Session of 1998
HOUSE BILL No. 2795
By Representative Johnston
2-4
9
AN ACT concerning crimes, punishment and
criminal procedure; relating
10 to the punishment for
capital murder; sentencing to imprisonment for
11 life; amending K.S.A.
21-4622, 21-4623, 21-4624, 21-4627, 21-4629,
12 21-4631, 21-4634 and
21-4635 and K.S.A. 1997 Supp. 21-4706, 22-
13 3717, 22-4505 and
22-4506 and repealing the existing sections.
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 New Section 1. (a)
A defendant who is sentenced to imprisonment
17 for life shall not be eligible for
probation, parole, assignment to a com-
18 munity correctional services program,
conditional release, postrelease su-
19 pervision, or suspension, modification or
reduction of sentence.
20 (b) Upon sentencing a
defendant to imprisonment for life, the court
21 shall commit the defendant to the custody
of the secretary of corrections
22 and the court shall state in the sentencing
order of the judgment form or
23 journal entry, whichever is delivered with
the defendant to the correc-
24 tional institution, that the defendant has
been sentenced to imprisonment
25 for life.
26 Sec. 2. K.S.A.
21-4622 is hereby amended to read as follows: 21-
27 4622. Upon conviction of a defendant of
capital murder and a finding
28 that the defendant was less than 18 years
of age at the time of the com-
29 mission thereof, the court shall sentence
the defendant as otherwise pro-
30 vided by law, and no sentence of death
or imprisonment for life pursuant
31 to section 1 shall be imposed
hereunder.
32 Sec. 3. K.S.A.
21-4623 is hereby amended to read as follows: 21-
33 4623. (a) If, under K.S.A. 21-4624 and
amendments thereto, the county
34 or district attorney has filed a notice of
intent to request a separate sen-
35 tencing proceeding to determine whether the
defendant should be sen-
36 tenced to death or imprisonment for life
pursuant to section 1 and the
37 defendant is convicted of the crime of
capital murder, the defendant's
38 counsel or the warden of the correctional
institution or sheriff having
39 custody of the defendant may request a
determination by the court of
40 whether the defendant is mentally retarded.
If the court determines that
41 there is not sufficient reason to believe
that the defendant is mentally
42 retarded, the court shall so find and the
defendant shall be sentenced in
43 accordance with K.S.A. 21-4624 through
21-4627, 21-4629 and 21-4631
HB 2795
2
1 and amendments thereto. If the court
determines that there is sufficient
2 reason to believe that the defendant
is mentally retarded, the court shall
3 conduct a hearing to determine
whether the defendant is mentally re-
4 tarded.
5 (b) At the
hearing, the court shall determine whether the defendant
6 is mentally retarded. The court shall
order a psychiatric or psychological
7 examination of the defendant. For
that purpose, the court shall appoint
8 two licensed physicians or licensed
psychologists, or one of each, qualified
9 by training and practice to make such
examination, to examine the de-
10 fendant and report their findings in
writing to the judge within 10 days
11 after the order of examination is issued.
The defendant shall have the
12 right to present evidence and cross-examine
any witnesses at the hearing.
13 No statement made by the defendant in the
course of any examination
14 provided for by this section, whether or
not the defendant consents to
15 the examination, shall be admitted in
evidence against the defendant in
16 any criminal proceeding.
17 (c) If, at the
conclusion of a hearing pursuant to this section, the court
18 determines that the defendant is not
mentally retarded, the defendant
19 shall be sentenced in accordance with
K.S.A. 21-4624 through 21-4627,
20 21-4629 and 21-4631 and amendments
thereto.
21 (d) If, at the
conclusion of a hearing pursuant to this section, the court
22 determines that the defendant is mentally
retarded, the court shall sen-
23 tence the defendant as otherwise provided
by law, and no sentence of
24 death or imprisonment for life shall
be imposed hereunder.
25 (e) As used in this
section, ``mentally retarded'' means having signif-
26 icantly subaverage general intellectual
functioning, as defined by K.S.A.
27 76-12b01 and amendments thereto, to an
extent which substantially im-
28 pairs one's capacity to appreciate the
criminality of one's conduct or to
29 conform one's conduct to the requirements
of law.
30 Sec. 4. K.S.A.
21-4624 is hereby amended to read as follows: 21-
31 4624. (a) If a defendant is charged with
capital murder, the county or
32 district attorney shall file written notice
if such attorney intends, upon
33 conviction of the defendant, to request a
separate sentencing proceeding
34 to determine whether the defendant should
be sentenced to death or
35 imprisonment for life pursuant to
section 1. Such notice shall be filed with
36 the court and served on the defendant or
the defendant's attorney not
37 later than five days after the time of
arraignment. If such notice is not
38 filed and served as required by this
subsection, the county or district
39 attorney may not request such a sentencing
proceeding and the defend-
40 ant, if convicted of capital murder, shall
be sentenced as otherwise pro-
41 vided by law, and no sentence of death
or imprisonment for life shall be
42 imposed hereunder.
43 (b) Except as provided
in K.S.A. 21-4622 and 21-4623, and amend-
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3
1 ments thereto, upon conviction of a
defendant of capital murder, the
2 court, upon motion of the county or
district attorney, shall conduct a
3 separate sentencing proceeding to
determine whether the defendant shall
4 be sentenced to death or
imprisonment for life. The proceeding shall be
5 conducted by the trial judge before
the trial jury as soon as practicable.
