K.S.A. Chapter 21 - Article 46
SENTENCING
Current through End of 2010 Legislative Session
21-4601 Construction.
21-4602 Definitions.
21-4603 Authorized dispositions; crimes committed prior to July 1, 1993.
21-4603b House arrest program; eligibility; methods; notice to law enforcement officers; administration.
21-4603d 21-4603d. Authorized dispositions, crimes committed on or after July 1, 1993.
21-4604 Presentence investigation and report.
21-4605 Availability of reports to counsel; exception.
21-4606 Criteria for fixing minimum terms; crimes committed prior to July 1, 1993.
21-4606a Presumptive sentence of probation for certain class D or E felons; crimes committed prior to July 1, 1993.
21-4606b Presumptive sentence of assignment to community correctional services program for certain class D or E felons; aggravating circumstances to be considered; crimes committed prior to July 1, 1993.
21-4607 Criteria for imposing fines.
21-4608 Multiple sentences; defendant subject to or under sentence in federal court or court of another state.
21-4609 Custody of persons sentenced to confinement; notice of modification of sentence.
21-4610 Conditions of probation or suspended sentence.
21-4610a Probation or community correctional services fee.
21-4611 Period of suspension of sentence, probation or assignment to community corrections; parole of misdemeanant; duration of probation in felony cases, modification or extension.
21-4612 Parole from sentence imposed by district magistrate judge.
21-4613 Transfer of supervision of person paroled, on probation, assigned to community corrections or under suspended sentence.
21-4614 Deduction of time spent in confinement.
21-4614a Deduction of time spent in residential facility, conservation camp or community correctional residential services program.
21-4615 Rights of imprisoned persons; restoration.
21-4618 Mandatory imprisonment for crimes involving firearms; crimes committed prior to July 1, 1993.
21-4619 Expungement of certain convictions, arrest records and diversion agreements.
21-4620 Defendants sentenced to custody of secretary of corrections; judgment form and contents; diagnostic reports to accompany defendant; crimes committed prior to July 1, 1993.
21-4621 Same; order transferring custody to corrections.
21-4622 Persons convicted of capital murder, sentencing.
21-4623 Same; persons determined to be mentally retarded.
21-4624 Same; proceeding to determine if person shall be sentenced to death; notice; trial judge; jury.
21-4625 Same; aggravating circumstances.
21-4626 Persons convicted of capital murder; mitigating circumstances.
21-4627 Same; automatic review by and appeal to supreme court.
21-4629 Same; provisions of act held unconstitutional; modification of sentence previously determined under this act.
21-4630 Same; severability.
21-4631 Same; provisions of K.S.A. 21-4622 through 21-4630 supplemental to Kansas criminal code; application of such provisions.
21-4632 Defendants sentenced to custody of secretary of corrections; judgment form, content; presentence investigation and other diagnostic reports to accompany defendant; crimes committed on or after July 1, 1993.
21-4633 Sentencing of certain persons to mandatory term of imprisonment of 40 years; juveniles prosecuted as adults.
21-4634 Same; persons determined to be mentally retarded.
21-4635 Sentencing of certain persons to mandatory term of imprisonment of 40 or 50 years; determination; evidence presented; balance of aggravating and mitigating circumstances.
21-4636 Same; aggravating circumstances.
21-4637 Same; mitigating circumstances.
21-4638 Same; imposition of sentence of mandatory imprisonment of 40 years or 50 years.
21-4639 Same; provisions of act held unconstitutional; modification of sentence previously determined under this act.
21-4640 Same; severability.
21-4641 Same; provisions of K.S.A. 21-4633 through 21-4640 supplemental to Kansas criminal code; application of such provisions.
21-4642 Aggravated habitual sex offender; sentence to imprisonment for life without parole.
21-4643 Mandatory term of imprisonment of 25 or 40 years for certain sex offenders; exceptions.
21-4644 Modification of sentence previously determined under act; when.
21-4645 Severability.
This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.
History: L. 1969, ch. 180, § 21-4601; L. 1986, ch. 123, § 4; July 1.
As used in K.S.A. 21-4601 through 21-4621, and amendments thereto:
(a) "Court" means any court having jurisdiction and power to sentence offenders for violations of the laws of this state.
(b) "Suspension of sentence" means a procedure under which a defendant, found guilty of a crime, upon verdict or plea, is released by the court without imposition of sentence. The release may be with or without supervision in the discretion of the court. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of suspension of sentence pursuant to subsection (b)(4) of K.S.A. 21-4603 and amendments thereto.
(c) "Probation" means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the probation sentence pursuant to subsection (b)(3) of K.S.A. 21-4603 and amendments thereto.
(d) "Parole" means the release of a prisoner to the community by the Kansas parole board prior to the expiration of such prisoner's term, subject to conditions imposed by the board and to the secretary of correction's supervision. Parole also means the release by a court of competent jurisdiction of a person confined in the county jail or other local place of detention after conviction and prior to expiration of such person's term, subject to conditions imposed by the court and its supervision. Where a court or other authority has filed a warrant against the prisoner, the Kansas parole board or paroling court may release the prisoner on parole to answer the warrant of such court or authority.
(e) "Correctional institution" means the Lansing correctional facility, Hutchinson correctional facility, Topeka correctional facility, Norton correctional facility, Ellsworth correctional facility, Winfield correctional facility, Osawatomie correctional facility, Larned correctional mental health facility, Toronto correctional work facility, Stockton correctional facility, Wichita work release facility, El Dorado correctional facility, and any other correctional institution established by the state for the confinement of offenders, and under control of the secretary of corrections.
(f) "Community correctional services program" means a program which operates under the community corrections act and to which a defendant is assigned for supervision, confinement, detention, care or treatment, subject to conditions imposed by the court. A defendant assigned to a community correctional services program shall be subject to the continuing jurisdiction of the court and in no event shall be considered to be in the custody of or under the supervision of the secretary of corrections.
(g) Postrelease supervision, for crimes committed on or after July 1, 1993, means the same as provided in K.S.A. 21-4703 and amendments thereto.
History: L. 1969, ch. 180, § 21-4602; L. 1973, ch. 339, § 74; L. 1983, ch. 284, § 2; L. 1986, ch. 123, § 5; L. 1987, ch. 335, § 4; L. 1990, ch. 309, § 12; L. 1991, ch. 88, § 1; L. 1991, ch. 89, § 3; L. 1992, ch. 245, § 2; L. 1993, ch. 291, § 181; L. 2000, Ch. 182, § 1; July 1.
21-4603. Authorized dispositions; crimes committed prior to July 1, 1993.
(a) Whenever any person has been found guilty of a crime and the court finds that an adequate presentence investigation cannot be conducted by resources available within the judicial district, including mental health centers and mental health clinics, the court may require that a presentence investigation be conducted by the Topeka correctional facility or by the state security hospital. If the offender is sent to the Topeka correctional facility or the state security hospital for a presentence investigation under this section, the correctional facility or hospital may keep the offender confined for a maximum of 60 days, except that an inmate may be held for a longer period of time on order of the secretary, or until the court calls for the return of the offender. While held at the Topeka correctional facility or the state security hospital the defendant may be treated the same as any person committed to the secretary of corrections or secretary of social and rehabilitation services for purposes of maintaining security and control, discipline, and emergency medical or psychiatric treatment, and general population management except that no such person shall be transferred out of the state or to a federal institution or to any other location unless the transfer is between the correctional facility and the state security hospital. The correctional facility or the state security hospital shall compile a complete mental and physical evaluation of such offender and shall make its findings and recommendations known to the court in the presentence report.
(b) Except as provided in subsection (c), whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
(2) impose the fine applicable to the offense;
(3) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the probation sentence;
(4) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of suspension of sentence;
(5) assign the defendant to a community correctional services program subject to the provisions of K.S.A. 75-5291, and amendments thereto, and such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(6) assign the defendant to a conservation camp for a period not to exceed six months;
(7) assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b and amendments thereto;
(8) order the defendant to attend and satisfactorily complete an alcohol or drug education or training program as provided by subsection (3) of K.S.A. 21-4502 and amendments thereto;
(9) order the defendant to pay the administrative fee authorized by K.S.A. 1999 Supp. 22-4529 and amendments thereto, unless waived by the court; or
(10) impose any appropriate combination of subsections (b)(1) through (b)(9).
In addition to or in lieu of any of the above, the court shall order the defendant to submit to and complete an alcohol and drug evaluation, and pay a fee therefor, when required by subsection (4) of K.S.A. 21-4502 and amendments thereto.
In addition to any of the above, the court shall order the defendant to reimburse the state general fund for all or a part of the expenditures by the state board of indigents' defense services to provide counsel and other defense services to the defendant. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. The amount of attorney fees to be included in the court order for reimbursement shall be the amount claimed by appointed counsel on the payment voucher for indigents' defense services or the amount prescribed by the board of indigents' defense services reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less.
In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation, the court shall direct that the defendant be under the supervision of a court services officer. If the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional release.
The court in committing a defendant to the custody of the secretary of corrections shall fix a maximum term of confinement within the limits provided by law. In those cases where the law does not fix a maximum term of confinement for the crime for which the defendant was convicted, the court shall fix the maximum term of such confinement. In all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law.
(c) Whenever any juvenile felon, as defined in K.S.A. 38-16,112, prior to its repeal, has been found guilty of a class A or B felony, the court shall commit the defendant to the custody of the secretary of corrections and may impose the fine applicable to the offense.
(d)(1) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (d)(2), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.
(2) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.
(e) The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification. The court shall have the power to impose a less severe penalty upon the inmate, including the power to reduce the minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections, the hearing on the recommendation and the order of modification shall be made in open court. Notice of the recommendation of modification of sentence and the time and place of the hearing thereon shall be given by the inmate, or by the inmate's legal counsel, at least 21 days prior to the hearing to the county or district attorney of the county where the inmate was convicted. After receipt of such notice and at least 14 days prior to the hearing, the county or district attorney shall give notice of the recommendation of modification of sentence and the time and place of the hearing thereon to any victim of the inmate's crime who is alive and whose address is known to the county or district attorney or, if the victim is deceased, to the victim's next of kin if the next of kin's address is known to the county or district attorney. Proof of service of each notice required to be given by this subsection shall be filed with the court.
(f) After such defendant has been assigned to a conservation camp but prior to the end of 180 days, the chief administrator of such camp shall file a performance report and recommendations with the court. The court shall enter an order based on such report and recommendations modifying the sentence, if appropriate, by sentencing the defendant to any of the authorized dispositions provided in subsection (b), except to reassign such person to a conservation camp as provided in subsection (b)(6).
(g) This section shall not deprive the court of any authority conferred by any other Kansas statute to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty as a result of conviction of crime.
(h) An application for or acceptance of probation, suspended sentence or assignment to a community correctional services program shall not constitute an acquiescence in the judgment for purpose of appeal, and any convicted person may appeal from such conviction, as provided by law, without regard to whether such person has applied for probation, suspended sentence or assignment to a community correctional services program.
(i) When it is provided by law that a person shall be sentenced pursuant to K.S.A. 21-4628, and amendments thereto, the provisions of this section shall not apply.
(j) The provisions of this section shall apply to crimes committed before July 1, 1993.
