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Session of 2000
          SENATE BILL No. 419           By Committee on Judiciary           1-18          

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  9             AN  ACT concerning crimes, criminal procedure and punishment; relat-
10             ing to sentencing; amending K.S.A. 21-4703, 21-4709, 21-4710 and 21-
11             4721 and K.S.A. 1999 Supp. 21-4711 and 21-4716 and repealing the
12             existing sections.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 21-4703 is hereby amended to read as follows: 21-
16       4703. As used in this act:
17             (a) "Aggravating factors" mean substantial and compelling reasons
18       justifying an exceptional sentence whereby the sentencing court may im-
19       pose a departure sentence outside the standard sentencing range for a
20       crime. Aggravating factors may result in dispositional or durational de-
21       partures and shall be stated on the record by the court;
22             (b) "commission" means the Kansas sentencing commission;
23             (c) "criminal history" means and includes adult felony, class A mis-
24       demeanor, class B person misdemeanor, or select misdemeanor convic-
25       tions and comparable juvenile adjudications possessed by an offender at
26       the time such offender is sentenced;
27             (d) "criminal history score" means the summation of the convictions
28       described as criminal history that place an offender in one of the criminal
29       history score categories listed on the horizontal axis of the sentencing
30       guidelines grid for nondrug crimes and the sentencing guidelines grid for
31       drug crimes;
32             (e) "decay factor" means prior convictions that are no longer consid-
33       ered as part of an offender's criminal history score;
34             (f) "departure" means a sentence which is inconsistent with the pre-
35       sumptive sentence for an offender;
36             (g) "dispositional departure" means a sentence which is inconsistent
37       with the presumptive sentence by imposing a nonprison sanction when
38       the presumptive sentence is prison or prison when the presumptive sen-
39       tence is nonimprisonment;
40             (h) "dispositional line" means the solid black line on the sentencing
41       guidelines grid for nondrug crimes and the sentencing guidelines grid for
42       drug crimes which separates the grid blocks in which the presumptive
43       sentence is a term of imprisonment and postrelease supervision from the

2
  1       grid blocks in which the presumptive sentence is nonimprisonment which
  2       may include local custodial sanctions;
  3             (i) "durational departure" means a sentence which is inconsistent
  4       with the presumptive sentence as to term of imprisonment, or term of
  5       nonimprisonment;
  6             (j) "good time" means a method of behavior control or sanctions util-
  7       ized by the department of corrections. Good time can result in a decrease
  8       of up to 20% of the prison part of the sentence.
  9             (k) "grid" means the sentencing guidelines grid for nondrug crimes
10       as provided in K.S.A. 21-4704 or the sentencing guidelines grid for drug
11       crimes as provided in K.S.A. 21-4705, or both;
12             (l) "grid block" means a box on the grid formed by the intersection
13       of the crime severity ranking of a current crime of conviction and an
14       offender's criminal history classification;
15             (m) "imprisonment" means imprisonment in a facility operated by
16       the Kansas department of corrections;
17             (n) "mitigating factors" means substantial and compelling reasons jus-
18       tifying an exceptional sentence whereby the sentencing court may impose
19       a departure sentence outside of the standard sentencing range for an
20       offense. Mitigating factors may result in dispositional or durational de-
21       partures and shall be stated on the record by the court;
22             (o) "nonimprisonment," "nonprison" or "nonprison sanction" means
23       probation, community corrections, conservation camp, house arrest or
24       any other community based disposition;
25             (p) "postrelease supervision" means the release of a prisoner to the
26       community after having served a period of imprisonment or equivalent
27       time served in a facility where credit for time served is awarded as set
28       forth by the court, subject to conditions imposed by the Kansas parole
29       board and to the secretary of correction's supervision;
30             (q) "presumptive sentence" means the sentence provided in a grid
31       block for an offender classified in that grid block by the combined effect
32       of the crime severity ranking of the current crime of conviction and the
33       offender's criminal history;
34             (r) "prison" means a facility operated by the Kansas department of
35       corrections; and
36             (s) "sentencing range" means the sentencing court's discretionary
37       range in imposing a nonappealable sentence.
38             Sec.  2. K.S.A. 21-4709 is hereby amended to read as follows: 21-
39       4709. The criminal history scale is represented in abbreviated form on
40       the horizontal axis of the sentencing guidelines grid for nondrug crimes
41       and the sentencing guidelines grid for drug crimes. The relative severity
42       of each criminal history category decreases from left to right on such grids.
43       Criminal history category A is the most serious classification. Criminal

3
  1       history category I is the least serious classification. The criminal history
  2       categories in the criminal history scale are:
  3      