6 If any person who served on the trial
jury is unable to serve on the jury
7 for the sentencing proceeding, the
court shall substitute an alternate juror
8 who has been impaneled for the trial
jury. If there are insufficient alter-
9 nate jurors to replace trial jurors
who are unable to serve at the sentencing
10 proceeding, the trial judge may summon a
special jury of 12 persons
11 which shall determine the question of
whether a sentence of death or
12 imprisonment for life shall be
imposed. Jury selection procedures, qual-
13 ifications of jurors and grounds for
exemption or challenge of prospective
14 jurors in criminal trials shall be
applicable to the selection of such special
15 jury. The jury at the sentencing proceeding
may be waived in the manner
16 provided by K.S.A. 22-3403 and amendments
thereto for waiver of a trial
17 jury. If the jury at the sentencing
proceeding has been waived or the trial
18 jury has been waived, the sentencing
proceeding shall be conducted by
19 the court.
20 (c) In the sentencing
proceeding, evidence may be presented con-
21 cerning any matter that the court deems
relevant to the question of sen-
22 tence and shall include matters relating to
any of the aggravating circum-
23 stances enumerated in K.S.A. 21-4625 and
amendments thereto and any
24 mitigating circumstances. Any such evidence
which the court deems to
25 have probative value may be received
regardless of its admissibility under
26 the rules of evidence, provided that the
defendant is accorded a fair op-
27 portunity to rebut any hearsay statements.
Only such evidence of aggra-
28 vating circumstances as the state has made
known to the defendant prior
29 to the sentencing proceeding shall be
admissible, and no evidence se-
30 cured in violation of the constitution of
the United States or of the state
31 of Kansas shall be admissible. No testimony
by the defendant at the sen-
32 tencing proceeding shall be admissible
against the defendant at any sub-
33 sequent criminal proceeding. At the
conclusion of the evidentiary pres-
34 entation, the court shall allow the parties
a reasonable period of time in
35 which to present oral argument.
36 (d) At the conclusion of
the evidentiary portion of the sentencing
37 proceeding, the court shall provide oral
and written instructions to the
38 jury to guide its deliberations.
39 (e) If, by unanimous
vote, the jury finds beyond a reasonable doubt
40 that one or more of the aggravating
circumstances enumerated in K.S.A.
41 21-4625 and amendments thereto exist and,
further, that the existence of
42 such aggravating circumstances is not
outweighed by any mitigating cir-
43 cumstances which are found to exist, the
defendant shall be sentenced to
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4
1 death. In the alternative, by
unanimous vote, the jury may sentence the
2 defendant to imprisonment for
life; otherwise, the defendant shall be sen-
3 tenced as provided by law. The jury,
if its verdict is a unanimous rec-
4 ommendation of a sentence of death,
shall designate in writing, signed
5 by the foreman of the jury, the
statutory aggravating circumstances which
6 it found beyond a reasonable doubt.
If, after a reasonable time for delib-
7 eration, the jury is unable to reach
a verdict, the judge shall dismiss the
8 jury and impose a sentence of
imprisonment as provided by law and shall
9 commit the defendant to the custody
of the secretary of corrections. In
10 nonjury cases, the court shall follow the
requirements of this subsection
11 in determining the sentence to be
imposed.
12 (f) Notwithstanding the
verdict of the jury, the trial court shall review
13 any jury verdict imposing a sentence of
death or imprisonment for life
14 hereunder to ascertain whether the
imposition of such sentence is sup-
15 ported by the evidence. If the court
determines that the imposition of
16 such a sentence is not supported by the
evidence, the court shall modify
17 the sentence and sentence the defendant as
otherwise provided by law,
18 and no sentence of death or imprisonment
for life shall be imposed here-
19 under. Whenever the court enters a judgment
modifying the sentencing
20 verdict of the jury, the court shall set
forth its reasons for so doing in a
21 written memorandum which shall become part
of the record.
22 Sec. 5. K.S.A.
21-4627 is hereby amended to read as follows: 21-
23 4627. (a) A judgment of conviction
resulting in a sentence of death or
24 imprisonment for life pursuant to
section 1 shall be subject to automatic
25 review by and appeal to the supreme court
of Kansas in the manner
26 provided by the applicable statutes and
rules of the supreme court gov-
27 erning appellate procedure. The review and
appeal shall be expedited in
28 every manner consistent with the proper
presentation thereof and given
29 priority pursuant to the statutes and rules
of the supreme court governing
30 appellate procedure.
31 (b) The supreme court of
Kansas shall consider the question of sen-
32 tence as well as any errors asserted in the
review and appeal and shall be
33 authorized to notice unassigned errors
appearing of record if the ends of
34 justice would be served thereby.
35 (c) With regard to the
sentence, the court shall determine:
36 (1) Whether the sentence
of death or imprisonment for life imposed
37 under the influence of passion, prejudice
or any other arbitrary factor;
38 and
39 (2) whether the evidence
supports the findings that an aggravating
40 circumstance or circumstances existed and
that any mitigating circum-
41 stances were insufficient to outweigh the
aggravating circumstances.
42 (d) The court shall be
authorized to enter such orders as are necessary
43 to effect a proper and complete disposition
of the review and appeal.
HB 2795
5
1
Sec. 6. K.S.A. 21-4629 is hereby amended to read as
follows: 21-
2 4629. In the event a sentence of
death, imprisonment for life pursuant to
3 section 1 or any provision of
this act authorizing such sentence
sentences
4 is held to be unconstitutional by the
supreme court of Kansas or the
5 United States supreme court, the
court having jurisdiction over a person
6 previously sentenced shall cause such
person to be brought before the
7 court and shall modify the sentence
and resentence the defendant as
8 otherwise provided by law.
9
Sec. 7. K.S.A. 21-4631 is hereby amended to read as
follows: 21-
10 4631. (a) K.S.A. 21-4622 through 21-4630,
and amendments thereto, shall
11 be supplemental to and a part of the Kansas
criminal code.
12 (b) The provisions of
K.S.A. 21-4622 through 21-4630, as they existed
13 immediately prior to July 1, 1994, shall be
applicable only to persons
14 convicted of crimes committed on or after
July 1, 1990, and before July
15 1, 1994.
