Session of 1999
         
SENATE BILL No. 297
         
By Committee on Judiciary
          
2-11
          
  9             AN  ACT concerning crimes, punishment and criminal procedure; relat-
10             ing to capital murder and the sentence of death; amending K.S.A. 21-
11             4631, 21-4634, 21-4635 and 22-3705 and K.S.A. 1998 Supp. 21-3105,
12             21-4706, 22-3717, 22-4505 and 22-4506 and repealing the existing sec-
13             tions; also repealing K.S.A. 21-3439, 21-4622, 21-4623, 21-4624, 21-
14             4625, 21-4627, 21-4629, 21-4630, 22-3704, 22-4001, 22-4002, 22-4003,
15             22-4004, 22-4005, 22-4006, 22-4009, 22-4011, 22-4012, 22-4013, 22-
16             4014, 22-4015 and 22-4016 and K.S.A. 1998 Supp. 21-4626.
17      
18       Be it enacted by the Legislature of the State of Kansas:
19             New Section  1. (a) For any person who is being charged with capital
20       murder, as defined in K.S.A. 21-3439, as it existed prior to its repeal, such
21       charge shall be amended to reflect the repeal of K.S.A. 21-3439 as pro-
22       vided in this act and such person shall be charged as otherwise provided
23       by law.
24             (b) For any person who has been convicted of capital murder, as
25       defined in K.S.A. 21-3439, as it existed prior to its repeal, and has not
26       been sentenced, such person shall be sentenced pursuant to K.S.A. 21-
27       4638 and amendments thereto.
28             (c) For any person who has been convicted of capital murder, as
29       defined in K.S.A. 21-3439, as it existed prior to its repeal, and has been
30       sentenced to death, such person shall have the sentence modified and be
31       resentenced by the sentencing court pursuant to K.S.A. 21-4638 and
32       amendments thereto.
33             (d) For any person who is convicted of an act which was committed
34       prior to the effective date of this act which would have been a violation
35       of capital murder, as defined in K.S.A. 21-3439, as it existed prior to its
36       repeal, such person shall be sentenced pursuant to K.S.A. 21-4638, and
37       amendments thereto.
38             Sec.  2. K.S.A. 1998 Supp. 21-3105 is hereby amended to read as
39       follows: 21-3105. A crime is an act or omission defined by law and for
40       which, upon conviction, a sentence of death, imprisonment or fine, or
41       both imprisonment and fine, is authorized or, in the case of a traffic
42       infraction or a cigarette or tobacco infraction, a fine is authorized. Crimes
43       are classified as felonies, misdemeanors, traffic infractions and cigarette

SB 297

2

  1       or tobacco infractions.
  2             (1) A felony is a crime punishable by death or by imprisonment in
  3       any state correctional institution or a crime which is defined as a felony
  4       by law.
  5             (2) A traffic infraction is a violation of any of the statutory provisions
  6       listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.
  7             (3) A cigarette or tobacco infraction is a violation of subsection (m)
  8       or (n) of K.S.A. 79-3321 and amendments thereto.
  9             (4) All other crimes are misdemeanors.
10             Sec.  3. K.S.A. 21-4631 is hereby amended to read as follows: 21-
11       4631. (a) K.S.A. 21-4622 through 21-4630, and amendments thereto, shall
12       be supplemental to and a part of the Kansas criminal code.
13             (b) The provisions of K.S.A. 21-4622 through 21-4630, as they existed
14       immediately prior to July 1, 1994, shall be applicable only to persons
15       convicted of crimes committed on or after July 1, 1990, and before July
16       1, 1994.
17             (c) The provisions of K.S.A. 21-4622 through 21-4627 and 21-4629
18       and 21-4630, as amended by this act, shall be applicable only to persons
19       convicted of crimes committed on or after July 1, 1994.
20             Sec.  4. K.S.A. 21-4634 is hereby amended to read as follows: 21-
21       4634. (a) If a defendant is convicted of the crime of capital murder and
22       a sentence of death is not imposed, or if a defendant is convicted of the
23       crime of murder in the first degree based upon the finding of premedi-
24       tated murder, the defendant's counsel or the director of the correctional
25       institution or sheriff having custody of the defendant may request a de-
26       termination by the court of whether the defendant is mentally retarded.
27       If the court determines that there is not sufficient reason to believe that
28       the defendant is mentally retarded, the court shall so find and the de-
29       fendant shall be sentenced in accordance with K.S.A. 21-4635 through
30       21-4638 and amendments thereto. If the court determines that there is
31       sufficient reason to believe that the defendant is mentally retarded, the
32       court shall conduct a hearing to determine whether the defendant is men-
33       tally retarded.
34             (b) At the hearing, the court shall determine whether the defendant
35       is mentally retarded. The court shall order a psychiatric or psychological
36       examination of the defendant. For that purpose, the court shall appoint
37       two licensed physicians or licensed psychologists, or one of each, qualified
38       by training and practice to make such examination, to examine the de-
39       fendant and report their findings in writing to the judge within 10 days
40       after the order of examination is issued. The defendant shall have the
41       right to present evidence and cross-examine any witnesses at the hearing.
42       No statement made by the defendant in the course of any examination
43       provided for by this section, whether or not the defendant consents to

