K.S.A. Chapter 21 - Article 68

SENTENCING GUIDELINES

Current through end of 2017 legislative session

21-6801        Citation of act.

21-6802        Basis for applying sentencing guidelines and prosecuting standards.

21-6803        Definitions.

21-6804        Sentencing guidelines; grid for nondrug crimes; authority and responsibility of sentencing court; presumptive disposition; nongrid crime.

21-6805        Sentencing guidelines; grid for drug crimes applied in felony cases under uniform controlled substances act; authority and responsibility of sentencing court; presumptive disposition.

21-6806        Sentencing; imprisonment, good time; pronouncement of sentence in felony cases; off-grid crimes.

21-6807        Sentencing; crime severity scale for nondrug crimes, application to specific crimes; ranking offenses, provision; unranked offenses; unclassified felonies; prior convictions discovered after the plea.

21-6808        Sentencing; crime severity scale for drug offenses, application; sentencing rules for certain crimes; plea bargain agreements.

21-6809        Criminal history categories in criminal history scale.

21-6810        Sentencing; criminal history categories, basis; determination of offenders classification; decay factors; prior convictions.

21-6811        Sentencing; determination of offender's criminal history classification in presumptive sentencing guidelines grid for nondrug and drug crimes.

21-6812        Actions which prosecutors may take under agreements with defendants for plea; exceptions relating to prior convictions.

21-6813        Presentence investigation report; information included; part of court record; confidential information, disclosure to certain parties; report format.

21-6814        Offenders criminal history; admission in court or determined by judge; burden of proof; notice of error by offender.

21-6815        Imposition of presumptive sentence; departure sentencing; finding substantial and compelling reasons for departure; mitigating or aggravating factor considered in determining if reasons exist; reasons stated on record.

21-6816        Departure sentencing for drug crimes; finding substantial and compelling reasons for departure; aggravating factors considered in determining if reasons exist.

21-6817        Departure sentencing; hearing; notice; findings of fact and conclusions of law; order.

21-6818        Departure sentencing; limitations.

21-6819        Sentencing in multiple conviction cases; direction of judge to impose concurrent or consecutive sentences; requirements applicable; departure sentencing based on aggravating factors.

21-6820        Departure sentence subject to appeal; confinement or release of defendant pending review; scope of review; action by court; written opinion, when; summary disposition; correction of arithmetic or clerical errors.

21-6821        Good time credit; calculation; forfeiture; rules and regulations of secretary.

21-6822        Sentencing guidelines; changes in; duties of sentencing commission and secretary of corrections; submission to legislature.

21-6823        Costs and expenses associated with postconviction sanctions for felony convictions; consolidation of probation, parole and community corrections services.

21-6824        Nonprison sanction; certified drug abuse treatment programs; assessment; supervision by community corrections; discharge from program.


21-6801. Citation of act.

          K.S.A. 21-6801 through 21-6824, and amendments thereto, shall be known and may be cited as the revised Kansas sentencing guidelines act.

History: L. 1992, ch. 239, § 1; L. 2010, ch. 136, § 282, July 1, 2011.

21-6802. Basis for applying sentencing guidelines and prosecuting standards.

          (a) The sentencing guidelines and prosecuting standards, as contained in K.S.A. 21-6801 through 21-6824, and amendments thereto, shall apply equally to all offenders in all parts of the state.

          (b) The sentencing court may consider in all cases a range of alternatives with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case, consistent with these guidelines and the permitted dispositional and durational departures contained in K.S.A. 21-6801 through 21-6824, and amendments thereto.

          (c) Except as otherwise provided, the sentencing guidelines and prosecuting standards shall be applicable to felony crimes committed on or after July 1, 1993, and shall have no application to crimes committed prior to July 1, 1993. If it cannot be determined whether the crime was committed on or after July 1, 1993, the person convicted of committing such crime shall be sentenced as if such crime had been committed prior to July 1, 1993. A crime is committed prior to July 1, 1993, if any of the essential elements of the crime as then defined occurred before July 1, 1993. Except as provided in K.S.A. 21-4724, prior to its repeal, prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.

History: L. 1992, ch. 239, §§ 2, 23, 302;; L. 2010, ch. 136, § 283, July 1, 2011.

21-6803. Definitions.

          As used in K.S.A. 21-6801 through 21-6824, and amendments thereto:

          (a) "Aggravating factor" means a substantial and compelling reason justifying an exceptional sentence whereby the sentencing court may impose a departure sentence outside the standard sentencing range for a crime. An aggravating factor may result in a dispositional or durational departure;

          (b) "commission" means the Kansas sentencing commission;

          (c) "criminal history" means and includes an offender’s criminal record of adult felony, class A misdemeanor, class B person misdemeanor or select misdemeanor convictions and comparable juvenile adjudications at the time such offender is sentenced;

          (d) "criminal history score" means the summation of the convictions described as criminal history that place an offender in one of the criminal history score categories listed on the horizontal axis of the sentencing guidelines grids;

          (e) "decay factor" means prior convictions that are no longer considered as part of an offender’s criminal history score;

          (f) "departure" means a sentence which is inconsistent with the presumptive sentence for an offender;

          (g) "dispositional departure" means a departure sentence imposing a nonprison sanction when the presumptive sentence is prison or prison when the presumptive sentence is nonimprisonment;

          (h) "dispositional line" means the solid black line on the sentencing guidelines grids which separates the grid blocks in which the presumptive sentence is a term of imprisonment and postrelease supervision from the grid blocks in which the presumptive sentence is nonimprisonment;

          (i) "durational departure" means a departure sentence which is inconsistent with the presumptive term of imprisonment or nonimprisonment;

          (j) "good time" means a method of behavior control or sanctions utilized by the department of corrections;

          (k) "grid" means the sentencing guidelines grid for nondrug crimes as provided in 21-6804, and amendments thereto, or the sentencing guidelines grid for drug crimes as provided in 21-6805, and amendments thereto, or both;

          (l) "grid block" means a box on the grid formed by the intersection of the crime severity ranking of a current crime of conviction and an offender’s criminal history classification;

          (m) "imprisonment" means imprisonment in a facility operated by the Kansas department of corrections;

          (n) "mitigating factor" means a substantial and compelling reason justifying an exceptional sentence whereby the sentencing court may impose a departure sentence outside of the standard sentencing range for a crime. A mitigating factor may result in a dispositional or durational departure;

          (o) "nonimprisonment", "nonprison" or "nonprison sanction" means probation, community corrections, conservation camp, house arrest or any other community based disposition;

          (p) "postrelease supervision" means the release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as set forth by the court, subject to conditions imposed by the prisoner review board and to the secretary of correction’s supervision;

          (q) "presumptive sentence" means the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the offender’s current crime of conviction and the offender’s criminal history;

          (r) "prison" means a facility operated by the Kansas department of corrections; and

          (s) "sentencing range" means the sentencing court’s discretionary range in imposing a nonappealable sentence.

History: L. 1992, ch. 239, § 3; L. 1994, ch. 291, § 49; L. 2010, ch. 136, § 284, L. 2012, ch. 16, § 7; July 1.

21-6804. Sentencing guidelines; grid for nondrug crimes; authority and responsibility of sentencing court; presumptive disposition; nongrid crime.

          (a) The provisions of this section shall be applicable to the sentencing guidelines grid for nondrug crimes. The following sentencing guidelines grid shall be applicable to nondrug felony crimes:

[You can view the nondrug grid here].

          (b) Sentences expressed in the sentencing guidelines grid for nondrug crimes represent months of imprisonment.

          (c) The sentencing guidelines grid is a two-dimensional crime severity and criminal history classification tool. The grid’s vertical axis is the crime severity scale which classifies current crimes of conviction. The grid’s horizontal axis is the criminal history scale which classifies criminal histories.

          (d) The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing court’s discretion to enter a departure sentence. The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender’s criminal history.

          (e) (1) The sentencing court has discretion to sentence at any place within the sentencing range. In the usual case it is recommended that the sentencing judge select the center of the range and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.

          (2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the:

          (A) Prison sentence;

          (B) maximum potential reduction to such sentence as a result of good time; and

          (C) period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

          (3) In presumptive nonprison cases, the sentencing court shall pronounce the:

          (A) Prison sentence; and

          (B) duration of the nonprison sanction at the sentencing hearing.

          (f) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional nonprison sentence as provided in subsection (q).

          (g) The sentence for a violation of K.S.A. 21-3415, prior to its repeal, aggravated battery against a law enforcement officer committed prior to July 1, 2006, or a violation of K.S.A. 2014 Supp. 21-5412(d), and amendments thereto, aggravated assault against a law enforcement officer, which places the defendant’s sentence in grid block 6-H or 6-I shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

          (h) When a firearm is used to commit any person felony, the offender’s sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

          (i) (l) The sentence for the violation of the felony provision of K.S.A. 2014 Supp. 8-1025, K.S.A. 8-2,144, K.S.A. 8-1567, K.S.A. 2014 Supp. 21-5414(b)(3), K.S.A. 2012 Supp. 21-5823(b)(3) and (b)(4), K.S.A. 2014 Supp. 21-6412 and K.S.A. 2014 Supp. 21-6416, and amendments thereto, shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 2014 Supp. 21-6807, and amendments thereto.

