An Act concerning crimes, criminal procedure and punishment; amending K.S.A. 21-3412, as amended by section 4 of 1996 Senate Bill No. 674, 21-3413, 21-3502, 21-4219, as amended by section 4 of 1996 Senate Bill No. 339, 21-4611, 21-4704, 21-4705, 21-4714, 21-4716, 22-3426 and 22-3426a and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. (a) Battery against a school employee is a battery, as defined in K.S.A. 21-3412, and amendments thereto, committed against a school employee in or on any school property or grounds upon which is located a building or structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or ex- tracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12 or at any regularly scheduled school sponsored activity or event, while such employee is engaged in the performance of such employee's duty.

(b) Battery against a school employee is a class A, person misde- meanor.

(c) As used in this section, ``school employee'' means any employee of a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any or the grades one through 12.

(d) This section shall be part of and supplemental to the Kansas crim- inal code.

Sec. 2. K.S.A. 21-3413 is hereby amended to read as follows: 21- 3413. Battery against a law enforcement officer is a battery, as defined in K.S.A. 21-3412 and amendments thereto:

(a) (1) Committed against a uniformed or properly identified state, county or city law enforcement officer other than a state correctional officer or employee, a city or county correctional officer or employee, a state youth center officer or employee or a juvenile detention facility officer or employee, while such officer is engaged in the performance of such officer's duty;

(2) committed against a state correctional officer or employee by a person in custody of the secretary of corrections, while such officer or employee is engaged in the performance of such officer's or employee's duty;

(3) committed against a state youth center officer or employee by a person confined in such youth center, while such officer or employee is engaged in the performance of such officer's or employee's duty; or

(4) committed against a juvenile detention facility officer or employee by a person confined in such juvenile detention facility, while such officer or employee is engaged in the performance of such officer's or employee's duty; or

(5) committed against a city or county correctional officer or em- ployee by a person confined in a city holding facility or county jail facility, while such officer or employee is engaged in the performance of such officer's or employee's duty.

(b) Battery against a law enforcement officer as defined in subsection (a)(1) is a class A person misdemeanor. Battery against a law enforcement officer as defined in subsection (a)(2), (a)(3) or, (a)(4) or (a)(5) is a severity level 7, person felony.

(c) As used in this section:

(1) ``Correctional institution'' means any institution or facility under the supervision and control of the secretary of corrections.

(2) ``Correctional State correctional officer or employee'' means any officer or employee of the Kansas department of corrections or any in- dependent contractor, or any employee of such contractor, working at a correctional institution.

(3) ``State youth center officer or employee'' means any officer or employee of the Kansas department of social and rehabilitation services or any independent contractor, or any employee of such contractor, work- ing at a state youth center, as defined in K.S.A. 38-1602 and amendments thereto.

(4) ``Juvenile detention facility officer or employee'' means any officer or employee of a juvenile detention facility as defined in K.S.A. 38-1602 and amendments thereto.

(5) ``City or county correctional officer or employee'' means any cor- rectional officer or employee of the city or county or any independent contractor, or any employee of such contractor, working at a city holding facility or county jail facility.

Sec. 3. K.S.A. 21-3502 is hereby amended to read as follows: 21- 3502. (a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circum- stances:

(A) When the victim is overcome by force or fear;

(B) when the victim is unconscious or physically powerless; or

(C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other sub- stance, which condition was known by the offender or was reasonably apparent to the offender; or

(2) sexual intercourse with a child who is under 14 years of age;

(3) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary pro- cedure; or

(4) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender's authority.

(b) It shall be a defense to a prosecution of rape under subsection (a)(2) that the child was married to the accused at the time of the offense.

(c) Rape as described in subsection (a)(1) or (2) is a severity level 1, person felony. Rape as described in subsection (a)(3) or (4) is a severity level 2, person felony.

Sec. 4. K.S.A. 21-4611 is hereby amended to read as follows: 21- 4611. (a) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases involving crimes committed prior to July 1, 1993, or two years in misdemeanor cases, subject to renewal and extension for addi- tional fixed periods not exceeding five years in such felony cases, nor two years in misdemeanor cases. In no event shall the total period of proba- tion, suspension of sentence or assignment to community corrections for a felony committed prior to July 1, 1993, exceed the greatest maximum term provided by law for the crime, except that where the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. Probation, suspension of sen- tence or assignment to community corrections may be terminated by the court at any time and upon such termination or upon termination by expiration of the term of probation, suspension of sentence or assignment to community corrections, an order to this effect shall be entered by the court.