SB 297

3

  1       the examination, shall be admitted in evidence against the defendant in
  2       any criminal proceeding.
  3             (c) If, at the conclusion of a hearing pursuant to this section, the court
  4       determines that the defendant is not mentally retarded, the defendant
  5       shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638
  6       and amendments thereto.
  7             (d) If, at the conclusion of a hearing pursuant to this section, the court
  8       determines that the defendant is mentally retarded, the court shall sen-
  9       tence the defendant as otherwise provided by law, and no mandatory term
10       of imprisonment shall be imposed hereunder.
11             (e) Unless otherwise ordered by the court for good cause shown, the
12       provisions of this section shall not apply if it has been determined, pur-
13       suant to K.S.A. 21-4623 and amendments thereto, that the defendant is
14       not mentally retarded.
15             (f) As used in this section, "mentally retarded" means having signif-
16       icantly subaverage general intellectual functioning, as defined by K.S.A.
17       76-12b01 and amendments thereto, to an extent which substantially im-
18       pairs one's capacity to appreciate the criminality of one's conduct or to
19       conform one's conduct to the requirements of law.
20             Sec.  5. K.S.A. 21-4635 is hereby amended to read as follows: 21-
21       4635. (a) Except as provided in K.S.A. 21-4634 and amendments thereto,
22       if a defendant is convicted of the crime of capital murder and a sentence
23       of death is not imposed, or if a defendant is convicted of murder in the
24       first degree based upon the finding of premeditated murder, the court
25       shall determine whether the defendant shall be required to serve a man-
26       datory term of imprisonment of 40 years or sentenced as otherwise pro-
27       vided by law.
28             (b) In order to make such determination, the court may be presented
29       evidence concerning any matter that the court deems relevant to the
30       question of sentence and shall include matters relating to any of the ag-
31       gravating circumstances enumerated in K.S.A. 21-4636 and amendments
32       thereto, and any mitigating circumstances. Any such evidence which the
33       court deems to have probative value may be received regardless of its
34       admissibility under the rules of evidence, provided that the defendant is
35       accorded a fair opportunity to rebut any hearsay statements. Only such
36       evidence of aggravating circumstances as the state has made known to
37       the defendant prior to the sentencing shall be admissible and no evidence
38       secured in violation of the constitution of the United States or of the state
39       of Kansas shall be admissible. No testimony by the defendant at the time
40       of sentencing shall be admissible against the defendant at any subsequent
41       criminal proceeding. At the conclusion of the evidentiary presentation,
42       the court shall allow the parties a reasonable period of time in which to
43       present oral argument.

SB 297

4

  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. 21-4738 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. 21-4738 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.
14             Sec.  6. K.S.A. 1998 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 sentence of imprisonment shall represent the time a person
17       shall actually serve serves, subject to a reduction of up to 15% of the
18       primary sentence for 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 K.S.A. 21-4622
23       through 21-4627, and 21-4629 through 21-4631, and amendments
24       thereto, The sentence shall be imprisonment for life.
25             Sec.  7. K.S.A. 22-3705 is hereby amended to read as follows: 22-
26       3705. The governor may, when he deems it deemed proper or advisable,
27       may commute a sentence in any criminal case by reducing the penalty as
28       follows:
29             (a) If the sentence is death, to imprisonment for life or for any term
30       not less than ten years;
31             (b) If the sentence is to imprisonment, by reducing the duration of
32       such imprisonment;
33             (c) (b) If the sentence is a fine, by reducing the amount thereof;
34             (d) (c) If the sentence is both imprisonment and fine, by reducing
35       either or both.
36             Sec.  8. K.S.A. 1998 Supp. 22-3717 is hereby amended to read as
37       follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.
38       1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-
39       4638 and amendments thereto, an inmate, including an inmate sentenced
40       pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for
41       parole after serving the entire minimum sentence imposed by the court,
42       less good time credits.
43             (b)  (1) Except as provided by K.S.A. 21-4635 through 21-4638 and