          (2) If because of the offender’s criminal history classification the offender is subject to presumptive imprisonment or if the judge departs from a presumptive probation sentence and the offender is subject to imprisonment, the provisions of this section and K.S.A. 2011 Supp. 21-6807, and amendments thereto, shall apply and the offender shall not be subject to the mandatory sentence as provided in K.S.A. 2011 Supp. 21-5823, and amendments thereto.

          (3) Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 2014 Supp. 8-1025, K.S.A. 8-2,144, K.S.A. 8-1567, K.S.A. 2014 Supp. 21-5414(b)(3), K.S.A. 2014 Supp. 21-5823(b)(3) and (b)(4), K.S.A. 2014 Supp. 21-6412 and K.S.A. 2014 Supp. 21-6416, and amendments thereto, shall not be served in a state facility in the custody of the secretary of corrections, except that the term of imprisonment for felony violations of K.S.A. 2014 Supp. 8-1025 or K.S.A. 8-2,144 or K.S.A. 8-1567, and amendments thereto, may be served in a state correctional facility designated by the secretary of corrections if the secretary determines that substance abuse treatment resources and facility capacity is available. The secretary’s determination regarding the availability of treatment resources and facility capacity shall not be subject to review. Prior to imposing any sentence pursuant to this subsection, the court may consider assigning the defendant to a house arrest program pursuant to K.S.A. 2014 Supp. 21-6609, and amendments thereto.

          (j) (1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.

          (2) Except as otherwise provided in this subsection, as used in this subsection, "persistent sex offender" means a person who:

          (A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto; and

          (ii) at the time of the conviction under subsection (j)(2)(A)(i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto, in this state or comparable felony under the laws of another state, the federal government or a foreign government; or

          (B) (i) has been convicted of rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto; and

          (ii) at the time of the conviction under subsection (j)(2)(A)(i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government.

          (3) Except as provided in subsection (j)(2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.

          (k) (1) If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender’s sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

          (2) As used in this subsection, "criminal street gang" means any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities:

          (A) The commission of one or more person felonies; or

          (B) the commission of felony violations ofarticle 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, and amendments thereto prior to their transfer, or any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009; and

          (C) its members have a common name or common identifying sign or symbol; and

          (D) its members, individually or collectively, engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of article 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto,K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, and amendments thereto, any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009, or any substantially similar offense from another jurisdiction.

          (l) Except as provided in subsection (o), the sentence for a violation of K.S.A. 21-5807(a)(1), and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5501, 21-5502 or 21-5503, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-3715(a) or (b), prior to its repeal, 21-3716, prior to its repeal, K.S.A. 21-5807(a)(1) or (a)(2) or 21-5807(b), or any attempt or conspiracy to commit such offense,and amendments thereto, shall be presumptive imprisonment.

          (m) The sentence for a violation of K.S.A 22-4903 or K.S.A. 21-5913(a)(2), and amendments thereto, shall be presumptive imprisonment. If an offense under such sections is classified in grid blocks 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose an optional nonprison sentence as provided in subsection (q).

          (n) The sentence for a violation of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, and when such person being sentenced has any combination of two or more prior convictions of K.S.A. 21-3705(b), prior to its repeal, or of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (o) The sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has no prior convictions for a violation of K.S.A. 21-3701 or 21-3715, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto; or the sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has one or two prior felony convictions for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807, and amendments thereto; or the sentence for a felony violation of burglary as defined in 21-5807(a), and amendments thereto, when such person being sentenced has one prior felony conviction for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in 21-5801, and amendments thereto, or burglary as defined in 21-5807, and amendments thereto, shall be the sentence as provided by this section, except that the court may order an optional nonprison sentence for a defendant to participate in a drug treatment program, including, but not limited to, an approved after-care plan, if the court makes the following findings on the record:

          (1) Substance abuse was an underlying factor in the commission of the crime;

          (2) substance abuse treatment in the community is likely to be more effective than a prison term in reducing the risk of offender recidivism; and

          (3) participation in an intensive substance abuse treatment program will serve community safety interests. A defendant sentenced to an optional nonprison sentence under this subsection shall be supervised by community correctional services. The provisions of K.S.A. 21-6824(f)(1), and amendments thereto, shall apply to a defendant sentenced under this subsection. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

          (p) The sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has any combination of three or more prior felony convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in 21-5801, and amendments thereto, or burglary as defined in 21-5807; or the sentence for a violation of burglary as defined in 21-5807(a), and amendments thereto, when such person being sentenced has any combination of two or more prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21-3716, prior to their repeal, or theft of property as defined in 21-5801, and amendments thereto, or burglary as defined in 21-5807, and amendments thereto, shall be presumed imprisonment and the defendant shall be sentenced to prison as provided by this section, except that the court may recommend that an offender be placed in the custody of the secretary of corrections, in a facility designated by the secretary to participate in an intensive substance abuse treatment program, upon making the following findings on the record:

          (1) Substance abuse was an underlying factor in the commission of the crime;

          (2) substance abuse treatment with a possibility of an early release from imprisonment is likely to be more effective than a prison term in reducing the risk of offender recidivism; and

          (3) participation in an intensive substance abuse treatment program with the possibility of an early release from imprisonment will serve community safety interests by promoting offender reformation.

          The intensive substance abuse treatment program shall be determined by the secretary of corrections, but shall be for a period of at least four months. Upon the successful completion of such intensive treatment program, the offender shall be returned to the court and the court may modify the sentence by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If the offender’s term of imprisonment expires, the offender shall be placed under the applicable period of postrelease supervision. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

          (q) As used in this section, an "optional nonprison sentence" is a sentence which the court may impose, in lieu of the presumptive sentence, upon making the following findings on the record:

          (1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and

          (2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or

          (3) the nonprison sanction will serve community safety interests by promoting offender reformation.

          Any decision made by the court regarding the imposition of an optional nonprison sentence shall not be considered a departure and shall not be subject to appeal.

          (r) The sentence for a violation of K.S.A. 21-5413(c)(2), and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (s) The sentence for a violation of K.S.A. 21-5512, and amendments thereto, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (t) (1) If the trier of fact makes a finding that an offender wore or used ballistic resistant material in the commission of, or attempt to commit, or flight from any felony, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 30 months’ imprisonment.

          (2) The sentence imposed pursuant to subsection (t)(1) shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (3) As used in this subsection, "ballistic resistant material" means: (A) Any commercially produced material designed with the purpose of providing ballistic and trauma protection, including, but not limited to, bulletproof vests and kevlar vests; and (B) any homemade or fabricated substance or item designed with the purpose of providing ballistic and trauma protection.

          (u) The sentence for a violation of K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5501, 21-5502 or 21-5503, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-4018, prior to its repeal, or K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy to commit such offense, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (v) The sentence for a third or subsequent violation of K.S.A. 8-1568, and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (w) The sentence for aggravated criminal damage to property as defined in K.S.A. 2014 Supp. 21-5813(b), and amendments thereto, when such person being sentenced has a prior conviction for any nonperson felony shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (x) The sentence for a violation of K.S.A. 2015 Supp. 21-5807(a)(1), and amendments thereto, shall be presumptive imprisonment if the offense under such paragraph is classified in grid blocks 7-C, 7-D or 7-E. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (y) (1) Except as provided in subsection (y)(3), if the trier of fact makes a finding beyond a reasonable doubt that an offender committed a nondrug felony offense, or any attempt or conspiracy, as defined in K.S.A. 2016 Supp. 21-5301 and 21-5302, and amendments thereto, to commit a nondrug felony offense, against a law enforcement officer, as defined in K.S.A. 2016 Supp. 21-5111(p)(1) and (3), and amendments thereto, while such officer was engaged in the performance of such officer’s duty, or in whole or in any part because of such officer’s status as a law enforcement

officer, the sentence for such offense shall be:

          (A) If such offense is classified in severity level 2 through 10, one severity level above the appropriate level for such offense; and

          (B) (i) if such offense is classified in severity level 1, except as otherwise provided in subsection (y)(1)(B)(ii), imprisonment for life, and such offender shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, such offender shall not be eligible for parole prior to serving 25 years’ imprisonment, and such 25 years’ imprisonment shall not be reduced by the application of good time credits.

No other sentence shall be permitted.

          (ii) The provisions of subsection (y)(1)(B)(i) requiring the court to impose a mandatory minimum term of imprisonment of 25 years shall not apply if the court finds the offender, because of the offender’s criminal history classification, is subject to presumptive imprisonment and the sentencing range exceeds 300 months. In such case, the offender is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.

          (2) The sentence imposed pursuant to subsection (y)(1) shall not be considered a departure and shall not be subject to appeal.

          (3) The provisions of this subsection shall not apply to an offense described in subsection (y)(1) if the factual aspect concerning a law enforcement officer is a statutory element of such offense.