16 (c) The provisions of
K.S.A. 21-4622 through 21-4627 and 21-4629
17 and 21-4630, as amended by this act, shall
be applicable only to persons
18 convicted of crimes committed on or after
July 1, 1994.
19 (d) The provisions of
section 1, K.S.A. 21-4622 through 21-4627 and
20 21-4629 and 21-4630, as amended by this
act, shall be applicable only to
21 persons convicted of crimes committed on
or after July 1, 1998.
22 Sec. 8. K.S.A.
21-4634 is hereby amended to read as follows: 21-
23 4634. (a) If a defendant is convicted of
the crime of capital murder and
24 a sentence of death or imprisonment for
life pursuant to section 1 is not
25 imposed, or if a defendant is convicted of
the crime of murder in the first
26 degree based upon the finding of
premeditated murder, the defendant's
27 counsel or the director of the correctional
institution or sheriff having
28 custody of the defendant may request a
determination by the court of
29 whether the defendant is mentally retarded.
If the court determines that
30 there is not sufficient reason to believe
that the defendant is mentally
31 retarded, the court shall so find and the
defendant shall be sentenced in
32 accordance with K.S.A. 21-4635 through
21-4638. If the court determines
33 that there is sufficient reason to believe
that the defendant is mentally
34 retarded, the court shall conduct a hearing
to determine whether the
35 defendant is mentally retarded.
36 (b) At the hearing, the
court shall determine whether the defendant
37 is mentally retarded. The court shall order
a psychiatric or psychological
38 examination of the defendant. For that
purpose, the court shall appoint
39 two licensed physicians or licensed
psychologists, or one of each, qualified
40 by training and practice to make such
examination, to examine the de-
41 fendant and report their findings in
writing to the judge within 10 days
42 after the order of examination is issued.
The defendant shall have the
43 right to present evidence and cross-examine
any witnesses at the hearing.
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6
1 No statement made by the defendant in
the course of any examination
2 provided for by this section, whether
or not the defendant consents to
3 the examination, shall be admitted in
evidence against the defendant in
4 any criminal proceeding.
5 (c) If, at the
conclusion of a hearing pursuant to this section, the court
6 determines that the defendant is not
mentally retarded, the defendant
7 shall be sentenced in accordance with
K.S.A. 21-4635 through 21-4638.
8 (d) If, at the
conclusion of a hearing pursuant to this section, the court
9 determines that the defendant is
mentally retarded, the court shall sen-
10 tence the defendant as otherwise provided
by law, and no mandatory term
11 of imprisonment shall be imposed
hereunder.
12 (e) Unless otherwise
ordered by the court for good cause shown, the
13 provisions of this section shall not apply
if it has been determined, pur-
14 suant to K.S.A. 21-4623 and amendments
thereto, that the defendant is
15 not mentally retarded.
16 (f) As used in this
section, ``mentally retarded'' means having signif-
17 icantly subaverage general intellectual
functioning, as defined by K.S.A.
18 76-12b01 and amendments thereto, to an
extent which substantially im-
19 pairs one's capacity to appreciate the
criminality of one's conduct or to
20 conform one's conduct to the requirements
of law.
21 Sec. 9. K.S.A.
21-4635 is hereby amended to read as follows: 21-
22 4635. (a) Except as provided in K.S.A.
21-4634, if a defendant is convicted
23 of the crime of capital murder and a
sentence of death or imprisonment
24 for life pursuant to section 1 is
not imposed, or if a defendant is convicted
25 of murder in the first degree based upon
the finding of premeditated
26 murder, the court shall determine whether
the defendant shall be re-
27 quired to serve a mandatory term of
imprisonment of 40 years or sen-
28 tenced as otherwise provided by law.
29 (b) In order to make
such determination, the court may be presented
30 evidence concerning any matter that the
court deems relevant to the
31 question of sentence and shall include
matters relating to any of the ag-
32 gravating circumstances enumerated in
K.S.A. 21-4636 and any mitigating
33 circumstances. Any such evidence which the
court deems to have pro-
34 bative value may be received regardless of
its admissibility under the rules
35 of evidence, provided that the defendant is
accorded a fair opportunity
36 to rebut any hearsay statements. Only such
evidence of aggravating cir-
37 cumstances as the state has made known to
the defendant prior to the
38 sentencing shall be admissible and no
evidence secured in violation of
39 the constitution of the United States or of
the state of Kansas shall be
40 admissible. No testimony by the defendant
at the time of sentencing shall
41 be admissible against the defendant at any
subsequent criminal proceed-
42 ing. At the conclusion of the evidentiary
presentation, the court shall allow
43 the parties a reasonable period of time in
which to present oral argument.
HB 2795
7
1 (c) If the court
finds that one or more of the aggravating circum-
2 stances enumerated in K.S.A. 21-4636
and amendments thereto exist and,
3 further, that the existence of such
aggravating circumstances is not out-
4 weighed by any mitigating
circumstances which are found to exist, the
5 defendant shall be sentenced pursuant
to K.S.A. 21-4638 and amend-
6 ments thereto; otherwise, the
defendant shall be sentenced as provided
7 by law. The court shall designate, in
writing, the statutory aggravating
8 circumstances which it found. The
court may make the findings required
9 by this subsection for the purpose of
determining whether to sentence a
10 defendant pursuant to K.S.A. 21-4638
notwithstanding contrary findings
11 made by the jury or court pursuant to
subsection (e) of K.S.A. 21-4624
12 and amendments thereto for the purpose of
determining whether to sen-
13 tence such defendant to death or
imprisonment for life.
14 Sec. 10. K.S.A.
1997 Supp. 21-4706 is hereby amended to read as
15 follows: 21-4706. (a) For crimes committed
on or after July 1, 1993, the
16 sentences of imprisonment shall represent
the time a person shall actually
17 serve, subject to a reduction of up to 15%
of the primary sentence for
18 good time as authorized by law.