SB 297

5

  1       amendments thereto, an inmate sentenced to imprisonment for the crime
  2       of capital murder, or an inmate sentenced for the crime of murder in the
  3       first degree based upon a finding of premeditated murder, committed on
  4       or after July 1, 1994, shall be eligible for parole after serving 25 years of
  5       confinement, without deduction of any good time credits.
  6             (2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
  7       Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,
  8       and amendments thereto, an inmate sentenced to imprisonment for an
  9       off-grid offense committed on or after July 1, 1993, shall be eligible for
10       parole after serving 15 years of confinement, without deduction of any
11       good time credits.
12             (3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its
13       repeal, an inmate sentenced for a class A felony committed before July
14       1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and
15       amendments thereto, shall be eligible for parole after serving 15 years of
16       confinement, without deduction of any good time credits.
17             (4) An inmate sentenced to imprisonment for a violation of subsec-
18       tion (a) of K.S.A. 21-3402 and amendments thereto committed on or after
19       July 1, 1996, shall be eligible for parole after serving 10 years of confine-
20       ment without deduction of any good time credits.
21             (c) Except as provided in subsection (e), if an inmate is sentenced to
22       imprisonment for more than one crime and the sentences run consecu-
23       tively, the inmate shall be eligible for parole after serving the total of:
24             (1) The aggregate minimum sentences, as determined pursuant to
25       K.S.A. 21-4608 and amendments thereto, less good time credits for those
26       crimes which are not class A felonies; and
27             (2) an additional 15 years, without deduction of good time credits,
28       for each crime which is a class A felony.
29             (d)  (1) Persons sentenced for crimes, other than off-grid crimes,
30       committed on or after July 1, 1993, will not be eligible for parole, but will
31       be released to a mandatory period of postrelease supervision upon com-
32       pletion of the prison portion of their sentence as follows:
33             (A) Except as provided in subparagraphs (C) and (D), persons sen-
34       tenced for nondrug severity level 1 through 6 crimes and drug severity
35       levels 1 through 3 crimes must serve 36 months, plus the amount of good
36       time earned and retained pursuant to K.S.A. 21-4722 and amendments
37       thereto, on postrelease supervision.
38             (B) Except as provided in subparagraphs (C) and (D), persons sen-
39       tenced for nondrug severity level 7 through 10 crimes and drug severity
40       level 4 crimes must serve 24 months, plus the amount of good time earned
41       and retained pursuant to K.S.A. 21-4722 and amendments thereto, on
42       postrelease supervision.
43             (C)  (i) The sentencing judge shall impose the postrelease supervision

SB 297

6

  1       period provided in subparagraph (d)(1)(A) or (d)(1)(B), unless the judge
  2       finds substantial and compelling reasons to impose a departure based
  3       upon a finding that the current crime of conviction was sexually violent
  4       or sexually motivated. In that event, departure may be imposed to extend
  5       the postrelease supervision to a period of up to 60 months.
  6             (ii) If the sentencing judge departs from the presumptive postrelease
  7       supervision period, the judge shall state on the record at the time of
  8       sentencing the substantial and compelling reasons for the departure. De-
  9       partures in this section are subject to appeal pursuant to K.S.A. 21-4721
10       and amendments thereto.
11             (iii) In determining whether substantial and compelling reasons exist,
12       the court shall consider:
13             (a) Written briefs or oral arguments submitted by either the defend-
14       ant or the state;
15             (b) any evidence received during the proceeding;
16             (c) the presentence report, the victim's impact statement and any
17       psychological evaluation as ordered by the court pursuant to subsection
18       (e) of K.S.A. 21-4714 and amendments thereto; and
19             (d) any other evidence the court finds trustworthy and reliable.
20             (iv) The sentencing judge may order that a psychological evaluation
21       be prepared and the recommended programming be completed by the
22       offender. The department of corrections or the parole board shall ensure
23       that court ordered sex offender treatment be carried out.
24             (v) In carrying out the provisions of subparagraph (d)(1)(C), the court
25       shall refer to K.S.A. 21-4718 and amendments thereto.
26             (vi) Upon petition, the parole board may provide for early discharge
27       from the postrelease supervision period upon completion of court or-
28       dered programs and completion of the presumptive postrelease super-
29       vision period, as determined by the crime of conviction, pursuant to sub-
30       paragraph (d)(1)(A) or (B). Early discharge from postrelease supervision
31       is at the discretion of the parole board.
32             (vii) Persons convicted of crimes deemed sexually violent or sexually
33       motivated, shall be registered according to the habitual sex offender reg-
34       istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.
35             (D) The period of postrelease supervision provided in subparagraphs
36       (A) and (B) may be reduced by up to 12 months based on the offender's
37       compliance with conditions of supervision and overall performance while
38       on postrelease supervision. The reduction in the supervision period shall
39       be on an earned basis pursuant to rules and regulations adopted by the
40       secretary of corrections.
41             (E) In cases where sentences for crimes from more than one severity
42       level have been imposed, the offender shall serve the longest period of
43       postrelease supervision as provided by this section available for any crime