History: L. 1969, ch. 180, § 21-4603; L. 1970, ch. 124, § 11; L. 1971, ch. 113, § 1; L. 1972, ch. 317, § 97; L. 1973, ch. 339, § 69; L. 1974, ch. 147, § 1; L. 1976, ch. 156, § 3; L. 1978, ch. 120, § 5; L. 1980, ch. 104, § 1; L. 1981, ch. 146, § 1; L. 1984, ch. 112, § 4; L. 1984, ch. 124, § 1; L. 1986, ch. 128, § 1; L. 1986, ch. 123, § 6; L. 1986, ch. 136, § 1; L. 1988, ch. 115, § 8; L. 1989, ch. 92, § 2; L. 1990, ch. 99, § 12; L. 1990, ch. 309, § 13; L. 1990, ch. 149, § 1; L. 1991, ch. 88, § 2; L. 1991, ch. 89, § 4; L. 1992, ch. 298, § 92; L. 1993, ch. 291, § 182; L. 1997, ch. 181, § 17; L. 1998, ch. 186, § 1; L. 2000, ch. 182, § 2; L. 2002, ch. 19, § 1; July 1.
21-4603b. House arrest program; eligibility; methods; notice to law enforcement officers; administration.
(a) The court or the secretary of corrections may implement a house arrest program for defendants or inmates being sentenced by the court or in the custody of the secretary of corrections, except:
(1) No defendant shall be placed by the court under house arrest if found guilty of:
(A) Any crime in article 34 or 35 of chapter 21 in the K.S.A. and amendments thereto, for which the penalty is a class A or B felony;
(B) K.S.A. 21-3603, and amendments thereto; or
(C) K.S.A. 21-3609, and amendments thereto;
(2) no inmate shall be placed under house arrest if such inmate's security status is greater than minimum security; or
(3) no inmate shall be placed under house arrest who has been denied parole by the parole board within the last 6 months. Any inmate who, while participating in the house arrest program, is denied parole by the parole board shall be allowed to remain under house arrest until the completion of the sentence or until the inmate is otherwise removed from the program.
(b) House arrest is an individualized program in which the freedom of an inmate is restricted within the community, home or noninstitutional residential placement and specific sanctions are imposed and enforced. House arrest may include:
(1) Electronic monitoring which requires a transmitter to be strapped to the defendant or inmate which broadcasts an encoded signal to the receiver located in the defendant's or inmate's home. The receiver is connected to a central office computer and is notified of any absence of the defendant or inmate; or
(2) voice identification-encoder which consists of an encoder worn by the defendant or inmate. A computer is programmed to randomly call the defendant or inmate and such defendant or inmate is required to provide voice identification and then insert the encoder into the verifier box, confirming identity.
(c) Prior to the placement of an inmate under house arrest, the court or secretary shall provide written notification to the sheriff and district or county attorney of the county in which any person under house arrest is to be placed and to the chief law enforcement officer of any incorporated city or town in which such person is to be placed of the placement of the person under house arrest within the county or incorporated city or town.
(d) House arrest sanctions shall be administered by the court and the secretary of corrections, respectively, through rules and regulations, and may include, but are not limited to, rehabilitative restitution in money or in kind, curfew, revocation or suspension of the driver's license, community service, deprivation of nonessential activities or privileges, or other appropriate restraints on the inmate's liberty.
History: L. 1988, ch. 115, § 7; May 19.
21-4603d. Authorized dispositions, crimes committed on or after July 1, 1993.
(a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment, or the sentence imposed is a dispositional departure to imprisonment; or, if confinement is for a misdemeanor, to jail for the term provided by law;
(2) impose the fine applicable to the offense;
(3) release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate. In felony cases except for violations of K.S.A. 8-1567 and amendments thereto, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the probation sentence, or community corrections placement;
(4) assign the defendant to a community correctional services program as provided in K.S.A. 75-5291, and amendments thereto, or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(5) assign the defendant to a conservation camp for a period not to exceed six months as a condition of probation followed by a six-month period of follow-up through adult intensive supervision by a community correctional services program, if the offender successfully completes the conservation camp program;
(6) assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b and amendments thereto;
(7) order the defendant to attend and satisfactorily complete an alcohol or drug education or training program as provided by subsection (3) of K.S.A. 21-4502 and amendments thereto;
(8) order the defendant to repay the amount of any reward paid by any crime stoppers chapter, individual, corporation or public entity which materially aided in the apprehension or conviction of the defendant; repay the amount of any costs and expenses incurred by any law enforcement agency in the apprehension of the defendant, if one of the current crimes of conviction of the defendant includes escape, as defined in K.S.A. 21-3809 and amendments thereto or aggravated escape, as defined in K.S.A. 21-3810 and amendments thereto; repay expenses incurred by a fire district, fire department or fire company responding to a fire which has been determined to be arson under K.S.A. 21-3718 or 21-3719, and amendments thereto, if the defendant is convicted of such crime; repay the amount of any public funds utilized by a law enforcement agency to purchase controlled substances from the defendant during the investigation which leads to the defendant's conviction ; or repay the amount of any medical costs and expenses incurred by any law enforcement agency or county.. Such repayment of the amount of any such costs and expenses incurred by a county, law enforcement agency, fire district, fire department or fire company or any public funds utilized by a law enforcement agency shall be deposited and credited to the same fund from which the public funds were credited to prior to use by the county, law enforcement agency; fire district, fire department or fire company.
(9) order the defendant to pay the administrative fee authorized by K.S.A. 2004 Supp. 22-4529 and amendments thereto, unless waived by the court;
(10) order the defendant to pay a domestic violence special program fee authorized by K.S.A. 2004 Supp. 20-369, and amendments thereto;
(11) if the defendant is convicted of a misdemeanor or a felony provision of subsection (i) of K.S.A. 21-4704, and amendments thereto, assign the defendant to a work release program, other than a program at a correctional institution under the control of the secretary of corrections
as defined in K.S.A. 75-5202, and amendments thereto, provided such work release program requires such defendant to return to confinement at the end of each day in the work release program;
(12) impose any appropriate combination of (1), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11); or
(13) suspend imposition of sentence in misdemeanor cases.
(b) (1) In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable. In regard to a violation of K.S.A. 21-4018, and amendments thereto, such damage or loss shall include, but not be limited to, attorney fees and costs incurred to repair the credit history or rating of the person whose personal identification documents were obtained and used in violation of such section, and to satisfy a debt, lien or other obligation incurred by the person whose personal identification documents were obtained and used in violation of such section. If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.
(2) If the court orders restitution, the restitution shall be a judgment against the defendant which may be collected by the court by garnishment or other execution as on judgments in civil cases. If, after 60 days from the date restitution is ordered by the court, a defendant is found to be in noncompliance with the plan established by the court for payment of restitution, and the victim to whom restitution is ordered paid has not initiated proceedings in accordance with K.S.A. 60-4301 et seq. and amendments thereto, the court shall assign an agent procured by the attorney general pursuant to K.S.A. 75-719 and amendments thereto to collect the restitution on behalf of the victim. The administrative judge of each judicial district may assign such cases to an appropriate division of the court for the conduct of civil collection proceedings.
(c) In addition to or in lieu of any of the above, the court shall order the defendant to submit to and complete an alcohol and drug evaluation, and pay a fee therefor, when required by subsection (4) of K.S.A. 21-4502 and amendments thereto.
(d) In addition to any of the above, the court shall order the defendant to reimburse the county general fund for all or a part of the expenditures by the county to provide counsel and other defense services to the defendant. Any such reimbursement to the county shall be paid only after any order for restitution has been paid in full. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.
(e) In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation, the court shall direct that the defendant be under the supervision of a court services officer. If the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole, conditional release or postrelease supervision.
(f) (1) When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.
(2) When a new felony is committed while the offender is incarcerated in a juvenile correctional facility pursuant to K.S.A. 38-1671 prior to its repeal or K.S.A. 2006 Supp. 38-2373, and amendments thereto, for an offense, which if committed by an adult would constitute the commission of a felony, upon conviction, the court shall sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure. The conviction shall operate as a full and complete discharge from any obligations, except for an order of restitution, imposed on the offender arising from the offense for which the offender was committed to a juvenile correctional facility.
(3) When a new felony is committed while the offender is on release for a felony pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, or similar provisions of the laws of another jurisdiction, a new sentence may be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608 and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.
(g) Prior to imposing a dispositional departure for a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid, prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the sentencing guidelines grid for drug crimes, prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements of section 1 [of 2003 SB 123], and amendments thereto, prior to revocation of a nonprison sanction of a defendant whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements of section 1 [of 2003 SB 123], and amendments thereto, or prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5-H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I, of the sentencing guidelines grid for drug crimes, the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp's or a community intermediate sanction center's placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.
(h) The court in committing a defendant to the custody of the secretary of corrections shall fix a term of confinement within the limits provided by law. In those cases where the law does not fix a term of confinement for the crime for which the defendant was convicted, the court shall fix the term of such confinement.
(i) In addition to any of the above, the court shall order the defendant to reimburse the state general fund for all or a part of the expenditures by the state board of indigents' defense services to provide counsel and other defense services to the defendant. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. The amount of attorney fees to be included in the court order for reimbursement shall be the amount claimed by appointed counsel on the payment voucher for indigents' defense services or the amount prescribed by the board of indigents' defense services reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less.
(j) This section shall not deprive the court of any authority conferred by any other Kansas statute to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty as a result of conviction of crime.
(k) An application for or acceptance of probation or assignment to a community correctional services program shall not constitute an acquiescence in the judgment for purpose of appeal, and any convicted person may appeal from such conviction, as provided by law, without regard to whether such person has applied for probation, suspended sentence or assignment to a community correctional services program.
(l) The secretary of corrections is authorized to make direct placement to the Labette correctional conservation camp or a conservation camp established by the secretary pursuant to K.S.A. 75-52,127, and amendments thereto, of an inmate sentenced to the secretary’s custody if the inmate: (1) Has been sentenced to the secretary for a probation revocation, as a departure from the presumptive nonimprisonment grid block of either sentencing grid, for an offense which is classified in grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the sentencing guidelines grid for drug crimes, or for an offense which is classified in gridblocks 4-E or 4-F of the sentencing guidelines grid for drug crimes and such offense does not meet the requirements of section 1 [of 2003 SB 123] , and amendments thereto, and (2) otherwise meets admission criteria of the camp. If the inmate successfully completes a conservation camp program, the secretary of corrections shall report such completion to the sentencing court and the county or district attorney. The inmate shall then be assigned by the court to six months of follow-up supervision conducted by the appropriate community corrections services program. The court may also order that supervision continue thereafter for the length of time authorized by K.S.A. 21-4611 and amendments thereto.
(m) When it is provided by law that a person shall be sentenced pursuant to K.S.A. 1993 Supp. 21-4628, prior to its repeal, the provisions of this section shall not apply.
(n) Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of section 6 of 2009 House Bill No. 2236, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in 2008 Supp. 75-52,144, and amendments thereto, including but not limited to, an approved after-care plan. If the defendant fails to participate in or 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, the defendant shall be subject to revocation of probation and the defendant shall serve the underlying prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or after the effective date of this act, upon completion of the underlying prison sentence, the defendant shall not be subject to a period of postrelease supervision. The amount of time spent participating in such program shall not be credited as service on the underlying prison sentence.
