CHAPTER 163 HOUSE Substitute for SENATE BILL No. 434 (Amends Chapter 55) An  Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-4715
and 74-7338 and K.S.A. 2001 Supp. 21-3520, 21-4619, 22-3437, 22-3717 and 22-4902,
as amended by section 1 of 2002 House Bill No. 2399, and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2001 Supp. 21-3520 is hereby amended to read as
follows: 21-3520. (a) Unlawful sexual relations is engaging in consensual
sexual intercourse, lewd fondling or touching, or sodomy with a person
who is not married to the offender if:

      (1) The offender is an employee of the department of corrections or
the employee of a contractor who is under contract to provide services in
for a correctional institution and the person with whom the offender is
engaging in consensual sexual intercourse, lewd fondling or touching, or
sodomy is a person 16 years of age or older who is an inmate; or

      (2) the offender is a parole officer or the employee of a contractor
who is under contract to provide supervision services for persons on pa-
role, conditional release or postrelease supervision and the person with
whom the offender is engaging in consensual sexual intercourse, lewd
fondling or touching, or sodomy is a person 16 years of age or older who
is an inmate who has been released on parole or conditional release or
postrelease supervision under the direct supervision and control of the
offender; or

      (3) the offender is a law enforcement officer, an employee of a jail,
or the employee of a contractor who is under contract to provide services
in a jail and the person with whom the offender is engaging in consensual
sexual intercourse, lewd fondling or touching, or sodomy is a person 16
years of age or older who is confined by lawful custody to such jail; or

      (4) the offender is a law enforcement officer, an employee of a ju-
venile detention facility or sanctions house, or the employee of a con-
tractor who is under contract to provide services in such facility or sanc-
tions house and the person with whom the offender is engaging in
consensual sexual intercourse, lewd fondling or touching, or sodomy is a
person 16 years of age or older who is confined by lawful custody to such
facility or sanctions house; or

      (5) the offender is an employee of the juvenile justice authority or
the employee of a contractor who is under contract to provide services in
a juvenile correctional facility and the person with whom the offender is
engaging in consensual sexual intercourse, lewd fondling or touching, or
sodomy is a person 16 years of age or older who is confined by lawful
custody to such facility; or

      (6) the offender is an employee of the juvenile justice authority or
the employee of a contractor who is under contract to provide direct
supervision and offender control services to the juvenile justice authority
and the person with whom the offender is engaging in consensual sexual
intercourse, lewd fondling or touching, or sodomy is 16 years of age or
older and (A) released on conditional release from a juvenile correctional
facility under the direct supervision and control of the offender or (B)
placed in the custody of the juvenile justice authority under the direct
supervision and control of the offender;

      (7) the offender is an employee of the department of social and re-
habilitation services or the employee of a contractor who is under contract
to provide services in a social and rehabilitation services institution and
the person with whom the offender is engaging in consensual sexual in-
tercourse, not otherwise subject to subsection (a)(1)(C) of K.S.A. 21-3502,
and amendments thereto, lewd fondling or touching, or sodomy, not oth-
erwise subject to subsection (a)(3)(C) of K.S.A. 21-3506, and amendments
thereto, is a person 16 years of age or older who is a patient in such
institution; or

      (8) the offender is a teacher or a person in a position of authority and
the person with whom the offender is engaging in consensual sexual in-
tercourse, lewd fondling or touching or sodomy is 16 or 17 years of age
and a student enrolled at the school where the offender is employed. If
the offender is the parent of the student, the provisions of K.S.A. 21-
3603, and amendments thereto, shall apply, not this subsection.

      (b) For purposes of this act:

      (1) ``Correctional institution'' means the same as prescribed by K.S.A.
75-5202, and amendments thereto;

      (2) ``inmate'' means the same as prescribed by K.S.A. 75-5202, and
amendments thereto;

      (3) ``parole officer'' means the same as prescribed by K.S.A. 75-5202,
and amendments thereto;

      (4) ``postrelease supervision'' means the same as prescribed in the
Kansas sentencing guidelines act in K.S.A. 21-4703, and amendments
thereto;

      (5) ``juvenile detention facility'' means the same as prescribed by
K.S.A. 38-1602, and amendments thereto;

      (6) ``juvenile correctional facility'' means the same as prescribed by
K.S.A. 38-1602, and amendments thereto;

      (7) ``sanctions house'' means the same as prescribed by K.S.A. 38-
1602, and amendments thereto;

      (8) ``institution'' means the same as prescribed by K.S.A. 76-12a01,
and amendments thereto; and

      (9) ``teacher'' means and includes teachers, supervisors, principals,
superintendents and any other professional employee in any public or
private school.

      (c) Unlawful sexual relations is a severity level 10, person felony.

      Sec.  2. K.S.A. 2001 Supp. 21-4619 is hereby amended to read as
follows: 21-4619. (a)  (1) Except as provided in subsections (b) and (c),
any person convicted in this state of a traffic infraction, cigarette or to-
bacco infraction, misdemeanor or a class D or E felony, or for crimes
committed on or after July 1, 1993, nondrug crimes ranked in severity
levels 6 through 10 or any felony ranked in severity level 4 of the drug
grid, may petition the convicting court for the expungement of such con-
viction or related arrest records if three or more years have elapsed since
the person: (A) Satisfied the sentence imposed; or (B) was discharged
from probation, a community correctional services program, parole, post-
release supervision, conditional release or a suspended sentence.

      (2) Except as provided in subsections (b) and (c), any person who has
fulfilled the terms of a diversion agreement may petition the district court
for the expungement of such diversion agreement and related arrest re-
cords if three or more years have elapsed since the terms of the diversion
agreement were fulfilled.