SB 297

7

  1       upon which sentence was imposed irrespective of the severity level of the
  2       crime. Supervision periods will not aggregate.
  3             (2) As used in this section, "sexually violent crime" means:
  4             (A) Rape, K.S.A. 21-3502, and amendments thereto;
  5             (B) indecent liberties with a child, K.S.A. 21-3503, and amendments
  6       thereto;
  7             (C) aggravated indecent liberties with a child, K.S.A. 21-3504, and
  8       amendments thereto;
  9             (D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
10       and amendments thereto;
11             (E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments
12       thereto;
13             (F) indecent solicitation of a child, K.S.A. 21-3510, and amendments
14       thereto;
15             (G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and
16       amendments thereto;
17             (H) sexual exploitation of a child, K.S.A. 21-3516, and amendments
18       thereto;
19             (I) aggravated sexual battery, K.S.A. 21-3518, and amendments
20       thereto;
21             (J) any conviction for a felony offense in effect at any time prior to
22       the effective date of this act, that is comparable to a sexually violent crime
23       as defined in subparagraphs (A) through (I), or any federal or other state
24       conviction for a felony offense that under the laws of this state would be
25       a sexually violent crime as defined in this section;
26             (K) an attempt, conspiracy or criminal solicitation, as defined in
27       K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually
28       violent crime as defined in this section; or
29             (L) any act which at the time of sentencing for the offense has been
30       determined beyond a reasonable doubt to have been sexually motivated.
31       As used in this subparagraph, "sexually motivated" means that one of the
32       purposes for which the defendant committed the crime was for the pur-
33       pose of the defendant's sexual gratification.
34             (e) If an inmate is sentenced to imprisonment for a crime committed
35       while on parole or conditional release, the inmate shall be eligible for
36       parole as provided by subsection (c), except that the Kansas parole board
37       may postpone the inmate's parole eligibility date by assessing a penalty
38       not exceeding the period of time which could have been assessed if the
39       inmate's parole or conditional release had been violated for reasons other
40       than conviction of a crime.
41             (f) If a person is sentenced to prison for a crime committed on or
42       after July 1, 1993, while on probation, parole, conditional release or in a
43       community corrections program, for a crime committed prior to July 1,

