504.
By the time Fierro was sentenced, after July 1, 1993, the indecent liberties statutes read as follows: '
*65521-3503. Indecent liberties with a child.
“(a) Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
(1) Any lewd fondling or touching . . . of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either die child or the offender, or both; or
(2) soliciting the 'child to engage in any lewd fondling or touching ... of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
“(b) It shall be a defense to a prosecution of indecent liberties with a child as described in subsection (a)(1) that the child was married to the accused at the time of the offense.
“(c) Indecent liberties with a child is a severity level 5, person felony.” (Emphasis added.)
21-3504. Aggravated indecent liberties with a child.
“(a) Aggravated indecent liberties with a child is:
(1) Sexual intercourse with a child who is 14 or more years of age but less than 16 years- of age;
(2) engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age and who does not consent thereto;
(A) Any lewd fondling or touching ... of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or
(B) causing the child to engage in any lewd fondling or touching of . . . another with the intent to arouse or satisfy the sexual desires of the child, the offender or another; or
(3) engaging in any of tire following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching ... of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of . . . another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
“(b) It shall be a defense to a prosecution of aggravated indecent liberties with a child as provided in subsection (a)(1), (a)(2)(A) and (a)(3)(A) that the child was married to the accused at the time of the offense.
“(c) Aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony [and] as described in subsection (a)(2) is a severity level 4, person felony.” (Emphasis added.)
Under the July 1, 1993, amendments, with respect to lewd fondling and touching (the allegations in the case at bar), indecent *656liberties occurs only when the victim is 14 or more but less than 16 years of age and, consents. If the victim is between 14 and 16 and does not consent, the aggravated indecent liberties statute applies. If the victim is under 14, regardless of consent, the crime is aggravated indecent liberties.
I believe Fierro’s crime severity levels must be determined under indecent liberties, K.S.A. 1993 Supp. 21-3503. Like the statute under which he was convicted, K.S.A. 1993 Supp. 21-3503 does not require a showing of lack of consent. The statute used to determine his guidelines sentence in this case, and upheld by the majority, K.S.A. 1993 Supp. 21-3504, requires a showing of lack of consent with respect to victims over 14 but less than 16. I also believe that the fact that some victims were under 14 should not be used against the defendant, as it would be under K.S.A. 1993 Supp. 21-3504(a)(3), since the victim’s being under 14 was not a relevant factor at the time of the offenses. The only reason the age factors were applied in determining Fierro’s guidelines sentence was because such facts were unnecessarily set forth in the amended complaint. Under K.S.A. 1993 Supp. 21-3503, Fierro’s crime severity level would be 7 (a two level increase because the crime was an attempt, see K.S.A. 1993 Supp. 21-3301[c]), and his grid box would be 7-1 for each count, which calls for “presumptive probation.”
The district court should not have looked to the underlying facts of Fierro’s conviction and applied them to the new indecent liberties statutes to determine the crime severity level. Rather, the current statute most analogous in its legal elements to the statute of conviction, without containing any additional elements, should have been applied. Facts such as age (whether the victims were under 14) and lack of consent should not have been considered “established” since they were not necessary to (i.e., elements of) Fierro’s conviction.
Assume, for example, that the amended complaint in this case had been less specific, i.e., it did not list the victims’ ages or describe the offenses in detail but simply used the statutoiy language in effect at the time the offenses were committed (e.g., “Fierro committed lewd fondling and touching with a girl, A.H., *657under the age of 16.”). Would Fierro’s guidelines sentence have been determined under K.S.A. 1993 Supp. 21-3504? Could the State have introduced evidence at the sentencing hearing as to the girl’s specific age at the time of the offenses and the circumstances of each offense in order to have Fierro’s guidelines sentence computed under K.S.A. 1993 Supp. 21-3504 rather than K.S.A. 1993 Supp. 21-3503? If Fierro had been convicted by jury trial, could the sentencing court have looked at the trial transcript or the description of the offense in a presentence investigation report in order to determine Fierro’s true “crime” for purposes of selecting the appropriate severity level?
I turn now to the recent case State v. Colston, 20 Kan. App. 2d 107, 883 P. 2d 1231 (1994), endorsed by the majority. Colston was convicted in 1992 of aggravated incest under K.S.A. 21-3603 based on alleged acts of sodomy with his seven- or eight-year-old child. Following K.S.A. 1993 Supp. 21-4724, the Department of Corrections (DOC) issued a retroactivity report placing Colston’s severity level at 5 based on the new crime by the same name and statutory section, aggravated incest, K.S.A. 1993 Supp. 21-3603. The State contested the report, arguing that the new crime more applicable to Colston’s crime was now aggravated criminal sodomy, a severity level 2 crime. See K.S.A. 1993 Supp. 21-3506.
The old aggravated incest statute applied to any act of sodomy with one’s own child under 18. The new aggravated incest statute pertained to sodomy with one’s own child only if the child was between 16 and 18. Under the new statutes, sodomy with one’s own child under the age of 16 is aggravated criminal sodomy.