(o) (1) Except as provided in paragraph (3), in addition to any other penalty or disposition imposed by law, upon a conviction for unlawful possession of a controlled substance or controlled substance analog in violation of section 6 of 2009 House Bill No. 2236, and amendments thereto, in which the trier of fact makes a finding that the unlawful possession occurred while transporting the controlled substance or controlled substance analog in any vehicle upon a highway or street, the offender’s driver’s license or privilege to operate a motor vehicle on the streets and highways of this state shall be suspended for one year.
(2) Upon suspension of a license pursuant to this subsection, the court shall require the person to surrender the license to the court, which shall transmit the license to the division of motor vehicles of the department of revenue, to be retained until the period of suspension expires. At that time, the licensee may apply to the division for return of the license. If the license has expired, the person may apply for a new license, which shall be issued promptly upon payment of the proper fee and satisfaction of other conditions established by law for obtaining a license unless another suspension or revocation of the person’s privilege to operate a motor vehicle is in effect.
(3) (A) In lieu of suspending the driver’s license or privilege to operate a motor vehicle on the highways of this state of any person as provided in paragraph (1), the judge of the court in which such person was convicted may enter an order which places conditions on such person’s privilege of operating a motor vehicle on the highways of this state, a certified copy of which such person shall be required to carry any time such person is operating a motor vehicle on the highways of this state. Any such order shall prescribe the duration of the conditions imposed, which in no event shall be for a period of more than one year.
(B) Upon entering an order restricting a person’s license hereunder, the judge shall require such person to surrender such person’s driver’s license to the judge who shall cause it to be transmitted to the division of vehicles, together with a copy of the order. Upon receipt thereof, the division of vehicles shall issue without charge a driver’s license which shall indicate on its face that conditions have been imposed on such person’s privilege of operating a motor vehicle and that a certified copy of the order imposing such conditions is required to be carried by the person for whom the license was issued any time such person is operating a motor vehicle on the highways of this state. If the person convicted is a nonresident, the judge shall cause a copy of the order to be transmitted to the division and the division shall forward a copy of it to the motor vehicle administrator, of such person’s state of residence. Such judge shall furnish to any person whose driver’s license has had conditions imposed on it under this paragraph a copy of the order, which shall be recognized as a valid Kansas driver’s license until such time as the division shall issue the restricted license provided for in this paragraph.
(C) Upon expiration of the period of time for which conditions are imposed pursuant to this subsection, the licensee may apply to the division for the return of the license previously surrendered by such licensee. In the event such license has expired, such person may apply to the division for a new license, which shall be issued immediately by the division upon payment of the proper fee and satisfaction of the other conditions established by law, unless such person’s privilege to operate a motor vehicle on the highways of this state has been suspended or revoked prior thereto. If any person shall violate any of the conditions imposed under this paragraph, such person’s driver’s license or privilege to operate a motor vehicle on the highways of this state shall be revoked for a period of not less than 60 days nor more than one year by the judge of the court in which such person is convicted of violating such conditions.
(4) As used in this subsection, "highway" and "street" have the meanings provided by K.S.A. 8-1424 and 8-1473, and amendments thereto.
(p) In addition to any of the above, for any criminal offense that includes the domestic violence designation pursuant to section 1 [of 2010 HB 2517], and amendments thereto, the court shall require the defendant to undergo a domestic violence offender assessment and follow all recommendations unless otherwise ordered by the court or the department of corrections. The court may order a domestic violence offender assessment and any other evaluation prior to sentencing if the assessment or evaluation would assist the court in determining an appropriate sentence. The entity com-pleting the assessment or evaluation shall provide the assessment or evaluation and recommendations to the court and the court shall provide the domestic violence assessment and any other evaluation to any entity responsible for supervising such defendant. A defendant ordered to undergo a domestic violence offender assessment shall be required to pay for the assessment and, unless otherwise ordered by the court or the department of corrections, for completion of all recommendations.
History: L. 1992, ch. 239, § 238; L. 1993, ch. 165, § 1; L. 1994, ch. 21, § 2; L. 1994, ch. 348, § 10; L. 1995, ch. 121, § 1; L. 1995, ch. 257, § 1; L. 1996, ch. 195, § 2; L. 1997, ch. 34, § 1; L. 1997, ch. 181, § 18; L. 1998, ch. 186, § 2; L. 1999, ch. 164, § 13; L. 2000, ch. 182, § 3; L. 2001, ch. 177, § 8; L. 2002, ch. 19, § 2; L. 2003, ch. 135, § 3; L. 2005, ch. 150, § 5; L. 2006, ch. 149, § 7; L. 2007, ch. 198, § 4; L. 2009, ch. 132, § 8; L. 2010, ch. 41, §1; L. 2010, ch. 101, § 7, July 1, 2011.
21-4604. Presentence investigation and report.
(a) Whenever a defendant is convicted of a misdemeanor, the court before which the conviction is had may request a presentence investigation by a court services officer. Whenever a defendant is convicted of a felony, the court shall require that a presentence investigation be conducted by a court services officer or in accordance with K.S.A. 21-4603, and amendments thereto, unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.
(b) Whenever a presentence report is requested, the court services officer, with the assistance of the county or district attorney, shall secure, except for good cause shown, information concerning: (1) The circumstances of the offense and any mitigating or aggravating factors involved in the defendant's behavior; (2) the attitude of the complainant or victim and, if possible in homicide cases, the victim's immediate family; (3) the criminal record, social history and present condition of the defendant; and (4) any other facts or circumstances that may aid the court in sentencing, which may include, but is not limited to, the financial, social, psychological, physical or other harm or loss suffered by victims of the offense and the restitution needs of such victims. Except where specifically prohibited by law, all local governmental and state agencies shall furnish to the officer conducting the presentence investigation any records requested by the officer. If ordered by the court, the presentence investigation shall include a physical and mental examination of the defendant.
(c) Presentence investigation reports shall be in the form and contain the information prescribed by rule of the supreme court, and shall contain any other information prescribed by the district court.
(d) The judicial administrator of the courts shall confer and consult with the secretary of corrections when considering changes or revisions in the form and content of presentence investigation reports so that the reports will be in such form and contain such information as will be of assistance to the secretary in exercising or performing the secretary's functions, powers and duties.
(e) The provisions of this section shall not apply to felony crimes committed on or after July 1, 1993.
History: L. 1969, ch. 180, § 21-4604; L. 1970, ch. 124, § 12; L. 1978, ch. 120, § 6; L. 1980, ch. 101, § 1; L. 1984, ch. 112, § 5; L. 1985, ch. 110, § 1; L. 1991, ch. 90, § 1; L. 1992, ch. 239, § 239; L. 1993, ch. 291, § 184; L. 1994, ch. 291, § 45; July 1.
21-4605. Availability of reports to counsel; exception.
(a) (1) The judge shall make available to the attorney for the state or counsel for the defendant the presentence report, any report that may be received from the Topeka correctional facility or the state security hospital and other diagnostic reports and shall allow the attorney or counsel a reasonable time to review the report before sentencing the defendant.
(2) The court shall permit the attorney for the state or the counsel for the defendant to copy and retain any of the reports under subsection (a)(1). Any reports copied and retained shall be kept in the records of the attorney for the state or the counsel for the defendant. All costs of copying such reports shall be paid by the office of the attorney for the state or the counsel for the defendant making the request.
(b) The presentence report shall become part of the court record and shall be accessible to the public, except that the official version, the defendant's version, the victim's statement, any psychological reports and any drug and alcohol reports shall be accessible only to the attorney for the state and the counsel for the defendant, 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.
(c) For felony crimes committed on or after July 1, 1993, the provisions of this section are not applicable to the presentence investigation report.
History: L. 1969, ch. 180, § 21-4605; L. 1972, ch. 317, § 98; L. 1973, ch. 339, § 70; L. 1978, ch. 120, § 7; L. 1982, ch. 138, § 1; L. 1990, ch. 115, § 1; L. 1990, ch. 309, § 14; L. 1991, ch. 260, § 4; L. 1991, ch. 89, § 5; L. 1994, ch. 291, § 46; L. 1999, ch. 164, § 14; July 1.
21-4606. Criteria for fixing minimum terms; crimes committed prior to July 1, 1993.
(a) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of such court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant's crime.
(b) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(1) The defendant's history of prior criminal activity;
(2) The extent of the harm caused by the defendant's criminal conduct;
(3) Whether the defendant intended that the defendant's criminal conduct would cause or threaten serious harm;
(4) The degree of the defendant's provocation;
(5) Whether there were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
(6) Whether the victim of the defendant's criminal conduct induced or facilitated its commission;
(7) Whether the defendant has compensated or will compensate the victim of the defendant's criminal conduct for the damage or injury that the victim sustained.
(c) The provisions of this section shall not apply to crimes committed on or after July 1, 1993.
History: L. 1969, ch. 180, § 21-4606; L. 1992, ch. 239, § 240; July 1, 1993.
21-4606a. Presumptive sentence of probation for certain class D or E felons; crimes committed prior to July 1, 1993.
The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class D or E felony or convicted of an attempt to commit a class D felony shall be probation, unless the conviction is of a crime or of an attempt to commit a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated or in the uniform controlled substances act or the person convicted is a juvenile offender in the custody of the department of social and rehabilitation services. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the person's having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult. If the presumptive sentence provided by this section is not imposed, the provisions of K.S.A. 21-4606b and amendments thereto shall apply. The provisions of this section shall not apply to crimes committed on or after July 1, 1993.
History: L. 1984, ch. 119, § 1; L. 1986, ch. 123, § 7; L. 1989, ch. 92, § 3; L. 1990, ch. 100, § 5; L. 1992, ch. 239, § 241; July 1, 1993.
21-4606b. Presumptive sentence of assignment to community correctional services program for certain class D or E felons; aggravating circumstances to be considered; crimes committed prior to July 1, 1993.
(a) If probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto, subject to the provisions of K.S.A. 75-5291, and amendments thereto, the presumptive sentence for a person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.
(b) In determining whether to impose the presumptive sentence provided by this section, the court shall consider whether any of the following aggravating circumstances existed:
(1) Whether the crime is a felony violation of the uniform controlled substances act or an attempt to commit such an offense;
(2) whether the crime is a crime specified in article 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated or an attempt to commit such an offense; or
(3) any prior record of the person's having been convicted of a felony or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.
(c) The provisions of this section shall not apply to crimes committed on or after July 1, 1993.
History: L. 1989, ch. 92, § 13; L. 1990, ch. 100, § 6; L. 1992, ch. 239, § 242; July 1, 1993; L. 2000, ch. 182, § 4; July 1.
21-4607. Criteria for imposing fines.
(1) When the law authorizes any other disposition, a fine shall not be imposed as the sole and exclusive punishment unless having regard to the nature and circumstances of the crime and to the history and character of the defendant, the court is of the opinion that the fine alone suffices for the protection of the public.
(2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment, probation or assignment to a community correctional services program unless:
(a) The defendant has derived a pecuniary gain from the crime; or
(b) the court is of the opinion that a fine is adapted to deterrence of the crime involved or to the correction of the offender.
(3) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.
History: L. 1969, ch. 180, § 21-4607; L. 1986, ch. 123, § 8; July 1.
21-4608. Multiple sentences; defendant subject to or under sentence in federal court or court of another state.