SB 297

8

  1       1993, and the person is not eligible for retroactive application of the
  2       sentencing guidelines and amendments thereto pursuant to K.S.A. 21-
  3       4724 and amendments thereto, the new sentence shall not be aggregated
  4       with the old sentence, but shall begin when the person is paroled or
  5       reaches the conditional release date on the old sentence. If the offender
  6       was past the offender's conditional release date at the time the new of-
  7       fense was committed, the new sentence shall not be aggregated with the
  8       old sentence but shall begin when the person is ordered released by the
  9       Kansas parole board or reaches the maximum sentence expiration date
10       on the old sentence, whichever is earlier. The new sentence shall then
11       be served as otherwise provided by law. The period of postrelease su-
12       pervision shall be based on the new sentence, except that those offenders
13       whose old sentence is a term of imprisonment for life, imposed pursuant
14       to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate
15       sentence with a maximum term of life imprisonment, for which there is
16       no conditional release or maximum sentence expiration date, shall remain
17       on postrelease supervision for life or until discharged from supervision
18       by the Kansas parole board.
19             (g) Subject to the provisions of this section, the Kansas parole board
20       may release on parole those persons confined in institutions who are el-
21       igible for parole when: (1) The board believes that the inmate should be
22       released for hospitalization, for deportation or to answer the warrant or
23       other process of a court and is of the opinion that there is reasonable
24       probability that the inmate can be released without detriment to the com-
25       munity or to the inmate; or (2) the secretary of corrections has reported
26       to the board in writing that the inmate has satisfactorily completed the
27       programs required by any agreement entered under K.S.A. 75-5210a and
28       amendments thereto, or any revision of such agreement, and the board
29       believes that the inmate is able and willing to fulfill the obligations of a
30       law abiding citizen and is of the opinion that there is reasonable proba-
31       bility that the inmate can be released without detriment to the community
32       or to the inmate. Parole shall not be granted as an award of clemency and
33       shall not be considered a reduction of sentence or a pardon.
34             (h) The Kansas parole board shall hold a parole hearing at least the
35       month prior to the month an inmate will be eligible for parole under
36       subsections (a), (b) and (c). At least the month preceding the parole hear-
37       ing, the county or district attorney of the county where the inmate was
38       convicted shall give written notice of the time and place of the public
39       comment sessions for the inmate to any victim of the inmate's crime who
40       is alive and whose address is known to the county or district attorney or,
41       if the victim is deceased, to the victim's family if the family's address is
42       known to the county or district attorney. Except as otherwise provided,
43       failure to notify pursuant to this section shall not be a reason to postpone

SB 297

9

  1       a parole hearing. In the case of any inmate convicted of a class A felony
  2       the secretary of corrections shall give written notice of the time and place
  3       of the public comment session for such inmate at least one month pre-
  4       ceding the public comment session to any victim of such inmate's crime
  5       or the victim's family pursuant to K.S.A. 74-7338 and amendments
  6       thereto. If notification is not given to such victim or such victim's family
  7       in the case of any inmate convicted of a class A felony, the board shall
  8       postpone a decision on parole of the inmate to a time at least 30 days
  9       after notification is given as provided in this section. Nothing in this sec-
10       tion shall create a cause of action against the state or an employee of the
11       state acting within the scope of the employee's employment as a result
12       of the failure to notify pursuant to this section. If granted parole, the
13       inmate may be released on parole on the date specified by the board, but
14       not earlier than the date the inmate is eligible for parole under subsec-
15       tions (a), (b) and (c). At each parole hearing and, if parole is not granted,
16       at such intervals thereafter as it determines appropriate, the Kansas parole
17       board shall consider: (1) Whether the inmate has satisfactorily completed
18       the programs required by any agreement entered under K.S.A. 75-5210a
19       and amendments thereto, or any revision of such agreement; and (2) all
20       pertinent information regarding such inmate, including, but not limited
21       to, the circumstances of the offense of the inmate; the presentence report;
22       the previous social history and criminal record of the inmate; the conduct,
23       employment, and attitude of the inmate in prison; the reports of such
24       physical and mental examinations as have been made; comments of the
25       victim and the victim's family; comments of the public; official comments;
26       and capacity of state correctional institutions.
27             (i) In those cases involving inmates sentenced for a crime committed
28       after July 1, 1993, the parole board will review the inmates proposed
29       release plan. The board may schedule a hearing if they desire. The board
30       may impose any condition they deem necessary to insure public safety,
31       aid in the reintegration of the inmate into the community, or items not
32       completed under the agreement entered into under K.S.A. 75-5210a and
33       amendments thereto. The board may not advance or delay an inmate's
34       release date. Every inmate while on postrelease supervision shall remain
35       in the legal custody of the secretary of corrections and is subject to the
36       orders of the secretary.
37             (j) Before ordering the parole of any inmate, the Kansas parole board
38       shall have the inmate appear before either in person or via a video con-
39       ferencing format and shall interview the inmate unless impractical be-
40       cause of the inmate's physical or mental condition or absence from the
41       institution. Every inmate while on parole shall remain in the legal custody
42       of the secretary of corrections and is subject to the orders of the secretary.
43       Whenever the Kansas parole board formally considers placing an inmate