(b) The district court having jurisdiction of the offender may parole any misdemeanant sentenced to confinement in the county jail. The pe- riod of such parole shall be fixed by the court and shall not exceed two years and shall be terminated in the manner provided for termination of suspended sentence and probation.

(c) For all crimes committed on or after July 1, 1993, the recom- mended duration of probation in all felony cases is as follows:

(1) For nondrug crimes:

(A) Thirty-six months for crimes in crime severity levels 1 through 5; and

(B) 24 months for crimes in crime severity levels 6 through 10; and

(2) for drug crimes:

(A) Thirty-six months for crimes in crime severity levels 1 through 3; and

(B) 24 months for crimes in crime severity level 4.

(3) Except as provided in subsections (c)(4) and (c)(5), the total pe- riod in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by the court at any time.

(4) If the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.

(5) The court may modify or extend the offender's period of super- vision, pursuant to a modification hearing and a judicial finding of neces- sity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.

Sec. 5. K.S.A. 21-4714 is hereby amended to read as follows: 21- 4714. (a) The court shall order the preparation of the presentence inves- tigation report by the court services officer as soon as possible after con- viction of the defendant.

(b) Each presentence report prepared for an offender to be sen- tenced for one or more felonies committed on or after July 1, 1993, shall be limited to the following information:

(1) A summary of the factual circumstances of the crime or crimes of conviction.

(2) If the defendant desires to do so, a summary of the defendant's version of the crime.

(3) When there is an identifiable victim, a victim report. The person preparing the victim report shall submit the report to the victim and request that the information be returned to be submitted as a part of the presentence investigation. To the extent possible, the report shall include a complete listing of restitution for damages suffered by the victim.

(4) An appropriate classification of each crime of conviction on the crime severity scale.

(5) A listing of prior adult convictions or juvenile adjudications for felony or misdemeanor crimes or violations of county resolutions or city ordinances comparable to any misdemeanor defined by state law. Such listing shall include an assessment of the appropriate classification of the criminal history on the criminal history scale and the source of informa- tion regarding each listed prior conviction and any available source of journal entries or other documents through which the listed convictions may be verified. If any such journal entries or other documents are ob- tained by the court services officer, they shall be attached to the pre- sentence investigation report. Any prior criminal history worksheets of the defendant shall also be attached.

(6) A proposed grid block classification for each crime, or crimes of conviction and the presumptive sentence for each crime, or crimes of conviction.

(7) If the proposed grid block classification is a grid block which pre- sumes imprisonment, the presumptive prison term range and the pre- sumptive duration of postprison supervision as it relates to the crime severity scale.

(8) If the proposed grid block classification does not presume prison, the presumptive prison term range and the presumptive duration of the nonprison sanction as it relates to the crime severity scale and the court services officer's professional assessment as to recommendations for con- ditions to be mandated as part of the nonprison sanction.

(c) The presentence report will become part of the court record and shall be accessible to the public, except that the official version, defen- dant's version and the victim's statement, any psychological reports and drug and alcohol reports shall be accessible only to the parties, the sen- tencing judge, the department of corrections, and if requested, the Kansas sentencing commission. If the offender is committed to the custody of the secretary of corrections, the report shall be sent to the secretary and, in accordance with K.S.A. 75-5220 and amendments thereto to the war- den of the state correctional institution to which the defendant is con- veyed.

(d) The criminal history worksheet will not substitute as a present- ence report.

(e) The presentence report will not include optional report compo- nents, which would be subject to the discretion of the sentencing court in each district except for psychological reports and drug and alcohol reports.

(f) The court can take judicial notice in a subsequent felony proceed- ing of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.

(g) All presentence reports in any case in which the defendant has been convicted of a felony shall be in substantially the following format: on a form approved by the Kansas sentencing commission.

(h) The court shall forward copies of the presentence face sheet and criminal history work sheet for all felony convictions for offenses com- mitted on or after July 1, 1993, to the Kansas sentencing commission within 30 days after sentencing.