(a) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as provided in subsections (c), (d) and (e).
(b) Any person who is convicted and sentenced for a crime committed while on probation, assignment to a community correctional services program, parole or conditional release for a misdemeanor shall serve the sentence concurrently with or consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release, as the court directs.
(c) Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.
(d) Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve the sentence consecutively to the term or terms under which the person was released.
(e) (1) Any person who is convicted and sentenced for a crime committed while such person is incarcerated and serving a sentence for a felony in any place of incarceration shall serve the sentence consecutively to the term or terms under which the person was incarcerated.
(2) If a person is sentenced to prison for a crime committed on or after July 1, 1993, while the person was imprisoned for an offense committed prior to July 1, 1993, and the person is not eligible for the retroactive application of the sentencing guidelines act, the new sentence shall not be aggregated with the old sentence but shall begin when the person is paroled or reaches the conditional release date on the old sentence, whichever is earlier. If the offender was past the offender’s conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when the person is ordered released by the Kansas parole board or reaches the maximum sentence date on the old sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law. The period of post incarceration supervision shall be based on the longest term of post incarceration supervision imposed for all crimes upon which sentence was imposed or until discharged from supervision by the Kansas parole board. The term of post incarceration supervision imposed by this paragraph shall apply retroactively to crimes committed prior to the effective date of this act.
(3) As used in this subsection, "post incarceration supervision" includes parole and postrelease supervision.
(f) The provisions of this subsection relating to parole eligibility shall be applicable to persons convicted of crimes committed prior to January 1, 1979, but shall be applicable to persons convicted of crimes committed on or after that date only to the extent that the terms of this subsection are not in conflict with the provisions of K.S.A. 22-3717 and amendments thereto. In calculating the time to be served on concurrent and consecutive sentences, the following rules shall apply:
(1) When indeterminate terms run concurrently, the shorter minimum terms merge in and are satisfied by serving the longest minimum term and the shorter maximum terms merge in and are satisfied by conditional release or discharge on the longest maximum term if the terms are imposed on the same date.
(2) When concurrent terms are imposed on different dates, computation will be made to determine which term or terms require the longest period of imprisonment to reach parole eligibility, conditional release and maximum dates, and that sentence will be considered the controlling sentence. The parole eligibility date may be computed and projected on one sentence and the conditional release date and maximum may be computed and projected from another to determine the controlling sentence.
(3) When indeterminate terms imposed on the same date are to be served consecutively, the minimum terms are added to arrive at an aggregate minimum to be served equal to the sum of all minimum terms and the maximum terms are added to arrive at an aggregate maximum equal to the sum of all maximum terms.
(4) When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated minimums and maximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on the aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purpose of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.
Nothing in this subsection (f)(4) shall affect the authority of the Kansas parole board to determine the parole eligibility of inmates pursuant to subsection (d) of K.S.A. 22-3717 and amendments thereto.
(5) When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining the parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program.
(g) When a definite and an indefinite term run consecutively, the period of the definite term is added to both the minimum and maximum of the indeterminate term and both sentences are satisfied by serving the indeterminate term. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.
(h) When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant's sentence in a Kansas state court, the court may direct that custody of the defendant may be relinquished to federal or other state authorities and that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed.
History: L. 1969, ch. 180, § 21-4608; L. 1978, ch. 120, § 8; L. 1982, ch. 150, § 1; L. 1983, ch. 111, § 1; L. 1985, ch. 111, § 1; L. 1986, ch. 123, § 9; L. 1987, ch. 113, § 1; L. 1989, ch. 92, § 24; L. 1992, ch. 239, § 243; L. 1993, ch. 291, § 272; L. 1994, ch. 291, § 47; L. 2008, ch. 183, § 3; July 1.
21-4609. Custody of persons sentenced to confinement; notice of modification of sentence.
When a person is sentenced to imprisonment upon conviction of a felony, the judgment of the court shall order that such person be committed, for such term or terms as the court may direct, to the custody of the secretary of corrections. When such person is sentenced to the custody of the secretary of corrections and such sentence is subsequently modified in any respect, including discharge of such defendant from custody, by a court of this state having jurisdiction of such matter, such court shall thereupon notify the secretary of corrections of the nature of such modification.
The secretary of corrections may designate as the place of confinement any available and suitable correctional institution or facility maintained by the state of Kansas or a political subdivision thereof.
Any person serving a sentence of imprisonment may be transferred from one institution to another by order of the secretary of corrections.
History: L. 1969, ch. 180, § 21-4609; L. 1972, ch. 317, § 99; L. 1973, ch. 339, § 71; L. 1976, ch. 160, § 1; July 1.
21-4610. Conditions of probation or suspended sentence.
(a) Except as required by this subsection and subsection (d), nothing in this section shall be construed to limit the authority of the court to impose or modify any general or specific conditions of probation, suspension of sentence or assignment to a community correctional services program, except that the court shall condition any order granting probation, suspension of sentence or assignment to a community correctional services program on the defendant's obedience of the laws of the United States, the state of Kansas and any other jurisdiction to the laws of which the defendant may be subject. The provisions of K.S.A. 75-5291, and amendments thereto, shall be applicable to any assignment to a community correctional services program pursuant to this section.
(b) The court services officer or community correctional services officer may recommend, and the court may order, the imposition of any conditions of probation, suspension of sentence or assignment to a community correctional services program. For crimes committed on or after July 1, 1993, in presumptive nonprison cases, the court services officer or community correctional services officer may recommend, and the court may order, the imposition of any conditions of probation or assignment to a community correctional services program. The court may at any time order the modification of such conditions, after notice to the court services officer or community correctional services officer and an opportunity for such officer to be heard thereon. The court shall cause a copy of any such order to be delivered to the court services officer and the probationer or to the community correctional services officer and the community corrections participant, as the case may be. The provisions of K.S.A. 75-5291, and amendments thereto, shall be applicable to any assignment to a community correctional services program pursuant to this section.
(c) The court may impose any conditions of probation, suspension of sentence or assignment to a community correctional services program that the court deems proper, including but not limited to requiring that the defendant:
(1) Avoid such injurious or vicious habits, as directed by the court, court services officer or community correctional services officer;
(2) avoid such persons or places of disreputable or harmful character, as directed by the court, court services officer or community correctional services officer;
(3) report to the court services officer or community correctional services officer as directed;
(4) permit the court services officer or community correctional services officer to visit the defendant at home or elsewhere;
(5) work faithfully at suitable employment insofar as possible;
(6) remain within the state unless the court grants permission to leave;
(7) pay a fine or costs, applicable to the offense, in one or several sums and in the manner as directed by the court;
(8) support the defendant's dependents;
(9) reside in a residential facility located in the community and participate in educational, counseling, work and other correctional or rehabilitative programs;
(10) perform community or public service work for local governmental agencies, private corporations organized not for profit, or charitable or social service organizations performing services for the community;
(11) perform services under a system of day fines whereby the defendant is required to satisfy fines, costs or reparation or restitution obligations by performing services for a period of days determined by the court on the basis of ability to pay, standard of living, support obligations and other factors;
(12) participate in a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto;
(13) order the defendant to pay the administrative fee authorized by K.S.A. 1999 Supp. 22-4529 and amendments thereto, unless waived by the court; or
(14) in felony cases, except for violations of K.S.A. 8-1567 and amendments thereto, be confined in a county jail not to exceed 60 days, which need not be served consecutively.
(d) In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable. If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor;
(2) pay the probation or community correctional services fee pursuant to K.S.A. 21-4610a, and amendments thereto; and
(3) reimburse the state general fund for all or a part of the expenditures by the state board of indigents' defense services to provide counsel and other defense services to the defendant. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. The amount of attorney fees to be included in the court order for reimbursement shall be the amount claimed by appointed counsel on the payment voucher for indigents' defense services or the amount prescribed by the board of indigents' defense services reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less.
History: L. 1969, ch. 180, § 21-4610; L. 1972, ch. 317, § 100; L. 1976, ch. 169, § 1; L. 1978, ch. 120, § 9; L. 1981, ch. 147, § 1; L. 1983, ch. 112, § 1; L. 1984, ch. 126, § 2; L. 1986, ch. 128, § 2; L. 1986, ch. 123, § 10; L. 1986, ch. 136; § 2; L. 1988, ch. 115, § 9; L. 1991, ch. 88, § 3; L. 1992, ch. 239, § 244; L. 1993, ch. 259, § 14; L. 1995, ch. 257, § 2; L. 1997, ch. 181, § 19; L. 2000, ch. 182, § 5; July 1.
21-4610a. Probation or community correctional services fee.
(a) Each person placed under the probation supervision of a court services officer or other officer or employee of the judicial branch by a judge of the district court under K.S.A. 21-4610 and amendments thereto and each person assigned to a community correctional services program shall pay a correctional supervision fee. If the person was convicted of a misdemeanor, the amount of the correctional supervision fee is $60 and if the person was convicted of a felony, the amount of the correctional supervision fee is $120, except that in any case the amount of the correctional supervision fee specified by this section may be reduced or waived by the judge if the person is unable to pay that amount.
(b) The correctional supervision fee imposed by this section shall be charged and collected by the district court. The clerk of the district court shall remit revenues received under this section from correctional supervision fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the state general fund, a sum equal to 41.67% of such remittance, and to the correctional supervision fund, a sum equal to 58.33% of such remittance.
(c) There is hereby established in the state treasury the correctional supervision fund. All moneys credited to the correctional supervision fund shall be used for the implementation of and training for use of a statewide, mandatory, standardized risk assessment tool or instrument as specified by the Kansas sentencing commission, pursuant to K.S.A. 75-5291, and amendments thereto, and for evidence based offender supervision programs by judicial branch personnel. If all expenditures for the program have been paid and moneys remain in the correctional supervision fund for a fiscal year, remaining moneys may be expended from the correctional supervision fund to support offender supervision by court services officers. All expenditures from the correctional supervision fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the chief justice of the Kansas supreme court or by a person or persons designated by the chief justice.
(d) This section shall apply to persons placed on felony or misdemeanor probation or released on misdemeanor parole to reside in Kansas and supervised by Kansas court services officers under the interstate compact for offender supervision.
(e) This section shall not apply to persons placed on probation or released on parole to reside in Kansas under the uniform act for out-of-state parolee supervision.
History: L. 1984, ch. 126, § 1; L. 1986, ch. 123, § 11; L. 2001, ch. 5, § 81; L. 2010, ch. 73, § 2, July 1.
21-4611. Period of suspension of sentence, probation or assignment to community corrections; parole of misdemeanant; duration of probation in felony cases, modification or extension.
(a) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases involving crimes committed prior to July 1, 1993, or two years in misdemeanor cases, subject to renewal and extension for additional fixed periods not exceeding five years in such felony cases, nor two years in misdemeanor cases. In no event shall the total period of probation, suspension of sentence or assignment to community corrections for a felony committed prior to July 1, 1993, exceed the greatest maximum term provided by law for the crime, except that where the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. Probation, suspension of sentence or assignment to community corrections may be terminated by the court at any time and upon such termination or upon termination by expiration of the term of probation, suspension of sentence or assignment to community corrections, an order to this effect shall be entered by the court. The provisions of K.S.A. 75-5291, and amendments thereto, shall be applicable to any assignment to a community correctional services program pursuant to this section.