SB 297

10

  1       on parole and no agreement has been entered into with the inmate under
  2       K.S.A. 75-5210a and amendments thereto, the board shall notify the in-
  3       mate in writing of the reasons for not granting parole. If an agreement
  4       has been entered under K.S.A. 75-5210a and amendments thereto and
  5       the inmate has not satisfactorily completed the programs specified in the
  6       agreement, or any revision of such agreement, the board shall notify the
  7       inmate in writing of the specific programs the inmate must satisfactorily
  8       complete before parole will be granted. If parole is not granted only
  9       because of a failure to satisfactorily complete such programs, the board
10       shall grant parole upon the secretary's certification that the inmate has
11       successfully completed such programs. If an agreement has been entered
12       under K.S.A. 75-5210a and amendments thereto and the secretary of
13       corrections has reported to the board in writing that the inmate has sat-
14       isfactorily completed the programs required by such agreement, or any
15       revision thereof, the board shall not require further program participa-
16       tion. However, if the board determines that other pertinent information
17       regarding the inmate warrants the inmate's not being released on parole,
18       the board shall state in writing the reasons for not granting the parole. If
19       parole is denied for an inmate sentenced for a crime other than a class A
20       or class B felony or an off-grid felony, the board shall hold another parole
21       hearing for the inmate not later than one year after the denial unless the
22       parole board finds that it is not reasonable to expect that parole would
23       be granted at a hearing if held in the next three years or during the interim
24       period of a deferral. In such case, the parole board may defer subsequent
25       parole hearings for up to three years but any such deferral by the board
26       shall require the board to state the basis for its findings. If parole is denied
27       for an inmate sentenced for a class A or class B felony or an off-grid
28       felony, the board shall hold another parole hearing for the inmate not
29       later than three years after the denial unless the parole board finds that
30       it is not reasonable to expect that parole would be granted at a hearing if
31       held in the next 10 years or during the interim period of a deferral. In
32       such case, the parole board may defer subsequent parole hearings for up
33       to 10 years but any such deferral shall require the board to state the basis
34       for its findings.
35             (k) Parolees and persons on postrelease supervision shall be assigned,
36       upon release, to the appropriate level of supervision pursuant to the cri-
37       teria established by the secretary of corrections.
38             (l) The Kansas parole board shall adopt rules and regulations in ac-
39       cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-
40       consistent with the law and as it may deem proper or necessary, with
41       respect to the conduct of parole hearings, postrelease supervision reviews,
42       revocation hearings, orders of restitution, reimbursement of expenditures
43       by the state board of indigents' defense services and other conditions to

SB 297

11

  1       be imposed upon parolees or releasees. Whenever an order for parole or
  2       postrelease supervision is issued it shall recite the conditions thereof.
  3             (m) Whenever the Kansas parole board orders the parole of an in-
  4       mate or establishes conditions for an inmate placed on postrelease su-
  5       pervision, the board:
  6             (1) Unless it finds compelling circumstances which would render a
  7       plan of payment unworkable, shall order as a condition of parole or post-
  8       release supervision that the parolee or the person on postrelease super-
  9       vision pay any transportation expenses resulting from returning the pa-
10       rolee or the person on postrelease supervision to this state to answer
11       criminal charges or a warrant for a violation of a condition of probation,
12       assignment to a community correctional services program, parole, con-
13       ditional release or postrelease supervision;
14             (2) to the extent practicable, shall order as a condition of parole or
15       postrelease supervision that the parolee or the person on postrelease su-
16       pervision make progress towards or successfully complete the equivalent
17       of a secondary education if the inmate has not previously completed such
18       educational equivalent and is capable of doing so;
19             (3) may order that the parolee or person on postrelease supervision
20       perform community or public service work for local governmental agen-
21       cies, private corporations organized not-for-profit or charitable or social
22       service organizations performing services for the community;
23             (4) may order the parolee or person on postrelease supervision to pay
24       the administrative fee imposed pursuant to K.S.A. 1998 Supp. 22-4529
25       unless the board finds compelling circumstances which would render pay-
26       ment unworkable; and
27             (5) unless it finds compelling circumstances which would render a
28       plan of payment unworkable, shall order that the parolee or person on
29       postrelease supervision reimburse the state for all or part of the expend-
30       itures by the state board of indigents' defense services to provide counsel
31       and other defense services to the person. In determining the amount and
32       method of payment of such sum, the parole board shall take account of
33       the financial resources of the person and the nature of the burden that
34       the payment of such sum will impose. Such amount shall not exceed the
35       amount claimed by appointed counsel on the payment voucher for indi-
36       gents' defense services or the amount prescribed by the board of indi-
37       gents' defense services reimbursement tables as provided in K.S.A. 22-
38       4522 and amendments thereto, whichever is less, minus any previous
39       payments for such services.
40             (n) If the court which sentenced an inmate specified at the time of
41       sentencing the amount and the recipient of any restitution ordered as a
42       condition of parole or postrelease supervision, the Kansas parole board
43       shall order as a condition of parole or postrelease supervision that the