Sec. 6. K.S.A. 22-3426 is hereby amended to read as follows: 22- 3426. (a) When judgment is rendered or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the commitment, which record among other things shall contain a statement of the crime charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement that the de- fendant was duly represented by counsel naming such counsel, or a state- ment that the defendant has stated in writing that the defendant did not want representation of counsel.

(b) If defendant is sentenced to the custody of the secretary of cor- rections the journal entry shall record all the information required under K.S.A. 21-4620 and amendments thereto to be included in a judgment form, if it were used.

(c) The journal entry shall also include the name and residence of the officer before whom the preliminary trial was held, the judge presiding at the trial, and of the witnesses sworn on such trial.

(d) If the sentence is increased because defendant previously has been convicted of one or more felonies the record shall contain a state- ment of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions. Defendant shall not be required to furnish such evidence.

(e) It shall be the duty of the court personally to examine the journal entry and to sign the same.

(f) For felony convictions for crimes committed on or after July 1, 1993, the journal entry shall contain the following information:

(1) Court case number;

(2) Kansas bureau of investigation number;

(3) case tracking number;

(4) court O.R.I. number;

(5) a listing of the original offenses charged by the state;

(A) the title of the crime;

(B) the statute violated;

(C) the crime seriousness ranking;

(D) the date the offense occurred;

(6) the type of counsel;

(7) (6) type of trial, if any;

(8) (7) pretrial status of the offender;

(9) (8) the date of the sentencing hearing;

(10) (9) a listing of offenses the defendant is convicted of;

(11) (10) the criminal history classification;

(12) (11) the sentence imposed for each offense including postrelease or probation supervision durations;

(13) (12) whether the sentences run concurrently or consecutively;

(14) (13) amount of credit for time spent incarcerated;

(15) (14) period ordered in county jail as a condition of probation;

(16) (15) a listing of offenses in which a departure sentence is im- posed;

(17) (16) type of departure sentence; and

(18) (17) factors cited as a basis for departure sentence.

The journal entry shall be recorded using substantially the following form: on a form approved by the Kansas sentencing commission.

(g) For felony convictions for crimes committed on or after July 1, 1993, the court shall forward a signed copy of the journal entry to the Kansas sentencing commission within 30 days of final disposition.

(h) The court shall insure that information concerning dispositions for all class A and B misdemeanor crimes and assault as defined in K.S.A. 21-3408 and amendments thereto committed on or after July 1, 1993, is forwarded to the Kansas bureau of investigation central repository. This information shall be transmitted on a form or in a format approved by the attorney general within 30 days of final disposition.

Sec. 7. K.S.A. 22-3426a is hereby amended to read as follows: 22- 3426a. (a) For crimes committed on or after July 1, 1993, when a con- victed person is revoked for a probation violation, a record thereof shall be made upon the journal of the court. Such journal entry shall include:

(1) Court case number;

(2) Kansas bureau of investigation number;

(3) case tracking number;

(4) court O.R.I. number;

(5) name of the judge who heard the evidence;

(6) those present and whether defendant's counsel was appointed or retained;

(7) date violator was sentenced to department of corrections;

(8) offenses for which defendant was sentenced and time to be served for each crime;

(9) total imprisonment term;

(10) supervision revoked;

(11) date motion to revoke defendant's probation was filed; and

(12) whether there are sufficient evidence and grounds for the court to revoke defendant's probation.

(b) It shall be the duty of the court to personally examine the journal entry and sign the same.

(c) The journal entry shall be recorded using a form substantially similar to the following form: on a form approved by the Kansas sentenc- ing commission.

(d) For probation revocations which result in the defendant's impris- onment in the custody of the department of corrections, the court shall forward a signed copy of the journal entry of revocation to the Kansas sentencing commission within 30 days of final disposition.

(e) The court shall insure that information concerning dispositions for all other felony probation revocations based upon crimes committed on or after July 1, 1993, is forwarded to the Kansas bureau of investigation central repository. This information shall be transmitted on a form or in a format approved by the attorney general within 30 days of final dispo- sition.

New Sec. 8. (a) For all felony convictions for offenses committed on or after July 1, 1993, the court shall forward a signed copy of the journal entry, attached together with the presentence investigation report as pro- vided by K.S.A. 21-4714 and amendments thereto, to the Kansas sen- tencing commission within 30 days after sentencing.