19 (b) The sentencing court
shall pronounce sentence in all felony cases.
20 (c) Violations of K.S.A.
21-3401, subsection (a) of K.S.A. 21-3402, 21-
21 3439 and 21-3801 and amendments thereto are
off-grid crimes for the
22 purpose of sentencing. Except as otherwise
provided by section 1, K.S.A.
23 21-4622 through 21-4627, and 21-4629
through 21-4631, and amend-
24 ments thereto, the sentence shall be
imprisonment for life, subject to
25 K.S.A. 22-3717, and amendments
thereto.
26 Sec. 11. K.S.A.
1997 Supp. 22-3717 is hereby amended to read as
27 follows: 22-3717. (a) Except as otherwise
provided by this section, K.S.A.
28 1993 Supp. 21-4628 prior to its repeal and
K.S.A. 21-4635 through 21-
29 4638 and amendments thereto, an inmate,
including an inmate sentenced
30 pursuant to K.S.A. 21-4618 and amendments
thereto, shall be eligible for
31 parole after serving the entire minimum
sentence imposed by the court,
32 less good time credits.
33 (b) (1) Except
as provided by section 1 or K.S.A. 21-4635 through
34 21-4638, and amendments thereto, an
inmate sentenced to imprisonment
35 for the crime of capital murder
committed on or after July 1, 1998, shall
36 be eligible for parole after serving 25
years of confinement, without de-
37 duction of any good time
credits.
38 (2) Except as
provided by K.S.A. 21-4635 through 21-4638 and
39 amendments thereto, an inmate sentenced to
imprisonment for the crime
40 of capital murder, or an inmate sentenced
for the crime of murder in the
41 first degree based upon a finding of
premeditated murder, committed on
42 or after July 1, 1994, shall be eligible
for parole after serving 25 years of
43 confinement, without deduction of any good
time credits.
HB 2795
8
1 (2)
(3) Except as provided by subsection (b)(1) or (b)(4),
K.S.A. 1993
2 Supp. 21-4628 prior to its repeal and
K.S.A. 21-4635 through 21-4638,
3 and amendments thereto, an inmate
sentenced to imprisonment for an
4 off-grid offense committed on or
after July 1, 1993, shall be eligible for
5 parole after serving 15 years of
confinement, without deduction of any
6 good time credits.
7 (3)
(4) Except as provided by K.S.A. 1993 Supp. 21-4628
prior to its
8 repeal, an inmate sentenced for a
class A felony committed before July
9 1, 1993, including an inmate
sentenced pursuant to K.S.A. 21-4618 and
10 amendments thereto, shall be eligible for
parole after serving 15 years of
11 confinement, without deduction of any good
time credits.
12 (4)
(5) An inmate sentenced to imprisonment for a violation
of sub-
13 section (a) of K.S.A. 21-3402 and
amendments thereto committed on or
14 after July 1, 1996, shall be eligible for
parole after serving 10 years of
15 confinement without deduction of any good
time credits.
16 (c) Except as provided
in subsection (e), if an inmate is sentenced to
17 imprisonment for more than one crime and
the sentences run consecu-
18 tively, the inmate shall be eligible for
parole after serving the total of:
19 (1) The aggregate
minimum sentences, as determined pursuant to
20 K.S.A. 21-4608 and amendments thereto, less
good time credits for those
21 crimes which are not class A felonies;
and
22 (2) an additional 15
years, without deduction of good time credits,
23 for each crime which is a class A
felony.
24 (d) (1) Persons
sentenced for crimes, other than off-grid crimes,
25 committed on or after July 1, 1993, will
not be eligible for parole, but will
26 be released to a mandatory period of
postrelease supervision upon com-
27 pletion of the prison portion of their
sentence as follows:
28 (A) Except as provided
in subparagraphs (C) and (D), persons sen-
29 tenced for nondrug severity level 1 through
6 crimes and drug severity
30 levels 1 through 3 crimes must serve 36
months, plus the amount of good
31 time earned and retained pursuant to K.S.A.
21-4722 and amendments
32 thereto, on postrelease supervision.
33 (B) Except as provided
in subparagraphs (C) and (D), persons sen-
34 tenced for nondrug severity level 7 through
10 crimes and drug severity
35 level 4 crimes must serve 24 months, plus
the amount of good time earned
36 and retained pursuant to K.S.A. 21-4722 and
amendments thereto, on
37 postrelease supervision.
38 (C) (i) The
sentencing judge shall impose the postrelease supervision
39 period provided in subparagraph (d)(1)(A)
or (d)(1)(B), unless the judge
40 finds substantial and compelling reasons to
impose a departure based
41 upon a finding that the current crime of
conviction was sexually violent
42 or sexually motivated. In that event,
departure may be imposed to extend
43 the postrelease supervision to a period of
up to 60 months.
HB 2795
9
1 (ii) If the
sentencing judge departs from the presumptive postrelease
2 supervision period, the judge shall
state on the record at the time of
3 sentencing the substantial and
compelling reasons for the departure. De-
4 partures in this section are subject
to appeal pursuant to K.S.A. 21-4721
5 and amendments thereto.
6 (iii) In
determining whether substantial and compelling reasons exist,
7 the court shall consider:
8 (a) Written briefs
or oral arguments submitted by either the defend-
9 ant or the state;
10 (b) any evidence
received during the proceeding;
11 (c) the presentence
report, the victim's impact statement and any
12 psychological evaluation as ordered by the
court pursuant to subsection
13 (e) of K.S.A. 21-4714 and amendments
thereto; and
14 (d) any other evidence
the court finds trustworthy and reliable.
15 (iv) The sentencing
judge may order that a psychological evaluation
16 be prepared and the recommended programming
be completed by the
17 offender. The department of corrections or
the parole board shall ensure
18 that court ordered sex offender treatment
be carried out.
