CHAPTER 170 SENATE Substitute for HOUSE BILL No. 2154 An  Act concerning crimes, criminal procedures and punishment; relating to departure
sentencing, procedures; amending K.S.A. 21-4718 and K.S.A. 2001 Supp. 21-4716 and
repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2001 Supp. 21-4716 is hereby amended to read as
follows: 21-4716. (a) Except as provided in subsection (b), 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 com-
pelling reasons for the departure.

      (b) Subject to the provisions of subsection (b) of K.S.A. 21-4718, and
amendments thereto, any fact that would increase the penalty for a crime
beyond the statutory maximum, other than a prior conviction, shall be
submitted to a jury and proved beyond a reasonable doubt.

      (b) (c)  (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 or
the offense was motivated by the defendant's belief or perception, entirely
or in part, of the race, color, religion, ethnicity, national origin or sexual
orientation of the victim whether or not the defendant's belief or percep-
tion was correct.

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

      (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 com-
mission 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.

      (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.

      (G) The defendant was incarcerated during the commission of the
offense.

      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.  2. K.S.A. 21-4718 is hereby amended to read as follows: 21-
4718. (a) (1) Whenever a person is convicted of a felony, the court upon
motion of either the defendant or the state, shall hold a hearing to con-
sider imposition of a departure sentence other than an upward durational
departure sentence. The motion shall state the type of departure sought
and the reasons and factors relied upon. The hearing shall be scheduled
so that the parties have adequate time to prepare and present arguments
regarding the issues of departure sentencing. The victim of a crime or
the victim's family shall be notified of the right to be present at the hear-
ing for the convicted person by the county or district attorney. The parties
may submit written arguments to the court prior to the date of the hearing
and may make oral arguments before the court at the hearing. The court
shall review the victim impact statement. Prior to the hearing, the court
shall transmit to the defendant or the defendant's attorney and the pros-
ecuting attorney copies of the presentence investigation report.

      (2) At the conclusion of the hearing or within 20 days thereafter, the
court shall issue findings of fact and conclusions of law regarding the
issues submitted by the parties, and shall enter an appropriate order.

      (b) (3) If the court decides to depart on its own volition, without a
motion from the state or the defendant, the court must notify all parties
of its intent and allow reasonable time for either party to respond if they
request requested. The notice shall state the type of departure intended
by the court and the reasons and factors relied upon.

      (c) (4) In each case in which the court imposes a sentence that de-
viates from the presumptive sentence, the court shall make findings of
fact as to the reasons for departure as provided in this subsection regard-
less of whether a hearing is requested.

      (b)  (1) Upon motion of the county or district attorney to seek an
upward durational departure sentence, the court shall consider imposition
of such upward durational departure sentence in the manner provided in
subsection (b)(2). The county or district attorney shall file such motion to
seek an upward durational departure sentence not less than 30 days prior
to the date of trial or if the trial date is to take place in less than 30 days
then within five days from the date of the arraignment.

      (2) The court shall determine if the presentation of any evidence re-
garding the alleged fact or factors that may increase the penalty for a
crime beyond the statutory maximum, other than a prior conviction, shall
be presented to a jury and proved beyond a reasonable doubt during the
trial of the matter or following the determination of the defendant's in-
nocence or guilt.

      (3) If the presentation of the evidence regarding the alleged fact or
factors is submitted to the jury during the trial of the matter as determined
by the court, then the provisions of subsections (b)(5), (b)(6) and (b)(7)
shall be applicable.

      (4) If the court determines it is in the interest of justice, the court
shall conduct a separate departure sentence proceeding to determine
whether the defendant may be subject to an upward durational departure
sentence. Such proceeding shall be conducted by the court before the trial
jury as soon as practicable. If any person who served on the trial jury is
unable to serve on the jury for the upward durational departure sentence
proceeding, the court shall substitute an alternate juror who has been
impaneled for the trial jury. If there are insufficient alternate jurors to
replace trial jurors who are unable to serve at the upward durational
departure sentence proceeding, the court may conduct such upward dur-
ational departure sentence proceeding before a jury which may have 12
or less jurors, but at no time less than six jurors. Any decision of an
upward durational departure sentence proceeding shall be decided by a
unanimous decision of the jury. Jury selection procedures, qualifications
of jurors and grounds for exemption or challenge of prospective jurors in
criminal trials shall be applicable to the selection of such jury. The jury
at the upward durational departure sentence proceeding may be waived
in the manner provided by K.S.A. 22-3403, and amendments thereto, for
waiver of a trial jury. If the jury at the upward durational departure
sentence proceeding has been waived or the trial jury has been waived,
the upward durational departure sentence proceeding shall be conducted
by the court.

      (5) In the upward durational departure sentence proceeding, evi-
dence may be presented concerning any matter that the court deems rel-
evant to the question of determining if any specific factors exist that may
serve to enhance the maximum sentence as provided by K.S.A. 21-4716
or 21-4717, and amendments thereto. Only such evidence as the state has
made known to the defendant prior to the upward durational departure
sentence proceeding shall be admissible, and no evidence secured in vio-
lation of the constitution of the United States or of the state of Kansas
shall be admissible. No testimony by the defendant at the upward dura-
tional departure sentence proceeding shall be admissible against the de-
fendant at any subsequent criminal proceeding. At the conclusion of the
evidentiary presentation, the court shall allow the parties a reasonable
period of time in which to present oral arguments.

      (6) The court shall provide oral and written instructions to the jury
to guide its deliberations.

      (7) If, by unanimous vote, the jury finds beyond a reasonable doubt
that one or more specific factors exist that may serve to enhance the max-
imum sentence, the defendant may be sentenced pursuant to K.S.A. 21-
4716 through 21-4719, and amendments thereto; otherwise, the defendant
shall be sentenced as provided by law. The jury, if its verdict is a unani-
mous recommendation that one or more of the specific factors that may
serve to enhance the maximum sentence exists, shall designate in writing,
signed by the foreman of the jury, the specific factor or factors which the
jury found beyond a reasonable doubt. If, after a reasonable time for
deliberation, the jury is unable to reach a verdict of finding any of the
specific factors, the court shall dismiss the jury and shall only impose a
sentence as provided by law. In nonjury cases, the court shall follow the
requirements of this subsection in determining if one or more of the spe-
cific factors exist that may serve to enhance the maximum sentence. 
Sec.  3. K.S.A. 21-4718 and K.S.A. 2001 Supp. 21-4716 are hereby
repealed.
 Sec.  4. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved May 29, 2002.
 Published in the Kansas Register June 6, 2002.
__________