K.S.A. Chapter 21 - Article 47
SENTENCING GUIDELINES
Current through End
of 2008 Legislative Session
21-4701 Citation
of act.
21-4702 Basis
for applying sentencing guidelines and prosecuting standards.
21-4703 Definitions.
21-4704 Sentencing
guidelines; grid for nondrug crimes; authority and responsibility of sentencing
court; presumptive disposition; nongrid crime.
21-4705 Sentencing
guidelines; grid for drug crimes applied in felony cases under uniform
controlled substances act; authority and responsibility of sentencing court;
presumptive disposition.
21-4706 Sentencing;
imprisonment, good time; pronouncement of sentence in felony cases; off-grid
crimes.
21-4707 Sentencing;
crime severity scale for nondrug crimes, application to specific crimes;
ranking offenses, provision; unranked offenses; unclassified felonies; prior
convictions discovered after the plea.
21-4708 Sentencing;
crime severity scale for drug offenses, application; sentencing rules for
certain crimes; plea bargain agreements.
21-4709 Criminal
history categories in criminal history scale.
21-4710 Sentencing;
criminal history categories, basis; determination of offenders classification;
decay factors; prior convictions.
21-4711 Sentencing;
determination of offender's criminal history classification in presumptive
sentencing guidelines grid for nondrug and drug crimes.
21-4713 Actions
which prosecutors may take under agreements with defendants for plea;
exceptions relating to prior convictions.
21-4714 Presentence
investigation report; information included; part of court record; confidential
information, disclosure to certain parties; report format.
21-4715 Offenders
criminal history; admission in court or determined by judge; burden of proof;
notice of error by offender.
21-4716 Imposition
of presumptive sentence; departure sentencing; finding substantial and
compelling reasons for departure; mitigating or aggravating factor considered
in determining if reasons exist; reasons stated on record.
21-4717 Departure
sentencing for drug crimes; finding substantial and compelling reasons for
departure; aggravating factors considered in determining if reasons exist.
21-4718 Departure
sentencing; hearing; notice; findings of fact and conclusions of law; order.
21-4719 Departure
sentencing; limitations.
21-4720 Sentencing
in multiple conviction cases; direction of judge to impose concurrent or
consecutive sentences; requirements applicable; departure sentencing based on
aggravating factors.
21-4721 Departure
sentence subject to appeal; confinement or release of defendant pending review;
scope of review; action by court; written opinion, when; summary disposition;
correction of arithmetic or clerical errors.
21-4722 Good
time credit; calculation; forfeiture; rules and regulations of secretary.
21-4723 Determination
of time when crime committed; law applicable.
21-4724 Sentencing;
application of guidelines to persons who committed crimes prior to July 1,
1993; modification and conversion of certain sentences; review of sentences of
persons in custody; department to determine criminal history classification and
prep...
21-4725 Sentencing
guidelines; changes in; duties of sentencing commission and secretary of
corrections; submission to legislature.
21-4726 Invalidity
of part of act; presumption.
21-4727 Costs
and expenses associated with postconviction sanctions for felony convictions;
consolidation of probation, parole and community corrections services.
21-4728 Sentencing
court to consider alternatives determining appropriate sentence.
21-4729 Nonprison
sanction; certified drug abuse treatment programs; assessment; supervision by
community corrections; discharge from program.
This act
shall be known and may be cited as the
History: L. 1992, ch.
239, § 1;
21-4702. Basis for applying sentencing guidelines and
prosecuting standards.
The
sentencing guidelines and prosecuting standards, as contained in this act or as
subsequently enacted, shall apply equally to all offenders in all parts of the
state, without discrimination as to any element that does not relate to the
crime or the previous criminal record of the defendant.
History: L. 1992, ch.
239, § 2;
As used in
this act:
(a)
'Aggravating factors' mean substantial and compelling reasons justifying an
exceptional sentence whereby the sentencing court may impose a departure
sentence outside the standard sentencing range for a crime. Aggravating factors
may result in dispositional or durational departures and shall be stated on the
record by the court;
(b)
'commission' means the
(c)
'criminal history' means and includes adult felony, class A misdemeanor, class
B person misdemeanor, or select misdemeanor convictions and comparable juvenile
adjudications possessed by an offender at the time such offender is sentenced;
(d)
'criminal history score' means the summation of the convictions described as
criminal history that place an offender in one of the criminal history score
categories listed on the horizontal axis of the sentencing guidelines grid for
nondrug crimes and the sentencing guidelines grid for drug crimes;
(e) 'decay
factor' means prior convictions that are no longer considered as part of an
offender's criminal history score;
(f)
'departure' means a sentence which is inconsistent with the presumptive
sentence for an offender;
(g)
'dispositional departure' means a sentence which is inconsistent with the
presumptive sentence by imposing a nonprison sanction when the presumptive
sentence is prison or prison when the presumptive sentence is nonimprisonment;
(h)
'dispositional line' means the solid black line on the sentencing guidelines
grid for nondrug crimes and the sentencing guidelines grid for drug crimes
which separates the grid blocks in which the presumptive sentence is a term of
imprisonment and postrelease supervision from the grid blocks in which the
presumptive sentence is nonimprisonment which may include local custodial
sanctions;
(i)
'durational departure' means a sentence which is inconsistent with the
presumptive sentence as to term of imprisonment, or term of nonimprisonment;
(j) 'good
time' means a method of behavior control or sanctions utilized by the
department of corrections. Good time can result in a decrease of up to 20% of
the prison part of the sentence.
(k) 'grid'
means the sentencing guidelines grid for nondrug crimes as provided in K.S.A.
21-4704 or the sentencing guidelines grid for drug crimes as provided in K.S.A.
21-4705, or both;
(l) 'grid
block' means a box on the grid formed by the intersection of the crime severity
ranking of a current crime of conviction and an offender's criminal history
classification;
(m)
'imprisonment' means imprisonment in a facility operated by the
(n)
'mitigating factors' means substantial and compelling reasons justifying an
exceptional sentence whereby the sentencing court may impose a departure
sentence outside of the standard sentencing range for an offense. Mitigating
factors may result in dispositional or durational departures and shall be
stated on the record by the court;
(o)
'nonimprisonment,' 'nonprison' or 'nonprison sanction' means probation,
community corrections, conservation camp, house arrest or any other community
based disposition;
(p)
'postrelease supervision' means the release of a prisoner to the community
after having served a period of imprisonment or equivalent time served in a
facility where credit for time served is awarded as set forth by the court,
subject to conditions imposed by the Kansas parole board and to the secretary
of correction's supervision;
(q)
'presumptive sentence' means the sentence provided in a grid block for an
offender classified in that grid block by the combined effect of the crime
severity ranking of the current crime of conviction and the offender's criminal
history;
(r)
'prison' means a facility operated by the
(s)
'sentencing range' means the sentencing court's discretionary range in imposing
a nonappealable sentence.
History: L. 1992, ch.
239, § 3; L. 1994, ch. 291, § 49; July 1.
21-4704. Sentencing guidelines; grid for nondrug
crimes; authority and responsibility of sentencing court; presumptive
disposition; nongrid crime.
(a) For
purposes of sentencing, the following sentencing guidelines grid for nondrug
crimes shall be applied in felony cases for crimes committed on or after
[You can view the nondrug grid here].
(b) The
provisions of this section shall be applicable to the sentencing guidelines
grid for nondrug crimes. Sentences expressed in such grid represent months of
imprisonment.
(c) The
sentencing guidelines grid is a two-dimensional crime severity and criminal
history classification tool. The grid's vertical axis is the crime severity
scale which classifies current crimes of conviction. The grid's horizontal axis
is the criminal history scale which classifies criminal histories.
(d) The
sentencing guidelines grid for nondrug crimes as provided in this section
defines presumptive punishments for felony convictions, subject to judicial
discretion to deviate for substantial and compelling reasons and impose a
different sentence in recognition of aggravating and mitigating factors as
provided in this act. The appropriate punishment for a felony conviction should
depend on the severity of the crime of conviction when compared to all other
crimes and the offender's criminal history.
(e) (1) The
sentencing court has discretion to sentence at any place within the sentencing
range. The sentencing judge shall select the center of the range in the usual
case and reserve the upper and lower limits for aggravating and mitigating
factors insufficient to warrant a departure.
(2) In
presumptive imprisonment cases, the sentencing court shall pronounce the
complete sentence which shall include the prison sentence, the maximum
potential reduction to such sentence as a result of good time and the period of
postrelease supervision at the sentencing hearing. Failure to pronounce the
period of postrelease supervision shall not negate the existence of such period
of postrelease supervision.
(3) In
presumptive nonprison cases, the sentencing court shall pronounce the prison
sentence as well as the duration of the nonprison sanction at the sentencing
hearing.
(f) Each
grid block states the presumptive sentencing range for an offender whose crime
of conviction and criminal history place such offender in that grid block. If
an offense is classified in a grid block below the dispositional line, the
presumptive disposition shall be nonimprisonment. If an offense is classified
in a grid block above the dispositional line, the presumptive disposition shall
be imprisonment. If an offense is classified in grid blocks 5-H, 5-I or 6-G,
the court may impose an optional nonprison sentence upon making the following
findings on the record:
(1) An
appropriate treatment program exists which is likely to be more effective than
the presumptive prison term in reducing the risk of offender recidivism; and
(2) the
recommended treatment program is available and the offender can be admitted to
such program within a reasonable period of time; or
(3) the
nonprison sanction will serve community safety interests by promoting offender
reformation.