      (b) Except as provided in subsection (c), no person may petition for
expungement until five or more years have elapsed since the person sat-
isfied the sentence imposed, the terms of a diversion agreement or was
discharged from probation, a community correctional services program,
parole, postrelease supervision, conditional release or a suspended sen-
tence, if such person was convicted of a class A, B or C felony, or for
crimes committed on or after July 1, 1993, if convicted of an off-grid
felony or any nondrug crime ranked in severity levels 1 through 5 or any
felony ranked in severity levels 1 through 3 of the drug grid, or:

      (1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-
ments thereto or as prohibited by any law of another state which is in
substantial conformity with that statute;

      (2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-
tion of any law of another state, which declares to be unlawful the acts
prohibited by that statute;

      (3) driving while the privilege to operate a motor vehicle on the public
highways of this state has been canceled, suspended or revoked, as pro-
hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any
law of another state which is in substantial conformity with that statute;

      (4) perjury resulting from a violation of K.S.A. 8-261a and amend-
ments thereto or resulting from the violation of a law of another state
which is in substantial conformity with that statute;

      (5) violating the provisions of the fifth clause of K.S.A. 8-142 and
amendments thereto, relating to fraudulent applications or violating the
provisions of a law of another state which is in substantial conformity with
that statute;

      (6) any crime punishable as a felony wherein a motor vehicle was
used in the perpetration of such crime;

      (7) failing to stop at the scene of an accident and perform the duties
required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,
or required by a law of another state which is in substantial conformity
with those statutes;

      (8) violating the provisions of K.S.A. 40-3104 and amendments
thereto, relating to motor vehicle liability insurance coverage; or

      (9) a violation of K.S.A. 21-3405b, prior to its repeal.

      (c) There shall be no expungement of convictions for the following
offenses or of convictions for an attempt to commit any of the following
offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and
amendments thereto; (2) indecent liberties with a child as defined in
K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-
ties with a child as defined in K.S.A. 21-3504 and amendments thereto;
(4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-
3505 and amendments thereto; (5) aggravated criminal sodomy as defined
in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a
child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
vated indecent solicitation of a child as defined in K.S.A. 21-3511 and
amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.
21-3516 and amendments thereto; (9) aggravated incest as defined in
K.S.A. 21-3603 and amendments thereto; (10) endangering a child as
defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child
as defined in K.S.A. 21-3609 and amendments thereto; (12) capital mur-
der as defined in K.S.A. 21-3439 and amendments thereto; (13) murder
in the first degree as defined in K.S.A. 21-3401 and amendments thereto;
(14) murder in the second degree as defined in K.S.A. 21-3402 and
amendments thereto; (15) voluntary manslaughter as defined in K.S.A.
21-3403 and amendments thereto; (16) involuntary manslaughter as de-
fined in K.S.A. 21-3404 and amendments thereto; (17) involuntary man-
slaughter while driving under the influence of alcohol or drugs as defined
in K.S.A. 2001 Supp. 21-3442 and amendments thereto; or (18) sexual
battery as defined in K.S.A. 21-3517 and amendments thereto; (19) ag-
gravated sexual battery as defined in K.S.A. 21-3518 and amendments
thereto; or (20) any conviction for any offense in effect at any time prior
to the effective date of this act, that is comparable to any offense as
provided in this subsection.

      (d) When a petition for expungement is filed, the court shall set a
date for a hearing of such petition and shall cause notice of such hearing
to be given to the prosecuting attorney and the arresting law enforcement
agency. The petition shall state: (1) The defendant's full name;

      (2) the full name of the defendant at the time of arrest, conviction or
diversion, if different than the defendant's current name;

      (3) the defendant's sex, race and date of birth;

      (4) the crime for which the defendant was arrested, convicted or di-
verted;

      (5) the date of the defendant's arrest, conviction or diversion; and

      (6) the identity of the convicting court, arresting law enforcement
authority or diverting authority. There shall be no docket fee for filing a
petition pursuant to this section. All petitions for expungement shall be
docketed in the original criminal action. Any person who may have rel-
evant information about the petitioner may testify at the hearing. The
court may inquire into the background of the petitioner and shall have
access to any reports or records relating to the petitioner that are on file
with the secretary of corrections or the Kansas parole board.

      (e) At the hearing on the petition, the court shall order the peti-
tioner's arrest record, conviction or diversion expunged if the court finds
that:

      (1) The petitioner has not been convicted of a felony in the past two
years and no proceeding involving any such crime is presently pending
or being instituted against the petitioner;

      (2) the circumstances and behavior of the petitioner warrant the
expungement; and

      (3) the expungement is consistent with the public welfare.

      (f) When the court has ordered an arrest record, conviction or diver-
sion expunged, the order of expungement shall state the information re-
quired to be contained in the petition. The clerk of the court shall send
a certified copy of the order of expungement to the Kansas bureau of
investigation which shall notify the federal bureau of investigation, the
secretary of corrections and any other criminal justice agency which may
have a record of the arrest, conviction or diversion. After the order of
expungement is entered, the petitioner shall be treated as not having been
arrested, convicted or diverted of the crime, except that:

      (1) Upon conviction for any subsequent crime, the conviction that
was expunged may be considered as a prior conviction in determining the
sentence to be imposed;

      (2) the petitioner shall disclose that the arrest, conviction or diversion
occurred if asked about previous arrests, convictions or diversions:

      (A) In any application for licensure as a private detective, private
detective agency, certification as a firearms trainer pursuant to K.S.A.
2001 Supp. 75-7b21, and amendments thereto, or employment as a de-
tective with a private detective agency, as defined by K.S.A. 75-7b01 and
amendments thereto; as security personnel with a private patrol operator,
as defined by K.S.A. 75-7b01 and amendments thereto; or with an insti-
tution, as defined in K.S.A. 76-12a01 and amendments thereto, of the
department of social and rehabilitation services;

      (B) in any application for admission, or for an order of reinstatement,
to the practice of law in this state;

      (C) to aid in determining the petitioner's qualifications for employ-
ment with the Kansas lottery or for work in sensitive areas within the
Kansas lottery as deemed appropriate by the executive director of the
Kansas lottery;