History: L. 1992, ch. 239, § 4; L. 1993, ch. 291, § 254; L. 1994, ch. 341, § 1; L. 1995, ch. 251, § 3; L. 1996, ch. 258, § 10; L. 1999, ch. 164, § 17; L. 2001, ch. 177, § 9; L. 2001, ch. 186, § 2; L. 2002, ch. 10, § 1; L. 2006, ch. 212, § 16; L. 2007, ch. 169, § 3; May 1; L. 2007, ch. 181, § 10; L. 2008, ch. 183, § 4, L. 2009, ch. 132, § 10; L. 2010, ch. 147, § 9, July 1; L. 2010, ch. 155, § 8, L. 2010, ch. 136, § 285, L. 2011, ch. 30, § 77, L. 2011, ch. 37, § 1, L. 2011, ch. 91, § 38, L. 2011, ch. 100, § 21, L. 2012, ch. 172, § 30; L. 2013, ch. 122, § 9; L. 2014, ch. 76, § 2; L. 2015, ch. 96, § 11; L. 2016, ch. 90, § 4; L. 2017, ch. 62, § 7; July 1.

21-6805. Sentencing guidelines; grid for drug crimes applied in felony cases under uniform controlled substances act; authority and responsibility of sentencing court; presumptive disposition.

          (a) The provisions of this section shall be applicable to the sentencing guidelines grid for drug crimes. The following sentencing guidelines grid for drug crimes shall be applicable to felony crimes under K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto, except as otherwise provided by law:

[You can view the drug grid here]

          (b) Sentences expressed in the sentencing guidelines grid for drug crimes in subsection (a) represent months of imprisonment.

          (c) (1) The sentencing court has discretion to sentence at any place within the sentencing range. In the usual case it is recommended that the sentencing judge select the center of the range and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure. The sentencing court shall not distinguish between the controlled substances cocaine base (9041L000) and cocaine hydrochloride (9041L005) when sentencing within the sentencing range of the grid block.

          (2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the:

          (A) Prison sentence;

          (B) maximum potential reduction to such sentence as a result of good time; and

          (C) period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

          (3) In presumptive nonprison cases, the sentencing court shall pronounce the prison sentence as well as the duration of the nonprison sanction at the sentencing hearing.

          (d) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H, 4- I, 5-C or 5-D, the court may impose an optional nonprison sentence as provided in subsection (q) of 21-6804, and amendments thereto.

          (e) The sentence for a second or subsequent conviction for unlawful manufacturing of a controlled substance, K.S.A. 65-4159, prior to its repeal, K.S.A. 2010 Supp. 21-36a03, prior to its transfer, K.S.A. 2012 Supp. 21-5703, and amendments thereto, or a substantially similar offense from another jurisdiction, if the controlled substance in any prior conviction was methamphetamine, as defined by subsection (d)(3) or (f)(1) of K.S.A. 65-4107, and amendments thereto, or an analog thereof, shall be a presumptive term of imprisonment of two times the maximum duration of the presumptive term of imprisonment. The court may impose an optional reduction in such sentence of not to exceed 50% of the mandatory increase provided by this subsection upon making a finding on the record that one or more of the mitigating factors as specified in section 296, and amendments thereto, justify such a reduction in sentence. Any decision made by the court regarding the reduction in such sentence shall not be considered a departure and shall not be subject to appeal.

          (f) (1) The sentence for a third or subsequent felony conviction of K.S.A. 65-4160 or 65-4162, prior to their repeal, K.S.A. 2010 Supp. 21-36a06, prior to its transfer, or K.S.A. 2011 Supp. 21-5706, and amendments thereto, shall be a presumptive term of imprisonment and the defendant shall be sentenced to prison as provided by this section. The defendant’s term of imprisonment shall be served in the custody of the secretary of corrections in a facility designated by the secretary. Subject to appropriations therefore, the defendant shall participate in an intensive substance abuse treatment program, of at least four months duration, selected by the secretary of corrections. If the secretary determines that substance abuse treatment resources are otherwise available, such term of imprisonment may be served in a facility designated by the secretary of corrections in the custody of the secretary of corrections to participate in an intensive substance abuse treatment program.

          The secretary’s determination regarding the availability of treatment resources shall not be subject to review. Upon the successful completion of such intensive treatment program, the offender shall be returned to the court and the court may modify the sentence by directing that a less severe penalty be imposed in lieu of that originally adjudged. If the offender’s term of imprisonment expires, the offender shall be placed under the applicable period of postrelease supervision.

          (2) Such defendant’s term of imprisonment shall not be subject to modification under paragraph (1) if:

          (A) The defendant has previously completed a certified drug abuse treatment program, as provided in K.S.A. 2009 Supp. 75-52,144, and amendments thereto;

          (B) has been discharged or refused to participate in a certified drug abuse treatment program, as provided in K.S.A. 2009 Supp. 75-52,144, and amendments thereto;

          (C) has completed an intensive substance abuse treatment program under paragraph (1); or

          (D) has been discharged or refused to participate in an intensive substance abuse treatment program under paragraph (1).

          The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

          (g) (1) Except as provided further, if the trier of fact makes a finding that an offender carried a firearm to commit a drug felony, or in furtherance of a drug felony, possessed a firearm, in addition to the sentence imposed pursuant to K.S.A. 21-6801 through 21-6824, and amendments thereto, the offender shall be sentenced to:

          (A) Except as provided in subsection (g)(1)(B), an additional 6 months’ imprisonment; and

          (B) if the trier of fact makes a finding that the firearm was discharged, an additional 18 months’ imprisonment.

          (2) The sentence imposed pursuant to subsection (g)(1) shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

          (3) The provisions of this subsection shall not apply to violations of K.S.A. 2009 Supp. 21-36a06 or 21-36a13, and amendments thereto.

History: L. 1992, ch. 239, § 5; L. 1993, ch. 291, § 255; L. 1994, ch. 291, § 51; L. 1994, ch. 338, § 9; L. 1996, ch. 258, § 11; L. 1997, ch. 181, § 3; L. 1999, ch. 170, § 1; L. 2003, ch. 135, § 4; L. 2008, ch. 183, § 5; L. 2009, ch. 132, § 11, L. 2010, ch. 136, § 286, L. 2012, ch. 150, § 33; L. 2013, ch. 37, § 2; July 1.

21-6806. Sentencing; imprisonment, good time; pronouncement of sentence in felony cases; off-grid crimes.

          (a) Sentences of imprisonment shall represent the time a person shall actually serve, subject to a reduction of the primary sentence for good time as authorized by K.S.A. 21-6821, and amendments thereto.

          (b) The sentencing court shall pronounce sentence in all felony cases.

          (c) Violations of sections K.S.A. 21-5401, 21-5402, 21-5421, 21-5422 and 21-5901, and amendments thereto, are off-grid crimes for the purpose of sentencing. Except as otherwise provided by K.S.A. 21-6617, 21-6618, 21-6619, 21-6622, 21-6624, 21-6625, 21-6628 and 21-6629, and amendments thereto, the sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation.

          (d) As identified in K.S.A. 21-5426, 21-5503, 21-5504, 21-5506, 21-5510 section 3 [of 2017 SB 40] and 21-6422, and amendments thereto, if the offender is 18 years of age or older and the victim is under 14 years of age, such violations are off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 21-6626, and amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-6627, and amendments thereto.

History: L. 1992, ch. 239, § 6; L. 1993, ch. 291, § 256; L. 1994, ch. 252, § 8; L. 1995, ch. 121, § 2; L. 1996, ch. 158, § 7; L. 1999, ch. 164, § 18; L. 2006, ch. 212, § 17; L. 2007, ch. 197, § 2; L. 2010, ch. 136, § 287, L. 2013, ch. 120, § 22; L. 2017, ch. 78, § 18; July 1.

21-6807. Sentencing; crime severity scale for nondrug crimes, application to specific crimes; ranking offenses, provision; unranked offenses; unclassified felonies; prior convictions discovered after the plea.

          The crime severity scale contained in the sentencing guidelines grid for nondrug crimes as provided in K.S.A. 21-6804, and amendments thereto, consists of 10 levels of crimes. Crimes listed within each level are considered to be relatively equal in severity. Level 1 crimes are the most severe crimes and level 10 crimes are the least severe crimes. If a person is convicted of two or more crimes, then the severity level shall be determined by the most severe crime of conviction.

          (b) When the statutory definition of a crime includes a broad range of criminal conduct, the crime may be subclassified factually in more than one crime category to capture the full range of criminal conduct covered by the crime.

          (c) The provisions of this subsection shall be applicable with regard to ranking offenses according to the crime severity scale as provided in this section:

          (1) When considering an unranked offense in relation to the crime severity scale, the sentencing judge should refer to comparable offenses on the crime severity scale.

          (2) Except for off-grid felony crimes, which are classified as person felonies, all felony crimes omitted from the crime severity scale shall be considered nonperson felonies.

          (3) All unclassified felonies shall be scored as level 10 nonperson crimes.

          (4) The offense severity level of a crime for which the court has accepted a plea of guilty or nolo contendere pursuant to K.S.A. 22-3210, and amendments thereto, or of a crime of which the defendant has been convicted shall not be elevated or enhanced for sentencing purposes as a result of the discovery of prior convictions or any other basis for such enhancement subsequent to the acceptance of the plea or conviction. Any such prior convictions discovered after the plea has been accepted by the court shall be counted in the determination of the criminal history of the offender.

History: L. 1992, ch. 239, § 7; L. 1993, ch. 291, § 257; L. 1994, ch. 291, § 52; L. 2010, ch. 136, § 288, July 1, 2011.