(b) The district court having jurisdiction of the offender may parole any misdemeanant sentenced to confinement in the county jail. The period of such parole shall be fixed by the court and shall not exceed two years and shall be terminated in the manner provided for termination of suspended sentence and probation.
(c) For all crimes committed on or after July 1, 1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes is as follows:
(1) For nondrug crimes the recommended duration of probations is:
(A) Thirty-six months for crimes in crime severity levels 1 through 5; and
(B) 24 months for crimes in crime severity levels 6 and 7.
(2) For drug crimes the recommended duration of probation is 36 months for crimes in crime severity levels 1 and 2.
(3) Except as otherwise provided, in felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes and severity level 4 on the sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation of up to 12 months in length.
(4) In felony cases sentenced at severity level 8 on the sentencing guidelines grid for nondrug crimes, severity level 3 on the sentencing guidelines grid for drug crimes, and felony cases sentenced pursuant to K.S.A. 21-4729, and amendments thereto, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services program, as provided under K.S.A. 75-5291 et seq., and amendments thereto, of up to 18 months in length.
(5) If the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.
(6) Except as provided in subsections (c)(7) and (c)(8), the total period in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by the court at any time.
(7) If the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.
(8) The court may modify or extend the offender's period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.
(d) The provisions of subsection (c), as amended by this act, shall be applied retroactively. The sentencing court shall direct that a review of all persons serving a nonprison sanction for a crime in severity levels 8, 9 or 10 of the sentencing guidelines grid for nondrug crimes or a crime in severity levels 3 or 4 of the sentencing guidelines grid for drug crimes be conducted. On or before September 1, 2000, the duration of such person's probation shall be modified in conformity with the provisions of subsection (c).
History: L. 1969, ch. 180, § 21-4611; L. 1977, ch. 118, § 1; L. 1978, ch. 120, § 10; L. 1986, ch. 123, § 12; L. 1992, ch. 239, § 245; L. 1993, ch. 291, § 185; L. 1996, ch. 258, § 4; L. 2000, ch. 182, § 6; L. 2009, ch. 132, § 9; July 1.
21-4612. Parole from sentence imposed by district magistrate judge.
Any person confined in jail under judgment of conviction before a district magistrate judge may be paroled, such person's parole terminated and absolute discharge granted by a district judge having jurisdiction of appeals from such district magistrate judge in criminal cases, in the same manner and subject to the same restrictions as if such person had been convicted in and placed on probation by such district judge.
History: L. 1969, ch. 180, § 21-4612; L. 1976, ch. 156, § 4; L. 1977, ch. 118, § 2; L. 1983, ch. 284, § 3; L. 1986, ch. 115, § 53; Jan. 12, 1987.
21-4613. Transfer of supervision of person paroled, on probation, assigned to community corrections or under suspended sentence.
(1) When a defendant is placed on parole by the district court, on probation, assigned to a community correctional services program by a district court or under suspended sentence and such defendant is permitted to go from the judicial district of that court, supervision over the defendant may be transferred from that judicial district to another with the concurrence of the receiving chief court services officer, or if in a community corrections services program, by the concurrence of the director of the receiving program.
(2) The district court from which the defendant is on parole, probation, community correctional services program or suspended sentence may retain all power with respect to this defendant.
History: L. 1969, ch. 180, § 21-4613; L. 1981, ch. 148, § 1; L. 1986, ch. 123, § 13; L. 1990, ch. 104, § 1; July 1.
21-4614. Deduction of time spent in confinement.
In any criminal action in which the defendant is convicted upon a plea of guilty or no contest or trial by court or jury or upon completion of an appeal, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the Kansas parole board are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.
History: L. 1969, ch. 180, § 21-4614; L. 1970, ch. 124, § 13; L. 1972, ch. 317, § 101; L. 1973, ch. 339, § 72; L. 1980, ch. 104, § 2; L. 2001, ch. 208, § 7 (HB 2176); July 1.
21-4614a. Deduction of time spent in residential facility, conservation camp or community correctional residential services program.
(a) In any criminal action in which probation, assignment to a conservation camp or assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant's sentence and parole eligibility and conditional release dates, the defendant's sentence is to be computed from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution. Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program. The commencing date of such sentence shall be used as the date of sentence and all good time allowances as are authorized by law are to be allowed on such sentence from such date as though the defendant were actually incarcerated in a correctional institution. Such credit is not to be considered to reduce the minimum or maximum terms of confinement authorized by law for the offense of which the defendant has been convicted.
History: L. 1988, ch. 115, § 4; L. 1989, ch. 92, § 25; July 1.
21-4615. Rights of imprisoned persons; restoration.
(1) A person who has been convicted in any state or federal court of a felony shall, by reason of such conviction, be ineligible to hold any public office under the laws of the state of Kansas, or to register as a voter or to vote in any election held under the laws of the state of Kansas or to serve as a juror in any civil or criminal case.
(2) The ineligibilities imposed by this section shall attach upon conviction and shall continue until such person has completed the terms of the authorized sentence.
(3) The ineligibilities imposed upon a convicted person by this section shall be in addition to such other penalties as may be provided by law.
History: L. 1969, ch. 180, § 21-4615; L. 1972, ch. 317, § 102; L. 1986, ch. 123, § 14; L. 1996, ch. 187, § 21; L. 2002, ch. 19, § 3 (HB 2761); July 1.
21-4618. Mandatory imprisonment for crimes involving firearms; crimes committed prior to July 1, 1993.
(a) Except as provided in subsection (c), probation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall not apply to any crime committed by a person under 18 years of age.
(b) When a court has sentenced a defendant as provided above, the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to this K.S.A. 21-4618 and amendments thereto based on a finding by the court that a firearm was so used.
(c) The provisions of this section shall not apply to any crime committed by a person where such application would result in a manifest injustice.
(d) The provisions of this section shall not apply to any crime committed on or after July 1, 1993.
History: L. 1976, ch. 168, § 1; L. 1979, ch. 94, § 1; L. 1979, ch. 90, § 6; L. 1980, ch. 104, § 3; L. 1986, ch. 123, § 15; L. 1989, ch. 92, § 26; L. 1992, ch. 239, § 246; July 1, 1993.
21-4619. Expungement of certain convictions, arrest records and diversion agreements.
(a) (1) Except as provided in subsections (b) and (c), any person convicted in this state of a traffic infraction, cigarette or tobacco infraction, misdemeanor or a class D or E felony, or for crimes committed on or after July 1, 1993, nondrug crimes ranked in severity levels 6 through 10 or any felony ranked in severity level 4 of the drug grid, may petition the convicting court for the expungement of such conviction or related arrest records if three or more years have elapsed since the person: (A) Satisfied the sentence imposed; or (B) was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence.
(2) Except as provided in subsections (b) and (c), any person who has fulfilled the terms of a diversion agreement may petition the district court for the expungement of such diversion agreement and related arrest records if three or more years have elapsed since the terms of the diversion agreement were fulfilled.
(b) Except as provided in subsection (c), no person may petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed, the terms of a diversion agreement or was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence, if such person was convicted of a class A, B or C felony, or for crimes committed on or after July 1, 1993, if convicted of an off-grid felony or any nondrug crime ranked in severity levels 1 through 5 or any felony ranked in severity levels 1 through 3 of the drug grid, or:
(1) Vehicular homicide, as defined by K.S.A. 21-3405 and amendments thereto or as prohibited by any law of another state which is in substantial conformity with that statute;
(2) driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262 and amendments thereto or as prohibited by any law of another state which is in substantial conformity with that statute;
(3) perjury resulting from a violation of K.S.A. 8-261a and amendments thereto or resulting from the violation of a law of another state which is in substantial conformity with that statute;
(4) violating the provisions of the fifth clause of K.S.A. 8-142 and amendments thereto, relating to fraudulent applications or violating the provisions of a law of another state which is in substantial conformity with that statute;
(5) any crime punishable as a felony wherein a motor vehicle was used in the perpetration of such crime;
(6) failing to stop at the scene of an accident and perform the duties required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto, or required by a law of another state which is in substantial conformity with those statutes;
(7) violating the provisions of K.S.A. 40-3104 and amendments thereto, relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, prior to its repeal.
(c) There shall be no expungement of convictions for the following offenses or of convictions for an attempt to commit any of the following offenses: (1) Rape as defined in K.S.A. 21-3502 and amendments thereto; (2) indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liberties with a child as defined in K.S.A. 21-3504 and amendments thereto; (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-3505 and amendments thereto; (5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto; (8) sexual exploitation of a child as defined in K.S.A. 21-3516 and amendments thereto; (9) aggravated incest as defined in K.S.A. 21-3603 and amendments thereto; (10) endangering a child as defined in K.S.A. 21-3608 and amendments thereto; (11) aggravated endangering a child as defined in K.S.A. 21-3608a, and amendments thereto; (12) abuse of a child as defined in K.S.A. 21-3609, and amendments thereto;(13) capital murder as defined in K.S.A. 21-3439, and amendments thereto;(14) murder in the first degree as defined in K.S.A. 21-3401, and amendments thereto;(15) murder in the second degree as defined in K.S.A. 21-3402, and amendments thereto;(16) voluntary manslaughter as defined in K.S.A. 21-3403, and amendments thereto;(17) involuntary manslaughter as defined in K.S.A. 21-3404, and amendments thereto;(18) involuntary manslaughter while driving under the influence of alcohol or drugs as defined in K.S.A. 21-3442, and amendments thereto;(19) sexual battery as defined in K.S.A. 21-3517, and amendments thereto, when the victim was less than 18 years
of age at the time the crime was committed;(20) aggravated sexual battery as defined in K.S.A. 21-3518, and amendments thereto;(21) a violation of K.S.A. 8-1567, and amendments thereto, including any diversion for such violation;(22) a violation of K.S.A. 8-2,144, and amendments thereto, including any diversion for such violation; or (23) any conviction for any offense in effect at any time prior to the effective date of this act, that is comparable to any offense as provided in this subsection.
(d) When a petition for expungement is filed, the court shall set a date for a hearing of such petition and shall cause notice of such hearing to be given to the prosecuting attorney and the arresting law enforcement agency. Except as otherwise provided by law, a petition for expungement shall be accompanied by a payment of a docket fee in the amount of $100. The petition shall state:
(1) The defendant's full name;
(2) the full name of the defendant at the time of arrest, conviction or diversion, if different than the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime for which the defendant was arrested, convicted or diverted;
(5) the date of the defendant's arrest, conviction or diversion; and
(6) the identity of the convicting court, arresting law enforcement authority or diverting authority. Except as otherwise provided by law, a petition for expungement shall be accompanied by a docket fee in the amount of $100. On and after the effective date of this act through June 30, 2011, the supreme court may impose a charge, not to exceed$15 per case, to fund the costs of non-judicial personnel. The charge established in this section shall be the only fee collected or moneys in the nature of a fee collected for the case. Such charge shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee. All petitions for expungement shall be docketed in the original criminal action. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner and shall have access to any reports or records relating to the petitioner that are on file with the secretary of corrections or the Kansas parole board.
(e) At the hearing on the petition, the court shall order the petitioner's arrest record, conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner;
(2) the circumstances and behavior of the petitioner warrant the expungement; and
(3) the expungement is consistent with the public welfare.
