CHAPTER 10 HOUSE BILL No. 2623 An  Act concerning crimes, criminal procedure and punishment; relating to forgery; sen-
tencing; amending K.S.A. 2001 Supp. 21-4704 and repealing the existing section; also
repealing K.S.A. 2001 Supp. 21-4704a.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2001 Supp. 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 committed 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, and amendments
thereto, aggravated assault against a law enforcement officer or K.S.A. 21-
3415, and amendments thereto, aggravated battery against a law enforce-
ment officer and amendments thereto which places the defendant's sen-
tence in grid block 6-H or 6-I shall be presumed imprisonment. The court
may impose an optional nonprison sentence upon making a finding on
the record that the nonprison sanction will serve community safety in-
terests 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 of-
fender's sentence shall be presumed imprisonment. The court may im-
pose an optional nonprison sentence upon making a finding on the record
that the nonprison sanction will serve community safety interests by pro-
moting 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 (c)(3) of K.S.A. 21-3412 (b)(3) of K.S.A. 21-3412a,
and subsections (b)(3) and (b)(4) of K.S.A. 21-3710, and amendments
thereto, shall be as provided by the specific mandatory sentencing
requirements of that section and shall not be subject to the provisions of
this section or K.S.A. 21-4707 and amendments thereto. If because of the
offender's criminal history classification the offender is subject to pre-
sumptive imprisonment or if the judge departs from a presumptive pro-
bation sentence and the offender is subject to imprisonment, the provi-
sions of this section and K.S.A. 21-4707, and amendments thereto, shall
apply and the offender shall not be subject to the mandatory sentence as
provided in K.S.A. 21-3710, and amendments thereto. Notwithstanding
the provisions of any other section, the term of imprisonment imposed
for the violation of the felony provision of K.S.A. 8-1567, subsection (c)(3)
of K.S.A. 21-3412 (b)(3) of K.S.A. 21-3412a and subsections (b)(2) and
(b)(3) and (b)(4) of K.S.A. 21-3710, 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 for-
eign government. The provisions of this subsection shall not apply to any
person whose current convicted crime is a severity level 1 or 2 felony.

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

      (l) The sentence for a violation of subsection (a) of K.S.A. 21-3715
and amendments thereto when such person being sentenced has a prior
conviction for a violation of subsection (a) or (b) of K.S.A. 21-3715 or 21-
3716 and amendments thereto shall be presumed imprisonment.

      Sec.  2. K.S.A. 2001 Supp. 21-4704 and 21-4704a are hereby re-
pealed.

      Sec.  3. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved March 27, 2002.
 Published in the Kansas Register April 4, 2002.
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