4       5

Criminal History Category

Descriptive Criminal History

  6      

7	A	The offender's criminal history includes three or more adult convictions or juvenile adjudications, in any combination, for per-son felonies.
8	B	The offender's criminal history includes two adult convictions orjuvenile adjudications, in any combination, for personfelonies.
9	C	The offender's criminal history includes one adult conviction orjuvenile adjudication for a person felony, and one or moreadult conviction or juvenile adjudication for a nonpersonfelony.
10	D	The offender's criminal history includes one adult conviction orjuvenile adjudication for a person felony, but no adult convic-tion or juvenile adjudications for a nonperson felony.
11	E	The offender's criminal history includes three or more adult con-victions or juvenile adjudications for nonperson felonies, butno adult conviction or juvenile adjudication for a personfelony.
12	F	The offender's criminal history includes two adult convictions orjuvenile adjudications for nonperson felonies, but no adultconviction or juvenile adjudication for a person felony.
13	G	The offender's criminal history includes one adult conviction orjuvenile adjudication for a nonperson felony, but no adult con-viction or juvenile adjudication for a person felony.
14	H	The offender's criminal history includes two or more adult con-victions or juvenile adjudications for nonperson and/or or se-lect misdemeanors, or both, and no more than two adult con-victions or juvenile adjudications for person misdemeanors,but no adult conviction or juvenile adjudication for either aperson or nonperson felony.
15	I	The offender's criminal history includes no prior record; or, oneadult conviction or juvenile adjudication for a person, non-person, or select misdemeanor, but no adult conviction orjuvenile adjudication for either a person or nonperson felony.

16             Sec.  3. K.S.A. 21-4710 is hereby amended to read as follows: 21-
17       4710. (a) Criminal history categories contained in the sentencing guide-
18       lines grid for nondrug crimes and the sentencing guidelines grid for drug
19       crimes are based on the following types of prior convictions: Person felony
20       adult convictions, nonperson felony adult convictions, person felony ju-

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  1       venile adjudications, nonperson felony juvenile adjudications, person mis-
  2       demeanor adult convictions, nonperson class A misdemeanor adult con-
  3       victions, person misdemeanor juvenile adjudications, nonperson class A
  4       misdemeanor juvenile adjudications, select class B nonperson misde-
  5       meanor adult convictions, select class B nonperson misdemeanor juvenile
  6       adjudications and convictions and adjudications for violations of municipal
  7       ordinances or county resolutions which are comparable to any crime clas-
  8       sified under the state law of Kansas as a person misdemeanor, select
  9       nonperson class B misdemeanor or nonperson class A misdemeanor. A
10       prior conviction is any conviction, other than another count in the current
11       case which was brought in the same information or complaint or which
12       was joined for trial with other counts in the current case pursuant to
13       K.S.A. 22-3203 and amendments thereto, which occurred prior to sen-
14       tencing in the current case regardless of whether the offense that led to
15       the prior conviction occurred before or after the current offense or the
16       conviction in the current case.
17             (b) A class B nonperson select misdemeanor is a special classification
18       established for weapons violations. Such classification shall be considered
19       and scored in determining an offender's criminal history classification.
20             (c) Except as otherwise provided, all convictions, whether sentenced
21       consecutively or concurrently, shall be counted separately in the of-
22       fender's criminal history.
23             (d) Except as provided in K.S.A. 21-4716, and amendments thereto,
24       the following are applicable to determining an offender's criminal history
25       classification:
26             (1) Only verified convictions will be considered and scored.
27             (2) All prior adult felony convictions, including expungements, will
28       be considered and scored.
29             (3) There will be no decay factor applicable for adult convictions.
30             (4) Except as otherwise provided, a juvenile adjudication, which
31       would have been a nonperson class D or E felony if committed before
32       July 1, 1993, or a nondrug level 6, 7, 8, 9 or 10, or drug level 4, nonperson
33       felony if committed on or after July 1, 1993, or a misdemeanor if com-
34       mitted by an adult, will decay if the current crime of conviction is com-
35       mitted after the offender reaches the age of 25.
36             (5) For convictions of crimes committed before July 1, 1993, a ju-
37       venile adjudication which would constitute a class A, B or C felony, if
38       committed by an adult, will not decay. For convictions of crimes com-
39       mitted on or after July 1, 1993, a juvenile adjudication which would con-
40       stitute an off-grid felony, a nondrug severity level 1, 2, 3, 4 or 5 felony,
41       or a drug severity level 1, 2 or 3 felony, if committed by an adult, will not
42       decay.
43             (6) All juvenile adjudications which would constitute a person felony