(f) When the court has ordered an arrest record, conviction or diversion expunged, the order of expungement shall state the information required to be contained in the petition. The clerk of the court shall send a certified copy of the order of expungement to the Kansas bureau of investigation which shall notify the federal bureau of investigation, the secretary of corrections and any other criminal justice agency which may have a record of the arrest, conviction or diversion. After the order of expungement is entered, the petitioner shall be treated as not having been arrested, convicted or diverted of the crime, except that:
(1) Upon conviction for any subsequent crime, the conviction that was expunged may be considered as a prior conviction in determining the sentence to be imposed;
(2) the petitioner shall disclose that the arrest, conviction or diversion occurred if asked about previous arrests, convictions or diversions: (A) In any application for licensure as a private detective, private detective agency, certification as a firearms trainer pursuant to K.S.A. 2001 Supp. 75-7b21, and amendments thereto, or employment as a detective with a private detective agency, as defined by K.S.A. 75-7b01 and amendments thereto; as security personnel with a private patrol operator, as defined by K.S.A. 75-7b01 and amendments thereto; or with an institution, as defined in K.S.A. 76-12a01 and amendments thereto, of the department of social and rehabilitation services;
(B) in any application for admission, or for an order of reinstatement, to the practice of law in this state;
(C) to aid in determining the petitioner's qualifications for employment with the Kansas lottery or for work in sensitive areas within the Kansas lottery as deemed appropriate by the executive director of the Kansas lottery;
(D) to aid in determining the petitioner’s qualifications for executive director of the Kansas racing and gaming commission, for employment with the commission or for work in sensitive areas in parimutuel racing as deemed appropriate by the executive director of the commission, or to aid in determining qualifications for licensure or renewal of licensure by the commission;
(E) to aid in determining the petitioner’s qualifications for the following under the Kansas expanded lottery act: (i) Lottery gaming facility manager or prospective manager, racetrack gaming facility manager or prospective manager, licensee or certificate holder; or (ii) an officer, director, employee, owner, agent or contractor thereof;
(F) upon application for a commercial driver's license under K.S.A. 8-2,125 through 8-2,142, and amendments thereto;
(G) to aid in determining the petitioner's qualifications to be an employee of the state gaming agency;
(H) to aid in determining the petitioner's qualifications to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-state gaming compact; or
(I) in any application for registration as a broker-dealer, agent, investment adviser or investment adviser representative all as defined in section 2 of chapter 154 of the 2004 Session Laws of Kansas, and amendments thereto; or
(J) in any application for employment as a law enforcement officer as defined in K.S.A. 22-2202 or 74-5602, and amendments thereto;
(K) for applications received on and after July 1, 2006, to aid in determining the petitioner’s qualifications for a license to carry a concealed weapon pursuant to the personal and family protection act, K.S.A. 75-7c01 et seq., and amendments thereto;
(3) the court, in the order of expungement, may specify other circumstances under which the conviction is to be disclosed;
(4) the conviction may be disclosed in a subsequent prosecution for an offense which requires as an element of such offense a prior conviction of the type expunged; and
(5) upon commitment to the custody of the secretary of corrections, any previously expunged record in the possession of the secretary of corrections may be reinstated and the expungement disregarded, and the record continued for the purpose of the new commitment.
(g) Whenever a person is convicted of a crime, pleads guilty and pays a fine for a crime, is placed on parole, postrelease supervision or probation, is assigned to a community correctional services program, is granted a suspended sentence or is released on conditional release, the person shall be informed of the ability to expunge the arrest records or conviction. Whenever a person enters into a diversion agreement, the person shall be informed of the ability to expunge the diversion.
(h) Subject to the disclosures required pursuant to subsection (f), in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose arrest records, conviction or diversion of a crime has been expunged under this statute may state that such person has never been arrested, convicted or diverted of such crime, but the expungement of a felony conviction does not relieve an individual of complying with any state or federal law relating to the use or possession of firearms by persons convicted of a felony.
(i) Whenever the record of any arrest, conviction or diversion has been expunged under the provisions of this section or under the provisions of any other existing or former statute, the custodian of the records of arrest, conviction, diversion and incarceration relating to that crime shall not disclose the existence of such records, except when requested by:
(1) The person whose record was expunged;
(2) a private detective agency or a private patrol operator, and the request is accompanied by a statement that the request is being made in conjunction with an application for employment with such agency or operator by the person whose record has been expunged;
(3) a court, upon a showing of a subsequent conviction of the person whose record has been expunged;
(4) the secretary of social and rehabilitation services, or a designee of the secretary, for the purpose of obtaining information relating to employment in an institution, as defined in K.S.A. 76-12a01 and amendments thereto, of the department of social and rehabilitation services of any person whose record has been expunged;
(5) a person entitled to such information pursuant to the terms of the expungement order;
(6) a prosecuting attorney, and such request is accompanied by a statement that the request is being made in conjunction with a prosecution of an offense that requires a prior conviction as one of the elements of such offense;
(7) the supreme court, the clerk or disciplinary administrator thereof, the state board for admission of attorneys or the state board for discipline of attorneys, and the request is accompanied by a statement that the request is being made in conjunction with an application for admission, or for an order of reinstatement, to the practice of law in this state by the person whose record has been expunged;
(8) the Kansas lottery, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for employment with the Kansas lottery or for work in sensitive areas within the Kansas lottery as deemed appropriate by the executive director of the Kansas lottery;
(9) the governor or the Kansas racing and gaming commission, or a designee of the commission, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for executive director of the commission, for employment with the commission, for work in sensitive areas in parimutuel racing as deemed appropriate by the executive director of the commission or for licensure, renewal of licensure or continued licensure by the commission;
(10) the Kansas racing and gaming commission, or a designee of the commission, and the request is accompanied by a statement that the request is being made to aid in determining qualifications of the following under the Kansas expanded lottery act: (A) Lottery gaming facility managers and prospective managers, racetrack gaming facility managers and prospective managers, licensees and certificate holders; and (B) their officers, directors, employees, owners, agents and contractors;
(11) the Kansas sentencing commission;
(12) the state gaming agency, and the request is accompanied by a statement that the request is being made to aid in determining qualifications: (A) To be an employee of the state gaming agency; or (B) to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-gaming compact; or
(13) the Kansas securities commissioner or a designee of the commissioner, and the request is accompanied by a statement that the request is being made in conjunction with an application for registration as a broker-dealer, agent, investment adviser or investment adviser representative by such agency and the application was submitted by the person whose record has been expunged.
(14) the Kansas commission on peace officers’ standards and training a and the request is accompanied by a statement that the request is being made to aid in determining certification eligibility as a law enforcement officer pursuant to K.S.A. 74-5601 et seq., and amendments thereto; or
(15) a law enforcement agency and the request is accompanied by a statement that the request is being made to aid in determining eligibility for employment as a law enforcement officer as defined by K.S.A. 22-2202, and amendments thereto.
(16) the attorney general and the request is accompanied by a statement that the request is being made to aid in determining qualifications for a license to carry a concealed weapon pursuant to the personal and family protection act.
History: L. 1978, ch. 120, § 28; L. 1979, ch. 90, § 7; L. 1980, ch. 102, § 2; L. 1980, ch. 103, § 1; L. 1981, ch. 158, § 2; L. 1982, ch. 139, § 2; L. 1984, ch. 39, § 35; L. 1985, ch. 48, § 15; L. 1986, ch. 129, § 1; L. 1987, ch. 292, § 24; L. 1988, ch. 315, § 2; L. 1989, ch. 96, § 1; L. 1990, ch. 105, § 1; L. 1992, ch. 239, § 247; L. 1993, ch. 253, § 16; L. 1993, ch. 291, § 186; L. 1994, ch. 291, § 48; L. 1995, ch. 251, § 15; L. 1996, ch. 214, § 27; L. 1998, ch. 131, § 5; L. 2001, ch. 185, § 1; L. 2002. ch. 163, § 2; L. 2004, ch. 149, § 1; L. 2005, ch. 186, § 9; L. 2006, ch. 218, § 3; L. 2006, ch. 171, § 4; L. 2006, ch. 195, § 11; L. 2007, ch. 110, § 58; L. 2008, ch. 162, §2; L. 2008, ch. 175, § 3; L. 2009, ch. 116, § 11; L. 2010, ch. 63, § 3, April 15.
21-4620. Defendants sentenced to custody of secretary of corrections; judgment form and contents; diagnostic reports to accompany defendant; crimes committed prior to July 1, 1993.
(a) If the defendant is to be sentenced to the custody of the secretary of corrections, the court may prepare a judgment form which shall be signed by the court and filed with the clerk. If prepared, the judgment form shall reflect the conviction, the sentence and the commitment, and shall contain the following:
(1) The pronouncement of guilt including:
(A) The title of the crime;
(B) the statute violated; and
(C) the date the offense occurred.
(2) The sentence imposed including:
(A) The terms as required by subsection (2) of K.S.A. 21-4603 and amendments thereto;
(B) if applicable, a description of any increase in sentence because of previous felony conviction pursuant to K.S.A. 21-4504 and amendments thereto;
(C) if applicable, a statement that this defendant has been convicted of a class A, B or C felony by reason of aiding, abetting, advising, or counseling another to commit a crime, or by reason of the principle provided for in subsection (2) of K.S.A. 21-3205 and amendments thereto;
(D) if applicable, a statement that this defendant, age 18 or over, has been mandatorily sentenced pursuant to K.S.A. 21-4618 and amendments thereto for use of a firearm in a crime under article 34 of chapter 21, or the crime of rape or aggravated sodomy; and
(E) a statement of the effective date of the sentence indicating whether it is the date of imposition or some date earlier to give credit for time confined pending disposition of the case pursuant to K.S.A. 21-4614 and amendments thereto or credit for time on probation or assignment to community corrections pursuant to K.S.A. 21-4614a and amendments thereto.
(3) The order of commitment to the custody of the secretary, if not issued as a separate order.
(b) The court may attach to or include in the judgment form any of the following:
(1) A statement of reasons for imposing the sentence as ordered other than those reasons required above to be stated;
(2) a description of aggravating or mitigating circumstances the court took into consideration when ordering the commitment;
(3) recommendations on a program of rehabilitation for the offender, based on presentence investigation reports and any other information available. Such recommendations may include desirable treatment for corrections of physical deformities or disfigurement that may, if possible, be corrected by medical or surgical procedures or by prosthesis;
(4) a recommendation for further evaluation at the Topeka correctional facility, even though defendant was committed for presentence investigation;
(5) the copy of the evidence from trial or part thereof transmitted pursuant to K.S.A. 75-5219 and amendments thereto.
(c) The court shall forward a copy of all presentence investigation reports and other diagnostic reports on the offender received by the district court, including any reports received from the Topeka correctional facility or the state security hospital, to the officer having the offender in custody for delivery with the offender to the correctional institution.
(d) The provisions of this section shall not apply to crimes committed on or after July 1, 1993.
History: L. 1980, ch. 104, § 4; L. 1988, ch. 115, § 5; L. 1990, ch. 309, § 15; L. 1991, ch. 260, § 5; L. 1992, ch. 239, § 248; July 1, 1993.
21-4621. Same; order transferring custody to corrections.