19 (v) In carrying out the
provisions of subparagraph (d)(1)(C), the court
20 shall refer to K.S.A. 21-4718 and
amendments thereto.
21 (vi) Upon petition, the
parole board may provide for early discharge
22 from the postrelease supervision period
upon completion of court or-
23 dered programs and completion of the
presumptive postrelease super-
24 vision period, as determined by the crime
of conviction, pursuant to sub-
25 paragraph (d)(1)(A) or (B). Early discharge
from postrelease supervision
26 is at the discretion of the parole
board.
27 (vii) Persons convicted
of crimes deemed sexually violent or sexually
28 motivated, shall be registered according to
the habitual sex offender reg-
29 istration act, K.S.A. 22-4901 through
22-4910 and amendments thereto.
30 (D) The period of
postrelease supervision provided in subparagraphs
31 (A) and (B) may be reduced by up to 12
months based on the offender's
32 compliance with conditions of supervision
and overall performance while
33 on postrelease supervision. The reduction
in the supervision period shall
34 be on an earned basis pursuant to rules and
regulations adopted by the
35 secretary of corrections.
36 (E) In cases where
sentences for crimes from more than one severity
37 level have been imposed, the highest
severity level offense will dictate
38 the period of postrelease supervision.
Supervision periods will not aggre-
39 gate.
40 (2) As used in this
section, ``sexually violent crime'' means:
41 (A) Rape, K.S.A.
21-3502, and amendments thereto;
42 (B) indecent liberties
with a child, K.S.A. 21-3503, and amendments
43 thereto;
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10
1 (C) aggravated
indecent liberties with a child, K.S.A. 21-3504, and
2 amendments thereto;
3 (D) criminal
sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
4 and amendments thereto;
5 (E) aggravated
criminal sodomy, K.S.A. 21-3506, and amendments
6 thereto;
7 (F) indecent
solicitation of a child, K.S.A. 21-3510, and amendments
8 thereto;
9 (G) aggravated
indecent solicitation of a child, K.S.A. 21-3511, and
10 amendments thereto;
11 (H) sexual exploitation
of a child, K.S.A. 21-3516, and amendments
12 thereto;
13 (I) aggravated sexual
battery, K.S.A. 21-3518, and amendments
14 thereto;
15 (J) any conviction for a
felony offense in effect at any time prior to
16 the effective date of this act, that is
comparable to a sexually violent crime
17 as defined in subparagraphs (A) through
(I), or any federal or other state
18 conviction for a felony offense that under
the laws of this state would be
19 a sexually violent crime as defined in this
section;
20 (K) an attempt,
conspiracy or criminal solicitation, as defined in
21 K.S.A. 21-3301, 21-3302, 21-3303, and
amendments thereto, of a sexually
22 violent crime as defined in this section;
or
23 (L) any act which at the
time of sentencing for the offense has been
24 determined beyond a reasonable doubt to
have been sexually motivated.
25 As used in this subparagraph, ``sexually
motivated'' means that one of the
26 purposes for which the defendant committed
the crime was for the pur-
27 pose of the defendant's sexual
gratification.
28 (e) If an inmate is
sentenced to imprisonment for a crime committed
29 while on parole or conditional release, the
inmate shall be eligible for
30 parole as provided by subsection (c),
except that the Kansas parole board
31 may postpone the inmate's parole
eligibility date by assessing a penalty
32 not exceeding the period of time which
could have been assessed if the
33 inmate's parole or conditional release had
been violated for reasons other
34 than conviction of a crime.
35 (f) If a person is
sentenced to prison for a crime committed on or
36 after July 1, 1993, while on probation,
parole, conditional release or in a
37 community corrections program, for a crime
committed prior to July 1,
38 1993, and the person is not eligible for
retroactive application of the
39 sentencing guidelines and amendments
thereto pursuant to K.S.A. 21-
40 4724 and amendments thereto, the new
sentence shall not be aggregated
41 with the old sentence, but shall begin when
the person is paroled or
42 reaches the conditional release date on the
old sentence. If the offender
43 was past the offender's conditional release
date at the time the new of-
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11
1 fense was committed, the new sentence
shall not be aggregated with the
2 old sentence but shall begin when the
person is ordered released by the
3 Kansas parole board or reaches the
maximum sentence expiration date
4 on the old sentence, whichever is
earlier. The new sentence shall then
5 be served as otherwise provided by
law. The period of postrelease su-
6 pervision shall be based on the new
sentence, except that those offenders
7 whose old sentence is a term of
imprisonment for life, imposed pursuant
8 to K.S.A. 1993 Supp. 21-4628 prior to
its repeal, or an indeterminate
9 sentence with a maximum term of life
imprisonment, for which there is
10 no conditional release or maximum sentence
expiration date, shall remain
11 on postrelease supervision for life or
until discharged from supervision
12 by the Kansas parole board.
13 (g) Subject to the
provisions of this section, the Kansas parole board
14 may release on parole those persons
confined in institutions who are el-
15 igible for parole when: (1) The board
believes that the inmate should be
16 released for hospitalization, for
deportation or to answer the warrant or
17 other process of a court and is of the
opinion that there is reasonable
18 probability that the inmate can be released
without detriment to the com-
19 munity or to the inmate; or (2) the
secretary of corrections has reported
20 to the board in writing that the inmate has
satisfactorily completed the
21 programs required by any agreement entered
under K.S.A. 75-5210a and
22 amendments thereto, or any revision of such
agreement, and the board
23 believes that the inmate is able and
willing to fulfill the obligations of a
24 law abiding citizen and is of the opinion
that there is reasonable proba-
25 bility that the inmate can be released
without detriment to the community
26 or to the inmate. Parole shall not be
granted as an award of clemency and
27 shall not be considered a reduction of
sentence or a pardon.