21-6808. Sentencing; crime severity scale for drug offenses, application; sentencing rules for certain crimes; plea bargain agreements.

          (a) The crime severity scale contained in the sentencing guidelines grid for drug offenses as provided in K.S.A. 21-6805, and amendments thereto, consists of 5 levels of crimes. Crimes listed within each level are considered to be relatively equal in severity. Level 1 crimes are the most severe crimes and level 5 crimes are the least severe crimes.

          (b) The provisions of this section shall also be applicable to the presumptive sentences for anticipatory crimes as provided in K.S.A. 21-5301, 21-5302 and 21-5303, and amendments thereto.

History: L. 1992, ch. 239, § 8; L. 1993, ch. 291, § 258; L. 1994, ch. 291, § 53; L. 1994, ch. 338, § 10; L. 2009, ch. 32, § 35, L. 2010, ch. 136, § 289, L. 2012, ch. 150, § 34; July 1.

21-6809. Criminal history categories in criminal history scale.

          The criminal history scale is represented in abbreviated form on the horizontal axis of the sentencing guidelines grids. The relative severity of each criminal history category decreases from left to right on such grids. Criminal history category A is the most serious classification. Criminal history category I is the least serious classification. The criminal history categories in the criminal history scale are:

Criminal

History

Category    Descriptive Criminal History

(A)     The offender’s criminal history includes three or more adult convictions or juvenile adjudications, in any combination, for person felonies.

(B)     The offender’s criminal history includes two adult convictions or juvenile adjudications, in any combination, for person felonies.

(C)     The offender’s criminal history includes one adult conviction or juvenile adjudication for a person felony, and one or more adult conviction or juvenile adjudication for a nonperson felony.

(D)     The offender’s criminal history includes one adult conviction or juvenile adjudication for a person felony, but no adult conviction or juvenile adjudications for a nonperson felony.

(E)     The offender’s criminal history includes three or more adult convictions or juvenile adjudications for nonperson felonies, but no adult conviction or juvenile adjudication for a person felony.

(F)      The offender’s criminal history includes two adult convictions or juvenile adjudications for nonperson felonies, but no adult conviction or juvenile adjudication for a person felony.

(G)     The offender’s criminal history includes one adult conviction or juvenile adjudication for a nonperson felony, but no adult conviction or juvenile adjudication for a person felony.

(H)     The offender’s criminal history includes two or more adult convictions or juvenile adjudications for nonperson and/or select misdemeanors, and no more than two adult convictions or juvenile adjudications for person misdemeanors, but no adult conviction or juvenile adjudication for either a person or nonperson felony.

(I)      The offender’s criminal history includes no prior record; or, one adult conviction or juvenile adjudication for a person, nonperson, or select misdemeanor, but no adult conviction or juvenile adjudication for either a person or nonperson felony.

History: L. 1992, ch. 239, § 9; L. 2010, ch. 136, § 290, July 1, 2011.

21-6810. Sentencing; criminal history categories, basis; determination of offenders classification; decay factors; prior convictions.

          (a) Criminal history categories contained in the sentencing guidelines grids are based on the following types of prior convictions: Person felony adult convictions, nonperson felony adult convictions, person felony juvenile adjudications, nonperson felony juvenile adjudications, person misdemeanor adult convictions, nonperson class A misdemeanor adult convictions, person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications, select class B non-person misdemeanor adult convictions, select class B nonperson misdemeanor juvenile adjudications and convictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor. A prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203, and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.

          (b) A class B nonperson select misdemeanor is a special classification established for weapons violations. Such classification shall be considered and scored in determining an offender’s criminal history classification.

          (c) Except as otherwise provided, all convictions, whether sentenced consecutively or concurrently, shall be counted separately in the offender’s criminal history.

          (d) Except as provided in K.S.A. 21-6815, and amendments thereto, the following are applicable to determining an offender’s criminal history classification:

          (1) Only verified convictions will be considered and scored.

          (2) All prior adult felony convictions, including expungements, will be considered and scored. Prior adult felony convictions for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed;

          (3) There will be no decay factor applicable for:

          (A) Adult convictions;

          (B) a juvenile adjudication for an offense committed before July 1, 1993, which would have been a class A, B or C felony, if committed by an adult. Prior juvenile adjudications for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed; or          (C) a juvenile adjudication for an offense committed on or after July 1, 1993, which would be an off-grid felony, or a nondrug severity level 1 through 4 felony, if committed by an adult.

          (4) Except as otherwise provided, a juvenile adjudication will decay if the current crime of conviction is committed after the offender reaches the age of 25, and the juvenile adjudication is for an offense:

          (A) Committed before July 1, 1993, which would have been a class D or E felony if committed by an adult;

          (B) committed on or after July 1, 1993, which would be a nondrug severity level 5 through 10 felony, a nongrid felony or any drug felony if committed by an adult; or

          (C) which would be a misdemeanor if committed by an adult.

          (5) A juvenile adjudication will not be considered and scored if:

          (A) The current crime of conviction is committed at least five years after the date of the prior adjudication;

          (B) the offender has no new adjudications or convictions during such five-year period; and

          (C) the juvenile adjudication is for an offense that would be a nondrug severity level 5 through 10 felony, drug felony, nongrid felony or misdemeanor, if committed by an adult.

          (6) All person misdemeanors, class A nonperson misdemeanors and class B select nonperson misdemeanors, and all municipal ordinance and county resolution violations comparable to such misdemeanors, shall be considered and scored. Prior misdemeanors for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed.

          (7) Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.

          (8) Prior convictions of a crime defined by a statute which that has since been repealed shall be scored using the classification assigned at the time of such conviction.

          (9) Prior convictions of a crime defined by a statute which that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes.

          (10) Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.

          (e) The amendments made to this section by this act section 1 of chapter 5 of the 2015 Session Laws of Kansas are procedural in nature and shall be construed and applied retroactively.

History: L. 1992, ch. 239, § 10; L. 1993, ch. 291, § 259; L. 1994, ch. 291, § 54; L. 1995, ch. 251, § 16; L. 2010, ch. 36, § 1, L. 2010, ch. 136, § 291, L. 2011, ch. 30, § 78, L. 2012, ch. 150, § 35; L. 2015, ch. 5, § 1; L. 2016, ch. 97, § 1; L. 2017, ch. 92, § 5; July 1.

21-6811. Sentencing; determination of offender's criminal history classification in presumptive sentencing guidelines grid for nondrug and drug crimes.

          In addition to the provisions of K.S.A. 21-6810, and amendments thereto, the following shall apply in determining an offender’s criminal history classification as contained in the presumptive sentencing guidelines grids:

          (a) Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes. Every three prior adult convictions or juvenile adjudications of assault as defined in K.S.A. 21-3408, prior to its repeal, or subsection (a) of K.S.A. 21-5412, and amendments thereto, occurring within a period commencing three years prior to the date of conviction for the current crime of conviction shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.

          (b) A conviction of criminal possession of a firearm as defined in K.S.A. 21-4204(a)(1) or (a)(5), prior to its repeal, criminal use of weapons as defined in K.S.A. 21-6301(a)(10) or (a)(11), and amendments thereto, or unlawful possession of a firearm as in effect on June 30, 2005, and as defined in K.S.A. 21-4218, prior to its repeal, will be scored as a select class B nonperson misdemeanor conviction or adjudication and shall not be scored as a person misdemeanor for criminal history purposes.

          (c) (1) If the current crime of conviction was committed before July 1, 1996, and is for K.S.A. 21-3404(b), as in effect on June 30, 1996, involuntary manslaughter in the commission of driving under the influence, then, each prior adult conviction or juvenile adjudication for K.S.A. 8-1567, and amendments thereto, shall count as one person felony for criminal history purposes.

          (2) If the current crime of conviction was committed on or after July 1, 1996, and is for a violation of K.S.A. 2014 Supp. 21-5405(a)(3), and amendments thereto, each prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for:

                     (A)     Any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8-1025, and amendments thereto; or

                     (B)     a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8- 1025, and amendments thereto, shall count as one person felony for criminal history purposes.

          (3) If the current crime of conviction is for a violation of K.S.A. 2014 Supp. 21-5413(b)(3), and amendments thereto:

          (A)     The first prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for the following shall count as one non-person felony for criminal history purposes: (i) Any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8-1025, and amendments thereto; or (ii) a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8-1025, and amendments thereto; and

          (B)     each second or subsequent prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for the following shall count as one person felony for criminal history purposes: (i) Any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8-1025, and amendments thereto; or (ii) a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits any act described in K.S.A. 8-2,144 or 8-1567 or K.S.A. 2014 Supp. 8-1025, and amendments thereto.

          (d) Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:

          (1) As a prior person felony if the prior conviction or adjudication was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its repeal, or K.S.A. 21-5807(a)(1), and amendments thereto.

          (2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as defined in K.S.A. 21- 3715(b) or (c), prior to its repeal, or K.S.A. 21-5807(a)(2) or (a)(3), and amendments thereto. The facts required to classify prior burglary adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.

          (e) (1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender’s criminal history.

          (2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction.

          (A)     If a crime is a felony in another state, it will be counted as a felony in Kansas.