Any
decision made by the court regarding the imposition of an optional nonprison
sentence if the offense is classified in grid blocks 5-H, 5-I or 6-G shall not
be considered a departure and shall not be subject to appeal.
(g) The
sentence for the violation of K.S.A. 21-3415, and amendments thereto,
aggravated battery against a law enforcement officer committed prior to July 1,
2006, or K.S.A. 21-3411, and amendments thereto, aggravated assault against a
law enforcement officer, which places the defendant's sentence in grid block
6-H or 6-I shall be presumed imprisonment. The court may impose an optional
nonprison sentence upon making a finding on the record that the nonprison sanction
will serve community safety interests by promoting offender reformation. Any
decision made by the court regarding the imposition of the optional nonprison
sentence, if the offense is classified in grid block 6-H or 6-I, shall not be
considered departure and shall not be subject to appeal.
(h) When a
firearm is used to commit any person felony, the offender's sentence shall be
presumed imprisonment. The court may impose an optional nonprison sentence upon
making a finding on the record that the nonprison sanction will serve community
safety interests by promoting offender reformation. Any decision made by the
court regarding the imposition of the optional nonprison sentence shall not be
considered a departure and shall not be subject to appeal.
(i) The
sentence for the violation of the felony provision of K.S.A. 8-1567, subsection
(b)(3) of K.S.A. 21-3412a, subsections (b)(3) and (b)(4) of K.S.A. 21-3710,
K.S.A. 21-4310 and K.S.A. 21-4318, and amendments thereto, shall be as provided
by the specific mandatory sentencing requirements of that section and shall not
be subject to the provisions of this section or K.S.A. 21-4707 and amendments
thereto. If because of the offender’s
criminal history classification the offender is subject to presumptive imprisonment
or if the judge departs from a presumptive probation sentence and the offender
is subject to imprisonment, the provisions of this section and K.S.A. 21-4707,
and amendments thereto, shall apply and the offender shall not be subject to
the mandatory sentence as provided in K.S.A. 21-3710, and amendments
thereto. Notwithstanding the provisions
of any other section, the term of imprisonment imposed for the violation of the
felony provision of K.S.A. 8-1567, subsection (b)(3) of K.S.A. 21-3412a, subsections
(b)(3) and (b)(4) of K.S.A. 21-3710, K.S.A. 21-4310 and K.S.A. 21-4318, and
amendments thereto, shall not be served in a state facility in the custody of
the secretary of corrections, except that the term of imprisonment for felony
violations of K.S.A. 8-1567, and amendments thereto, may be served in a state
correctional facility designated by the secretary of corrections if the
secretary determines that substance abuse treatment resources and facility
capacity is available. The secretary’s
determination regarding the availability of treatment resources and facility
capacity shall not be subject to review.
(j) (1) The
sentence for any persistent sex offender whose current convicted crime carries
a presumptive term of imprisonment shall be double the maximum duration of the
presumptive imprisonment term. The
sentence for any persistent sex offender whose current conviction carries a
presumptive nonprison term shall be presumed imprisonment and shall be double
the maximum duration of the presumptive imprisonment term.
(2) Except
as otherwise provided in this subsection, as used in this subsection,
‘‘persistent sex offender’’ means a person who:
(A) (i) Has been convicted in this state of a sexually violent crime, as
defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the
conviction under paragraph (A) (i) has at least one conviction for a sexually
violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this
state or comparable felony under the laws of another state, the federal
government or a foreign government.; or (B) (i) has been convicted of rape,
K.S.A. 21-3502, and amendments thereto; and (ii) at the time of the conviction
under paragraph (B) (i) has at least one conviction for rape in this state or
comparable felony under the laws of another state, the federal government or a
foreign government.
(3) Except
as provided in paragraph (2) (B), the provisions of this subsection shall not
apply to any person whose current convicted crime is a severity level 1 or 2 felony.
(k) If it
is shown at sentencing that the offender committed any felony violation for the
benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further or assist in any criminal
conduct by gang members, the offender's sentence shall be presumed
imprisonment. Any decision made by the court regarding the imposition of the
optional nonprison sentence shall not be considered a departure and shall not
be subject to appeal. As used in this subsection, 'criminal street gang' means
any organization, association or group of three or more persons, whether formal
or informal, having as one of its primary activities the commission of one or
more person felonies or felony violations of the uniform controlled substances
act, K.S.A. 65-4101 et seq., and amendments thereto, which has a common name or
common identifying sign or symbol, whose members, individually or collectively
engage in or have engaged in the commission, attempted commission, conspiracy
to commit or solicitation of two or more person felonies or felony violations
of the uniform controlled substances act, K.S.A. 65-4101 et seq., and
amendments thereto, or any substantially similar offense from another
jurisdiction.
(l) Except
as provided in subsection (o), the sentence for a violation of subsection (a)
of K.S.A. 21-3715 and amendments thereto when such person being sentenced has a
prior conviction for a violation of subsection (a) or (b) of K.S.A. 21-3715 or
21-3716 and amendments thereto shall be presumed imprisonment.
(m) The
sentence for a violation of K.S.A. 22-4903 or subsection (d) of K.S.A. 21-3812,
and amendments thereto, shall be presumptive imprisonment. If an offense under such sections is
classified in grid blocks 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose an
optional nonprison sentence upon making the following findings on the record:
(1) An
appropriate treatment program exists which is likely to be more effective than
the presumptive prison term in reducing the risk of offender recidivism, such
program is available and the offender can be admitted to such program within a
reasonable period of time; or
(2) the
nonprison sanction will serve community safety interests by promoting offender
reformation. Any decision made by the
court regarding the imposition of an optional nonprison sentence pursuant to
this section shall not be considered a departure and shall not be subject to
appeal.
(n) The
sentence for a third or subsequent violation of subsection (b) of K.S.A. 21-3705,
and amendments thereto, shall be presumptive imprisonment. Such sentence shall not be considered a
departure and shall not be subject to appeal.
(o) The
sentence for a felony violation of K.S.A. 21-3701 or 21-3715, and amendments
thereto, when such person being sentenced has no prior convictions for a
violation of K.S.A. 21-3701 or 21-3715, and amendments thereto; or the sentence
for a felony violation of K.S.A. 21-3701, and amendments thereto, when such
person being sentenced has one or two prior felony convictions for a violation
of K.S.A. 21-3701, 21-3715 or 21-3716, and amendments thereto; or the sentence
for a felony violation of K.S.A. 21-3715, and amendments thereto, when such
person being sentenced has one prior felony conviction for a violation of
K.S.A. 21-3701, 21-3715 or 21-3716, and amendments thereto, shall be the
sentence as provided by this section, except that the court may order an
optional nonprison sentence for a defendant to participate in a drug treatment
program, including, but not limited to, an approved after-care plan, if the
court makes the following findings on the record:
(1)
Substance abuse was an underlying factor in the commission of the crime;
(2)
substance abuse treatment in the community is likely to be more effective than
a prison term in reducing the risk of offender recidivism; and
(3)
participation in an intensive substance abuse treatment program will serve
community safety interests.
A defendant
sentenced to an optional nonprison sentence under this subsection shall be
supervised by community correctional services.
The provisions of subsection (f)(1) of K.S.A. 21-4729, and amendments
thereto, shall apply to a defendant sentenced under this subsection. The sentence under this subsection shall not
be considered a departure and shall not be subject to appeal.
(p) The
sentence for a felony violation of K.S.A. 21-3701, and amendments thereto, when
such person being sentenced has any combination of three or more prior felony
convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716 and amendments
thereto, or the sentence for a violation of K.S.A. 21-3715, and amendments
thereto, when such person being sentenced has any combination of two or more
prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21-3716, and
amendments thereto, shall be presumed imprisonment and the defendant shall be
sentenced to prison as provided by this section, except that the court may
recommend that an offender be placed in the custody of the secretary of
corrections, in a facility designated by the secretary to participate in an
intensive substance abuse treatment program, upon making the following findings
on the record:
(1)
Substance abuse was an underlying factor in the commission of the crime;
(2)
substance abuse treatment with a possibility of an early release from
imprisonment is likely to be more effective than a prison term in reducing the
risk of offender recidivism; and
(3)
participation in an intensive substance abuse treatment program with the
possibility of an early release from imprisonment will serve community safety
interests by promoting offender reformation.
The
intensive substance abuse treatment program shall be determined by the
secretary of corrections, but shall be for a period of at least four months. Upon the successful completion of such
intensive treatment program, the offender shall be returned to the court and
the court may modify the sentence by directing that a less severe penalty be
imposed in lieu of that originally adjudged within statutory limits. If the offender's term of imprisonment
expires, the offender shall be placed under the applicable period of
postrelease supervision. The sentence
under this subsection shall not be considered a departure and shall not be
subject to appeal.