28 (h) The Kansas parole
board shall hold a parole hearing at least the
29 month prior to the month an inmate will be
eligible for parole under
30 subsections (a), (b) and (c). At least the
month preceding the parole hear-
31 ing, the county or district attorney of the
county where the inmate was
32 convicted shall give written notice of the
time and place of the public
33 comment sessions for the inmate to any
victim of the inmate's crime who
34 is alive and whose address is known to the
county or district attorney or,
35 if the victim is deceased, to the victim's
family if the family's address is
36 known to the county or district attorney.
Except as otherwise provided,
37 failure to notify pursuant to this section
shall not be a reason to postpone
38 a parole hearing. In the case of any inmate
convicted of a class A felony
39 the secretary of corrections shall give
written notice of the time and place
40 of the public comment session for such
inmate at least one month pre-
41 ceding the public comment session to any
victim of such inmate's crime
42 or the victim's family pursuant to K.S.A.
74-7338 and amendments
43 thereto. If notification is not given to
such victim or such victim's family
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12
1 in the case of any inmate convicted
of a class A felony, the board shall
2 postpone a decision on parole of the
inmate to a time at least 30 days
3 after notification is given as
provided in this section. Nothing in this sec-
4 tion shall create a cause of action
against the state or an employee of the
5 state acting within the scope of the
employee's employment as a result
6 of the failure to notify pursuant to
this section. If granted parole, the
7 inmate may be released on parole on
the date specified by the board, but
8 not earlier than the date the inmate
is eligible for parole under subsec-
9 tions (a), (b) and (c). At each
parole hearing and, if parole is not granted,
10 at such intervals thereafter as it
determines appropriate, the Kansas parole
11 board shall consider: (1) Whether the
inmate has satisfactorily completed
12 the programs required by any agreement
entered under K.S.A. 75-5210a
13 and amendments thereto, or any revision of
such agreement; and (2) all
14 pertinent information regarding such
inmate, including, but not limited
15 to, the circumstances of the offense of the
inmate; the presentence report;
16 the previous social history and criminal
record of the inmate; the conduct,
17 employment, and attitude of the inmate in
prison; the reports of such
18 physical and mental examinations as have
been made; comments of the
19 victim and the victim's family; comments of
the public; official comments;
20 and capacity of state correctional
institutions.
21 (i) In those cases
involving inmates sentenced for a crime committed
22 after July 1, 1993, the parole board will
review the inmates proposed
23 release plan. The board may schedule a
hearing if they desire. The board
24 may impose any condition they deem
necessary to insure public safety,
25 aid in the reintegration of the inmate into
the community, or items not
26 completed under the agreement entered into
under K.S.A. 75-5210a and
27 amendments thereto. The board may not
advance or delay an inmate's
28 release date. Every inmate while on
postrelease supervision shall remain
29 in the legal custody of the secretary of
corrections and is subject to the
30 orders of the secretary.
31 (j) Before ordering the
parole of any inmate, the Kansas parole board
32 shall have the inmate appear before either
in person or via a video con-
33 ferencing format and shall interview the
inmate unless impractical be-
34 cause of the inmate's physical or mental
condition or absence from the
35 institution. Every inmate while on parole
shall remain in the legal custody
36 of the secretary of corrections and is
subject to the orders of the secretary.
37 Whenever the Kansas parole board formally
considers placing an inmate
38 on parole and no agreement has been entered
into with the inmate under
39 K.S.A. 75-5210a and amendments thereto, the
board shall notify the in-
40 mate in writing of the reasons for not
granting parole. If an agreement
41 has been entered under K.S.A. 75-5210a and
amendments thereto and
42 the inmate has not satisfactorily completed
the programs specified in the
43 agreement, or any revision of such
agreement, the board shall notify the
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13
1 inmate in writing of the specific
programs the inmate must satisfactorily
2 complete before parole will be
granted. If parole is not granted only
3 because of a failure to
satisfactorily complete such programs, the board
4 shall grant parole upon the
secretary's certification that the inmate has
5 successfully completed such programs.
If an agreement has been entered
6 under K.S.A. 75-5210a and amendments
thereto and the secretary of
7 corrections has reported to the board
in writing that the inmate has sat-
8 isfactorily completed the programs
required by such agreement, or any
9 revision thereof, the board shall not
require further program participa-
10 tion. However, if the board determines that
other pertinent information
11 regarding the inmate warrants the inmate's
not being released on parole,
12 the board shall state in writing the
reasons for not granting the parole. If
13 parole is denied for an inmate sentenced
for a crime other than a class A
14 or class B felony or an off-grid felony,
the board shall hold another parole
15 hearing for the inmate not later than one
year after the denial unless the
16 parole board finds that it is not
reasonable to expect that parole would
17 be granted at a hearing if held in the next
three years or during the interim
18 period of a deferral. In such case, the
parole board may defer subsequent
19 parole hearings for up to three years but
any such deferral by the board
20 shall require the board to state the basis
for its findings. If parole is denied
21 for an inmate sentenced for a class A or
class B felony or an off-grid
22 felony, the board shall hold another parole
hearing for the inmate not
23 later than three years after the denial
unless the parole board finds that
24 it is not reasonable to expect that parole
would be granted at a hearing if
25 held in the next 10 years or during the
interim period of a deferral. In
26 such case, the parole board may defer
subsequent parole hearings for up
27 to 10 years but any such deferral shall
require the board to state the basis
28 for its findings.
29 (k) Parolees and persons
on postrelease supervision shall be assigned,
30 upon release, to the appropriate level of
supervision pursuant to the cri-
31 teria established by the secretary of
corrections.
32 (l) The Kansas parole
board shall adopt rules and regulations in ac-
33 cordance with K.S.A. 77-415 et seq.,
and amendments thereto, not in-
34 consistent with the law and as it may deem
proper or necessary, with
35 respect to the conduct of parole hearings,
postrelease supervision reviews,
36 revocation hearings, orders of restitution,
reimbursement of expenditures
37 by the state board of indigents' defense
services and other conditions to
38 be imposed upon parolees or releasees.