      (D) to aid in determining the petitioner's qualifications for executive
director of the Kansas racing commission, for employment with the com-
mission or for work in sensitive areas in parimutuel racing as deemed
appropriate by the executive director of the commission, or to aid in
determining qualifications for licensure or renewal of licensure by the
commission;

      (E) upon application for a commercial driver's license under K.S.A.
8-2,125 through 8-2,142, and amendments thereto;

      (F) to aid in determining the petitioner's qualifications to be an em-
ployee of the state gaming agency;

      (G) to aid in determining the petitioner's qualifications to be an em-
ployee of a tribal gaming commission or to hold a license issued pursuant
to a tribal-state gaming compact;

      (H) in any application for registration as a broker-dealer, agent, in-
vestment adviser or investment adviser representative all as defined in
K.S.A. 17-1252 and amendments thereto; or

      (I) in any application for a commercial guide permit or associate
guide permit under K.S.A. 32-964, and amendments thereto;

      (3) the court, in the order of expungement, may specify other cir-
cumstances under which the conviction is to be disclosed;

      (4) the conviction may be disclosed in a subsequent prosecution for
an offense which requires as an element of such offense a prior conviction
of the type expunged; and

      (5) upon commitment to the custody of the secretary of corrections,
any previously expunged record in the possession of the secretary of cor-
rections may be reinstated and the expungement disregarded, and the
record continued for the purpose of the new commitment.

      (g) Whenever a person is convicted of a crime, pleads guilty and pays
a fine for a crime, is placed on parole, postrelease supervision or proba-
tion, is assigned to a community correctional services program, is granted
a suspended sentence or is released on conditional release, the person
shall be informed of the ability to expunge the arrest records or convic-
tion. Whenever a person enters into a diversion agreement, the person
shall be informed of the ability to expunge the diversion.

      (h) Subject to the disclosures required pursuant to subsection (f), in
any application for employment, license or other civil right or privilege,
or any appearance as a witness, a person whose arrest records, conviction
or diversion of a crime has been expunged under this statute may state
that such person has never been arrested, convicted or diverted of such
crime, but the expungement of a felony conviction does not relieve an
individual of complying with any state or federal law relating to the use
or possession of firearms by persons convicted of a felony.

      (i) Whenever the record of any arrest, conviction or diversion has
been expunged under the provisions of this section or under the provi-
sions of any other existing or former statute, the custodian of the records
of arrest, conviction, diversion and incarceration relating to that crime
shall not disclose the existence of such records, except when requested
by:

      (1) The person whose record was expunged;

      (2) a private detective agency or a private patrol operator, and the
request is accompanied by a statement that the request is being made in
conjunction with an application for employment with such agency or op-
erator by the person whose record has been expunged;

      (3) a court, upon a showing of a subsequent conviction of the person
whose record has been expunged;

      (4) the secretary of social and rehabilitation services, or a designee of
the secretary, for the purpose of obtaining information relating to em-
ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
ments thereto, of the department of social and rehabilitation services of
any person whose record has been expunged;

      (5) a person entitled to such information pursuant to the terms of the
expungement order;

      (6) a prosecuting attorney, and such request is accompanied by a
statement that the request is being made in conjunction with a prosecu-
tion of an offense that requires a prior conviction as one of the elements
of such offense;

      (7) the supreme court, the clerk or disciplinary administrator thereof,
the state board for admission of attorneys or the state board for discipline
of attorneys, and the request is accompanied by a statement that the
request is being made in conjunction with an application for admission,
or for an order of reinstatement, to the practice of law in this state by the
person whose record has been expunged;

      (8) the Kansas lottery, and the request is accompanied by a statement
that the request is being made to aid in determining qualifications for
employment with the Kansas lottery or for work in sensitive areas within
the Kansas lottery as deemed appropriate by the executive director of the
Kansas lottery;

      (9) the governor or the Kansas racing commission, or a designee of
the commission, and the request is accompanied by a statement that the
request is being made to aid in determining qualifications for executive
director of the commission, for employment with the commission, for
work in sensitive areas in parimutuel racing as deemed appropriate by
the executive director of the commission or for licensure, renewal of
licensure or continued licensure by the commission;

      (10) the Kansas sentencing commission;

      (11) the state gaming agency, and the request is accompanied by a
statement that the request is being made to aid in determining qualifi-
cations: (A) To be an employee of the state gaming agency; or (B) to be
an employee of a tribal gaming commission or to hold a license issued
pursuant to a tribal-gaming compact;

      (12) the Kansas securities commissioner or a designee of the com-
missioner, and the request is accompanied by a statement that the request
is being made in conjunction with an application for registration as a
broker-dealer, agent, investment adviser or investment adviser represen-
tative by such agency and the application was submitted by the person
whose record has been expunged; or

      (13) the department of wildlife and parks and the request is accom-
panied by a statement that the request is being made to aid in determining
qualifications for a permit as a commercial guide or associate guide under
K.S.A. 32-964, and amendments thereto.

      Sec.  3. K.S.A. 21-4715 is hereby amended to read as follows: 21-
4715. (a) The offender's criminal history shall be admitted in open court
by the offender or determined by a preponderance of the evidence at the
sentencing hearing by the sentencing judge.

      (b) Except to the extent disputed in accordance with subsection (c),
the summary of the offender's criminal history prepared for the court by
the state shall satisfy the state's burden of proof regarding an offender's
criminal history.

      (c) Upon receipt of the criminal history worksheet prepared for the
court, the offender shall immediately notify the district attorney and the
court with written notice of any error in the proposed criminal history
worksheet. Such notice shall specify the exact nature of the alleged error.
The state shall have the burden of producing further evidence to satisfy
its burden of proof regarding any disputed part, or parts, of the criminal
history and the sentencing judge shall allow the state reasonable time to
produce such evidence to establish the disputed portion of the criminal
history by a preponderance of the evidence.