          (B)     If a crime is a misdemeanor in another state, the state of Kansas shall refer to the comparable offense in order to classify the out-of-state crime as a class A, B or C misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony, the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas does not have a comparable crime, the out-of-state crime shall not be used in classifying the offender’s criminal history.

          (3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a non-person crime.

          (4) Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications.

          (5) The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.

          (f) Except as provided in K.S.A. 21-4710(d)(4), (d)(5) and (d)(6), prior to its repeal, or K.S.A. 2015 Supp. 21-6810(d)(3)(B), (d)(3)(C), (d)(3)(D) and, (d)(4) and (d)(5), and amendments thereto, juvenile adjudications will be applied in the same manner as adult convictions. Out-of-state juvenile adjudications will be treated as juvenile adjudications in Kansas.

          (g) A prior felony conviction of an attempt, a conspiracy or a solicitation as provided in K.S.A. 21-3301, 21-3302 or 21-3303, prior to their repeal, or K.S.A. 21-5301. 21-5302 or 21-5303, and amendments thereto, to commit a crime shall be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime.

          (h) Drug crimes are designated as nonperson crimes for criminal history scoring.

          (i) If the current crime of conviction is for a violation of K.S.A. 8-1602(b)(3) through (b)(5), and amendments thereto, each of the following prior convictions committed on or after July 1, 2011 shall count as a person felony for criminal history purposes: K.S.A. 8-235, 8-262, 8-287, 8-291, 8-1566, 8-1567, 8-1568, 8-1602, 8-1605 and 40-3104, and amendments thereto, and K.S.A. 2011 Supp. 21- 5405(a)(3) and 21-5406, and amendments thereto, or a violation of a city ordinance or law of another state which would also constitute a violation of such sections.

          (j) The amendments made to this section by 2015 House Bill No. 2053 are procedural in nature and shall be construed and applied retroactively.

History: L. 1992, ch. 239, § 11; L. 1993, ch. 291, § 260; L. 1994, ch. 291, § 55; L. 1996, ch. 158, § 5; L. 1999, ch. 164, § 19; L. 2001, ch. 200, § 17; L. 2004, ch. 30, § 1, L. 2010, ch. 136, § 292, L. 2011, ch. 30, § 79, L. 2011, ch. 80, § 4, L. 2012, ch. 166, § 4; L. 2015, ch. 5, § 2, L. 2015, ch. 90, § 2; L. 2016, ch. 97, § 2; July 1.

21-6812. Actions which prosecutors may take under agreements with defendants for plea; exceptions relating to prior convictions.

          The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor may do any of the following:

          (a) Move for dismissal of other charges or counts;

          (b) recommend a particular sentence within the sentencing range applicable to the offense or to the offense to which the offender pled guilty;

          (c) recommend a particular sentence outside of the sentencing range only when departure factors exist and such factors are stated on the record;

          (d) agree to file a particular charge or count;

          (e) agree not to file charges or counts; or

          (f) make any other promise to the defendant, except that the prosecutor shall not enter into any agreement to decline to use a prior drug conviction of the defendant to elevate or enhance the severity level of a drug crime as provided in K.S.A. 2009 Supp. 21-36a03, 21-36a05 or 21-36a06, and amendments thereto, or make any agreement to exclude any prior conviction from the criminal history of the defendant.

History: L. 1992, ch. 239, §§ 8, 13; L. 1993, ch. 291, § 258; L. 1994, ch. 291, §§ 53, 56; L. 1994, ch. 338, §§ 10, 11; L. 2009, ch. 32, §§ 35, 36, L. 2010, ch. 136, § 293, July 1, 2011.

21-6813. Presentence investigation report; information included; part of court record; confidential information, disclosure to certain parties; report format.

          (a) The court shall order the preparation of the presentence investigation report by the court services officer as soon as possible after conviction of the defendant.

          (b) Each presentence report prepared for an offender to be sentenced for one or more felonies committed on or after July 1, 1993, shall be limited to the following information:

          (1) A summary of the factual circumstances of the crime or crimes of conviction.

          (2) If the defendant desires to do so, a summary of the defendant’s version of the crime.

          (3) When there is an identifiable victim, a victim report. The person preparing the victim report shall submit the report to the victim and request that the information be returned to be submitted as a part of the presentence investigation. To the extent possible, the report shall include a complete listing of restitution for damages suffered by the victim.

          (4) An appropriate classification of each crime of conviction on the crime severity scale.

          (5) A listing of prior adult convictions or juvenile adjudications for felony or misdemeanor crimes or violations of county resolutions or city ordinances comparable to any misdemeanor defined by state law. Such listing shall include an assessment of the appropriate classification of the criminal history on the criminal history scale and the source of information regarding each listed prior conviction and any available source of journal entries or other documents through which the listed convictions may be verified. If any such journal entries or other documents are obtained by the court services officer, they shall be attached to the presentence investigation report. Any prior criminal history worksheets of the defendant shall also be attached.

          (6) A proposed grid block classification for each crime, or crimes of conviction and the presumptive sentence for each crime, or crimes of conviction.

          (7) If the proposed grid block classification is a grid block which presumes imprisonment, the presumptive prison term range and the presumptive duration of postprison supervision as it relates to the crime severity scale.

          (8) If the proposed grid block classification does not presume prison, the presumptive prison term range and the presumptive duration of the nonprison sanction as it relates to the crime severity scale and the court services officer’s professional assessment as to recommendations for conditions to be mandated as part of the nonprison sanction.

          (9) For defendants who are being sentenced for a conviction of a felony violation of K.S.A. 65-4160 or 65-4162, prior to their repeal or K.S.A. 2010 Supp. 21-36a06, and amendments thereto, and meet the requirements of K.S.A. 21-6824, and amendments thereto, the drug abuse assessment as provided in K.S.A. 21-6824, and amendments thereto.

          (10) For defendants who are being sentenced for a third or subsequent felony conviction of a violation of K.S.A. 65-4160 or 65-4162, prior to their repeal or K.S.A. 2010 Supp. 21-36a06, and amendments thereto, the drug abuse assessment as provided in K.S.A. 21-6824, and amendments thereto.

          (c) The presentence report will become part of the court record and shall be accessible to the public, except that the official version, defendant’s version and the victim’s statement, any psychological reports, risk and needs assessments and drug and alcohol reports and assessments shall be accessible only to the parties, the sentencing judge, the department of corrections, and if requested, the Kansas sentencing commission. If the offender is committed to the custody of the secretary of corrections, the report shall be sent to the secretary and, in accordance with K.S.A. 75-5220, and amendments thereto, to the warden of the state correctional institution to which the defendant is conveyed.

          (d) The criminal history worksheet will not substitute as a presentence report.

          (e) The presentence report will not include optional report components, which would be subject to the discretion of the sentencing court in each district except for psychological reports and drug and alcohol reports.

          (f) Except as provided in K.S.A. 21-6814, and amendments thereto, the court may take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.

          (g) All presentence reports in any case in which the defendant has been convicted of a felony shall be on a form approved by the Kansas sentencing commission.

History: L. 1992, ch. 239, § 14; L. 1993, ch. 291, § 262; L. 1994, ch. 291, § 57; L. 1994, ch. 341, § 16; L. 1996, ch. 258, § 5; L. 2003, ch. 135, § 5; L. 2006, ch. 211, § 6; L. 2006, ch. 172, § 3; L. 2007, ch. 195, § 13; L. 2008, ch. 183, § 6; L. 2009, ch, 132, § 12; L. 2010, ch. 136, § 294, L. 2011, ch. 30, § 80, July 1.

21-6814. Offenders criminal history; admission in court or determined by judge; burden of proof; notice of error by offender.

          (a) The offender’s criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.

          (b) Except to the extent disputed in accordance with subsection (c), the summary of the offender’s criminal history prepared for the court by the state shall satisfy the state’s burden of proof regarding an offender’s criminal history.

          (c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of proving the disputed portion of the offender’s criminal history. The sentencing judge shall allow the state reasonable time to produce evidence to establish its burden of proof. If the offender later challenges such offender’s criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender’s criminal history by a preponderance of the evidence.

History: L. 1992, ch. 239, § 15; L. 2002, ch. 163, § 3; L. 2009, ch, 132, § 13, L. 2010, ch. 136, § 295, July 1, 2011.

21-6815. Imposition of presumptive sentence; departure sentencing; finding substantial and compelling reasons for departure; mitigating or aggravating factor considered in determining if reasons exist; reasons stated on record.

          (a) Except as provided in subsection (b), the sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.

          (b) Subject to the provisions of K.S.A. 2014 Supp. 21-6817(b), and amendments thereto, any fact that would increase the penalty for a crime beyond the statutory maximum, other than a prior conviction, shall be submitted to a jury and proved beyond a reasonable doubt.

          (c) (1) Subject to the provisions of subsections (c)(3) and (e), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

          (A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.

          (B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor may be considered when it is not sufficient as a complete defense.

          (C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.

          (D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

          (E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.