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  1       will not decay or be forgiven.
  2             (7) All person misdemeanors, class A nonperson misdemeanors and
  3       class B select nonperson misdemeanors, and all municipal ordinance and
  4       county resolution violations comparable to such misdemeanors, shall be
  5       considered and scored.
  6             (8) (5) Unless otherwise provided by law, unclassified felonies and
  7       misdemeanors, shall be considered and scored as nonperson crimes for
  8       the purpose of determining criminal history.
  9             (9) (6) Prior convictions of a crime defined by a statute which has
10       since been repealed shall be scored using the classification assigned at
11       the time of such conviction.
12             (10) (7) Prior convictions of a crime defined by a statute which has
13       since been determined unconstitutional by an appellate court shall not
14       be used for criminal history scoring purposes.
15             (11) (8) Prior convictions of any crime shall not be counted in deter-
16       mining the criminal history category if they enhance the severity level or
17       applicable penalties, elevate the classification from misdemeanor to fel-
18       ony, or are elements of the present crime of conviction. Except as oth-
19       erwise provided, all other prior convictions will be considered and scored.
20             Sec.  4. K.S.A. 1999 Supp. 21-4711 is hereby amended to read as
21       follows: 21-4711. In addition to the provisions of K.S.A. 21-4710 and
22       amendments thereto, the following shall apply in determining an of-
23       fender's criminal history classification as contained in the presumptive
24       sentencing guidelines grid for nondrug crimes and the presumptive sen-
25       tencing guidelines grid for drug crimes:
26             (a) Every three prior adult convictions or juvenile adjudications of
27       class A and class B person misdemeanors in the offender's criminal his-
28       tory, or any combination thereof, shall be rated as one adult conviction
29       or one juvenile adjudication of a person felony for criminal history pur-
30       poses. Every three prior adult convictions or juvenile adjudications of
31       assault as defined in K.S.A. 21-3408 and amendments thereto occurring
32       within a period commencing three years prior to the date of conviction
33       for the current crime of conviction shall be rated as one adult conviction
34       or one juvenile adjudication of a person felony for criminal history
35       purposes.
36             (b) A conviction of subsection (a)(1) of K.S.A. 21-4204 and amend-
37       ments thereto, criminal possession of firearms by a person who is both
38       addicted to and an unlawful user of a controlled substance, subsection
39       (a)(4) of K.S.A. 21-4204 and amendments thereto, possession of a firearm
40       on school grounds or K.S.A. 21-4218 and amendments thereto, possession
41       of a firearm on the grounds or in the state capitol building, will be scored
42       as a select class B nonperson misdemeanor conviction or adjudication and
43       shall not be scored as a person misdemeanor for criminal history

6
  1       purposes.
  2             (c)  (1) If the current crime of conviction was committed before July
  3       1, 1996, and is for subsection (b) of K.S.A. 21-3404, involuntary man-
  4       slaughter in the commission of K.S.A. 8-1567 and amendments thereto
  5       driving under the influence, then, each prior adult conviction or juvenile
  6       adjudication for K.S.A. 8-1567 and amendments thereto shall count as
  7       one person felony for criminal history purposes.
  8             (2) If the current crime of conviction was committed on or after July
  9       1, 1996, and is for involuntary manslaughter while driving under the in-
10       fluence of alcohol and drugs, each prior adult conviction, or diversion in
11       lieu of criminal prosecution or juvenile adjudication for an act described
12       in K.S.A. 8-1567 and amendments thereto shall count as one person fel-
13       ony for criminal history purposes.
14             (d) Prior burglary adult convictions and juvenile adjudications will be
15       scored for criminal history purposes as follows:
16             (1) As a prior person felony if the prior conviction or adjudication
17       was classified as a burglary as described in subsection (a) of K.S.A. 21-
18       3715 and amendments thereto.
19             (2) As a prior nonperson felony if the prior conviction or adjudication
20       was classified as a burglary as described in subsection (b) or (c) of K.S.A.
21       21-3715 and amendments thereto.
22             The facts required to classify prior burglary adult convictions and ju-
23       venile adjudications must be established by the state by a preponderance
24       of the evidence.
25             (e) Out-of-state convictions and juvenile adjudications will be used in
26       classifying the offender's criminal history. An out-of-state crime will be
27       classified as either a felony or a misdemeanor according to the convicting
28       jurisdiction. If a crime is a felony in another state, it will be counted as a
29       felony in Kansas. The state of Kansas shall classify the crime as person or
30       nonperson. In designating a crime as person or nonperson comparable
31       offenses shall be referred to. If the state of Kansas does not have a com-
32       parable offense, the out-of-state conviction shall be classified as a non-
33       person crime. Convictions or adjudications occurring within the federal
34       system, other state systems, the District of Columbia, foreign, tribal or
35       military courts are considered out-of-state convictions or adjudications.
36       The facts required to classify out-of-state adult convictions and juvenile
37       adjudications must be established by the state by a preponderance of the
38       evidence.
39             (f) Except as provided in subsections (4), (5) and (6) of K.S.A. 21-
40       4710 and amendments thereto, juvenile adjudications will be applied in
41       the same manner as adult convictions. Out-of-state juvenile adjudications
42       will be treated as juvenile adjudications in Kansas.
43             (g) A prior felony conviction of an attempt, a conspiracy or a solici-