Colston’s amended information alleged the date of birth of the victim, the date of the crime, and the fact that the victim was Colston’s own child. Thus, it could be determined from the charging document that the victim was seven or eight years old at the time of the crime and was Colston’s child. Colston pleaded nolo contendere to the charges. The Court of Appeals agreed with the State and held that the “criminal activity” alleged in the “well-pleaded facts” in the charging document, not the name of the crime, determines the appropriate guidelines sentence. 20 Kan. App. 2d at 112. Thus, the Court of Appeals concluded that Col*658ston’s guidelines sentence should be derived from the aggravated criminal' sodomy statute, which carries an offense severity level of 2. 20 Kan. App. 2d at 115-16.
It was not necessary to prove the exact age of the child victim to convict Colston of his original crime and, for that reason, Colston would have had no reason or incentive to contest the age of the child set forth in the information, as long as he conceded the child was under 18. However, the Court of Appeals held it “established” that the child was under 16 based on the charging document to which Colston pleaded nolo contendere. See 20 Kan. App. 2d at 115. Achieving that result, however, required looking beyond the elements of the crime of conviction and could give rise to unfair results, or additional fact-finding procedures, in other cases. I disagree, in part, with the Court of Appeals’ analysis in Colston.
Next, consider the situation where an essential element of a new crime proposed as the “sentencing” crime was not alleged in the charging documents. In Fierro’s case, the amended complaint failed to specifically allege that the victims did not consent. Nevertheless, Fierro was sentenced on counts 1 and 5 under K.S.A. 1993 Supp. 21-3504(a)(2) (applicable to victims between 14 and 16; requires a lack of consent). The Court of Appeals recently addressed a similar question in State v. Houdyshell, 20 Kan. App. 2d 90, 884 P.2d 437 (1994). The majority in the case at bar cites Houdyshell without discussion.
In Houdyshell, two defendants were convicted before and sentenced after July 1, 1993, on charges of aggravated battery under K.S.A. 21-3414. The aggravated battery statute was amended July 1, 1993, and subdivided into different parts with different crime severity levels. The district court determined the Houdyshells’ crime severity levels based on a subsection of the new statute that contained an element (intent to commit serious bodily harm) which was neither alleged in the charging documents nor included in the elements of the crime of conviction.
The Court of Appeals in Houdyshell reversed, holding that “[i]f án information fails to allege an essential element of a crime, the district court has no jurisdiction to sentence a defendant for that *659crime or to calculate the offenders’ [KSGA] sentence as if the offender had been convicted of that crime.” 20 Kan. App. 2d 90, Syl. ¶ 3. The Court of Appeals further held that “[d]ue process requires that the State prove all essential elements of a crime beyond a reasonable doubt before a defendant can be convicted of or sentenced for that crime. 20 Kan. App. 2d 90, Syl. ¶ 4. The Court of Appeals’ reasoning is persuasive. I agree with Houdyshell’s rationale.
Of the three alternatives (name, elements, or the sum of the criminal activity) for ascertaining the most appropriate post-July 1, 1993, crime to determine a severity level for a pre-July 1, 1993, conviction, I conclude the “elements approach” is preferable and should be used. Fierro’s guidelines sentence should be determined by K.S.A. 1993 Supp. 21-3503, which would place him in grid block 7-1 (12 months; presumptive probation).
With respect to Fierro’s pre-guidelines sentence, K.S.A. 1993 Supp. 21-4606a addresses presumptive probation for crimes committed before July 1, 1993. The presumptive sentence for a first-time felon convicted of a class D felony is probation, unless the crime falls within articles 34, 35, or 36 under Chapter 21 of the Kansas Statutes Annotated or was an attempt to commit such a crime. Although Fierro was a first-time felon convicted of a class D felony, his crimes were attempts to commit an article 35 crime (indecent liberties, 21-3503); consequently, he did not qualify for presumptive probation under the pre-guidelines sentencing statutes.
Fierro contends, however, that the district court erred by failing to consider the presumptive status of assignment to community corrections. I agree. The majority does not address this contention. Fierro relies on the construction of K.S.A. 1991 Supp. 21-4606b in State v. Turner, 251 Kan. 43, 48, 833 P.2d 921 (1992). The amendments to 21-4606b in effect at the time of Fierro’s sentencing on July 9, 1993, are primarily technical and do not change the pertinent language of 21-4606b as it was construed in Turner.
K.S.A. 1993 Supp. 21-4606b(a) provides that if probation is not granted pursuant to 21-4606a, “the presumptive sentence for a *660person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.” K.S.A. 1993 Supp. 21-4606b(b) further states that in determining whether to actually assign the defendant to community corrections under the presumption, the court “shall consider” certain “aggravating circumstances,” including whether the crime was an article 34, 35, or 36 crime, or an attempt to commit such a crime. Under K.S.A. 1993 Supp. 21-4606b(b), the fact that the crime was an attempt to commit an article 35 crime is not an absolute bar to imposing a sentence of assignment to community corrections, but is just one of three aggravating circumstances to consider. See State v. Turner, 251 Kan. at 49.
The district court should have determined whether there were sufficient aggravating circumstances under 21-4606b(b) to rebut the presumption of assignment to a community correctional services program or whether the presumption controls Fierro’s sentence.
Conclusion
Fierro’s sentence should be vacated and the case remanded for resentencing. Both his pre-guidelines sentence and his guidelines sentence must be computed, separately and correctly, in order to effectively impose and administer Fierro’s sentence.
Allegrucci, J., joins the foregoing concurring and dissenting opinion.