History: L. 1992, ch.
239, § 4; L. 1993, ch. 291, § 254; L. 1994, ch. 341, § 1; L. 1995, ch. 251, §
3; L. 1996, ch. 258, § 10; L. 1999, ch. 164, § 17; L. 2001, ch. 177, § 9; L.
2001, ch. 186, § 2; L. 2002, ch. 10, § 1; L. 2006, ch. 212, § 16; L. 2007, ch. 169,
§ 3; May 1; L. 2007, ch. 181, § 10; L. 2008, ch. 183, § 4; July 1.
21-4705. Sentencing guidelines; grid for drug crimes
applied in felony cases under uniform controlled substances act; authority and
responsibility of sentencing court; presumptive disposition.
(a) For the
purpose of sentencing, the following sentencing guidelines grid for drug crimes
shall be applied in felony cases under the uniform controlled substances act
for crimes committed on or after July 1, 1993:
[You can view the drug grid here]
(b) The
provisions of subsection (a) will apply for the purpose of sentencing
violations of the uniform controlled substances act except as otherwise
provided by law. Sentences expressed in the sentencing guidelines grid for drug
crimes in subsection (a) represent months of imprisonment.
(c) (1) The
sentencing court has discretion to sentence at any place within the sentencing
range. The sentencing judge shall select the center of the range in the usual
case and reserve the upper and lower limits for aggravating and mitigating
factors insufficient to warrant a departure. The sentencing court shall not
distinguish between the controlled substances cocaine base (9041L000) and
cocaine hydrochloride (9041L005) when sentencing within the sentencing range of
the grid block.
(2) In
presumptive imprisonment cases, the sentencing court shall pronounce the
complete sentence which shall include the prison sentence, the maximum
potential reduction to such sentence as a result of good time and the period of
postrelease supervision at the sentencing hearing. Failure to pronounce the
period of postrelease supervision shall not negate the existence of such period
of postrelease supervision.
(3) In
presumptive nonprison cases, the sentencing court shall pronounce the prison
sentence as well as the duration of the nonprison sanction at the sentencing
hearing.
(d) Each
grid block states the presumptive sentencing range for an offender whose crime
of conviction and criminal history place such offender in that grid block. If
an offense is classified in a grid block below the dispositional line, the
presumptive disposition shall be nonimprisonment. If an offense is classified
in a grid block above the dispositional line, the presumptive disposition shall
be imprisonment. If an offense is classified in grid blocks 3-E, 3-F, 3-G, 3-H,
or 3-I, the court may impose an optional nonprison sentence upon making the
following findings on the record:
(1) An
appropriate treatment program exists which is likely to be more effective than
the presumptive prison term in reducing the risk of offender recidivism; and
(2) the
recommended treatment program is available and the offender can be admitted to
such program within a reasonable period of time; or
(3) the
nonprison sanction will serve community safety interests by promoting offender
reformation.
Any
decision made by the court regarding the imposition of an optional nonprison
sentence if the offense is classified in grid blocks 3-E, 3-F, 3-G, 3-H, or
3-I, shall not be considered a departure and shall not be subject to appeal.
(e) The
sentence for a second or subsequent conviction of K.S.A. 65-4159 and amendments
thereto, manufacture of any controlled substance or controlled substance analog
shall be a presumptive term of imprisonment of two times the maximum duration
of the presumptive term of imprisonment. The court may impose an optional
reduction in such sentence of not to exceed 50% of the mandatory increase
provided by this subsection upon making a finding on the record that one or
more of the mitigating factors as specified in K.S.A. 21-4716 and amendments
thereto justify such a reduction in sentence. Any decision made by the court
regarding the reduction in such sentence shall not be considered a departure
and shall not be subject to appeal.
(f) (1) The
sentence for a third or subsequent felony conviction of K.S.A. 65-4160 or
65-4162, and amendments thereto, shall be a presumptive term of imprisonment
and the defendant shall be sentenced to prison as provided by this
section. Such term of imprisonment shall
be served in a facility designated by the secretary of corrections in the
custody of the secretary of corrections to participate in an intensive
substance abuse treatment program. The
intensive substance abuse treatment program shall be determined by the
secretary of corrections, but shall be for a period of at least four
months. Upon the successful completion
of such intensive treatment program, the offender shall be returned to the
court and the court may modify the sentence by directing that a less severe
penalty be imposed in lieu of that originally adjudged within statutory
limits. If the offender’s term of
imprisonment expires, the offender shall be placed under the applicable period
of postrelease supervision.
(2) If the
defendant has previously completed a certified drug abuse treatment program, as
provided in K.S.A. 2007 Supp. 75-52,144, and amendments thereto, has been
discharged or refused to participate in a certified drug abuse treatment
program, as provided in K.S.A. 2007 Supp. 75-52,144, and amendments thereto,
has completed an intensive substance abuse treatment program under paragraph
(1) or has been discharged or refused to participate in an intensive substance
abuse treatment program under paragraph (1), such defendant’s term of
imprisonment shall not be subject to modification under paragraph (1). The sentence under this subsection shall not
be considered a departure and shall not be subject to appeal.
History: L. 1992, ch.
239, § 5; L. 1993, ch. 291, § 255; L. 1994, ch. 291, § 51; L. 1994, ch. 338, §
9; L. 1996, ch. 258, § 11; L. 1997, ch. 181, § 3; L. 1999, ch. 170, § 1; L.
2003, ch. 135, § 4; L. 2008, ch. 183, § 5; July 1.
21-4706. Sentencing; imprisonment, good time;
pronouncement of sentence in felony cases; off-grid crimes.
(a) For
crimes committed on or after July 1, 1993, the sentences of imprisonment shall
represent the time a person shall actually serve, subject to a reduction of up
to 15% of the primary sentence for good time as authorized by law. For crimes committed on or after January 1,
2008, the sentences of imprisonment shall represent the time a person shall
actually serve, subject to a reduction of up to 20% of the primary sentence for
good time for drug severity level 3 or 4 or nondrug severity level 7 through 10
crimes and a reduction for program credit as authorized by K.S.A. 21-4722, and
amendments thereto.
(b) The
sentencing court shall pronounce sentence in all felony cases.
(c)
Violations of K.S.A. 21-3401, 21-3439 and 21-3801 and amendments thereto and
sections 1 and 2 of 2006 Senate Bill No. 25, and amendments thereto, are
off-grid crimes for the purpose of sentencing.
Except as otherwise provided by K.S.A. 21-4622 through 21-4627, and
21-4629 through 21-4631, and amendments thereto, the sentence shall be
imprisonment for life and shall not be subject to statutory provisions for
suspended sentence, community service or probation.
(d) As
identified in K.S.A. 21-3502, 21-3504, 21-3506, 21-3513 and 21-3516 and K.S.A.
2005 Supp. 21-3447, and amendments thereto, if the offender is 18 years of age
or older and the victim is under 14 years of age, such violations are off-grid
crimes for the purposes of sentencing.
Except as provided in section 1, and amendments thereto, the sentence
shall be imprisonment for life pursuant to section 2, and amendments thereto.
History: L. 1992, ch.
239, § 6; L. 1993, ch. 291, § 256; L. 1994, ch. 252, § 8; L. 1995, ch. 121, §
2; L. 1996, ch. 158, § 7; L. 1999, ch. 164, § 18; L. 2006, ch. 212, § 17; L.
2007, ch. 197, § 2; July 1.
21-4707. Sentencing; crime severity scale for nondrug
crimes, application to specific crimes; ranking offenses, provision; unranked
offenses; unclassified felonies; prior convictions discovered after the plea.
(a) The
crime severity scale contained in the sentencing guidelines grid for nondrug
crimes as provided in K.S.A. 21-4704 and amendments thereto consists of 10
levels of crimes. Crimes listed within each level are considered to be
relatively equal in severity. Level 1 crimes are the most severe crimes and
level 10 crimes are the least severe crimes. If a person is convicted of two or
more crimes, then the severity level shall be determined by the most severe
crime of conviction.
(b) When
the statutory definition of a crime includes a broad range of criminal conduct,
the crime may be subclassified factually in more than one crime category to
capture the full range of criminal conduct covered by the crime.
(c) The provisions
of this subsection shall be applicable with regard to ranking offenses
according to the crime severity scale as provided in this section:
(1) When
considering an unranked offense in relation to the crime severity scale, the
sentencing judge should refer to comparable offenses on the crime severity
scale.
(2) Except
for off-grid felony crimes, which are classified as person felonies, all felony
crimes omitted from the crime severity scale shall be considered nonperson
felonies.
(3) All
unclassified felonies shall be scored as level 10 nonperson crimes.
(4) The
offense severity level of a crime for which the court has accepted a plea of
guilty or nolo contendere pursuant to K.S.A. 22-3210 and amendments thereto, or
of a crime of which the defendant has been convicted shall not be elevated or
enhanced for sentencing purposes as a result of the discovery of prior
convictions or any other basis for such enhancement subsequent to the
acceptance of the plea or conviction. Any such prior convictions discovered
after the plea has been accepted by the court shall be counted in the
determination of the criminal history of the offender.