(b) For probation revocations which result in the defendant's impris- onment in the custody of the department of corrections, the court shall forward a signed copy of the journal entry of revocation to the Kansas sentencing commission within 30 days of final disposition.

(c) The court shall insure that information concerning dispositions for all other felony probation revocations based upon crimes committed on or after July 1, 1993, and for all class A and B misdemeanor crimes and assault as defined in K.S.A. 21-3408 and amendments thereto com- mitted on or after July 1, 1993, is forwarded to the Kansas bureau of investigation central repository. Such information shall be transmitted on a form or in a format approved by the attorney general within 30 days of that final disposition.

Sec. 9. K.S.A. 21-4219, as amended by section 4 of 1996 Senate Bill No. 339, is hereby amended to read as follows: 21-4219. (a) Criminal discharge of a firearm at an unoccupied dwelling is the malicious, inten- tional and unauthorized discharge of any firearm at an unoccupied dwell- ing.

Criminal discharge of a firearm at an unoccupied dwelling is a severity level 8, person felony.

(b) Except as provided in K.S.A. 21-3411, and amendments thereto, criminal discharge of a firearm at an occupied building or occupied ve- hicle is the malicious, intentional and unauthorized discharge of a firearm at a dwelling, building, structure, motor vehicle, aircraft, watercraft, train, locomotive, railroad car, caboose, rail-mounted work equipment or rolling stock or other means of conveyance of persons or property in which there is a human being who is not placed in immediate apprehension of bodily harm.

Criminal discharge of a firearm at an occupied building or occupied vehicle is a severity level 7, person felony.

Criminal discharge of a firearm at an occupied building or occupied vehicle which results in bodily harm to a person during the commission thereof is a severity level 5, person felony.

Criminal discharge of a firearm at an occupied building or occupied vehicle which results in great bodily harm to a person during the com- mission thereof is a severity level 3, person felony.

(c) This section shall be part of and supplemental to the Kansas crim- inal code.

Sec. 10. K.S.A. 21-4704 is hereby amended to read as follows: 21- 4704. (a) For purposes of sentencing, the following sentencing guidelines grid for nondrug crimes shall be applied in felony cases for crimes com- mitted on or after July 1, 1993:

(b) The provisions of this section shall be applicable to the sentencing guidelines grid for nondrug crimes. Sentences expressed in such grid represent months of imprisonment.

(c) The sentencing guidelines grid is a two-dimensional crime severity and criminal history classification tool. The grid's vertical axis is the crime severity scale which classifies current crimes of conviction. The grid's horizontal axis is the criminal history scale which classifies criminal his- tories.

(d) The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, sub- ject to judicial discretion to deviate for substantial and compelling reasons and impose a different sentence in recognition of aggravating and miti- gating factors as provided in this act. The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender's criminal history.

(e) (1) The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.

(2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the prison sen- tence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

(3) In presumptive nonprison cases, the sentencing court shall pro- nounce the prison sentence as well as the duration of the nonprison sanc- tion at the sentencing hearing.

(f) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such of- fender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprison- ment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional nonprison sentence upon making the following findings on the record:

(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and

(2) the recommended treatment program is available and the of- fender can be admitted to such program within a reasonable period of time; or

(3) the nonprison sanction will serve community safety interests by promoting offender reformation.

Any decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or 6-G shall not be considered a departure and shall not be subject to appeal.

(g) The sentence for the violation of K.S.A. 21-3411, aggravated as- sault against a law enforcement officer or K.S.A. 21-3415, aggravated battery against a law enforcement officer and amendments thereto which places the defendant's sentence in grid block 6-H or 6-I shall be pre- sumed imprisonment. The court may impose an optional nonprison sen- tence upon making a finding on the record that the nonprison sanction will serve community safety interests by promoting offender reformation. Any decision made by the court regarding the imposition of the optional nonprison sentence, if the offense is classified in grid block 6-H or 6-I, shall not be considered departure and shall not be subject to appeal.

(h) When a firearm is used to commit any person felony, the offen- der's sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence upon making a finding on the record that the nonprison sanction will serve community safety interests by promot- ing offender reformation. Any decision made by the court regarding the imposition of the optional nonprison sentence shall not be considered a departure and shall not be subject to appeal.