          (F) The offender committed such crime as a result of an injury, including major depressive disorder, polytrauma, post-traumatic stress disorder or traumatic brain injury, connected to service in a combat zone, as defined in section 112 of the federal internal revenue code of 1986, in the armed forces of the United States of America. As used in this subsection, "major depressive disorder," "polytrauma," "post-traumatic stress disorder" and "traumatic brain injury" shall mean the same as such terms are defined in K.S.A. 2014 Supp. 21-6630, and amendments thereto.

          (2) Subject to the provisions of subsection (c)(3), the following nonexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist:

          (A) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender.

          (B) The defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense.

          (C) The offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the offense was motivated by the defendant’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim whether or not the defendant’s belief or perception was correct.

          (D) The offense involved a fiduciary relationship which existed between the defendant and the victim.

          (E) The defendant, 18 or more years of age, employed, hired, used, persuaded, induced, enticed or coerced any individual under 16 years of age to:

          (i) Commit any person felony;

          (ii) assist in avoiding detection or apprehension for commission of any person felony; or

          (iii) attempt, conspire or solicit, as defined in K.S.A. 21-5301, 21-5302 and 21-5303, and amendments thereto, to commit any person felony.

          That the defendant did not know the age of the individual under 16 years of age shall not be a consideration.

          (F) The defendant’s current crime of conviction is a crime of extreme sexual violence and the defendant is a predatory sex offender. As used in this subsection:

          (i) "Crime of extreme sexual violence" is a felony limited to the following:

          (a) A crime involving a nonconsensual act of sexual intercourse or sodomy with any person;

          (b) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is 14 or more years of age but less than 16 years of age and with whom a relationship has been established or promoted for the primary purpose of victimization;

          (c) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age;

          (d) aggravated human trafficking, as defined in K.S.A. 2014 Supp. 21-5426(b), and amendments thereto, if the victim is less than 14 years of age; or

          (e) commercial sexual exploitation of a child, as defined in K.S.A. 2013 Supp. 21-6422, and amendments thereto, if the victim is less than 14 years of age.

          (ii) "Predatory sex offender" is an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who:

          (a) Has one or more prior convictions of any crimes of extreme sexual violence. Any prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal history category; or

          (b) suffers from a mental condition or personality disorder which makes the offender likely to engage in additional acts constituting crimes of extreme sexual violence.

          (iii) "Mental condition or personality disorder" means an emotional, mental or physical illness, disease, abnormality, disorder, pathology or condition which motivates the person, affects the predisposition or desires of the person, or interferes with the capacity of the person to control impulses to commit crimes of extreme sexual violence.

          (G) The defendant was incarcerated during the commission of the offense.

          (H) The crime involved two or more participants in the criminal conduct, and the defendant played a major role in the crime as the organizer, leader, recruiter, manager or supervisor. In determining whether aggravating factors exist as provided in this section, the court shall review the victim impact statement.

          (3) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.

          (d) In determining aggravating or mitigating circumstances, the court shall consider:

          (1) Any evidence received during the proceeding;

          (2) the presentence report;

          (3) written briefs and oral arguments of either the state or counsel for the defendant; and

          (4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.

          (e) Upon motion of the prosecutor stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who is alleged to have committed an offense, the court may consider such mitigation in determining whether substantial and compelling reasons for a departure exist. In considering this mitigating factor, the court may consider the following:

          (1) The court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the prosecutor’s evaluation of the assistance rendered;

          (2) the truthfulness, completeness and reliability of any information or testimony provided by the defendant;

          (3) the nature and extent of the defendant’s assistance;

          (4) any injury suffered, or any danger or risk of injury to the defend-ant or the defendant’s family resulting from such assistance; and

          (5) the timeliness of the defendant’s assistance.

History: L. 1992, ch. 239, § 16; L. 1993, ch. 291, § 263; L. 1994, ch. 341, § 2; L. 1996, ch. 258, § 12; L. 2000, ch. 181, § 9; L. 2002, ch. 170, § 1; L. 2006, ch. 194, § 13; L. 2010, ch. 136, § 296, L. 2013, ch. 120, § 23; L. 2015, ch. 76, § 7; July 1.

21-6816. Departure sentencing for drug crimes; finding substantial and compelling reasons for departure; aggravating factors considered in determining if reasons exist.

          (a) The following aggravating factors apply to drug crimes and may be considered in determining whether substantial and compelling reasons for departure exist:

          (1) The crime was committed as part of a major organized drug manufacture, cultivation or distribution activity.  Two or more of the following nonexclusive factors constitute evidence of major organized drug manufacture, cultivation or distribution activity:

          (A) The offender derived a substantial amount of money or asset ownership from the illegal drug activity.

          (B) The presence of a substantial quantity or variety of weapons or explosives at the scene of arrest or associated with the illegal drug activity.

          (C) The presence of drug transaction records or customer lists that indicate a drug activity of major size.

          (D) The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material.

          (E) Building acquisitions or building modifications including, but not limited to, painting, wiring, plumbing or lighting which advanced or facilitated the commission of the offense.

          (F) Possession of large amounts of illegal drugs or substantial quantities of controlled substances.

          (G) A showing that the offender has engaged in repeated criminal acts associated with the manufacture, cultivation or distribution of controlled substances.

          (2) The offender possessed illegal drugs with the intent to distribute, which were distributed, or offered for distribution:

          (A) to a person under 18 years of age; or

          (B) in the immediate presence of a person under 18 years of age.

          (3) The offender, 18 or more years of age, employed, hired, used, persuaded, induced, enticed or coerced any individual under 16 years of age:

          (A) To violate any provision of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto;

          (B) to assist in avoiding detection or apprehension for violation of any provision of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto; or

          (C) to attempt, conspire or solicit, as defined in K.S.A. 21-5301, 21-5302 or 21-5303 and amendments thereto, to commit a violation of any provision of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto. That the offender did not know the age of the individual under 16 years of age shall not be a consideration.

          (4) The offender was incarcerated during the commission of the offense.

          (b) In determining whether aggravating factors exist as provided in this section, the court shall review the victim impact statement.

History: L. 1992, ch. 239, § 17; L. 1993, ch. 291, § 276; L. 1994, ch. 341, § 3; L. 2000, ch. 181, § 10; L. 2009, ch. 32, § 38, L. 2010, ch. 136, § 297, July 1, 2011.

21-6817. Departure sentencing; hearing; notice; findings of fact and conclusions of law; order.

          (a) (1) Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence other than an upward durational departure sentence. The motion shall state the type of departure sought and the reasons and factors relied upon. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing. The county or district attorney shall notify the victim of a crime or the victim’s family of the right to be present at the hearing. The parties may submit written arguments to the court prior to the date of the hearing and may make oral arguments before the court at the hearing. The court shall review the victim impact statement. Prior to the hearing, the court shall transmit to the defendant or the defendant’s attorney and the prosecutor copies of the presentence investigation report.

          (2) At the conclusion of the hearing or within 20 days thereafter, the court shall issue findings of fact and conclusions of law regarding the issues submitted by the parties, and shall enter an appropriate order.

          (3) If the court decides to depart on its own volition, without a motion from the state or the defendant, the court shall notify all parties of its intent and allow reasonable time for either party to respond if requested. The notice shall state the type of departure intended by the court and the reasons and factors relied upon.

          (4) In each case in which the court imposes a sentence that deviates from the presumptive sentence, the court shall make findings of fact as to the reasons for departure as provided in this subsection regardless of whether a hearing is requested.

          (b) (1) Upon motion of the county or district attorney to seek an upward durational departure sentence, the court shall consider imposition of such upward durational departure sentence in the manner provided in subsection (b)(2). The county or district attorney shall file such motion to seek an upward durational departure sentence not less than 30 days prior to the date of trial or if the trial date is to take place in less than 30 days then within five days from the date of the arraignment.

          (2) The court shall determine if the presentation of any evidence regarding the alleged fact or factors that may increase the penalty for a crime beyond the statutory maximum, other than a prior conviction, shall be presented to a jury and proved beyond a reasonable doubt during the trial of the matter or whether such evidence should be submitted to the jury in a separate departure sentencing hearing following the determination of the defendant’s innocence or guilt.

          (3) If the presentation of the evidence regarding the alleged fact or factors is submitted to the jury during the trial of the matter as determined by the court, then the provisions of subsections (b)(5), (b)(6) and (b)(7) shall be applicable.

          (4) If the court determines it is in the interest of justice, the court shall conduct a separate departure sentence proceeding to determine whether the defendant may be subject to an upward durational departure sentence. Such proceeding shall be conducted by the court before a jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the upward durational departure sentence proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the upward durational departure sentence proceeding, the court may conduct such upward durational departure sentence proceeding before a jury which may have 12 or less jurors, but at no time less than six jurors. Any decision of an upward durational departure sentence proceeding shall be decided by a unanimous decision of the jury. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such jury. The jury at the upward durational departure sentence proceeding may be waived in the manner provided by K.S.A. 22-3403, and amendments thereto, for waiver of a trial jury. If the jury at the upward durational departure sentence proceeding has been waived, the upward durational departure sentence proceeding shall be conducted by the court.

          (5) In the upward durational departure sentence proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of determining if any specific factors exist that may serve to enhance the maximum sentence as provided by K.S.A. 21-6815 or 21-6816, and amendments thereto. Only such evidence as the state has made known to the defendant prior to the upward durational departure sentence proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the upward durational departure sentence proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral arguments.