If the defendant is to be sentenced to the secretary of corrections, the court shall issue an order of commitment to cause the transfer of custody of the defendant over to the secretary. Such order may be made part of the sentencing document whether that be the judgment form or the journal entry. The commitment order shall be supported by the record of judgment of conviction and sentence, whether by judgment form or by journal entry, and delivered with the defendant to the correctional institution.
History: L. 1980, ch. 104, § 5; April 24.
21-4622. Persons convicted of capital murder, sentencing.
Upon conviction of a defendant of capital murder and a finding that the defendant was less than 18 years of age at the time of the commission thereof, the court shall sentence the defendant as otherwise provided by law, and no sentence of death or life without the possibility of parole shall be imposed hereunder.
History: L. 1990, ch. 99, § 2; L. 1994, ch. 252, § 2; L. 2004, ch. 102, § 1 (SB 422); July 1.
21-4623. Same; persons determined to be mentally retarded.
(a) If, under K.S.A. 21-4624 and amendments thereto, the county or district attorney has filed a notice of intent to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death and the defendant is convicted of the crime of capital murder, the defendant's counsel or the warden of the correctional institution or sheriff having custody of the defendant may request a determination by the court of whether the defendant is mentally retarded. If the court determines that there is not sufficient reason to believe that the defendant is mentally retarded, the court shall so find and the defendant shall be sentenced in accordance with K.S.A. 21-4624 through 21-4627, 21-4629 and 21-4631 and amendments thereto. If the court determines that there is sufficient reason to believe that the defendant is mentally retarded, the court shall conduct a hearing to determine whether the defendant is mentally retarded.
(b) At the hearing, the court shall determine whether the defendant is mentally retarded. The court shall order a psychiatric or psychological examination of the defendant. For that purpose, the court shall appoint two licensed physicians or licensed psychologists, or one of each, qualified by training and practice to make such examination, to examine the defendant and report their findings in writing to the judge within 14 days after the order of examination is issued. The defendant shall have the right to present evidence and cross-examine any witnesses at the hearing. No statement made by the defendant in the course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.
(c) If, at the conclusion of a hearing pursuant to this section, the court determines that the defendant is not mentally retarded, the defendant shall be sentenced in accordance with K.S.A. 21-4624 through 21-4627, 21-4629 and 21-4631 and amendments thereto.
(d) If, at the conclusion of a hearing pursuant to this section, the court determines that the defendant is mentally retarded, the court shall sentence the defendant as otherwise provided by law, and no sentence of death or life without the possibility of parole shall be imposed hereunder.
(e) As used in this section, 'mentally retarded' means having significantly subaverage general intellectual functioning, as defined by K.S.A. 76-12b01 and amendments thereto, to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law.
History: L. 1990, ch. 99, § 3; L. 1994, ch. 252, § 3; L. 2004, ch. 102, § 2; L. 2010, ch. 135, § 9, July 1.
21-4624. Same; proceeding to determine if person shall be sentenced to death; notice; trial judge; jury.
(a) If a defendant is charged with capital murder, the county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant's attorney not later than seven days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced to life without the possibility of parole, and no sentence of death shall be imposed hereunder.
(b) Except as provided in K.S.A. 21-4622 and 21-4623, and amendments thereto, upon conviction of a defendant of capital murder, the court, upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the sentencing 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 sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed. 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 special jury. The jury at the sentencing 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 sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.
(c) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing 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 sentencing 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 argument.
(d) At the conclusion of the evidentiary portion of the sentencing proceeding, the court shall provide oral and written instructions to the jury to guide its deliberations.
(e) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced to life without the possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of life without the possibility of parole and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, the court shall follow the requirements of this subsection in determining the sentence to be imposed.
(f) Notwithstanding the verdict of the jury, the trial court shall review any jury verdict imposing a sentence of death hereunder to ascertain whether the imposition of such sentence is supported by the evidence. If the court determines that the imposition of such a sentence is not supported by the evidence, the court shall modify the sentence and sentence the defendant to life without the possibility of parole, and no sentence of death shall be imposed hereunder. Whenever the court enters a judgment modifying the sentencing verdict of the jury, the court shall set forth its reasons for so doing in a written memorandum which shall become part of the record.
(g) A defendant who is sentenced to imprisonment for life without the possibility of parole shall spend the remainder of the defendant’s natural life incarcerated and in the custody of the secretary of corrections. A defendant who is sentenced to imprisonment for life without the possibility of parole shall not be eligible for parole, probation, assignment to a community correctional services program, conditional release, postrelease supervision, or suspension, modification or reduction of sentence. Upon sentencing a defendant to imprisonment for life without the possibility of parole, the court shall commit the defendant to the custody of the secretary of corrections and the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced to imprisonment for life without the possibility of parole.
History: L. 1990, ch. 99, § 4; L. 1994, ch. 252, § 4; L. 2004, ch. 102, § 3; L. 2010, ch. 135, § 10, July 1.
21-4625. Same; aggravating circumstances.
Aggravating circumstances shall be limited to the following:
(1) The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.
(2) The defendant knowingly or purposely killed or created a great risk of death to more than one person.
(3) The defendant committed the crime for the defendant's self or another for the purpose of receiving money or any other thing of monetary value.
(4) The defendant authorized or employed another person to commit the crime.
(5) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
(6) The defendant committed the crime in an especially heinous, atrocious or cruel manner.
(7) The defendant committed the crime while serving a sentence of imprisonment on conviction of a felony.
(8) The victim was killed while engaging in, or because of the victim's performance or prospective performance of, the victim's duties as a witness in a criminal proceeding.
History: L. 1990, ch. 99, § 5; July 1.
21-4626. Persons convicted of capital murder; mitigating circumstances.
Mitigating circumstances shall include, but are not limited to, the following:
(1) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(3) The victim was a participant in or consented to the defendant's conduct.
(4) The defendant was an accomplice in the crime committed by another person, and the defendant's participation was relatively minor.
(5) The defendant acted under extreme distress or under the substantial domination of another person.
(6) The capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired.
(7) The age of the defendant at the time of the crime.
(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by the victim.
(9) A term of imprisonment is sufficient to defend and protect the people's safety from the defendant.
History: L. 1990, ch. 99, § 6; L. 1998, ch. 185, § 2; July 1.
21-4627. Same; automatic review by and appeal to supreme court.
(a) A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.
(b) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.
(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and
(2) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.
(d) The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal.
History: L. 1990, ch. 99, § 7; L. 1991, ch. 90, § 4; L. 1994, ch. 252, § 5; July 1.
21-4629. Same; provisions of act held unconstitutional; modification of sentence previously determined under this act.
In the event a sentence of death or any provision of this act authorizing such sentence is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence and resentence the defendant as otherwise provided by law.
History: L. 1990, ch. 99, § 9; L. 1994, ch. 252, § 6; July 1.
If any provisions of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
History: L. 1990, ch. 99, § 10; July 1.
21-4631. Same; provisions of K.S.A.. 21-4622 through 21-4630 supplemental to Kansas criminal code; application of such provisions.
(a) K.S.A. 21-4622 through 21-4630, and amendments thereto, shall be supplemental to and a part of the Kansas criminal code.
(b) The provisions of K.S.A. 21-4622 through 21-4630, as they existed immediately prior to July 1, 1994, shall be applicable only to persons convicted of crimes committed on or after July 1, 1990, and before July 1, 1994.
(c) The provisions of K.S.A. 21-4622 through 21-4627 and 21-4629 and 21-4630, as amended by this act, shall be applicable only to persons convicted of crimes committed on or after July 1, 1994.
History: L. 1990, ch. 99, § 11; L. 1994, ch. 252, § 7; July 1.
21-4632. Defendants sentenced to custody of secretary of corrections; judgment form, content; presentence investigation and other diagnostic reports to accompany defendant; crimes committed on or after July 1, 1993.
(a) If the defendant is to be sentenced to the custody of the secretary of corrections, the court may prepare a judgment form which shall be signed by the court and filed with the clerk. If prepared, the judgment form shall reflect the conviction, the sentence and the commitment, and shall contain the following:
(1) The pronouncement of guilt including:
(A) The title of the crime;
(B) the statute violated; and
(C) the date the offense occurred.
(2) The sentence imposed including:
(A) The severity level of the crime of conviction, criminal history designation and grid block or departure sentence;
(B) if applicable, a description of any increase in sentence because of departure criteria;
(C) if applicable, a statement that this defendant has been convicted of severity levels 1 through 5 by reason of aiding, abetting, advising or counseling another to commit a crime, or by reason of the principle provided in subsection (2) of K.S.A. 21-3205 and amendments thereto;
(D) a statement of the effective date of the sentence indicating whether it is the date of imposition or some date earlier to give credit for time confined pending disposition of the case pursuant to K.S.A. 21-4614 and amendments thereto or credit for time on probation or assignment to community corrections pursuant to K.S.A. 21-4614a and amendments thereto.
(3) The order of commitment to the custody of the secretary, if not issued as a separate order.
(b) The court may attach to or include in the judgment form any of the following:
(1) A statement of reasons for imposing a departure sentence;
(2) a description of aggravating or mitigating circumstances the court took into consideration when ordering the commitment;
(3) the copy of the evidence from trial or part thereof transmitted pursuant to K.S.A. 75-5219 and amendments thereto.
(c) The court shall forward a copy of all complaints, supporting affidavits, county and district attorney reports, presentence investigation reports and other diagnostic reports on the offender received by the district court, including any reports received from the state security hospital, to the officer having the offender in custody for delivery with the offender to the correctional institution.
History: L. 1992, ch. 239, § 249; L. 2010, ch. 89, § 1; July 1.
21-4633. Sentencing of certain persons to mandatory term of imprisonment of 40 years; juveniles prosecuted as adults.
If the court authorizes prosecution as an adult of a juvenile pursuant to K.S.A. 2007 Supp. 38-2347, and amendments thereto, the county or district attorney may proceed pursuant to K.S.A. 21-4634 through 21-4638 and amendments thereto.
History: L. 1994, ch. 341, § 4; L. 2006, ch. 169, § 99; January 1, 2007.
21-4634. Same; persons determined to be mentally retarded.
(a) If a defendant is convicted of the crime of capital murder and a sentence of death is not imposed, or if a defendant is convicted of the crime of murder in the first degree based upon the finding of premeditated murder, the defendant's counsel or the director of the correctional institution or sheriff having custody of the defendant may request a determination by the court of whether the defendant is mentally retarded. If the court determines that there is not sufficient reason to believe that the defendant is mentally retarded, the court shall so find and the defendant shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638, and amendments thereto. If the court determines that there is sufficient reason to believe that the defendant is mentally retarded, the court shall conduct a hearing to determine whether the defendant is mentally retarded.
(b) At the hearing, the court shall determine whether the defendant is mentally retarded. The court shall order a psychiatric or psychological examination of the defendant. For that purpose, the court shall appoint two licensed physicians or licensed psychologists, or one of each, qualified by training and practice to make such examination, to examine the defendant and report their findings in writing to the judge within 14 days after the order of examination is issued. The defendant shall have the right to present evidence and cross-examine any witnesses at the hearing. No statement made by the defendant in the course of any examination provided for by this section, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.
(c) If, at the conclusion of a hearing pursuant to this section, the court determines that the defendant is not mentally retarded, the defendant shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638, and amendments thereto.