      Sec.  4. K.S.A. 2001 Supp. 22-3437 is hereby amended to read as
follows: 22-3437. (1) In any hearing or trial, a report concerning forensic
examinations and certificate of forensic examination executed pursuant
to this section shall be admissible in evidence if the report and certificate
are prepared and attested by a criminalist or other employee of the Kansas
bureau of investigation, Kansas highway patrol or any laboratory of the
federal bureau of investigation, federal postal inspection service, federal
bureau of alcohol, tobacco and firearms or federal drug enforcement ad-
ministration. If the examination involves a breath test for alcohol content,
the report must also be admissible pursuant to subsection (f)(1) of K.S.A.
8-1001, and amendments thereto, and be conducted by a law enforce-
ment officer or other person who is certified by the department of health
and environment as a breath test operator as provided by K.S.A. 65-1,107
et seq. and amendments thereto.

      (2) Upon the request of any law enforcement agency, such person as
provided in subsection (1) performing the analysis shall prepare a certif-
icate. Such person shall sign the certificate under oath and shall include
in the certificate an attestation as to the result of the analysis. The pres-
entation of this certificate to a court by any party to a proceeding shall
be evidence that all of the requirements and provisions of this section
have been complied with. This certificate shall be supported by a written
declaration pursuant to K.S.A. 53-601 and amendments thereto or shall
be sworn to before a notary public or other person empowered by law to
take oaths and shall contain a statement establishing the following: The
type of analysis performed; the result achieved; any conclusions reached
based upon that result; that the subscriber is the person who performed
the analysis and made the conclusions; the subscriber's training or expe-
rience to perform the analysis; the nature and condition of the equipment
used; and the certification and foundation requirements for admissibility
of breath test results, when appropriate. When properly executed, the
certificate shall, subject to the provisions of subsection (3) and notwith-
standing any other provision of law, be admissible evidence of the results
of the forensic examination of the samples or evidence submitted for
analysis and the court shall take judicial notice of the signature of the
person performing the analysis and of the fact that such person is that
person who performed the analysis.

      (3) Whenever a party intends to proffer in a criminal or civil pro-
ceeding, a certificate executed pursuant to this section, notice of an intent
to proffer that certificate and the reports relating to the analysis in ques-
tion, including a copy of the certificate, shall be conveyed to the opposing
party or parties within 20 days after arraignment, if a criminal proceeding
or at least 20 days before a civil trial begins. An opposing party who
intends to object to the admission into evidence of a certificate shall give
notice of objection and the grounds for the objection within 10 days upon
receiving the adversary's notice of intent to proffer the certificate. When-
ever a notice of objection is filed, admissibility of the certificate shall be
determined not later than two days before the beginning of the trial. A
proffered certificate shall be admitted in evidence unless it appears from
the notice of objection and grounds for that objection that the conclusions
of the certificate, including the composition, quality or quantity of the
substance submitted to the laboratory for analysis or the alcohol content
of a blood or breath sample will be contested at trial. A failure to comply
with the time limitations regarding the notice of objection required by
this section shall constitute a waiver of any objections to the admission of
the certificate. The time limitations set forth in this section may be ex-
tended upon a showing of good cause.

      Sec.  5. K.S.A. 2001 Supp. 22-3717 is hereby amended to read as
follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.
1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-
4638 and amendments thereto, and K.S.A. 8-1567, and amendments
thereto, an inmate, including an inmate sentenced pursuant to K.S.A. 21-
4618 and amendments thereto, shall be eligible for parole after serving
the entire minimum sentence imposed by the court, less good time cred-
its.

      (b)  (1) Except as provided by K.S.A. 21-4635 through 21-4638 and
amendments thereto, an inmate sentenced to imprisonment for the crime
of capital murder, or an inmate sentenced for the crime of murder in the
first degree based upon a finding of premeditated murder, committed on
or after July 1, 1994, shall be eligible for parole after serving 25 years of
confinement, without deduction of any good time credits.

      (2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,
and amendments thereto, an inmate sentenced to imprisonment for an
off-grid offense committed on or after July 1, 1993, but prior to July 1,
1999, shall be eligible for parole after serving 15 years of confinement,
without deduction of any good time credits and an inmate sentenced to
imprisonment for an off-grid offense committed on or after July 1, 1999,
shall be eligible for parole after serving 20 years of confinement without
deduction of any good time credits.

      (3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its
repeal, an inmate sentenced for a class A felony committed before July
1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and
amendments thereto, shall be eligible for parole after serving 15 years of
confinement, without deduction of any good time credits.

      (4) An inmate sentenced to imprisonment for a violation of subsec-
tion (a) of K.S.A. 21-3402 and amendments thereto committed on or after
July 1, 1996, but prior to July 1, 1999, shall be eligible for parole after
serving 10 years of confinement without deduction of any good time cred-
its.

      (c) Except as provided in subsection (e), if an inmate is sentenced to
imprisonment for more than one crime and the sentences run consecu-
tively, the inmate shall be eligible for parole after serving the total of:

      (1) The aggregate minimum sentences, as determined pursuant to
K.S.A. 21-4608 and amendments thereto, less good time credits for those
crimes which are not class A felonies; and

      (2) an additional 15 years, without deduction of good time credits,
for each crime which is a class A felony.

      (d)  (1) Persons sentenced for crimes, other than off-grid crimes,
committed on or after July 1, 1993, will not be eligible for parole, but will
be released to a mandatory period of postrelease supervision upon com-
pletion of the prison portion of their sentence as follows:

      (A) Except as provided in subparagraphs (D) and (E), persons sen-
tenced for nondrug severity level 1 through 4 crimes and drug severity
levels 1 and 2 crimes must serve 36 months, plus the amount of good
time earned and retained pursuant to K.S.A. 21-4722 and amendments
thereto, on postrelease supervision.

      (B) Except as provided in subparagraphs (D) and (E), persons sen-
tenced for nondrug severity levels 5 and 6 crimes and drug severity level
3 crimes must serve 24 months, plus the amount of good time earned
and retained pursuant to K.S.A. 21-4722, and amendments thereto, on
postrelease supervision.