7
  1       tation as provided in K.S.A. 21-3301, 21-3302 or 21-3303 and amend-
  2       ments thereto, to commit a crime shall be treated as a person or non-
  3       person crime in accordance with the designation assigned to the
  4       underlying crime.
  5             (h) (g) Drug crimes are designated as nonperson crimes for criminal
  6       history scoring.
  7             Sec.  5. K.S.A. 1999 Supp. 21-4716 is hereby amended to read as
  8       follows: 21-4716. (a) The sentencing judge shall impose the presumptive
  9       sentence provided by the sentencing guidelines for crimes committed on
10       or after July 1, 1993, unless the judge finds substantial and compelling
11       reasons to impose a departure. If the sentencing judge departs from the
12       presumptive sentence, the judge shall state on the record at the time of
13       sentencing the substantial and compelling reasons for the departure.
14             (b)  (1) Subject to the provisions of subsection (b)(3), the following
15       nonexclusive list of mitigating factors may be considered in determining
16       whether substantial and compelling reasons for a departure exist:
17             (A) The victim was an aggressor or participant in the criminal conduct
18       associated with the crime of conviction.
19             (B) The offender played a minor or passive role in the crime or par-
20       ticipated under circumstances of duress or compulsion. This factor is not
21       sufficient as a complete defense.
22             (C) The offender, because of physical or mental impairment, lacked
23       substantial capacity for judgment when the offense was committed. The
24       voluntary use of intoxicants, drugs or alcohol does not fall within the
25       purview of this factor.
26             (D) The defendant, or the defendant's children, suffered a continuing
27       pattern of physical or sexual abuse by the victim of the offense and the
28       offense is a response to that abuse.
29             (E) The degree of harm or loss attributed to the current crime of
30       conviction was significantly less than typical for such an offense.
31             (2) Subject to the provisions of subsection (b)(3), the following no-
32       nexclusive list of aggravating factors may be considered in determining
33       whether substantial and compelling reasons for departure exist:
34             (A) The victim was particularly vulnerable due to age, infirmity, or
35       reduced physical or mental capacity which was known or should have
36       been known to the offender.
37             (B) The defendant's conduct during the commission of the current
38       offense manifested excessive brutality to the victim in a manner not nor-
39       mally present in that offense.
40             (C) The offense was motivated entirely or in part by the race, color,
41       religion, ethnicity, national origin or sexual orientation of the victim.
42             (D) The offense involved a fiduciary relationship which existed be-
43       tween the defendant and the victim.

8
  1             (E) The defendant, 18 or more years of age, employed, hired, used,
  2       persuaded, induced, enticed or coerced any individual under 16 years of
  3       age to commit or assist in avoiding detection or apprehension for com-
  4       mission of any person felony or any attempt, conspiracy or solicitation as
  5       defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto
  6       to commit any person felony regardless of whether the defendant knew
  7       the age of the individual under 16 years of age.
  8             (F) The defendant's current crime of conviction is a crime of extreme
  9       sexual violence and the defendant is a predatory sex offender. As used in
10       this subsection:
11             (i) "Crime of extreme sexual violence" is a felony limited to the
12       following:
13             (a) A crime involving a nonconsensual act of sexual intercourse or
14       sodomy with any person;
15             (b) a crime involving an act of sexual intercourse, sodomy or lewd
16       fondling and touching with any child who is 14 or more years of age but
17       less than 16 years of age and with whom a relationship has been estab-
18       lished or promoted for the primary purpose of victimization; or
19             (c) a crime involving an act of sexual intercourse, sodomy or lewd
20       fondling and touching with any child who is less than 14 years of age.
21             (ii) "Predatory sex offender" is an offender who has been convicted
22       of a crime of extreme sexual violence as the current crime of conviction
23       and who:
24             (a) Has one or more prior convictions of any crimes of extreme sexual
25       violence. Any prior conviction used to establish the defendant as a pred-
26       atory sex offender pursuant to this subsection shall also be counted in
27       determining the criminal history category; or
28             (b) suffers from a mental condition or personality disorder which
29       makes the offender likely to engage in additional acts constituting crimes
30       of extreme sexual violence.
31             (iii) "Mental condition or personality disorder" means an emotional,
32       mental or physical illness, disease, abnormality, disorder, pathology or
33       condition which motivates the person, affects the predisposition or desires
34       of the person, or interferes with the capacity of the person to control
35       impulses to commit crimes of extreme sexual violence.
36             (G) The defendant has a history of prior juvenile adjudications or
37       activity which if committed while an adult would be criminal.
38             In determining whether aggravating factors exist as provided in this
39       section, the court shall review the victim impact statement.
40             (3) If a factual aspect of a crime is a statutory element of the crime
41       or is used to subclassify the crime on the crime severity scale, that aspect
42       of the current crime of conviction may be used as an aggravating or mit-
43       igating factor only if the criminal conduct constituting that aspect of the