(d) If, at the conclusion of a hearing pursuant to this section, the court determines that the defendant is mentally retarded, the court shall sentence the defendant as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.
(e) Unless otherwise ordered by the court for good cause shown, the provisions of this section shall not apply if it has been determined, pursuant to K.S.A. 21-4623 and amendments thereto, that the defendant is not mentally retarded.
(f) As used in this section, 'mentally retarded' means having significantly subaverage general intellectual functioning, as defined by K.S.A. 76-12b01 and amendments thereto, to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law.
History: L. 1994, ch. 341, § 5; L. 2010, ch, 135, § 11, July 1.
21-4635. Sentencing of certain persons to mandatory term of imprisonment of 40 or 50 years; determination; evidence presented; balance of aggravating and mitigating circumstances.
(a) Except as provided in K.S.A. 21-4622, 21-4623 and 21-4634 and amendments thereto, if a defendant is convicted of the crime of capital murder and a sentence of death is not imposed, pursuant to subsection (e) of K.S.A. 21-4624, and amendments thereto, or requested pursuant to subsection (a) or (b) of K.S.A. 21-4624, and amendments thereto, the defendant shall be sentenced to life without the possibility of parole.
(b) If a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or for crimes committed on and after July 1, 1999, a mandatory term of imprisonment of 50 years or sentenced as otherwise provided by law.
(c) In order to make such determination, the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing 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 time of sentencing 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 argument.
(d) If the court finds that one or more of the aggravating circumstances enumerated in K.S.A. 21-4636 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 21-4638 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The court shall designate, in writing, the statutory aggravating circumstances which it found. The court may make the findings required by this subsection for the purpose of determining whether to sentence a defendant pursuant to K.S.A. 21-4638 and amendments thereto notwithstanding contrary findings made by the jury or court pursuant to subsection (e) of K.S.A. 21-4624 and amendments thereto for the purpose of determining whether to sentence such defendant to death.
History: L. 1994, ch. 341, § 6; L. 1999, ch. 164, § 15; L. 2004, ch. 102, § 4; July 1.
21-4636. Same; aggravating circumstances.
Aggravating circumstances shall be limited to the following:
(a) The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.
(b) The defendant knowingly or purposely killed or created a great risk of death to more than one person.
(c) The defendant committed the crime for the defendant's self or another for the purpose of receiving money or any other thing of monetary value.
(d) The defendant authorized or employed another person to commit the crime.
(e) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
(f) The defendant committed the crime in an especially heinous, atrocious or cruel manner. A finding that the victim was aware of such victim's fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim's death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient:
(1) Prior stalking of or criminal threats to the victim;
(2) preparation or planning, indicating an intention that the killing was meant to be especially heinous, atrocious or cruel;
(3) infliction of mental anguish or physical abuse before the victim's death;
(4) torture of the victim;
(5) continuous acts of violence begun before or continuing after the killing;
(6) desecration of the victim's body in a manner indicating a particular depravity of mind, either during or following the killing; or
(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.
(g) The defendant committed the crime while serving a sentence of imprisonment on conviction of a felony.
(h) The victim was killed while engaging in, or because of the victim's performance or prospective performance of, the victim's duties as a witness in a criminal proceeding.
History: L. 1994, ch. 341, § 7; L. 1999, ch. 138, § 1; July 1.
21-4637. Same; mitigating circumstances.
Mitigating circumstances shall include, but are not limited to, the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(c) The victim was a participant in or consented to the defendant's conduct.
(d) The defendant was an accomplice in the crime committed by another person, and the defendant's participation was relatively minor.
(e) The defendant acted under extreme distress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) At the time of the crime, the defendant was suffering from posttraumatic stress syndrome caused by violence or abuse by the victim.
History: L. 1994, ch. 341, § 8; July 1.
21-4638. Same; imposition of sentence of mandatory imprisonment of 40 years or 50 years.
When it is provided by law that a person shall be sentenced pursuant to this section, such person shall be sentenced to imprisonment for life and shall not be eligible for probation or suspension, modification or reduction of sentence. Except as otherwise provided, in addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving 40 years' imprisonment, and such 40 years' imprisonment shall not be reduced by the application of good time credits. For crimes committed on and after July 1, 1999, a person sentenced pursuant to this section shall not be eligible for parole prior to serving 50 years' imprisonment, and such 50 years' imprisonment shall not be reduced by the application of good time credits. For crimes committed on or after July 1, 2006, a mandatory minimum term of imprisonment of 50 years shall not apply if the court finds that the defendant, because of the defendant’s criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the sentencing range exceeds 600 months. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range. Upon sentencing a defendant pursuant to this section, the court shall commit the defendant to the custody of the secretary of corrections and the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to K.S.A. 21-4638 and amendments thereto.
History: L. 1994, ch. 341, § 9; L. 1999, ch. 164, § 16; L. 2006, ch. 212, §15; July 1.
21-4639. Same; provisions of act held unconstitutional; modification of sentence previously determined under this act.
In the event the mandatory term of imprisonment or any provision of this act authorizing such mandatory term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence to require no mandatory term of imprisonment and shall sentence the defendant as otherwise provided by law.
History: L. 1994, ch. 341, § 10; July 1.
If any provisions of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
History: L. 1994, ch. 341, § 11; July 1.
21-4641. Same; provisions of K.S.A. 21-4633 through 21-4640 supplemental to Kansas criminal code; application of such provisions.
(1) K.S.A. 21-4633 through 21-4640 shall be supplemental to and a part of the Kansas criminal code.
(2) K.S.A. 21-4633 through 21-4640 shall be applicable only to persons convicted of crimes committed on or after July 1, 1994.
History: L. 1994, ch. 341, § 12; July 1.
21-4642. Aggravated habitual sex offender; sentence to imprisonment for life without parole.
(a) An aggravated habitual sex offender shall be sentenced to imprisonment for life without the possibility of parole. Such offender shall spend the remainder of the offender’s natural life incarcerated and in the custody of the secretary of corrections. An offender who is sentenced to imprisonment for life without the possibility of parole shall not be eligible for parole, probation, assignment to a community correctional services program, conditional release, postrelease supervision, or suspension, modification or reduction of sentence.
(b) Upon sentencing a defendant to imprisonment for life without the possibility of parole, the court shall commit the defendant to the custody of the secretary of corrections and the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced to imprisonment for life without the possibility of parole.
(c) As used in this section:
(1) "Aggravated habitual sex offender" means a person who, on and after July 1, 2006: (A) Has been convicted in this state of a sexually violent crime, as described in paragraphs (3)(A) through 3(J) or (3)(L); and (B) prior to the conviction of the felony under subparagraph (A), has been convicted of two or more sexually violent crimes.
(2) "Sexually violent crime" means:
(A) Rape, K.S.A. 21-3502, and amendments thereto;
(B) indecent liberties with a child, K.S.A. 21-3503, and amendments thereto;
(C) aggravated indecent liberties with a child, K.S.A. 21-3504, and amendments thereto;
(D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505, and amendments thereto;
(E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments thereto;
(F) indecent solicitation of a child, K.S.A. 21-3510, and amendments thereto;
(G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and amendments thereto;
(H) sexual exploitation of a child, K.S.A. 21-3516, and amendments thereto;
(I) aggravated sexual battery, K.S.A. 21-3518, and amendments thereto;
(J) aggravated incest, K.S.A. 21-3603, and amendments thereto;
(K) any federal or other state conviction for a felony offense that under the laws of this state would be a sexually violent crime as defined in this section;
(L) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of a sexually violent crime as defined in this section; or (M) any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, "sexually motivated" means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.
History: L. 2006, ch. 212, § 1; L. 2009, ch. 70, § 3, L. 2010, ch. 109, § 17, April 29.
21-4643. Mandatory term of imprisonment of 25 or 40 years for certain sex offenders; exceptions.
(a) (1) Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless the court determines that the defendant should be sentenced as determined in paragraph (2):
(A) Aggravated human trafficking, as defined in K.S.A. 2005 Supp. 21-3447, and amendments thereto, if the victim is less than 14 years of age;
(B) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and amendments thereto;
(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of K.S.A. 21-3504, and amendments thereto;
(D) aggravated criminal sodomy, as defined in subsection (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto;
(E) promoting prostitution, as defined in K.S.A. 21-3513, and amendments thereto, if the prostitute is less than 14 years of age;
(F) sexual exploitation of a child, as defined in subsection (a)(5) or (a)(6) of K.S.A. 21-3516, and amendments thereto; and
(G) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of an offense defined in paragraphs (A) through (F).
(2) The provision of paragraph (1) requiring a mandatory minimum term of imprisonment of not less than 25 years shall not apply if the court finds:
(A) The defendant is an aggravated habitual sex offender and sentenced pursuant to section 1, and amendments thereto; or
(B) the defendant, because of the defendant’s criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the sentencing range exceeds 300 months. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.
(b) (1) On and after July 1, 2006, if a defendant who is 18 years of age or older is convicted of a crime listed in subsection (a)(1) and such defendant has previously been convicted of a crime listed in subsection (a)(1), a crime in effect at any time prior to the effective date of this act which is substantially the same as a crime listed in subsection (a)(1), or a crime under a law of another jurisdiction which is substantially the same as a crime listed in subsection (a)(1), the court shall sentence the defendant to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 40 years. The provisions of this paragraph shall not apply to a crime committed under K.S.A. 2006 Supp. 21-3522, and amendments thereto, or a crime under a law of another jurisdiction which is substantially the same as K.S.A. 2006 Supp. 21-3522, and amendments thereto.
(2) The provision of paragraph (1) requiring a mandatory minimum term of imprisonment of not less than 40 years shall not apply if the court finds:
(A) The defendant is an aggravated habitual sex offender and sentenced pursuant to section 1, and amendments thereto; or
(B) the defendant, because of the defendant’s criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the sentencing range exceeds 480 months. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.
(c) When a person is sentenced pursuant to subsection (a) or (b), such person shall be sentenced to a mandatory minimum term of imprisonment of not less than 25 years, 40 years or be sentenced as determined in subsection (a)(2) or subsection (b)(2), whichever is applicable, and shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving such mandatory term of imprisonment, and such imprisonment shall not be reduced by the application of good time credits.
(d) On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K. S. A. 21-4701 et seq., and subject to the provisions of K.S.A. 21-4719, and amendments thereto, no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder. As used in this subsection, mitigating circumstances shall include, but are not limited to, the following:
(1) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(3) The victim was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
(4) The defendant acted under extreme distress or under the substantial domination of another person.
(5) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
(6) The age of the defendant at the time of the crime.
(e) The provisions of K.S.A. 21-3301, 21-3302 and 21-3303, and amendments thereto, shall not apply to any defendant sentenced pursuant to this section.
History: L. 2006, ch. 212, § 2; L. 2007, ch. 198, § 5; L. 2010, ch. 109, § 18, April 29; L. 2010, ch. 155, § 7, July 1.
21-4644. Modification of sentence previously determined under act; when.
In the event the term of imprisonment for life without the possibility of parole or any provision of this act authorizing such term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence to require no term of imprisonment for life without the possibility of parole and shall sentence the defendant to the maximum term of imprisonment otherwise provided by law.
History: L. 2006, ch. 212, § 22; July 1.
If any provisions of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
History: L. 2006, ch. 212, § 23; July 1.