SB 297

12

  1       inmate pay restitution in the amount and manner provided in the journal
  2       entry unless the board finds compelling circumstances which would ren-
  3       der a plan of restitution unworkable.
  4             (o) Whenever the Kansas parole board grants the parole of an inmate,
  5       the board, within 10 days of the date of the decision to grant parole, shall
  6       give written notice of the decision to the county or district attorney of the
  7       county where the inmate was sentenced.
  8             (p) When an inmate is to be released on postrelease supervision, the
  9       secretary, within 30 days prior to release, shall provide the county or
10       district attorney of the county where the inmate was sentenced written
11       notice of the release date.
12             (q) Inmates shall be released on postrelease supervision upon the
13       termination of the prison portion of their sentence. Time served while
14       on postrelease supervision will vest.
15             (r) An inmate who is allocated regular good time credits as provided
16       in K.S.A. 22-3725 and amendments thereto may receive meritorious good
17       time credits in increments of not more than 90 days per meritorious act.
18       These credits may be awarded by the secretary of corrections when an
19       inmate has acted in a heroic or outstanding manner in coming to the
20       assistance of another person in a life threatening situation, preventing
21       injury or death to a person, preventing the destruction of property or
22       taking actions which result in a financial savings to the state.
23             Sec.  9. K.S.A. 1998 Supp. 22-4505 is hereby amended to read as
24       follows: 22-4505. (a) When a defendant has been convicted in the district
25       court of any felony, the court shall inform the defendant of such defend-
26       ant's right to appeal the conviction to the appellate court having jurisdic-
27       tion and that if the defendant is financially unable to pay the costs of such
28       appeal such defendant may request the court to appoint an attorney to
29       represent the defendant on appeal and to direct that the defendant be
30       supplied with a transcript of the trial record.
31             (b) If the defendant files an affidavit stating that the defendant in-
32       tends to take an appeal in the case and if the court determines, as provided
33       in K.S.A. 22-4504 and amendments thereto, that the defendant is not
34       financially able to employ counsel, the court shall appoint counsel from
35       the panel for indigents' defense services or otherwise in accordance with
36       the applicable system for providing legal defense services for indigent
37       persons prescribed by the state board of indigents' defense services, to
38       represent the defendant and to perfect and handle the appeal. If the
39       defendant files a verified motion for transcript stating that a transcript of
40       the trial record is necessary to enable the defendant to prosecute the
41       appeal and that the defendant is not financially able to pay the cost of
42       procuring such transcript, and if the court finds that the statements con-
43       tained therein are true, the court shall order that such transcript be sup-

SB 297

13

  1       plied to the defendant as provided in K.S.A. 22-4509 and amendments
  2       thereto and paid for by the state board of indigents' defense services
  3       pursuant to claims submitted therefor.
  4             (c) Upon an appeal or petition for certiorari addressed to the supreme
  5       court of the United States, if the defendant is without means to pay the
  6       cost of making and forwarding the necessary records, the supreme court
  7       of Kansas may by order provide for the furnishing of necessary records.
  8             (d)  (1) The state board of indigents' defense services shall provide
  9       by rule and regulation for: (A) The assignment of attorneys to the panel
10       for indigents' defense services to represent indigent persons who have
11       been convicted of capital murder and are under sentence of death, in the
12       direct review of the judgment;
13             (B) standards of competency and qualification for the appointment
14       of counsel in capital cases under this section; and
15             (C) the reasonable compensation of counsel appointed to represent
16       individuals convicted of capital murder and under a sentence of death in
17       the appeal of such cases and for reasonable and necessary litigation ex-
18       pense associated with such appeals.
19             (2) If a defendant has been convicted of capital murder and is under
20       a sentence of death, the district court shall make a determination on the
21       record whether the defendant is indigent. Upon a finding that the de-
22       fendant is indigent and accepts the offer of representation or is unable
23       competently to decide whether to accept or reject the offer, the court
24       shall appoint one or more counsel, in accordance with subsection (d)(1),
25       to represent the defendant. If the defendant rejects the offer of repre-
26       sentation, the court shall find on the record, after a hearing if necessary,
27       whether the defendant rejected the offer of representation with the un-
28       derstanding of its legal consequences. The court shall deny the appoint-
29       ment of counsel upon a finding that the defendant is competent and not
30       indigent.
31             (3) Counsel appointed to represent the defendant, under this section,
32       shall not have represented the defendant at trial unless the defendant and
33       counsel expressly request continued representation.
34             Sec.  10. K.S.A. 1998 Supp. 22-4506 is hereby amended to read as
35       follows: 22-4506. (a) Whenever any person who is in custody under a
36       sentence of imprisonment upon conviction of a felony files a petition for
37       writ of habeas corpus or a motion attacking sentence under K.S.A. 60-
38       1507 and files with such petition or motion such person's affidavit stating
39       that the petition or motion is filed in good faith and that such person is
40       financially unable to pay the costs of such action and to employ counsel
41       therefor, the court shall make a preliminary examination of the petition
42       or motion and the supporting papers.
43             (b) If the court finds that the petition or motion presents substantial