      (C) Except as provided in subparagraphs (D) and (E), persons sen-
tenced for nondrug severity level 7 through 10 crimes and drug severity
level 4 crimes must serve 12 months, plus the amount of good time earned
and retained pursuant to K.S.A. 21-4722 and amendments thereto, on
postrelease supervision.

      (D)  (i) The sentencing judge shall impose the postrelease supervi-
sion period provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C),
unless the judge finds substantial and compelling reasons to impose a
departure based upon a finding that the current crime of conviction was
sexually violent or sexually motivated. In that event, departure may be
imposed to extend the postrelease supervision to a period of up to 60
months.

      (ii) If the sentencing judge departs from the presumptive postrelease
supervision period, the judge shall state on the record at the time of
sentencing the substantial and compelling reasons for the departure. De-
partures in this section are subject to appeal pursuant to K.S.A. 21-4721
and amendments thereto.

      (iii) In determining whether substantial and compelling reasons exist,
the court shall consider:

      (a) Written briefs or oral arguments submitted by either the defend-
ant or the state;

      (b) any evidence received during the proceeding;

      (c) the presentence report, the victim's impact statement and any
psychological evaluation as ordered by the court pursuant to subsection
(e) of K.S.A. 21-4714 and amendments thereto; and

      (d) any other evidence the court finds trustworthy and reliable.

      (iv) The sentencing judge may order that a psychological evaluation
be prepared and the recommended programming be completed by the
offender. The department of corrections or the parole board shall ensure
that court ordered sex offender treatment be carried out.

      (v) In carrying out the provisions of subparagraph (d)(1)(D), the court
shall refer to K.S.A. 21-4718 and amendments thereto.

      (vi) Upon petition, the parole board may provide for early discharge
from the postrelease supervision period upon completion of court or-
dered programs and completion of the presumptive postrelease super-
vision period, as determined by the crime of conviction, pursuant to sub-
paragraph (d)(1)(A), (d)(1)(B) or (d)(1)(C). Early discharge from
postrelease supervision is at the discretion of the parole board.

      (vii) Persons convicted of crimes deemed sexually violent or sexually
motivated, shall be registered according to the habitual sex offender reg-
istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.

      (E) The period of postrelease supervision provided in subparagraphs
(A) and (B) may be reduced by up to 12 months and the period of post-
release supervision provided in subparagraph (C) may be reduced by
up to six months based on the offender's compliance with conditions of
supervision and overall performance while on postrelease supervision.
The reduction in the supervision period shall be on an earned basis pur-
suant to rules and regulations adopted by the secretary of corrections.

      (F) In cases where sentences for crimes from more than one severity
level have been imposed, the offender shall serve the longest period of
postrelease supervision as provided by this section available for any crime
upon which sentence was imposed irrespective of the severity level of the
crime. Supervision periods will not aggregate.

      (2) As used in this section, ``sexually violent crime'' means:

      (A) Rape, K.S.A. 21-3502, and amendments thereto;

      (B) indecent liberties with a child, K.S.A. 21-3503, and amendments
thereto;

      (C) aggravated indecent liberties with a child, K.S.A. 21-3504, and
amendments thereto;

      (D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
and amendments thereto;

      (E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments
thereto;

      (F) indecent solicitation of a child, K.S.A. 21-3510, and amendments
thereto;

      (G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and
amendments thereto;

      (H) sexual exploitation of a child, K.S.A. 21-3516, and amendments
thereto;

      (I) aggravated sexual battery, K.S.A. 21-3518, and amendments
thereto;

      (J) any conviction for a felony offense in effect at any time prior to
the effective date of this act, that is comparable to a sexually violent crime
as defined in subparagraphs (A) through (I), or any federal or other state
conviction for a felony offense that under the laws of this state would be
a sexually violent crime as defined in this section;

      (K) an attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually
violent crime as defined in this section; or

      (L) any act which at the time of sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually motivated.
As used in this subparagraph, ``sexually motivated'' means that one of the
purposes for which the defendant committed the crime was for the pur-
pose of the defendant's sexual gratification.

      (e) If an inmate is sentenced to imprisonment for a crime committed
while on parole or conditional release, the inmate shall be eligible for
parole as provided by subsection (c), except that the Kansas parole board
may postpone the inmate's parole eligibility date by assessing a penalty
not exceeding the period of time which could have been assessed if the
inmate's parole or conditional release had been violated for reasons other
than conviction of a crime.

      (f) If a person is sentenced to prison for a crime committed on or
after July 1, 1993, while on probation, parole, conditional release or in a
community corrections program, for a crime committed prior to July 1,
1993, and the person is not eligible for retroactive application of the
sentencing guidelines and amendments thereto pursuant to K.S.A. 21-
4724 and amendments thereto, the new sentence shall not be aggregated
with the old sentence, but shall begin when the person is paroled or
reaches the conditional release date on the old sentence. If the offender
was past the offender's conditional release date at the time the new of-
fense was committed, the new sentence shall not be aggregated with the
old sentence but shall begin when the person is ordered released by the
Kansas parole board or reaches the maximum sentence expiration date
on the old sentence, whichever is earlier. The new sentence shall then
be served as otherwise provided by law. The period of postrelease su-
pervision shall be based on the new sentence, except that those offenders
whose old sentence is a term of imprisonment for life, imposed pursuant
to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate
sentence with a maximum term of life imprisonment, for which there is
no conditional release or maximum sentence expiration date, shall remain
on postrelease supervision for life or until discharged from supervision
by the Kansas parole board.