Whenever an order for parole or
39 postrelease supervision is issued it shall
recite the conditions thereof.
40 (m) Whenever the Kansas
parole board orders the parole of an in-
41 mate or establishes conditions for an
inmate placed on postrelease su-
42 pervision, the board:
43 (1) Unless it finds
compelling circumstances which would render a
HB 2795
14
1 plan of payment unworkable, shall
order as a condition of parole or post-
2 release supervision that the parolee
or the person on postrelease super-
3 vision pay any transportation
expenses resulting from returning the pa-
4 rolee or the person on postrelease
supervision to this state to answer
5 criminal charges or a warrant for a
violation of a condition of probation,
6 assignment to a community
correctional services program, parole, con-
7 ditional release or postrelease
supervision;
8 (2) to the extent
practicable, shall order as a condition of parole or
9 postrelease supervision that the
parolee or the person on postrelease su-
10 pervision make progress towards or
successfully complete the equivalent
11 of a secondary education if the inmate has
not previously completed such
12 educational equivalent and is capable of
doing so;
13 (3) may order that the
parolee or person on postrelease supervision
14 perform community or public service work
for local governmental agen-
15 cies, private corporations organized
not-for-profit or charitable or social
16 service organizations performing services
for the community;
17 (4) may order the
parolee or person on postrelease supervision to pay
18 the administrative fee imposed pursuant to
K.S.A. 1997 Supp. 22-4529
19 unless the board finds compelling
circumstances which would render pay-
20 ment unworkable; and
21 (5) unless it finds
compelling circumstances which would render a
22 plan of payment unworkable, shall order
that the parolee or person on
23 postrelease supervision reimburse the state
for all or part of the expend-
24 itures by the state board of indigents'
defense services to provide counsel
25 and other defense services to the person.
In determining the amount and
26 method of payment of such sum, the parole
board shall take account of
27 the financial resources of the person and
the nature of the burden that
28 the payment of such sum will impose. Such
amount shall not exceed the
29 amount claimed by appointed counsel on the
payment voucher for indi-
30 gents' defense services or the amount
prescribed by the board of indi-
31 gents' defense services reimbursement
tables as provided in K.S.A. 22-
32 4522 and amendments thereto, whichever is
less, minus any previous
33 payments for such services.
34 (n) If the court which
sentenced an inmate specified at the time of
35 sentencing the amount and the recipient of
any restitution ordered as a
36 condition of parole or postrelease
supervision, the Kansas parole board
37 shall order as a condition of parole or
postrelease supervision that the
38 inmate pay restitution in the amount and
manner provided in the journal
39 entry unless the board finds compelling
circumstances which would ren-
40 der a plan of restitution unworkable.
41 (o) Whenever the Kansas
parole board grants the parole of an inmate,
42 the board, within 10 days of the date of
the decision to grant parole, shall
43 give written notice of the decision to the
county or district attorney of the
HB 2795
15
1 county where the inmate was
sentenced.
2 (p) When an inmate
is to be released on postrelease supervision, the
3 secretary, within 30 days prior to
release, shall provide the county or
4 district attorney of the county where
the inmate was sentenced written
5 notice of the release date.
6 (q) Inmates shall
be released on postrelease supervision upon the
7 termination of the prison portion of
their sentence. Time served while
8 on postrelease supervision will
vest.
9 (r) An inmate who
is allocated regular good time credits as provided
10 in K.S.A. 22-3725 and amendments thereto
may receive meritorious good
11 time credits in increments of not more than
90 days per meritorious act.
12 These credits may be awarded by the
secretary of corrections when an
13 inmate has acted in a heroic or outstanding
manner in coming to the
14 assistance of another person in a life
threatening situation, preventing
15 injury or death to a person, preventing the
destruction of property or
16 taking actions which result in a financial
savings to the state.
17 Sec. 12. K.S.A.
1997 Supp. 22-4505 is hereby amended to read as
18 follows: 22-4505. (a) When a defendant has
been convicted in the district
19 court of any felony, the court shall inform
the defendant of such defend-
20 ant's right to appeal the conviction to the
appellate court having jurisdic-
21 tion and that if the defendant is
financially unable to pay the costs of such
22 appeal such defendant may request the court
to appoint an attorney to
23 represent the defendant on appeal and to
direct that the defendant be
24 supplied with a transcript of the trial
record.
25 (b) If the defendant
files an affidavit stating that the defendant in-
26 tends to take an appeal in the case and if
the court determines, as provided
27 in K.S.A. 22-4504 and amendments thereto,
that the defendant is not
28 financially able to employ counsel, the
court shall appoint counsel from
29 the panel for indigents' defense services
or otherwise in accordance with
30 the applicable system for providing legal
defense services for indigent
31 persons prescribed by the state board of
indigents' defense services, to
32 represent the defendant and to perfect and
handle the appeal. If the
33 defendant files a verified motion for
transcript stating that a transcript of
34 the trial record is necessary to enable the
defendant to prosecute the
35 appeal and that the defendant is not
financially able to pay the cost of
36 procuring such transcript, and if the court
finds that the statements con-
37 tained therein are true, the court shall
order that such transcript be sup-
38 plied to the defendant as provided in
K.S.A. 22-4509 and amendments
39 thereto and paid for by the state board of
indigents' defense services
40 pursuant to claims submitted therefor.
41 (c) Upon an appeal or
petition for certiorari addressed to the supreme
42 court of the United States, if the
defendant is without means to pay the
43 cost of making and forwarding the necessary
records, the supreme court
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16
1 of Kansas may by order provide for
the furnishing of necessary records.