(i) The sentence for the violation of the felony provision of K.S.A. 8- 1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-4707 and amendments thereto. Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 8-1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall not be served in a state facility in the custody of the secretary of corrections.

(j) The sentence for any persistent sex offender whose current con- victed crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sen- tence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term. Except as otherwise provided in this subsection, as used in this subsection, ``persistent sex offender'' means a person who: (1) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (2) at the time of the conviction under subsec- tion (1) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government. The provisions of this subsection shall not apply to any per- son whose current convicted crime is a severity level 1 or 2 felony.

(k) If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender's sentence shall be presumed imprisonment. Any decision made by the court regarding the imposition of the optional nonprison sentence shall not be considered a departure and shall not be subject to appeal. As used in this subsection, ``criminal street gang'' means any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more person felonies or felony violations of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amendments thereto, which has a common name or common identi- fying sign or symbol, whose members, individually or collectively engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amendments thereto, or any substantially similar offense from another jurisdiction.

Sec. 11. K.S.A. 21-4705 is hereby amended to read as follows: 21- 4705. (a) For the purpose of sentencing, the following sentencing guide- lines grid for drug crimes shall be applied in felony cases under the uni- form controlled substances act for crimes committed on or after July 1, 1993:

(b) The provisions of subsection (a) will apply for the purpose of sentencing violations of the uniform controlled substances act except as otherwise provided by law. Sentences expressed in the sentencing guide- lines grid for drug crimes in subsection (a) represent months of impris- onment.

(c) Upon conviction of any person pursuant to K.S.A. 65-4127b or K.S.A. 1995 Supp. 65-4161 or 65-4163 and amendments thereto, or a conviction of an attempt, a conspiracy or a solicitation as provided in K.S.A. 21-3301, 21-3302, or 21-3303 and amendments thereto, to commit a violation of K.S.A. 65-4127b or K.S.A. 1995 Supp. 65-4161 or 65-4163 and amendments thereto, in which the substance involved was marijuana or tetrahydrocannabinol as designated in subsection (d) of K.S.A. 65-4105 and amendments thereto; such substance was possessed with intent to sell, sold or offered for sale in an amount which does not exceed 500 grams or 25 plants; such substance was not possessed with intent to sell, sold or offered for sale as provided in subsection (d) of K.S.A. 65-4127b or subsection (b) of K.S.A. 1995 Supp. 65-4163 and amendments thereto; and such offense is classified in grid blocks 3-H or 3-I of the presumptive sentencing guidelines grid for drug crimes, the court may impose an op- tional nonprison sentence upon making the following findings on the rec- ord:

(1) An appropriate treatment program is likely to be more effective than the presumptive prison term in reducing the risk of offender recid- ivism;

(2) the recommended treatment program is available and the of- fender can be admitted to such program within a reasonable period of time; and

(3) the nonprison sanction will serve community safety interests by promoting offender reformation. Any decision by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 3-H or 3-I shall not be considered a departure and shall not be subject to appeal.

(d) (c) (1) The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a de- parture.

(2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the prison sen- tence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

(3) In presumptive nonprison cases, the sentencing court shall pro- nounce the prison sentence as well as the duration of the nonprison sanc- tion at the sentencing hearing.

(d) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such of- fender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprison- ment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is clas- sified in grid blocks 3-E, 3-F, 3-G, 3-H, 3-I, 4-E or 4-F, the court may impose an optional nonprison sentence upon making the following find- ings on the record:

(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and

(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or

(3) the nonprison sanction will serve community safety interests by promoting offender reformation.

Any decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 3-E, 3-F, 3- G, 3-H, 3-I, 4-E or 4-F shall not be considered a departure and shall not be subject to appeal.

Sec./007006/K.S.A. 21-4716 is hereby amended to read as follows: 21- 4716. (a) The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.

(b) (1) Subject to the provisions of subsection (b)(3), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.

(B) The offender played a minor or passive role in the crime or par- ticipated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.

(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.

(D) The defendant, or the defendant's children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.

(2) Subject to the provisions of subsection (b)(3), the following no- nexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist:

(A) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender.

(B) The defendant's conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not nor- mally present in that offense.

(C) The offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim.

(D) The offense involved a fiduciary relationship which existed be- tween the defendant and the victim.