      (g) Subject to the provisions of this section, the Kansas parole board
may release on parole those persons confined in institutions who are el-
igible for parole when: (1) The board believes that the inmate should be
released for hospitalization, for deportation or to answer the warrant or
other process of a court and is of the opinion that there is reasonable
probability that the inmate can be released without detriment to the com-
munity or to the inmate; or (2) the secretary of corrections has reported
to the board in writing that the inmate has satisfactorily completed the
programs required by any agreement entered under K.S.A. 75-5210a and
amendments thereto, or any revision of such agreement, and the board
believes that the inmate is able and willing to fulfill the obligations of a
law abiding citizen and is of the opinion that there is reasonable proba-
bility that the inmate can be released without detriment to the community
or to the inmate. Parole shall not be granted as an award of clemency and
shall not be considered a reduction of sentence or a pardon.

      (h) The Kansas parole board shall hold a parole hearing at least the
month prior to the month an inmate will be eligible for parole under
subsections (a), (b) and (c). At least the month preceding the parole hear-
ing, the county or district attorney of the county where the inmate was
convicted shall give written notice of the time and place of the public
comment sessions for the inmate to any victim of the inmate's crime who
is alive and whose address is known to the county or district attorney or,
if the victim is deceased, to the victim's family if the family's address is
known to the county or district attorney. Except as otherwise provided,
failure to notify pursuant to this section shall not be a reason to postpone
a parole hearing. In the case of any inmate convicted of an off-grid felony
or a class A felony the secretary of corrections shall give written notice
of the time and place of the public comment session for such inmate at
least one month preceding the public comment session to any victim of
such inmate's crime or the victim's family pursuant to K.S.A. 74-7338 and
amendments thereto. If notification is not given to such victim or such
victim's family in the case of any inmate convicted of an off-grid felony
or a class A felony, the board shall postpone a decision on parole of the
inmate to a time at least 30 days after notification is given as provided in
this section. Nothing in this section shall create a cause of action against
the state or an employee of the state acting within the scope of the em-
ployee's employment as a result of the failure to notify pursuant to this
section. If granted parole, the inmate may be released on parole on the
date specified by the board, but not earlier than the date the inmate is
eligible for parole under subsections (a), (b) and (c). At each parole hear-
ing and, if parole is not granted, at such intervals thereafter as it deter-
mines appropriate, the Kansas parole board shall consider: (1) Whether
the inmate has satisfactorily completed the programs required by any
agreement entered under K.S.A. 75-5210a and amendments thereto, or
any revision of such agreement; and (2) all pertinent information regard-
ing such inmate, including, but not limited to, the circumstances of the
offense of the inmate; the presentence report; the previous social history
and criminal record of the inmate; the conduct, employment, and attitude
of the inmate in prison; the reports of such physical and mental exami-
nations as have been made; comments of the victim and the victim's
family including in person comments, contemporaneous comments and
prerecorded comments made by any technological means; comments of
the public; official comments; and capacity of state correctional institu-
tions.

      (i) In those cases involving inmates sentenced for a crime committed
after July 1, 1993, the parole board will review the inmates proposed
release plan. The board may schedule a hearing if they desire. The board
may impose any condition they deem necessary to insure public safety,
aid in the reintegration of the inmate into the community, or items not
completed under the agreement entered into under K.S.A. 75-5210a and
amendments thereto. The board may not advance or delay an inmate's
release date. Every inmate while on postrelease supervision shall remain
in the legal custody of the secretary of corrections and is subject to the
orders of the secretary.

      (j) Before ordering the parole of any inmate, the Kansas parole board
shall have the inmate appear before either in person or via a video con-
ferencing format and shall interview the inmate unless impractical be-
cause of the inmate's physical or mental condition or absence from the
institution. Every inmate while on parole shall remain in the legal custody
of the secretary of corrections and is subject to the orders of the secretary.
Whenever the Kansas parole board formally considers placing an inmate
on parole and no agreement has been entered into with the inmate under
K.S.A. 75-5210a and amendments thereto, the board shall notify the in-
mate in writing of the reasons for not granting parole. If an agreement
has been entered under K.S.A. 75-5210a and amendments thereto and
the inmate has not satisfactorily completed the programs specified in the
agreement, or any revision of such agreement, the board shall notify the
inmate in writing of the specific programs the inmate must satisfactorily
complete before parole will be granted. If parole is not granted only
because of a failure to satisfactorily complete such programs, the board
shall grant parole upon the secretary's certification that the inmate has
successfully completed such programs. If an agreement has been entered
under K.S.A. 75-5210a and amendments thereto and the secretary of
corrections has reported to the board in writing that the inmate has sat-
isfactorily completed the programs required by such agreement, or any
revision thereof, the board shall not require further program participa-
tion. However, if the board determines that other pertinent information
regarding the inmate warrants the inmate's not being released on parole,
the board shall state in writing the reasons for not granting the parole. If
parole is denied for an inmate sentenced for a crime other than a class A
or class B felony or an off-grid felony, the board shall hold another parole
hearing for the inmate not later than one year after the denial unless the
parole board finds that it is not reasonable to expect that parole would
be granted at a hearing if held in the next three years or during the interim
period of a deferral. In such case, the parole board may defer subsequent
parole hearings for up to three years but any such deferral by the board
shall require the board to state the basis for its findings. If parole is denied
for an inmate sentenced for a class A or class B felony or an off-grid
felony, the board shall hold another parole hearing for the inmate not
later than three years after the denial unless the parole board finds that
it is not reasonable to expect that parole would be granted at a hearing if
held in the next 10 years or during the interim period of a deferral. In
such case, the parole board may defer subsequent parole hearings for up
to 10 years but any such deferral shall require the board to state the basis
for its findings.

      (k) Parolees and persons on postrelease supervision shall be assigned,
upon release, to the appropriate level of supervision pursuant to the cri-
teria established by the secretary of corrections.

      (l) The Kansas parole board shall adopt rules and regulations in ac-
cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-
consistent with the law and as it may deem proper or necessary, with
respect to the conduct of parole hearings, postrelease supervision reviews,
revocation hearings, orders of restitution, reimbursement of expenditures
by the state board of indigents' defense services and other conditions to
be imposed upon parolees or releasees. Whenever an order for parole or
postrelease supervision is issued it shall recite the conditions thereof.