SB 297

14

  1       questions of law or triable issues of fact and if the petitioner or movant
  2       has been or is thereafter determined to be an indigent person as provided
  3       in K.S.A. 22-4504 and amendments thereto, the court shall appoint coun-
  4       sel from the panel for indigents' defense services or otherwise in accord-
  5       ance with the applicable system for providing legal defense services for
  6       indigent persons prescribed by the state board of indigents' defense serv-
  7       ices, to assist such person and authorize the action to be filed without a
  8       deposit of security for costs. If the petition or motion in such case raises
  9       questions shown by the trial record, the court shall order that the peti-
10       tioner or movant be supplied with a transcript of the trial proceedings,
11       or so much thereof as may be necessary to present the issue, without cost
12       to such person.
13             (c) If an appeal is taken in such action and if the trial court finds that
14       the petitioner or movant is an indigent person, the trial court shall appoint
15       counsel to conduct the appeal, order that the appellant be supplied with
16       a record of the proceedings or so much thereof as such counsel deter-
17       mines to be necessary and order that the deposit of security for costs be
18       waived.
19             (d)  (1) The state board of indigents' defense services shall provide
20       by rule and regulation for: (A) The assignment of attorneys to the panel
21       for indigents' defense services to represent indigent persons, who have
22       been convicted of capital murder and are under sentence of death, upon
23       a filing of a petition for writ of habeas corpus or a motion attacking sen-
24       tence under K.S.A. 60-1507 and amendments thereto;
25             (B) standards of competency and qualification for the appointment
26       of counsel in capital cases under this section; and
27             (C) the reasonable compensation of counsel appointed to represent
28       individuals convicted of capital murder and under a sentence of death,
29       during proceedings conducted pursuant to subsection (a), (b) or (c) and
30       for reasonable and necessary litigation expense associated with such
31       proceedings.
32             (2) If a petitioner or movant, who has been convicted of capital mur-
33       der and is under a sentence of death, files a petition for writ of habeas
34       corpus or a motion attacking sentence under K.S.A. 60-1507 and amend-
35       ments thereto, the district court shall make a determination on the record
36       whether the petitioner or movant is indigent. Upon a finding that the
37       petitioner or movant is indigent and accepts the offer of representation
38       or is unable competently to decide whether to accept or reject the offer,
39       the court shall appoint one or more counsel, in accordance with subsec-
40       tion (d) (1), to represent the petitioner or movant. If the petitioner or
41       movant rejects the offer of representation, the court shall find on the
42       record, after a hearing if necessary, whether the petitioner or movant
43       rejected the offer of representation with the understanding of its legal

SB 297

15

  1       consequences. The court shall deny the appointment of counsel upon a
  2       finding that the petitioner or movant is competent and not indigent.
  3             (3) Counsel appointed to represent the petitioner or movant shall not
  4       have represented the petitioner or movant at trial or on direct appeal
  5       therefrom unless the petitioner or movant and counsel expressly request
  6       continued representation.  
  7       Sec.  11. K.S.A. 21-3439, 21-4622, 21-4623, 21-4624, 21-4625, 21-
  8       4627, 21-4629, 21-4630, 21-4631, 21-4634, 21-4635, 22-3704, 22-3705,
  9       22-4001, 22-4002, 22-4003, 22-4004, 22-4005, 22-4006, 22-4009, 22-
10       4011, 22-4012, 22-4013, 22-4014, 22-4015 and 22-4016 and K.S.A. 1998
11       Supp. 21-3105, 21-4626, 21-4706, 22-3717, 22-4505 and 22-4506 are
12       hereby repealed.
13        Sec.  12. This act shall take effect and be in force from and after its
14       publication in the statute book.