History: L. 1992, ch.
239, § 7; L. 1993, ch. 291, § 257; L. 1994, ch. 291, § 52; July 1.
21-4708. Sentencing; crime severity scale for drug
offenses, application; sentencing rules for certain crimes; plea bargain
agreements.
(a) The
crime severity scale contained in the sentencing guidelines grid for drug
offenses as provided in K.S.A. 21-4705 and amendments thereto consists of 4
levels of crimes. Crimes listed within each level are considered to be
relatively equal in severity. Level 1 crimes are the most severe crimes and
level 4 crimes are the least severe crimes.
(b) The
provisions of this section shall also be applicable to the presumptive
sentences for anticipatory crimes committed on or after July 1, 1993, contained
in the sentencing guidelines grid for drug crimes as provided in K.S.A. 21-4705
and amendments thereto:
(1) The
sentencing rule for a conviction of an attempt to commit a drug offense shall
be as provided in K.S.A. 21-3301 and amendments thereto. The sentencing rule
for a conviction of a conspiracy to commit a drug offense shall be as provided
in K.S.A. 21-3302 and amendments thereto. The sentencing rule for conviction of
a solicitation to commit a drug offense shall be as provided in K.S.A. 21-3303
and amendments thereto.
(2) No plea
bargaining agreement may be entered into whereby the prosecutor agrees to
decline to use a prior drug conviction of the defendant to elevate or enhance
the severity level of a drug crime as provided in K.S.A. 65-4127a, 65-4127b and
65-4159 or K.S.A. 1995 Supp. 65-4160 through 65-4164 and amendments thereto, or
agrees to exclude any prior conviction from the defendant's criminal history.
History: L. 1992, ch.
239, § 8; L. 1993, ch. 291, § 258; L. 1994, ch. 291, § 53; L. 1994, ch. 338, §
10; July 1.
21-4709. Criminal history categories in criminal
history scale.
The
criminal history scale is represented in abbreviated form on the horizontal
axis of the sentencing guidelines grid for nondrug crimes and the
sentencing guidelines grid for drug
crimes. The relative severity of each criminal history category decreases from
left to right on such grids. Criminal history category A is the most serious
classification. Criminal history category I is the least serious
classification. The criminal history categories in the criminal history scale
are:
Criminal
History
Category Descriptive Criminal History
A The offender's criminal history includes
three or more adult convictions or juvenile adjudications, in any combination,
for person felonies.
B The offender's criminal history
includes two adult convictions or juvenile adjudications, in any combination,
for person felonies.
C The offender's criminal history
includes one adult conviction or juvenile adjudication for a person felony, and
one or more adult conviction or juvenile adjudication for a nonperson felony.
D The offender's criminal history
includes one adult conviction or juvenile adjudication for a person felony, but
no adult conviction or juvenile adjudications for a nonperson felony.
E The offender's criminal history
includes three or more adult convictions or juvenile adjudications for
nonperson felonies, but no adult conviction or juvenile adjudication for a
person felony.
F The offender's criminal history
includes two adult convictions or juvenile adjudications for nonperson
felonies, but no adult conviction or juvenile adjudication for a person felony.
G The offender's criminal history
includes one adult conviction or juvenile adjudication for a nonperson felony,
but no adult conviction or juvenile adjudication for a person felony.
H The offender's criminal history
includes two or more adult convictions or juvenile adjudications for nonperson
and/or select misdemeanors, and no more than two adult convictions or juvenile
adjudications for person misdemeanors, but no adult conviction or juvenile
adjudication for either a person or nonperson felony.
I The offender's criminal history includes
no prior record; or, one adult conviction or juvenile adjudication for a
person, nonperson, or select misdemeanor, but no adult conviction or juvenile
adjudication for either a person or nonperson felony.
History: L. 1992, ch.
239, § 9; July 1, 1993.
21-4710. Sentencing; criminal history categories,
basis; determination of offenders classification; decay factors; prior
convictions.
(a)
Criminal history categories contained in the sentencing guidelines grid for
nondrug crimes and the sentencing guidelines grid for drug crimes are based on
the following types of prior convictions: Person felony adult convictions,
nonperson felony adult convictions, person felony juvenile adjudications,
nonperson felony juvenile adjudications, person misdemeanor adult convictions,
nonperson class A misdemeanor adult convictions, person misdemeanor juvenile
adjudications, nonperson class A misdemeanor juvenile adjudications, select
class B nonperson misdemeanor adult convictions, select class B nonperson
misdemeanor juvenile adjudications and convictions and adjudications for
violations of municipal ordinances or county resolutions which are comparable
to any crime classified under the state law of Kansas as a person misdemeanor,
select nonperson class B misdemeanor or nonperson class A misdemeanor. A prior
conviction is any conviction, other than another count in the current case
which was brought in the same information or complaint or which was joined for
trial with other counts in the current case pursuant to K.S.A. 22-3203 and
amendments thereto, which occurred prior to sentencing in the current case
regardless of whether the offense that led to the prior conviction occurred
before or after the current offense or the conviction in the current case.
(b) A class
B nonperson select misdemeanor is a special classification established for
weapons violations. Such classification shall be considered and scored in
determining an offender's criminal history classification.
(c) Except
as otherwise provided, all convictions, whether sentenced consecutively or
concurrently, shall be counted separately in the offender's criminal history.
(d) Except
as provided in K.S.A. 21-4716, and amendments thereto, the following are
applicable to determining an offender's criminal history classification:
(1) Only
verified convictions will be considered and scored.
(2) All
prior adult felony convictions, including expungements, will be considered and
scored.
(3) There
will be no decay factor applicable for adult convictions.
(4) Except
as otherwise provided, a juvenile adjudication, which would have been a
nonperson class D or E felony if committed before July 1, 1993, or a nondrug
level 6, 7, 8, 9 or 10, or drug level 4, nonperson felony if committed on or
after July 1, 1993, or a misdemeanor if committed by an adult, will decay if
the current crime of conviction is committed after the offender reaches the age
of 25.
(5) For
convictions of crimes committed before July 1, 1993, a juvenile adjudication
which would constitute a class A, B or C felony, if committed by an adult, will
not decay. For convictions of crimes committed on or after July 1, 1993, a
juvenile adjudication which would constitute an off-grid felony, a nondrug
severity level 1, 2, 3, 4 or 5 felony, or a drug severity level 1, 2 or 3
felony, if committed by an adult, will not decay.
(6) All
juvenile adjudications which would constitute a person felony will not decay or
be forgiven.
(7) All
person misdemeanors, class A nonperson misdemeanors and class B select
nonperson misdemeanors, and all municipal ordinance and county resolution
violations comparable to such misdemeanors, shall be considered and scored.
(8) Unless
otherwise provided by law, unclassified felonies and misdemeanors, shall be
considered and scored as nonperson crimes for the purpose of determining
criminal history.
(9) Prior
convictions of a crime defined by a statute which has since been repealed shall
be scored using the classification assigned at the time of such conviction.
(10) Prior
convictions of a crime defined by a statute which has since been determined
unconstitutional by an appellate court shall not be used for criminal history
scoring purposes.
(11) Prior
convictions of any crime shall not be counted in determining the criminal
history category if they enhance the severity level or applicable penalties,
elevate the classification from misdemeanor to felony, or are elements of the
present crime of conviction. Except as otherwise provided, all other prior
convictions will be considered and scored.
History: L. 1992, ch.
239, § 10; L. 1993, ch. 291, § 259; L. 1994, ch. 291, § 54; L. 1995, ch. 251, §
16; July 1.
21-4711. Sentencing; determination of offender's
criminal history classification in presumptive sentencing guidelines grid for
nondrug and drug crimes.
In addition
to the provisions of K.S.A. 21-4710 and amendments thereto, the following shall
apply in determining an offender's criminal history classification as contained
in the presumptive sentencing guidelines grid for nondrug crimes and the
presumptive sentencing guidelines grid for drug crimes:
(a) Every
three prior adult convictions or juvenile adjudications of class A and class B
person misdemeanors in the offender's criminal history, or any combination
thereof, shall be rated as one adult conviction or one juvenile adjudication of
a person felony for criminal history purposes. Every three prior adult
convictions or juvenile adjudications of assault as defined in K.S.A. 21-3408
and amendments thereto occurring within a period commencing three years prior
to the date of conviction for the current crime of conviction shall be rated as
one adult conviction or one juvenile adjudication of a person felony for
criminal history purposes.
(b) A
conviction of subsection (a)(1) of K.S.A. 21-4204 and amendments thereto,
criminal possession of firearms by a person who is both addicted to and an
unlawful user of a controlled substance, subsection (a)(4) of K.S.A. 21-4204
and amendments thereto, possession of a firearm on school grounds or K.S.A.
21-4218 and amendments thereto, possession of a firearm on the grounds or in
the state capitol building, will be scored as a select class B nonperson
misdemeanor conviction or adjudication and shall not be scored as a person
misdemeanor for criminal history purposes.