          (6) The court shall provide oral and written instructions to the jury to guide its deliberations.

          (7) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more specific factors exist that may serve to enhance the maximum sentence, the defendant may be sentenced pursuant to K.S.A. 21-6815 through 21-6818, and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The jury, if its verdict is a unanimous recommendation that one or more of the specific factors that may serve to enhance the maximum sentence exists, shall designate in writing, signed by the foreman of the jury, the specific factor or factors which the jury found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict of finding any of the specific factors, the court shall dismiss the jury and shall only impose a sentence as provided by law. In nonjury cases, the court shall follow the requirements of this subsection in determining if one or more of the specific factors exist that may serve to enhance the maximum sentence.

History: L. 1992, ch. 239, § 18; L. 1993, ch. 291, § 264; L. 1994, ch. 291, § 58; L. 2002, ch. 170, § 2; L. 2010, ch. 135, § 12, L. 2010, ch. 136, § 298, L. 2011, ch. 30, § 81, L. 2011, ch. 21, § 1, L. 2011, ch. 91, § 39, July 1.

21-6818. Departure sentencing; limitations.

          (a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-6815, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-6815, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime.

          (b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment:

          (1) The judge shall consider and apply the sentencing guidelines, which is to impose a sentence that is proportionate to the severity of the crime of conviction and the offender’s criminal history; and

          (2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term.

          (c) When a sentencing judge imposes a prison term as a dispositional departure:

          (1) The judge shall consider and apply the sentencing guidelines to impose a sentence that is proportionate to the severity of the crime of conviction; and

          (2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.

          (d) If the sentencing judge imposes a nonprison sentence as a dispositional departure from the guidelines, the recommended duration shall be as provided in subsection (c) of K.S.A. 21-6608, and amendments thereto.

History: L. 1992, ch. 239, § 19; L. 1993, ch. 291, § 265; L. 2008, ch. 183, § 7; L. 2010, ch. 136, § 299, L. 2011, ch. 30, § 82, July 1.

21-6819. Sentencing in multiple conviction cases; direction of judge to impose concurrent or consecutive sentences; requirements applicable; departure sentencing based on aggravating factors.

          (a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-6606, and amendments thereto, regarding multiple sentences shall apply to the sentencing of offenders pursuant to the sentencing guidelines. The mandatory consecutive sentence requirements contained in subsections (c), (d) and (e) of K.S.A. 21-6606, and amendments thereto, shall not apply if such application would result in a manifest injustice.

          (b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. The sentencing judge may consider the need to impose an overall sentence that is proportionate to the harm and culpability, and shall state on the record if the sentence is to be served concurrently or consecutively. In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:

          (1) When the sentencing judge imposes multiple sentences consecutively, the consecutive sentences shall consist of an imprisonment term which may not exceed the sum of the consecutive imprisonment terms, and a supervision term. The sentencing judge shall have the discretion to impose a consecutive term of imprisonment for a crime other than the primary crime of any term of months not to exceed the nonbase sentence as determined under subsection (b)(5). The postrelease supervision term will be based on the longest supervision term imposed for any of the crimes.

          (2) The sentencing judge shall establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences. If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime. If more than one crime of conviction is classified in the same crime category, the sentencing judge shall designate which crime will serve as the primary crime. In the instance of sentencing with both the drug grid and the nondrug grid and simultaneously having a presumption of imprisonment and probation, the sentencing judge shall use the crime which presumes imprisonment as the primary crime. In the instance of sentencing with both the drug grid and the nondrug grid and simultaneously having a presumption of either both probation or both imprisonment, the sentencing judge shall use the crime with the longest sentence term as the primary crime.

          (3) The base sentence is set using the total criminal history score assigned.

          (4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence. The postrelease supervision term will reflect only the longest such term assigned to any of the crimes for which consecutive sentences are imposed. Supervision periods shall not be aggregated.

          (5) Nonbase sentences shall not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences shall have the full criminal history score assigned. In the event a conviction designated as the primary crime in a multiple conviction case is reversed on appeal, the appellate court shall remand the multiple conviction case for resentencing. Upon resentencing, if the case remains a multiple conviction case the court shall follow all of the provisions of this section concerning the sentencing of multiple conviction cases.

          (6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.

          (7) If the sentence for the consecutive sentences is a prison term, the postrelease supervision term is a term of postrelease supervision as established for the primary crime.

          (8) If the sentence for the primary crime is a nonprison sentence, a nonprison term will be imposed for each crime conviction, but the nonprison terms shall not be aggregated or served consecutively even though the underlying prison sentences have been ordered to be served consecutively. Upon revocation of the nonprison sentence, the offender shall serve the prison sentences consecutively as provided in this section.

          (c) The following shall apply for a departure from the presumptive sentence based on aggravating factors within the context of consecutive sentences:

          (1) The court may depart from the presumptive limits for consecutive sentences only if the judge finds substantial and compelling reasons to impose a departure sentence for any of the individual crimes being sentenced consecutively.

          (2) When a departure sentence is imposed for any of the individual crimes sentenced consecutively, the imprisonment term of that departure sentence shall not exceed twice the maximum presumptive imprisonment term that may be imposed for that crime.

          (3) The total imprisonment term of the consecutive sentences, in-cluding the imprisonment term for the departure crime, shall not exceed twice the maximum presumptive imprisonment term of the departure sentence following aggravation.

History: L. 1992, ch. 239, § 20; L. 1993, ch. 291, § 266; L. 1994, ch. 291, § 59; L. 1996, ch. 267, § 14; L. 2000, ch. 37, § 1; L. 2010, ch. 136, § 300, L. 2012, ch. 150, § 36; July 1.

21-6820. Departure sentence subject to appeal; confinement or release of defendant pending review; scope of review; action by court; written opinion, when; summary disposition; correction of arithmetic or clerical errors.

          (a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.

          (b) Pending review of the sentence, the sentencing court or the appellate court may order the defendant confined or placed on conditional release, including bond.

          (c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:

          (1) Any sentence that is within the presumptive sentence for the crime; or

          (2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.

          (d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:

          (1) Are supported by the evidence in the record; and

          (2) constitute substantial and compelling reasons for departure.

          (e) In any appeal, the appellate court may review a claim that:

          (1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive;

          (2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or

          (3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.

          (f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.

          (g) The appellate court shall issue a written opinion whenever the judgment of the sentencing court is reversed. The court may issue a written opinion in any other case when it is believed that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Kansas sentencing commission. The appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal.

          (h) A review under summary disposition shall be made solely upon the record that was before the sentencing court. Written briefs shall not be required unless ordered by the appellate court and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court.

          (i) The sentencing court shall retain authority irrespective of any notice of appeal for 90 days after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors.

History: L. 1992, ch. 239, § 21; L. 1995, ch. 251, § 17; L. 2010, ch. 136, § 301, July 1, 2011.

21-6821. Good time credit; calculation; forfeiture; rules and regulations of secretary.

          (a) The secretary of corrections is hereby authorized to adopt rules and regulations providing for a system of good time calculations. Such rules and regulations shall provide circumstances upon which an inmate may earn good time credits and for the forfeiture of earned credits. Such circumstances may include factors related to program and work participation and conduct and the inmate’s willingness to examine and confront past behavioral patterns that resulted in the commission of the inmate’s crimes.

          (b) For purposes of determining release of an inmate, the following shall apply with regard to good time calculations:

          (1) Good behavior by inmates is the expected norm and negative behavior will be punished; and

          (2) the amount of good time which can be earned by an inmate and subtracted from any sentence is limited to:

          (A) For a crime committed on or after July 1, 1993, an amount equal to 15% of the prison part of the sentence; or

          (B) for a drug severity level 3 or 4 or a nondrug severity level 7 through 10 crime committed on or after January 1, 2008, an amount equal to 20% of the prison part of the sentence; or

          (C) for a drug severity level 3 or 4 crime committed on or after January 1, 2008, but prior to July 1, 2012, or a drug severity level 4 or 5 crime committed on or after July 1, 2012, an amount equal to 20% of the prison part of the sentence.

          (c) The postrelease supervision term of a person sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually motivated crime in which the offender has been ordered to register pursuant to K.S.A. 22-3717(d)(1)(D)(vii), and amendments thereto, electronic solicitation, K.S.A. 21-3523, prior to its repeal, or K.S.A. 2012 Supp. 21-5509, and amendments thereto, or unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2012 Supp. 21-5512, and amendments thereto, shall have any time which is earned and subtracted from the prison part of such sentence and any other consecutive or concurrent sentence pursuant to good time calculation added to such inmate’s postrelease supervision term.

          (d) An inmate shall not be awarded good time credits pursuant to this section for any review period established by the secretary of corrections in which a court finds that the inmate has done any of the following while in the custody of the secretary of corrections:

          (1) Filed a false or malicious action or claim with the court;

          (2) brought an action or claim with the court solely or primarily for delay or harassment;

          (3) testified falsely or otherwise submitted false evidence or information to the court;

          (4) attempted to create or obtain a false affidavit, testimony or evidence; or

          (5) abused the discovery process in any judicial action or proceeding.