(E) The defendant committed any felony violation for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. As used in this subsection, ``criminal street gang'' means any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more person felonies or felony violations of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amend- ments thereto, which has a common name or common identifying sign or symbol, whose members, individually or collectively engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amend- ments thereto, or any substantially similar offense from another jurisdic- tion.

(F) (E) The defendant, 18 or more years of age, employed, hired, used, persuaded, induced, enticed or coerced any individual under 16 years of age to commit or assist in avoiding detection or apprehension for commission of any person felony or any attempt, conspiracy or solicitation as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto to commit any person felony regardless of whether the defendant knew the age of the individual under 16 years of age.

(G) (F) The defendant's current crime of conviction is a crime of extreme sexual violence and the defendant is a predatory sex offender. As used in this subsection:

(i) ``Crime of extreme sexual violence'' is a felony limited to the fol- lowing:

(a) A crime involving a nonconsensual act of sexual intercourse or sodomy with any person;

(b) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is 14 or more years of age but less than 16 years of age and with whom a relationship has been estab- lished or promoted for the primary purpose of victimization; or

(c) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age.

(ii) ``Predatory sex offender'' is an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who:

(a) Has one or more prior convictions of any crimes of extreme sexual violence. Any prior conviction used to establish the defendant as a pred- atory sex offender pursuant to this subsection shall also be counted in determining the criminal history category; or

(b) suffers from a mental condition or personality disorder which makes the offender likely to engage in additional acts constituting crimes of extreme sexual violence.

(iii) ``Mental condition or personality disorder'' means an emotional, mental or physical illness, disease, abnormality, disorder, pathology or condition which motivates the person, affects the predisposition or desires of the person, or interferes with the capacity of the person to control impulses to commit crimes of extreme sexual violence.

In determining whether aggravating factors exist as provided in this section, the court shall review the victim impact statement.

(3) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mit- igating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual crim- inal conduct captured by the aspect of the crime.

(c) In determining aggravating or mitigating circumstances, the court shall consider:

(1) Any evidence received during the proceeding;

(2) the presentence report;

(3) written briefs and oral arguments of either the state or counsel for the defendant; and

(4) any other evidence relevant to such aggravating or mitigating cir- cumstances that the court finds trustworthy and reliable.

Sec./007006/K.S.A. 21-3412, as amended by section 4 of 1996 Senate Bill No. 674, is hereby amended to read as follows: 21-3412. (a) Battery is:

(1) Intentionally or recklessly causing bodily harm to another person; or

(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.

(b) Except as provided in subsection (c), battery is a class B person misdemeanor.

(c) (1) Upon a first conviction of a violation of this section under circumstances which constitute a domestic battery, a person shall be guilty of a class B person misdemeanor and sentenced to not less than 48 con- secutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the person enroll in and successfully complete a domestic violence prevention program.

(2) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of this section a second time under circumstances which constitute a domestic battery, having at least one time before within such period been convicted for such crime or a violation of a comparable crime under the laws of any municipality, state, federal government or foreign government, such person shall be guilty of a class A person misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for domestic violence prevention.

(3) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of this crime a third or subse- quent time under circumstances which constitute a domestic battery, such person shall be guilty of a person felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for domestic violence. The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

(4) As used in this section: (A) Domestic battery means a battery against a family or household member by a family or household member; and

(B) family or household member means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and chil- dren or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived to- gether at any time.; and

(C) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

(i) ``Conviction'' includes being convicted of a violation of this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(ii) ``conviction'' includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal pro- ceedings in a case alleging a violation of such law, ordinance or resolution;

(iii) only convictions occurring in the immediately preceding five years including prior to the effective date of this act shall be taken into account, but the court may consider other prior convictions in determin- ing the sentence to be imposed within the limits provided for a first, sec- ond, third or subsequent offender, whichever is applicable; and

(iv) it is irrelevant whether an offense occurred before or after con- viction for a previous offense.

Sec./007006/K.S.A. 21-3412, as amended by section 4 of 1996 Senate Bill No. 674, 21-3413, 21-3502, 21-4219, as amended by section 4 of 1996 Senate Bill No. 339, 21-4611, 21-4704, 21-4705, 21-4714, 21-4716, 22- 3426 and 22-3426a are hereby repealed.

Sec./007006/This act shall take effect and be in force from and after its publication in the statute book.

Approved May 17, 1996.