9
  1       current crime of conviction is significantly different from the usual crim-
  2       inal conduct captured by the aspect of the crime.
  3             (c) In determining aggravating or mitigating circumstances, the court
  4       shall consider:
  5             (1) Any evidence received during the proceeding;
  6             (2) the presentence report;
  7             (3) written briefs and oral arguments of either the state or counsel
  8       for the defendant; and
  9             (4) any other evidence relevant to such aggravating or mitigating cir-
10       cumstances that the court finds trustworthy and reliable.
11             Sec.  6. K.S.A. 21-4721 is hereby amended to read as follows: 21-
12       4721. (a) A departure sentence is subject to appeal by the defendant or
13       the state. The appeal shall be to the appellate courts in accordance with
14       rules adopted by the supreme court.
15             (b) Pending review of the sentence, the sentencing court or the ap-
16       pellate court may order the defendant confined or placed on conditional
17       release, including bond.
18             (c) On appeal from a judgment or conviction entered for a felony
19       committed on or after July 1, 1993, the appellate court shall not review:
20             (1) Any sentence that is within the presumptive sentence for the
21       crime; or
22             (2) any sentence resulting from an agreement between the state and
23       the defendant which the sentencing court approves on the record.
24             (d) In any appeal from a judgment of conviction imposing a sentence
25       that departs from the presumptive sentence prescribed by the sentencing
26       grid for a crime, sentence review shall be limited to whether the sen-
27       tencing court's findings of fact and reasons justifying a departure:
28             (1) Are supported by the evidence in the record; and
29             (2) constitute substantial and compelling reasons for departure.
30             (e) In any appeal, the appellate court may review a claim that:
31             (1) A sentence that departs from the presumptive sentence resulted
32       from partiality, prejudice, oppression or corrupt motive;
33             (2) the sentencing court erred in either including or excluding rec-
34       ognition of a prior conviction or juvenile adjudication for criminal history
35       scoring purposes; or
36             (3) the sentencing court erred in ranking the crime severity level of
37       the current crime or in determining the appropriate classification of a
38       prior conviction or juvenile adjudication for criminal history purposes.
39             (f) The appellate court may reverse or affirm the sentence. If the
40       appellate court concludes that the trial court's factual findings are not
41       supported by evidence in the record or do not establish substantial and
42       compelling reasons for a departure, it shall remand the case to the trial
43       court for resentencing.

10
  1             (g) The appellate court shall issue a written opinion whenever the
  2       judgment of the sentencing court is reversed. The court may issue a writ-
  3       ten opinion in any other case when it is believed that a written opinion
  4       will provide guidance to sentencing judges and others in implementing
  5       the sentencing guidelines adopted by the Kansas sentencing commission.
  6       The appellate courts may provide by rule for summary disposition of cases
  7       arising under this section when no substantial question is presented by
  8       the appeal.
  9             (h) A review under summary disposition shall be made solely upon
10       the record that was before the sentencing court. Written briefs shall not
11       be required unless ordered by the appellate court and the review and
12       decision shall be made in an expedited manner according to rules adopted
13       by the supreme court.
14             (i) The sentencing court shall retain authority irrespective of any no-
15       tice of appeal for 90 days after entry of judgment of conviction to modify
16       its judgment and sentence to correct any arithmetic or clerical errors. 
17       Sec.  7. K.S.A. 21-4703, 21-4709, 21-4710 and 21-4721 and K.S.A.
18       1999 Supp. 21-4711 and 21-4716 are hereby repealed.
19        Sec.  8. This act shall take effect and be in force from and after its
20       publication in the statute book.