          (e) (1) For purposes of determining release of an inmate who is serving only a sentence for a nondrug severity level 4 through 10 crime or a drug severity level 3 or 4 crime committed on or after January 1, 2008, but prior to July 1, 2012, or an inmate who is serving only a sentence for a nondrug severity level 4 through 10 crime or a drug severity level 3 through 5 crime committed on or after July 1, 2012, the secretary of corrections is hereby authorized to adopt rules and regulations regarding program credit calculations. Such rules and regulations shall provide circumstances upon which an inmate may earn program credits and for the forfeiture of earned credits and such circumstances may include factors substantially related to program participation and conduct. In addition to any good time credits earned and retained, the following shall apply with regard to program credit calculations:

          (A) A system shall be developed whereby program credits may be earned by inmates for the successful completion of requirements for a general education diploma, a technical or vocational training program, a substance abuse treatment program or any other program designated by the secretary which has been shown to reduce offender’s risk after release;

and

          (B) the amount of time which can be earned and retained by an inmate for the successful completion of programs and subtracted from any sentence is limited to not more than 120 days.

          (2) Any time which is earned and subtracted from the prison part of the sentence of any inmate pursuant to program credit calculation shall not be added to such inmate’s postrelease supervision term, if applicable, except that the postrelease supervision term of a person sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually motivated crime in which the offender has been ordered to register pursuant to K.S.A. 22-3717(d)(1)(D)(vii), and amendments thereto, electronic solicitation, K.S.A. 21-3523, prior to its repeal, or K.S.A. 2014 Supp. 21-5509, and amendments thereto, or unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2014 Supp. 21-5512, and amendments thereto, shall have any time which is earned and subtracted from the prison part of such sentence and any other consecutive or concurrent sentence pursuant to program credit calculation added to such inmate’s postrelease supervision term.

          (3) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, a defendant shall only be eligible for program credits if such crimes are a nondrug severity level 4 through 10, a drug severity level 3 or 4 committed prior to July 1, 2012, or a drug severity level 3 through 5 committed on or after July 1, 2012.

          (4) Program credits shall not be earned by any offender successfully completing a sex offender treatment program.

          (5) The secretary of corrections shall report to the Kansas sentencing commission and the Kansas reentry policy council the data on the program credit calculations.

          (f) The state of Kansas, the secretary of corrections and the secretary’s agents or employees shall not be liable for damages caused by any negligent or wrongful act or omission in making the good time and program credit calculations authorized by this section.

          (g) (1) The secretary of corrections shall make the good time and program credit calculations authorized by section 1 of chapter 54 of the 2015 Session Laws of Kansas no later than January 1, 2016.

          (2) The secretary of corrections shall make the program credit calculations authorized by the amendments to this section by this act no later than January 1, 2017.

          (h) The amendments to this section by section 1 of chapter 54 of the 2015 session laws of Kansas and this act [2016 HB 2447] shall be construed and applied retroactively.

History: L. 1992, ch. 239, § 22; L. 1993, ch. 291, § 267; L. 1995, ch. 121, § 3; L. 1996, ch. 148, § 1; L. 2007, ch. 197, § 3; L. 2010, ch. 136, § 302, L. 2011, ch. 30, § 83, l. 2012, ch. 150, § 37; L. 2013, ch. 76, § 4; L. 2015, ch. 54, § 1; L. 2016, ch. 36, § 1; April 14.

21-6822. Sentencing guidelines; changes in; duties of sentencing commission and secretary of corrections; submission to legislature.

          The Kansas sentencing commission shall meet as necessary for the purpose of modifying and improving the guidelines. The secretary of corrections shall notify the commission at any time when it is determined that prisons in the state have been filled to 90% or more of their overall capacity. The commission shall then propose modifications which amend the sentencing guidelines grid, including severity levels, criminal history scores or other factors which would result in the reduction of any sentence, as deemed necessary to maintain the prison population within the reasonable management capacity of the prisons as determined after consultation with the secretary of corrections. Such proposed modifications shall be submitted to the legislature by February 1 in any year in which the commission proposes to make the change. No change will be in effect without the approval of the legislature and the governor.

History: L. 1992, ch. 239, § 25; L. 2010, ch. 136, § 303, July 1, 2011.

21-6823. Costs and expenses associated with postconviction sanctions for felony convictions; consolidation of probation, parole and community corrections services.

          All costs and expenses associated with postconviction prison and nonprison sanctions imposed for felony convictions and time spent in a county jail pursuant to a nonprison sanction imposed for felony convictions shall be the responsibility of and paid by the state of Kansas.

History: L. 1992, ch. 239, § 300; L. 2010, ch. 136, § 304, July 1, 2011.

21-6824. Nonprison sanction; certified drug abuse treatment programs; assessment; supervision by community corrections; discharge from program.

          (a) There is hereby established a nonprison sanction of certified drug abuse treatment programs for certain offenders who are sentenced on or after November 1, 2003. Placement of offenders in certified drug abuse treatment programs by the court shall be limited to placement of adult offenders, convicted of a felony violation of K.S.A. 65-4160 or 65-4162, prior to their repeal or K.S.A. 2009 Supp. 21-36a06, prior to its transfer, or K.S.A. 2011 Supp. 21-5706,and amendments thereto:

          (1) Whose offense is classified in grid blocks 5-C, 5-D, 5-E, 5-F, 5-G, 5-H or 5-I of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, prior to their repeal or K.S.A. 2010 Supp. 21-36a03, 21-36a05 or 21-36a16 prior to their transfer, or K.S.A. 2011 Supp. 21-5703, 21-5705 or 21-5716, and amendments thereto, or any substantially similar offense from another jurisdiction; or

          (2) whose offense is classified in grid blocks 5-A or 5-B of the sentencing guidelines grid for drug crimes, such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010 Supp. 21-36a03, 21-36a05 or 21-36a16 prior to their transfer, or K.S.A. 2011 Supp. 21-5703, 21-5705 or 21-5716, and amendments thereto, or any substantially similar offense from another jurisdiction, if the person felonies in the offender’s criminal history were severity level 8, 9 or 10 or nongrid offenses of the sentencing guidelines grid for nondrug crimes, and the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will not be jeopardized by such placement in a drug abuse treatment program.

          (b) As a part of the presentence investigation pursuant to K.S.A. 21-6813, and amendments thereto, offenders who meet the requirements of subsection (a), unless otherwise specifically ordered by the court, shall be subject to:

          (1) A drug abuse assessment which shall include a clinical interview with a mental health professional and a recommendation concerning drug abuse treatment for the offender; and

          (2) a criminal risk-need assessment. The criminal risk-need assessment shall assign a high or low risk status to the offender.

          (c) If the offender is assigned a high risk status as determined by the drug abuse assessment performed pursuant to subsection (b)(1) and a moderate or high risk status as determined by the criminal risk-need assessment performed pursuant to subsection (b)(2), the sentencing court shall commit the offender to treatment in a drug abuse treatment program until the court determines the offender is suitable for discharge by the court. The term of treatment shall not exceed 18 months. The court may extend the term of probation, pursuant to subsection (c)(3) of K.S.A. 21-6608, and amendments thereto. The term of treatment may not exceed the term of probation.

          (d) (1) Offenders who are committed to a drug abuse treatment program pursuant to subsection (c) shall be supervised by community cor- rectional services.

          (2) Offenders who are not committed to a drug abuse treatment program pursuant to subsection (c) shall be supervised by community cor- rectional services or court services based on the result of the criminal risk assessment.

          (e) Placement of offenders under subsection (a)(2) shall be subject to the departure sentencing statutes of the revised Kansas sentencing guidelines act.

          (f) (1) Offenders in drug abuse treatment programs shall be discharged from such program if the offender:

          (A) Is convicted of a new felony; or

          (B) has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program, as established by judicial finding.

          (2) Offenders who are discharged from such program shall be subject to the revocation provisions of subsection (n) of K.S.A. 21-6604, and amendments thereto.

          (g) As used in this section, "mental health professional" includes licensed social workers, persons licensed to practice medicine and surgery, licensed psychologists, licensed professional counselors or registered alcohol and other drug abuse counselors licensed or certified as addiction counselors who have been certified by the secretary of corrections to treat offenders pursuant to K.S.A. 2011 Supp. 75-52,144, and amendments thereto.

          (h) (1) offenders who meet the requirements of subsection (a) shall not be subject to the provisions of this section and shall be sentenced as otherwise provided by law if such offenders:

          (A) are residents of another state and are returning to such state pursuant to the interstate corrections compact or the interstate compact for adult offender supervision; or

          (B) are not lawfully present in the United States and being detained for deportation.

          (C) do not meet the risk assessment levels provided in subsection (c).

          (2) Such sentence shall not be considered a departure and shall not be subject to appeal.

          (i) The court may order an offender who otherwise does not meet the requirements of subsection (c) to undergo one additional drug abuse assessment while such offender is on probation. Such offender may be ordered to undergo drug abuse treatment pursuant to subsection (a) if such offender is determined to meet the requirements of subsection (c). The cost of such assessment shall be paid by such offender.

History: L. 2003, ch. 135, § 1; L. 2006, ch. 211, § 7; L. 2009, ch. 32, § 39, L. 2010, ch. 136, § 305, L. 2012, ch. 150, § 38; July 1.