(c) (1) If
the current crime of conviction was committed before July 1, 1996, and is a
violation of an act described in K.S.A. 2003 Supp. 21-3442, and amendments
thereto, each prior adult conviction, diversion in lieu of criminal prosecution
or juvenile adjudication for: (A) An act described in K.S.A. 8-1567 and
amendments thereto; or (B) a violation of a law of another state or an
ordinance of any city, or resolution of any county, which prohibits the act
described in K.S.A. 8-1567 and amendments thereto shall count as one person
felony for criminal history
purposes.
(2) If the
current crime of conviction was committed on or after July 1, 1996, and is for
involuntary manslaughter while driving under the influence of alcohol and
drugs, each prior adult conviction, diversion in lieu of criminal prosecution
or juvenile adjudication for (A) an act described in K.S.A. 8-1567 and
amendments thereto or (B) a violation of a law of another state or an ordinance
of any city, or resolution of any county, which prohibits the act described in
K.S.A. 8-1567 and amendments thereto shall count as one person felony for
criminal history purposes.
(d) Prior
burglary adult convictions and juvenile adjudications will be scored for
criminal history purposes as follows:
(1) As a
prior person felony if the prior conviction or adjudication was classified as a
burglary as described in subsection (a) of K.S.A. 21-3715 and amendments
thereto.
(2) As a
prior nonperson felony if the prior conviction or adjudication was classified
as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 and
amendments thereto.
The facts
required to classify prior burglary adult convictions and juvenile
adjudications must be established by the state by a preponderance of the
evidence.
(e)
Out-of-state convictions and juvenile adjudications will be used in classifying
the offender's criminal history. An out-of-state crime will be classified as
either a felony or a misdemeanor according to the convicting jurisdiction. If a
crime is a felony in another state, it will be counted as a felony in Kansas.
The state of Kansas shall classify the crime as person or nonperson. In
designating a crime as person or nonperson comparable offenses shall be
referred to. If the state of Kansas does not have a comparable offense, the
out-of-state conviction shall be classified as a nonperson crime. Convictions
or adjudications occurring within the federal system, other state systems, the
District of Columbia, foreign, tribal or military courts are considered
out-of-state convictions or adjudications. The facts required to classify
out-of-state adult convictions and juvenile adjudications must be established
by the state by a preponderance of the evidence.
(f) Except
as provided in subsections (4), (5) and (6) of K.S.A. 21-4710 and amendments
thereto, juvenile adjudications will be applied in the same manner as adult
convictions. Out-of-state juvenile adjudications will be treated as juvenile
adjudications in Kansas.
(g) A prior
felony conviction of an attempt, a conspiracy or a solicitation as provided in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, to commit a crime
shall be treated as a person or nonperson crime in accordance with the
designation assigned to the underlying crime.
(h) Drug crimes
are designated as nonperson crimes for criminal history scoring.
History: L. 1992, ch.
239, § 11; L. 1993, ch. 291, § 260; L. 1994, ch. 291, § 55; L. 1996, ch. 158, §
5; L. 1999, ch. 164, § 19; L. 2001, ch. 200, § 17; L. 2004, ch. 30, § 1, July
1.
[FN*] Reference
should apparently be to 21-4710.
21-4713. Actions which prosecutors may take under
agreements with defendants for plea; exceptions relating to prior convictions.
The
prosecutor and the attorney for the defendant, or the defendant when acting pro
se, may engage in discussions with a view toward reaching an agreement that,
upon the entering of a plea to a charged offense or to a lesser or related
offense, the prosecutor may do any of the following:
(a) Move
for dismissal of other charges or counts;
(b)
recommend a particular sentence within the sentencing range applicable to the
offense or to the offense to which the offender pled guilty;
(c)
recommend a particular sentence outside of the sentencing range only when
departure factors exist and shall be stated on the record;
(d) agree
to file a particular charge or count;
(e) agree
not to file charges or counts; or
(f) make
any other promise to the defendant, except that the prosecutor shall not enter
into any agreement to decline to use a prior drug conviction of the defendant
to elevate or enhance the severity level of a drug crime as provided in K.S.A.
65-4127a, 65-4127b and 65-4159 or K.S.A. 2001 Supp. 65-4160 through 65-4164 and
amendments thereto, or make any agreement to exclude any prior conviction from
the criminal history of the defendant.
History: L. 1992, ch.
239, § 13; L. 1994, ch. 291, § 56; L. 1994, ch. 338, § 11; July 1.
21-4714. Presentence investigation report; information
included; part of court record; confidential information, disclosure to certain
parties; report format.
(a) The
court shall order the preparation of the presentence investigation report by
the court services officer as soon as possible after conviction of the
defendant.
(b) Each
presentence report prepared for an offender to be sentenced for one or more
felonies committed on or after July 1, 1993, shall be limited to the following
information:
(1) A
summary of the factual circumstances of the crime or crimes of conviction.
(2) If the
defendant desires to do so, a summary of the defendant's version of the crime.
(3) When
there is an identifiable victim, a victim report. The person preparing the
victim report shall submit the report to the victim and request that the
information be returned to be submitted as a part of the presentence
investigation. To the extent possible, the report shall include a complete
listing of restitution for damages suffered by the victim.
(4) An
appropriate classification of each crime of conviction on the crime severity
scale.
(5) A
listing of prior adult convictions or juvenile adjudications for felony or
misdemeanor crimes or violations of county resolutions or city ordinances
comparable to any misdemeanor defined by state law. Such listing shall include
an assessment of the appropriate classification of the criminal history on the
criminal history scale and the source of information regarding each listed
prior conviction and any available source of journal entries or other documents
through which the listed convictions may be verified. If any such journal
entries or other documents are obtained by the court services officer, they
shall be attached to the presentence investigation report. Any prior criminal
history worksheets of the defendant shall also be attached.
(6) A proposed
grid block classification for each crime, or crimes of conviction and the
presumptive sentence for each crime, or crimes of conviction.
(7) If the
proposed grid block classification is a grid block which presumes imprisonment,
the presumptive prison term range and the presumptive duration of postprison
supervision as it relates to the crime severity scale.
(8) If the
proposed grid block classification does not presume prison, the presumptive
prison term range and the presumptive duration of the nonprison sanction as it
relates to the crime severity scale and the court services officer's
professional assessment as to recommendations for conditions to be mandated as
part of the nonprison sanction.
(9) For
defendants who are being sentenced for a conviction of a felony violation of
K.S.A. 65-4160 or 65-4162, and amendments thereto, and meet the requirements of
K.S.A. 21-4729, and amendments thereto, the drug abuse assessment as provided
in K.S.A. 21-4729, and amendments thereto.
(10) For
defendants who are being sentenced for a third or subsequent felony conviction
of a violation of K.S.A. 65-4160 or 65-4162, and amendments thereto, the drug
abuse assessment as provided in K.S.A. 21-4729, and amendments thereto.
(c) The
presentence report will become part of the court record and shall be accessible
to the public, except that the official version, defendant's version and the
victim's statement, any psychological reports risk and needs assessments and
drug and alcohol reports and assessments shall be accessible only to the
parties, the sentencing judge, the department of corrections, and if requested,
the Kansas sentencing commission. If the
offender is committed to the custody of the secretary of corrections, the report
shall be sent to the secretary and, in accordance with K.S.A. 75-5220 and
amendments thereto to the warden of the state correctional institution to which
the defendant is conveyed.
(d) The
criminal history worksheet will not substitute as a presentence report.
(e) The
presentence report will not include optional report components, which would be
subject to the discretion of the sentencing court in each district except for
psychological reports and drug and alcohol reports.
(f) The
court can take judicial notice in a subsequent felony proceeding of an earlier
presentence report criminal history worksheet prepared for a prior sentencing
of the defendant for a felony committed on or after July 1, 1993.
(g) All
presentence reports in any case in which the defendant has been convicted of a
felony shall be on a form approved by the Kansas sentencing commission.
History: L. 1992, ch.
239, § 14; L. 1993, ch. 291, § 262; L. 1994, ch. 291, § 57; L. 1994, ch. 341, §
16; L. 1996, ch. 258, § 5; L. 2003, ch. 135, § 5; L. 2006, ch. 211, § 6; L.
2006, ch. 172, § 3; L. 2007, ch. 195, § 13; L. 2008, ch. 183, § 6; July 1.
21-4715. Offenders criminal history; admission in
court or determined by judge; burden of proof; notice of error by offender.
(a) The
offender's criminal history shall be admitted in open court by the offender or
determined by a preponderance of the evidence at the sentencing hearing by the
sentencing judge.
(b) Except
to the extent disputed in accordance with subsection (c), the summary of the
offender's criminal history prepared for the court by the state shall satisfy
the state's burden of proof regarding an offender's criminal history.
(c) Upon
receipt of the criminal history worksheet prepared for the court, the offender
shall immediately notify the district attorney and the court with written
notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of
the alleged error. The state shall have
the burden of producing further evidence to satisfy its burden of proof
regarding any disputed part, or parts, of the criminal history and the
sentencing judge shall allow the state reasonable time to produce such evidence
to establish the disputed portion of the criminal history by a preponderance of
the evidence.
History: L. 1992, ch.
239, § 15; L. 2002, ch. 163, § 3; July 1.