2 (d) (1) The
state board of indigents' defense services shall provide
3 by rule and regulation for: (A) The
assignment of attorneys to the panel
4 for indigents' defense services to
represent indigent persons who have
5 been convicted of capital murder and
are under sentence of death or
6 imprisonment for life, in the
direct review of the judgment;
7 (B) standards of
competency and qualification for the appointment
8 of counsel in capital cases under
this section; and
9 (C) the reasonable
compensation of counsel appointed to represent
10 individuals convicted of capital murder and
under a sentence of death or
11 imprisonment for life in the appeal
of such cases and for reasonable and
12 necessary litigation expense associated
with such appeals.
13 (2) If a defendant has
been convicted of capital murder and is under
14 a sentence of death or imprisonment for
life, the district court shall make
15 a determination on the record whether the
defendant is indigent. Upon
16 a finding that the defendant is indigent
and accepts the offer of repre-
17 sentation or is unable competently to
decide whether to accept or reject
18 the offer, the court shall appoint one or
more counsel, in accordance with
19 subsection (d)(1), to represent the
defendant. If the defendant rejects the
20 offer of representation, the court shall
find on the record, after a hearing
21 if necessary, whether the defendant
rejected the offer of representation
22 with the understanding of its legal
consequences. The court shall deny
23 the appointment of counsel upon a finding
that the defendant is com-
24 petent and not indigent.
25 (3) Counsel appointed to
represent the defendant, under this section,
26 shall not have represented the defendant at
trial unless the defendant and
27 counsel expressly request continued
representation.
28 Sec. 13. K.S.A.
1997 Supp. 22-4506 is hereby amended to read as
29 follows: 22-4506. (a) Whenever any person
who is in custody under a
30 sentence of imprisonment upon conviction of
a felony files a petition for
31 writ of habeas corpus or a motion attacking
sentence under K.S.A. 60-
32 1507 and files with such petition or motion
such person's affidavit stating
33 that the petition or motion is filed in
good faith and that such person is
34 financially unable to pay the costs of such
action and to employ counsel
35 therefor, the court shall make a
preliminary examination of the petition
36 or motion and the supporting papers.
37 (b) If the court finds
that the petition or motion presents substantial
38 questions of law or triable issues of fact
and if the petitioner or movant
39 has been or is thereafter determined to be
an indigent person as provided
40 in K.S.A. 22-4504 and amendments thereto,
the court shall appoint coun-
41 sel from the panel for indigents' defense
services or otherwise in accord-
42 ance with the applicable system for
providing legal defense services for
43 indigent persons prescribed by the state
board of indigents' defense serv-
HB 2795
17
1 ices, to assist such person and
authorize the action to be filed without a
2 deposit of security for costs. If the
petition or motion in such case raises
3 questions shown by the trial record,
the court shall order that the peti-
4 tioner or movant be supplied with a
transcript of the trial proceedings,
5 or so much thereof as may be
necessary to present the issue, without cost
6 to such person.
7 (c) If an appeal
is taken in such action and if the trial court finds that
8 the petitioner or movant is an
indigent person, the trial court shall appoint
9 counsel to conduct the appeal, order
that the appellant be supplied with
10 a record of the proceedings or so much
thereof as such counsel deter-
11 mines to be necessary and order that the
deposit of security for costs be
12 waived.
13 (d) (1) The state
board of indigents' defense services shall provide
14 by rule and regulation for: (A) The
assignment of attorneys to the panel
15 for indigents' defense services to
represent indigent persons, who have
16 been convicted of capital murder and are
under sentence of death or
17 imprisonment for life, upon a filing
of a petition for writ of habeas corpus
18 or a motion attacking sentence under K.S.A.
60-1507 and amendments
19 thereto;
20 (B) standards of
competency and qualification for the appointment
21 of counsel in capital cases under this
section; and
22 (C) the reasonable
compensation of counsel appointed to represent
23 individuals convicted of capital murder and
under a sentence of death or
24 imprisonment for life, during
proceedings conducted pursuant to subsec-
25 tion (a), (b) or (c) and for reasonable and
necessary litigation expense
26 associated with such proceedings.
27 (2) If a petitioner or
movant, who has been convicted of capital mur-
28 der and is under a sentence of death or
imprisonment for life, files a
29 petition for writ of habeas corpus or a
motion attacking sentence under
30 K.S.A. 60-1507 and amendments thereto, the
district court shall make a
31 determination on the record whether the
petitioner or movant is indigent.
32 Upon a finding that the petitioner or
movant is indigent and accepts the
33 offer of representation or is unable
competently to decide whether to
34 accept or reject the offer, the court shall
appoint one or more counsel,
35 in accordance with subsection (d) (1), to
represent the petitioner or mov-
36 ant. If the petitioner or movant rejects
the offer of representation, the
37 court shall find on the record, after a
hearing if necessary, whether the
38 petitioner or movant rejected the offer of
representation with the under-
39 standing of its legal consequences. The
court shall deny the appointment
40 of counsel upon a finding that the
petitioner or movant is competent and
41 not indigent.
42 (3) Counsel appointed to
represent the petitioner or movant shall not
43 have represented the petitioner or movant
at trial or on direct appeal
HB 2795
18
1 therefrom unless the petitioner or
movant and counsel expressly request
2 continued representation.
3 New
Sec. 14. If any provisions of this act or the application
thereof
4 to any person or circumstances is
held invalid, the invalidity shall not
5 affect other provisions or
applications of the act which can be given effect
6 without the invalid provisions or
application, and to this end the provisions
7 of this act are severable.
8
Sec. 15. K.S.A. 21-4622, 21-4623, 21-4624, 21-4627,
21-4629, 21-
9 4631, 21-4634 and 21-4635 and K.S.A.
1997 Supp. 21-4706, 22-3717, 22-
10 4505 and 22-4506 are hereby repealed.
11 Sec. 16. This act
shall take effect and be in force from and after its
12 publication in the statute book.
13
14