      (m) Whenever the Kansas parole board orders the parole of an in-
mate or establishes conditions for an inmate placed on postrelease su-
pervision, the board:

      (1) Unless it finds compelling circumstances which would render a
plan of payment unworkable, shall order as a condition of parole or post-
release supervision that the parolee or the person on postrelease super-
vision pay any transportation expenses resulting from returning the pa-
rolee or the person on postrelease supervision to this state to answer
criminal charges or a warrant for a violation of a condition of probation,
assignment to a community correctional services program, parole, con-
ditional release or postrelease supervision;

      (2) to the extent practicable, shall order as a condition of parole or
postrelease supervision that the parolee or the person on postrelease su-
pervision make progress towards or successfully complete the equivalent
of a secondary education if the inmate has not previously completed such
educational equivalent and is capable of doing so;

      (3) may order that the parolee or person on postrelease supervision
perform community or public service work for local governmental agen-
cies, private corporations organized not-for-profit or charitable or social
service organizations performing services for the community;

      (4) may order the parolee or person on postrelease supervision to pay
the administrative fee imposed pursuant to K.S.A. 2001 Supp. 22-4529,
and amendments thereto, unless the board finds compelling circum-
stances which would render payment unworkable; and

      (5) unless it finds compelling circumstances which would render a
plan of payment unworkable, shall order that the parolee or person on
postrelease supervision reimburse the state for all or part of the expend-
itures by the state board of indigents' defense services to provide counsel
and other defense services to the person. In determining the amount and
method of payment of such sum, the parole board shall take account of
the financial resources of the person and the nature of the burden that
the payment of such sum will impose. Such amount shall not exceed the
amount claimed by appointed counsel on the payment voucher for indi-
gents' defense services or the amount prescribed by the board of indi-
gents' defense services reimbursement tables as provided in K.S.A. 22-
4522 and amendments thereto, whichever is less, minus any previous
payments for such services.

      (n) If the court which sentenced an inmate specified at the time of
sentencing the amount and the recipient of any restitution ordered as a
condition of parole or postrelease supervision, the Kansas parole board
shall order as a condition of parole or postrelease supervision that the
inmate pay restitution in the amount and manner provided in the journal
entry unless the board finds compelling circumstances which would ren-
der a plan of restitution unworkable.

      (o) Whenever the Kansas parole board grants the parole of an inmate,
the board, within 10 days of the date of the decision to grant parole, shall
give written notice of the decision to the county or district attorney of the
county where the inmate was sentenced.

      (p) When an inmate is to be released on postrelease supervision, the
secretary, within 30 days prior to release, shall provide the county or
district attorney of the county where the inmate was sentenced written
notice of the release date.

      (q) Inmates shall be released on postrelease supervision upon the
termination of the prison portion of their sentence. Time served while
on postrelease supervision will vest.

      (r) An inmate who is allocated regular good time credits as provided
in K.S.A. 22-3725 and amendments thereto may receive meritorious good
time credits in increments of not more than 90 days per meritorious act.
These credits may be awarded by the secretary of corrections when an
inmate has acted in a heroic or outstanding manner in coming to the
assistance of another person in a life threatening situation, preventing
injury or death to a person, preventing the destruction of property or
taking actions which result in a financial savings to the state.

      (s) The provisions of subsections (d)(1)(A), (d)(1)(B), (d)(1)(C) and
(d)(1)(E) shall be applied retroactively as provided in subsection (t).

      (t) For offenders sentenced prior to the effective date of this act who
are eligible for modification of their postrelease supervision obligation,
the department of corrections shall modify the period of postrelease su-
pervision as provided for by this section for offenders convicted of severity
level 9 and 10 crimes on the sentencing guidelines grid for nondrug
crimes and severity level 4 crimes on the sentencing guidelines grid for
drug crimes on or before September 1, 2000; for offenders convicted of
severity level 7 and 8 crimes on the sentencing guidelines grid for nondrug
crimes on or before November 1, 2000; and for offenders convicted of
severity level 5 and 6 crimes on the sentencing guidelines grid for nondrug
crimes and severity level 3 crimes on the sentencing guidelines grid for
drug crimes on or before January 1, 2001.

      Sec.  6. K.S.A. 2001 Supp. 22-4902, as amended by section 1 of 2002
House Bill No. 2399, is hereby amended to read as follows: 22-4902. As
used in this act, unless the context otherwise requires:

      (a) ``Offender'' means: (1) A sex offender as defined in subsection (b);

      (2) a violent offender as defined in subsection (d);

      (3) a sexually violent predator as defined in subsection (f);

      (4) any person who, on and after the effective date of this act, is
convicted of any of the following crimes when the victim is less than 18
years of age:

      (A) Kidnapping as defined in K.S.A. 21-3420 and amendments
thereto, except by a parent;

      (B) aggravated kidnapping as defined in K.S.A. 21-3421 and amend-
ments thereto; or

      (C) criminal restraint as defined in K.S.A. 21-3424 and amendments
thereto, except by a parent;

      (5) any person convicted of any of the following criminal sexual con-
duct if one of the parties involved is less than 18 years of age:

      (A) Adultery as defined by K.S.A. 21-3507, and amendments thereto;

      (B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-
3505, and amendments thereto;

      (C) promoting prostitution as defined by K.S.A. 21-3513, and amend-
ments thereto;

      (D) patronizing a prostitute as defined by K.S.A. 21-3515, and
amendments thereto;

      (E) lewd and lascivious behavior as defined by K.S.A. 21-3508, and
amendment amendments thereto; or

      (F) unlawful sexual relations as defined by K.S.A. 21-3520, and
amendments thereto;

      (6) any person who is a resident of this state who has been required
to register under any federal, military or other state's law;

      (7) any person who has been convicted of an offense in effect at any
time prior to the effective date of this act, that is comparable to any crime
defined in subsection (4) or (5), or any federal, military or other state
conviction for an offense that under the laws of this state would be an
offense defined in subsection (4) or (5); or

      (8) any person who has been convicted of an attempt, conspiracy or
criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303
and amendments thereto, of an offense defined in subsection (4) or (5).