21-4716. Imposition of presumptive sentence; departure
sentencing; finding substantial and compelling reasons for departure;
mitigating or aggravating factor considered in determining if reasons exist;
reasons stated on record.
(a) Except
as provided in subsection (b), the sentencing judge shall impose the
presumptive sentence provided by the sentencing guidelines for crimes committed
on or after July 1, 1993, unless the judge finds substantial and compelling
reasons to impose a departure. If the sentencing judge departs from the
presumptive sentence, the judge shall state on the record at the time of
sentencing the substantial and compelling reasons for the departure.
(b) Subject
to the provisions of subsection (b) of K.S.A. 21-4718, and amendments thereto,
any fact that would increase the penalty for a crime beyond the statutory
maximum, other than a prior conviction, shall be submitted to a jury and proved
beyond a reasonable doubt.
(c)(1)
Subject to the provisions of subsections (c)(3) and (e), the following
nonexclusive list of mitigating factors may be considered in determining
whether substantial and compelling reasons for a departure exist:
(A) The
victim was an aggressor or participant in the criminal conduct associated with
the crime of conviction.
(B) The
offender played a minor or passive role in the crime or participated under
circumstances of duress or compulsion. This factor is not sufficient as a
complete defense.
(C) The
offender, because of physical or mental impairment, lacked substantial capacity
for judgment when the offense was committed. The voluntary use of intoxicants,
drugs or alcohol does not fall within the purview of this factor.
(D) The
defendant, or the defendant's children, suffered a continuing pattern of
physical or sexual abuse by the victim of the offense and the offense is a
response to that abuse.
(E) The
degree of harm or loss attributed to the current crime of conviction was
significantly less than typical for such an offense.
(2) Subject
to the provisions of subsection (c)(3), the following nonexclusive list of
aggravating factors may be considered in determining whether substantial and
compelling reasons for departure exist:
(A) The
victim was particularly vulnerable due to age, infirmity, or reduced physical
or mental capacity which was known or should have been known to the offender.
(B) The
defendant's conduct during the commission of the current offense manifested
excessive brutality to the victim in a manner not normally present in that
offense.
(C) The
offense was motivated entirely or in part by the race, color, religion,
ethnicity, national origin or sexual orientation of the victim or the offense
was motivated by the defendant’s belief or perception, entirely or in part, of
the race, color, religion, ethnicity, national origin or sexual orientation of
the victim whether or not the defendant’s belief or perception was correct..
(D) The
offense involved a fiduciary relationship which existed between the defendant
and the victim.
(E) The
defendant, 18 or more years of age, employed, hired, used, persuaded, induced,
enticed or coerced any individual under 16 years of age to commit or assist in
avoiding detection or apprehension for commission of any person felony or any
attempt, conspiracy or solicitation as defined in K.S.A. 21-3301, 21-3302 or
21-3303 and amendments thereto to commit any person felony regardless of
whether the defendant knew the age of the individual under 16 years of age.
(F) The
defendant's current crime of conviction is a crime of extreme sexual violence
and the defendant is a predatory sex offender. As used in this subsection:
(i)
"Crime of extreme sexual violence " is a felony limited to the
following:
(a) A crime
involving a nonconsensual act of sexual intercourse or sodomy with any person;
(b) a crime
involving an act of sexual intercourse, sodomy or lewd fondling and touching
with any child who is 14 or more years of age but less than 16 years of age and
with whom a relationship has been established or promoted for the primary
purpose of victimization; or
(c) a crime
involving an act of sexual intercourse, sodomy or lewd fondling and touching
with any child who is less than 14 years of age.
(ii)
"Predatory sex offender" is an offender who has been convicted of a
crime of extreme sexual violence as the current crime of conviction and who:
(a) Has one
or more prior convictions of any crimes of extreme sexual violence. Any prior
conviction used to establish the defendant as a predatory sex offender pursuant
to this subsection shall also be counted in determining the criminal history
category; or
(b) suffers
from a mental condition or personality disorder which makes the offender likely
to engage in additional acts constituting crimes of extreme sexual violence.
(iii)
"Mental condition or personality disorder" means an emotional, mental
or physical illness, disease, abnormality, disorder, pathology or condition
which motivates the person, affects the predisposition or desires of the
person, or interferes with the capacity of the person to control impulses to
commit crimes of extreme sexual violence.
(G) The
defendant was incarcerated during the commission of the offense.
(H) The
crime involved two or more participants in the criminal conduct, and the
defendant played a major role in the crime as the organizer, leader, recruiter,
manager or supervisor.
In
determining whether aggravating factors exist as provided in this section, the
court shall review the victim impact statement.
(3) If a
factual aspect of a crime is a statutory element of the crime or is used to
subclassify the crime on the crime severity scale, that aspect of the current
crime of conviction may be used as an aggravating or mitigating factor only if
the criminal conduct constituting that aspect of the current crime of
conviction is significantly different from the usual criminal conduct captured
by the aspect of the crime.
(d) In
determining aggravating or mitigating circumstances, the court shall consider:
(1) Any
evidence received during the proceeding;
(2) the
presentence report;
(3) written
briefs and oral arguments of either the state or counsel for the defendant; and
(4) any
other evidence relevant to such aggravating or mitigating circumstances that
the court finds trustworthy and reliable.
(e) Upon
motion of the prosecutor stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who is alleged
to have committed an offense, the court may consider such mitigation in
determining whether substantial and compelling reasons for a departure
exist. In considering this mitigating
factor, the court may consider the following:
(i) The
court’s evaluation of the significance and usefulness of the defendant’s
assistance, taking into consideration the prosecutor’s evaluation of the
assistance rendered;
(ii) the
truthfulness, completeness and reliability of any information or testimony
provided by the defendant;
(iii) the
nature and extent of the defendant’s assistance;
(iv) any
injury suffered, or any danger or risk of injury to the defendant or the
defendant’s family resulting from such assistance; and
(v) the
timeliness of the defendant’s assistance.
History: L. 1992, ch.
239, § 16; L. 1993, ch. 291, § 263; L. 1994, ch. 341, § 2; L. 1996, ch. 258, §
12; L. 2000, ch. 181, § 9; L. 2002, ch. 170, § 1; L. 2006, ch. 194, § 13; May
25.
21-4717. Departure sentencing for drug crimes; finding
substantial and compelling reasons for departure; aggravating factors
considered in determining if reasons exist.
(a) The
following aggravating factors, which apply to drug crimes committed on or after
July 1, 1993, under the sentencing guidelines system, may be considered in
determining whether substantial and compelling reasons for departure exist:
(1) The
crime was committed as part of a major organized drug manufacture, production,
cultivation or delivery activity. Two or
more of the following nonexclusive factors constitute evidence of major
organized drug manufacture, production, cultivation or delivery activity:
(A) The
offender derived a substantial amount of money or asset ownership from the
illegal drug sale activity.
(B) The
presence of a substantial quantity or variety of weapons or explosives at the
scene of arrest or associated with the illegal drug activity.
(C) The
presence of drug transaction records or customer lists that indicate a drug
sale activity of major size.
(D) The
presence of manufacturing or distribution materials such as, but not limited
to, drug recipes, precursor chemicals, laboratory equipment, lighting,
irrigation systems, ventilation, power-generation, scales or packaging
material.
(E)
Building acquisitions or building modifications including but not limited to
painting, wiring, plumbing or lighting which advanced or facilitated the
commission of the offense.
(F)
Possession of large amounts of illegal drugs or substantial quantities of
controlled substances.
(G) A
showing that the offender has engaged in repeated criminal acts associated with
the manufacture, production, cultivation or delivery of controlled substances.
(2) The
offender possessed illegal drugs:
(A) With
intent to sell, which were sold or were offered for sale to a person under 18
years of age; or
(B) with
the intent to sell, deliver or distribute or which were sold or offered for
sale in the immediate presence of a person under 18 years of age.
(3) The
offender, 18 or more years of age, employs, hires, uses, persuades, induces,
entices or coerces any individual under 16 years of age to violate or assist in
avoiding detection or apprehension for violation of any provision of the
uniform controlled substances act, K.S.A. 65-4101 et seq. and amendments
thereto or any attempt, conspiracy or solicitation as defined in K.S.A.
21-3301, 21-3302 or 21-3303 and amendments thereto to commit a violation of any
provision of the uniform controlled substances act regardless of whether the
offender knew the age of the individual under 16 years of age.
(4) The
offender was incarcerated during the commission of the offense.
(b) In
determining whether aggravating factors exist as provided in this section, the
court shall review the victim impact statement.
History: L. 1992, ch.
239, § 17; L. 1993, ch. 291, § 276; L. 1994, ch. 341, § 3; L. 2000, ch. 181, §
10; July 1.
21-4718. Departure sentencing; hearing; notice;
findings of fact and conclusions of law; order.
(a) (1)
Whenever a person is convicted of a felony, the court upon motion of either the
defendant or the state, shall hold a hearing to consider imposition of a
departure sentence other than an upward durational departure sentence. The motion shall state the type of departure
sought and the reasons and factors relied upon. The hearing shall be scheduled
so that the parties have adequate time to prepare and present arguments
regarding the issues of departure sentencing. The victim of a crime or the
victim's family shall be notified of the right to be present at the hearing for
the convicted person by the county or district attorney. The parties may submit
written arguments to the court prior to the date of the hearing and may make
oral arguments before the court at the hearing. The court shall review the
victim impact statement. Prior to the hearing, the court shall transmit to the
defendant or the defendant's attorney and the prosecuting attorney copies of
the presentence investigation report.
(2) At the
conclusion of the hearing or within 20 days thereafter, the court shall issue
findings of fact and conclusions of law regarding the issues submitted by the
parties, and shall enter an appropriate order.
(3) If the
court decides to depart on its own volition, without a motion from the state or
the defendant, the court must notify all parties of its intent and allow reasonable
time for either party to respond if requested. The notice shall state the type
of departure intended by the court and the reasons and factors relied upon.
(4) In each
case in which the court imposes a sentence that deviates from the presumptive sentence,
the court shall make findings of fact as to the reasons for departure as
provided in this subsection regardless of whether a hearing is requested.
(b) (1)
Upon motion of the county or district attorney to seek an upward durational
departure sentence, the court shall consider imposition of such upward
durational departure sentence in the manner provided in subsection (b)(2). The county or district attorney shall file
such motion to seek an upward durational departure sentence not less than 30 days
prior to the date of trial or if the trial date is to take place in less than
30 days then within five days from the date of the arraignment.
(2) The
court shall determine if the presentation of any evidence regarding the alleged
fact or factors that may increase the penalty for a crime beyond the statutory
maximum, other than a prior conviction, shall be presented to a jury and proved
beyond a reasonable doubt during the trial of the matter or following the
determination of the defendant’s innocence or guilt.
(3) If the
presentation of the evidence regarding the alleged fact or factors is submitted
to the jury during the trial of the matter as determined by the court, then the
provisions of subsections (b)(5), (b)(6) and (b)(7) shall be applicable.
(4) If the
court determines it is in the interest of justice, the court shall conduct a
separate departure sentence proceeding to determine whether the defendant may
be subject to an upward durational departure sentence. Such proceeding shall be conducted by the
court before 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 upward durational departure sentence
proceeding, the court shall substitute an alternate juror who has been impaneled
for the trial jury. If there are
insufficient alternate jurors to replace trial jurors who are unable to serve
at the upward durational departure sentence proceeding, the court may conduct
such upward durational departure sentence proceeding before a jury which may
have 12 or less jurors, but at no time less than six jurors. Any decision of an upward durational
departure sentence proceeding shall be decided by a unanimous decision of the
jury. Jury selection procedures,
qualifications of jurors and grounds for exemption or challenge of prospective
jurors in criminal trials shall be applicable to the selection of such
jury. The jury at the upward durational
departure sentence proceeding may be waived in the manner provided by K.S.A.
22-3403, and amendments thereto, for waiver of a trial jury. If the jury at the upward durational
departure sentence proceeding has been waived or the trial jury has been
waived, the upward durational departure sentence proceeding shall be conducted
by the court.
(5) In the
upward durational departure sentence proceeding, evidence may be presented
concerning any matter that the court deems relevant to the question of
determining if any specific factors exist that may serve to enhance the maximum
sentence as provided by K.S.A. 21-4716 or 21-4717, and amendments thereto. Only such evidence as the state has made
known to the defendant prior to the upward durational departure sentence
proceeding shall be admissible, and no evidence secured in violation of the
constitution of the United States or of the state of Kansas shall be
admissible. No testimony by the
defendant at the upward durational departure sentence proceeding shall be
admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary
presentation, the court shall allow the parties a reasonable period of time in
which to present oral arguments.
(6) The
court shall provide oral and written instructions to the jury to guide its
deliberations.
(7) If, by
unanimous vote, the jury finds beyond a reasonable doubt that one or more
specific factors exist that may serve to enhance the maximum sentence, the
defendant may be sentenced pursuant to K.S.A. 21-4716 through 21-4719, and
amendments thereto; otherwise, the defendant shall be sentenced as provided by
law. The jury, if its verdict is a
unanimous recommendation that one or more of the specific factors that may
serve to enhance the maximum sentence exists, shall designate in writing,
signed by the foreman of the jury, the specific factor or factors which the
jury found beyond a reasonable doubt.
If, after a reasonable time for deliberation, the jury is unable to
reach a verdict of finding any of the specific factors, the court shall dismiss
the jury and shall only impose a sentence as provided by law. In nonjury cases, the court shall follow the
requirements of this subsection in determining if one or more of the specific
factors exist that may serve to enhance the maximum sentence.
History: L. 1992, ch.
239, § 18; L. 1993, ch. 291, § 264; L. 1994, ch. 291, § 58; L. 2002, ch. 170, §
2 (HB 2154); June 6.
21-4719. Departure sentencing; limitations.
(a) When a
departure sentence is appropriate, the sentencing judge may depart from the
sentencing guidelines as provided in this section. The sentencing judge shall not impose a
downward dispositional departure sentence for any crime of extreme sexual
violence, as defined in K.S.A. 21-4716, and amendments thereto. The sentencing judge shall not impose a
downward durational departure sentence for any crime of extreme sexual
violence, as defined in K.S.A. 21-4716, and amendments thereto, to less than
50% of the center of the range of the sentence for such crime.
(b) When a
sentencing judge departs in setting the duration of a presumptive term of
imprisonment: (1) The judge shall consider and apply the enacted purposes and
principles of sentencing guidelines to impose a sentence which is proportionate
to the severity of the crime of conviction and the offender's criminal history;
and
(2) the
presumptive term of imprisonment set in such departure shall not total more
than double the maximum duration of the presumptive imprisonment term.
(c) When a
sentencing judge imposes a prison term as a dispositional departure: (1) The
judge shall consider and apply the enacted purposes and principles of
sentencing guidelines to impose a sentence which is proportionate to the
severity of the crime of conviction; and
(2) the
term of imprisonment shall not exceed the maximum duration of the presumptive
imprisonment term listed within the sentencing grid. Any sentence inconsistent
with the provisions of this section shall constitute an additional departure
and shall require substantial and compelling reasons independent of the reasons
given for the dispositional departure.
(d) If the
sentencing judge imposes a nonprison sentence as a dispositional departure from
the guidelines, the recommended duration shall be as provided in subsection (c)
of K.S.A. 21-4611 and amendments thereto.
History: L. 1992, ch.
239, § 19; L. 1993, ch. 291, § 265; L. 2008, ch. 183, § 7; July 1.
21-4720. Sentencing in multiple conviction cases;
direction of judge to impose concurrent or consecutive sentences; requirements
applicable; departure sentencing based on aggravating factors.
(a) The
provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-4608 and
amendments thereto regarding multiple sentences shall apply to the sentencing
of offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing
guidelines system as provided in this act.
The mandatory consecutive requirements contained in subsections (c), (d)
and (e) shall not apply if such application would result in a manifest
injustice.
(b) The
sentencing judge shall otherwise have discretion to impose concurrent or
consecutive sentences in multiple conviction cases. The sentencing judge shall state on the
record if the sentence is to be served concurrently or consecutively. In cases where consecutive sentences may be
imposed by the sentencing judge, the following shall apply:
(1) When
the sentencing judge imposes multiple sentences consecutively, the consecutive
sentences shall consist of an imprisonment term which is the sum of the
consecutive imprisonment terms, and a supervision term. The postrelease supervision term will be
based on the longest supervision term imposed for any of the crimes.
(2) The
sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the
highest crime severity ranking. An
off-grid crime shall not be used as the primary crime in determining the base
sentence when imposing multiple sentences.
If sentences for off-grid and on-grid convictions are ordered to run
consecutively, the offender shall not begin to serve the on-grid sentence until
paroled from the off-grid sentence, and the postrelease supervision term will
be based on the off-grid crime. If more
than one crime of conviction is classified in the same crime category, the
sentencing judge must designate which crime will serve as the primary
crime. In the instance of sentencing
with both the drug grid and the nondrug grid and simultaneously having a
presumption of imprisonment and probation, the sentencing judge will use the
crime which presumes imprisonment as the primary crime. In the instance of sentencing with both the
drug grid and the nondrug grid and simultaneously having a presumption of
either both probation or both imprisonment, the sentencing judge will use the
crime with the longest sentence term within the grid block range as the primary
crime.
(3) The
base sentence is set using the total criminal history score assigned.
(4) The
total prison sentence imposed in a case involving multiple convictions arising
from multiple counts within an information, complaint or indictment cannot
exceed twice the base sentence. This
limit shall apply only to the total sentence, and it shall not be necessary to
reduce the duration of any of the nonbase sentences imposed to be served
consecutively to the base sentence. The
postrelease supervision term will reflect only the longest such term assigned
to any of the crimes for which consecutive sentences are imposed. Supervision periods will not be aggregated.
(5) Nonbase
sentences will not have criminal history scores applied, as calculated in the
criminal history I column of the grid, but base sentences will have the full
criminal history score assigned. In the
event a conviction designated as the primary crime in a multiple conviction
case is reversed on appeal, the appellate court shall remand the multiple
conviction case for resentencing. Upon
resentencing, if the case remains a multiple conviction case the court shall
follow all of the provisions of this section concerning the sentencing of
multiple conviction cases.