      Convictions which result from or are connected with the same act, or
result from crimes committed at the same time, shall be counted for the
purpose of this section as one conviction. Any conviction set aside pur-
suant to law is not a conviction for purposes of this section. A conviction
from another state shall constitute a conviction for purposes of this sec-
tion.

      (b) ``Sex offender'' includes any person who, after the effective date
of this act, is convicted of any sexually violent crime set forth in subsection
(c) or is adjudicated as a juvenile offender for an act which if committed
by an adult would constitute the commission of a sexually violent crime
set forth in subsection (c).

      (c) ``Sexually violent crime'' means:

      (1) Rape as defined in K.S.A. 21-3502 and amendments thereto;

      (2) indecent liberties with a child as defined in K.S.A. 21-3503 and
amendments thereto;

      (3) aggravated indecent liberties with a child as defined in K.S.A. 21-
3504 and amendments thereto;

      (4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of
K.S.A. 21-3505 and amendments thereto;

      (5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and
amendments thereto;

      (6) indecent solicitation of a child as defined by K.S.A. 21-3510 and
amendments thereto;

      (7) aggravated indecent solicitation of a child as defined by K.S.A.
21-3511 and amendments thereto;

      (8) sexual exploitation of a child as defined by K.S.A. 21-3516 and
amendments thereto;

      (9) sexual battery as defined by K.S.A. 21-3517 and amendments
thereto;

      (10) aggravated sexual battery as defined by K.S.A. 21-3518 and
amendments thereto;

      (11) aggravated incest as defined by K.S.A. 21-3603 and amendments
thereto; or

      (12) any conviction for an offense in effect at any time prior to the
effective date of this act, that is comparable to a sexually violent crime as
defined in subparagraphs (1) through (11), or any federal, military or
other state conviction for an offense that under the laws of this state would
be a sexually violent crime as defined in this section;

      (13) an attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a sex-
ually violent crime, as defined in this section; or

      (14) any act which at the time of sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually motivated.
As used in this subparagraph, ``sexually motivated'' means that one of the
purposes for which the defendant committed the crime was for the pur-
pose of the defendant's sexual gratification.

      (d) ``Violent offender'' includes any person who, after the effective
date of this act, is convicted of any of the following crimes:

      (1) Capital murder as defined by K.S.A. 21-3439 and amendments
thereto;

      (2) murder in the first degree as defined by K.S.A. 21-3401 and
amendments thereto;

      (3) murder in the second degree as defined by K.S.A. 21-3402 and
amendments thereto;

      (4) voluntary manslaughter as defined by K.S.A. 21-3403 and amend-
ments thereto;

      (5) involuntary manslaughter as defined by K.S.A. 21-3404 and
amendments thereto; or

      (6) any conviction for an offense in effect at any time prior to the
effective date of this act, that is comparable to any crime defined in this
subsection, or any federal, military or other state conviction for an offense
that under the laws of this state would be an offense defined in this
subsection; or

      (7) an attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-
fense defined in this subsection.

      (e) ``Law enforcement agency having jurisdiction'' means the sheriff
of the county in which the offender expects to reside upon the offender's
discharge, parole or release.

      (f) ``Sexually violent predator'' means any person who, on or after July
1, 2001, is found to be a sexually violent predator pursuant to K.S.A. 59-
29a01 et seq. and amendments thereto.

      (g) ``Nonresident student or worker'' includes any offender who
crosses into the state or county for more than 14 days, or for an aggregate
period exceeding 30 days in a calendar year, for the purposes of employ-
ment, with or without compensation, or to attend school as a student.

      (h) ``Aggravated offenses'' means engaging in sexual acts involving
penetration with victims of any age through the use of force or the threat
of serious violence, or engaging in sexual acts involving penetration with
victims less than 14 years of age, and includes the following offenses:

      (1) Rape as defined in subsection (a)(1)(A) and subsection (a)(2) of
K.S.A. 2001 Supp. 21-3502, and amendments thereto;

      (2) aggravated criminal sodomy as defined in subsection (a)(1) and
subsection (a)(3)(A) of K.S.A. 21-3506, and amendments thereto; and

      (3) any attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-
fense defined in this subsection (f).

      Sec.  7. K.S.A. 74-7338 is hereby amended to read as follows: 74-
7338. (a) Notwithstanding the provisions of K.S.A. 74-7335 and amend-
ments thereto, in the case of any inmate convicted of an off-grid felony
or a class A felony, the secretary of corrections shall give written notice
of the time and place of the public comment session pursuant to K.S.A.
22-3717 and amendments thereto for such inmate, at least one month
preceding the public comment session, to any victim or the victim's family
pursuant to subsection (b).

      (b) Any victim, or a member of the victim's family of a crime, if such
victim requests notice of the public comment session, shall give the sec-
retary of corrections such victim's name and current address or the name
and current address of the victim's family. It shall be the duty of the
victim or the victim's family to provide the secretary with any change in
name or address or change in the person to be notified pursuant to this
section.

      (c) The secretary of corrections shall keep a record of all victims and
their current addresses or such victims' family and their current ad-
dresses, who give the secretary such victim or victims' family name pur-
suant to subsection (b), and shall update such record as notified by the
victims or the victims' family. Such record shall be kept confidential and
separate from all other records and shall not be available to the inmate
or any other party other than the victim or the victim's family.

 Sec.  8. K.S.A. 21-4715 and 74-7338 and K.S.A. 2001 Supp. 21-3520,
21-4619, 22-3437, 22-3717 and 22-4902, as amended by section 1 of 2002
House Bill No. 2399, are hereby repealed.

 Sec.  9. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 29, 2002.
__________