(6) If the
sentence for the primary crime is a prison term, the entire imprisonment term
of the consecutive sentences will be served in prison.
(7) If the
sentence for the consecutive sentences is a prison term, the postrelease
supervision term is a term of postrelease supervision as established for the
primary crime.
(8) If the
sentence for the primary crime is a nonprison sentence, a nonprison term will
be imposed for each crime conviction, but the nonprison terms shall not be
aggregated or served consecutively even though the underlying prison sentences
have been ordered to be served consecutively.
Upon revocation of the nonprison sentence, the offender shall serve the
prison sentences consecutively as provided in this section.
(c) The
following shall apply for a departure from the presumptive sentence based on
aggravating factors within the context of consecutive sentences:
(1) The
court may depart from the presumptive limits for consecutive sentences only if
the judge finds substantial and compelling reasons to impose a departure
sentence for any of the individual crimes being sentenced consecutively.
(2) When a
departure sentence is imposed for any of the individual crimes sentenced
consecutively, the imprisonment term of that departure sentence shall not
exceed twice the maximum presumptive imprisonment term that may be imposed for
that crime.
(3) The
total imprisonment term of the consecutive sentences, including the
imprisonment term for the departure crime, shall not exceed twice the maximum
presumptive imprisonment term of the departure sentence following aggravation.
History: L. 1992, ch.
239, § 20; L. 1993, ch. 291, § 266; L. 1994, ch. 291, § 59; L. 1996, ch. 267, §
14; L. 2000, ch. 37, § 1; July 1.
21-4721. Departure sentence subject to appeal;
confinement or release of defendant pending review; scope of review; action by
court; written opinion, when; summary disposition; correction of arithmetic or
clerical errors.
(a) A
departure sentence is subject to appeal by the defendant or the state. The
appeal shall be to the appellate courts in accordance with rules adopted by the
supreme court.
(b) Pending
review of the sentence, the sentencing court or the appellate court may order
the defendant confined or placed on conditional release, including bond.
(c) On
appeal from a judgment or conviction entered for a felony committed on or after
July 1, 1993, the appellate court shall not review:
(1) Any
sentence that is within the presumptive sentence for the crime; or
(2) any
sentence resulting from an agreement between the state and the defendant which
the sentencing court approves on the record.
(d) In any
appeal from a judgment of conviction imposing a sentence that departs from the
presumptive sentence prescribed by the sentencing grid for a crime, sentence
review shall be limited to whether the sentencing court's findings of fact and
reasons justifying a departure:
(1) Are
supported by the evidence in the record; and
(2)
constitute substantial and compelling reasons for departure.
(e) In any
appeal, the appellate court may review a claim that:
(1) A
sentence that departs from the presumptive sentence resulted from partiality,
prejudice, oppression or corrupt motive;
(2) the
sentencing court erred in either including or excluding recognition of a prior
conviction or juvenile adjudication for criminal history scoring purposes; or
(3) the
sentencing court erred in ranking the crime severity level of the current crime
or in determining the appropriate classification of a prior conviction or
juvenile adjudication for criminal history purposes.
(f) The
appellate court may reverse or affirm the sentence. If the appellate court
concludes that the trial court's factual findings are not supported by evidence
in the record or do not establish substantial and compelling reasons for a
departure, it shall remand the case to the trial court for resentencing.
(g) The
appellate court shall issue a written opinion whenever the judgment of the
sentencing court is reversed. The court may issue a written opinion in any
other case when it is believed that a written opinion will provide guidance to
sentencing judges and others in implementing the sentencing guidelines adopted
by the Kansas sentencing commission. The appellate courts may provide by rule
for summary disposition of cases arising under this section when no substantial
question is presented by the appeal.
(h) A
review under summary disposition shall be made solely upon the record that was
before the sentencing court. Written briefs shall not be required unless
ordered by the appellate court and the review and decision shall be made in an
expedited manner according to rules adopted by the supreme court.
(i) The
sentencing court shall retain authority irrespective of any notice of appeal
for 90 days after entry of judgment of conviction to modify its judgment and
sentence to correct any arithmetic or clerical errors.
History: L. 1992, ch.
239, § 21; L. 1995, ch. 251, § 17; July 1.
21-4722. Good time credit; calculation; forfeiture;
rules and regulations of secretary.
(a) For
purposes of determining release of an inmate the following shall apply with
regard to good time calculations:
(1) A
system shall be developed whereby good behavior by inmates is the expected norm
and negative behavior will be punished; and
(2) the
amount of good time which can be earned by an inmate and subtracted from any
sentence is limited to: (A) For a crime committed on or after July 1, 1993, an
amount equal to 15% of the prison part of the sentence; or (B) for a drug
severity level 3 or 4 or a nondrug severity level 7 through 10 crime committed
on or after January 1, 2008, an amount equal to 20% of the prison part of the
sentence.
(b) Any
time which is earned and subtracted from the prison part of the sentence of any
inmate pursuant to good time calculation shall be added to such inmate's
postrelease supervision obligation.
(c) The
secretary of corrections is hereby authorized to adopt rules and regulations to
carry out the provisions of this section regarding good time calculations. Such rules and regulations shall provide
circumstances upon which an inmate may earn good time credits and for the
forfeiture of earned credits and such circumstances may include factors substantially
related to program and work participation and conduct and the inmate's
willingness to examine and confront the past behavior patterns that resulted in
the commission of the inmate's crimes.
(d) An
inmate shall not be awarded good time credits pursuant to this section for any
review period established by the secretary of corrections in which a court
finds that the inmate has done any of the following while in the custody of the
secretary of corrections:
(1) Filed a
false or malicious action or claim with the court;
(2) brought
an action or claim with the court solely or primarily for delay or harassment;
(3)
testified falsely or otherwise submitted false evidence or information to the
court;
(4)
attempted to create or obtain a false affidavit, testimony or evidence; or
(5) abused
the discovery process in any judicial action or proceeding.
(e) (1) For
purposes of determining release of an inmate who is serving only a sentence for
a nondrug severity level 4 through 10 crime or a drug severity level 3 or 4
crime committed on or after January 1, 2008, in addition to any good time
credits earned and retained, the following shall apply with regard to program
credit calculations:
(A) A
system shall be developed whereby program credits may be earned by inmates for
the successful completion of a general education diploma, a technical or
vocational training program, a substance abuse treatment program or any other
program designated by the secretary
which has been shown to reduce offender’s risk after
release; and
(B) the
amount of time which can be earned and retained by an inmate for the successful
completion of programs and subtracted from any sentence is limited to not more
than 60 days.
(2) Any
time which is earned and subtracted from the prison part of the sentence of any
inmate pursuant to program credit calculation shall be added to such inmate’s
postrelease supervision obligation, if applicable.
(3) When
separate sentences of imprisonment for different crimes are imposed on a
defendant on the same date, a defendant shall only be eligible for program
credits if such crimes are a nondrug severity level 4 through 10 or a drug
severity level 3 or 4.
(4) Program
credits shall not be earned by any offender successfully completing a sex
offender treatment program.
(5) The
secretary of corrections is hereby authorized to adopt rules and regulations to
carry out the provisions of this subsection regarding program credit
calculations. Such rules and regulations
shall provide circumstances upon which an inmate may earn program credits and for
the forfeiture of earned credits and such circumstances may include factors
substantially related to program participation and conduct.
(6) The
secretary of corrections shall report to the Kansas sentencing commission and
the Kansas reentry policy council the data on the program credit calculations.
History: L. 1992, ch.
239, § 22; L. 1993, ch. 291, § 267; L. 1995, ch. 121, § 3; L. 1996, ch. 148, §
1; L. 2007, ch. 197, § 3; July 1.
21-4723. Determination of time when crime committed;
law applicable.
If it
cannot be determined whether the crime was committed on or after July 1, 1993,
the person convicted of committing such crime shall be sentenced as if such
crime had been committed prior to July 1, 1993. Except as provided in K.S.A.
21-4724, the provisions of this act creating a presumptive sentencing
guidelines system have no application to crimes committed prior to July 1,
1993. A crime is committed prior to July 1, 1993, if any of the essential
elements of the crime as then defined
occurred before July 1, 1993. Except as provided in K.S.A. 21-4724,
prosecutions for prior crimes shall be governed, prosecuted and punished under
the laws existing at the time such crimes were committed.
History: L. 1992, ch.
239, § 23; July 1, 1993.
21-4724. Sentencing; application of guidelines to
persons who committed crimes prior to July 1, 1993; modification and conversion
of certain sentences; review of sentences of persons in custody; department to
determine criminal history classification and prepare sentencing guideline
report on inmates; filing of reports; request for hearing; determination by
court; crimes committed prior to July 1, 1993, but sentence imposed after such
date.
(a) The
sentencing grid for nondrug crimes as provided in K.S.A. 21-4704 and the sentencing
grid for drug crimes as provided in K.S.A. 21-4705 shall be applied for crimes
committed before July 1, 1993, as provided in this section.