21-4704. Sentencing guidelines; grid for nondrug crimes; authority and responsibility of sentencing court; presumptive disposition; nongrid crime.
21-4704
21-4704. Sentencing guidelines; grid for nondrugcrimes; authority and responsibility of sentencing court; presumptivedisposition; nongrid crime.(a) For purposes of sentencing, the following sentencing guidelines gridfor nondrug crimes shall be applied in felony cases for crimes committed onor after July 1, 1993:
(b) The provisions of this section shall be applicable to the sentencingguidelines grid for nondrug crimes. Sentences expressed in such grid representmonths of imprisonment.
(c) The sentencing guidelines grid is a two-dimensional crime severityand criminal history classification tool. The grid's vertical axis is thecrime severity scale which classifies current crimes of conviction. Thegrid's horizontal axis is the criminal history scale which classifiescriminal histories.
(d) The sentencing guidelines grid for nondrug crimes as provided in thissection defines presumptive punishments for felony convictions, subject tojudicial discretion to deviate for substantial and compelling reasons andimpose a different sentence in recognition of aggravating and mitigatingfactors as provided in this act. The appropriate punishment for a felonyconviction should depend on the severity of the crime of conviction whencompared to all other crimes and the offender's criminal history.
(e) (1) The sentencing court has discretion to sentence at any placewithin the sentencing range. The sentencing judge shall select the center ofthe range in the usual case and reserve the upper and lower limits foraggravating and mitigating factors insufficient to warrant a departure.
(2) In presumptive imprisonment cases, the sentencing court shall pronouncethe complete sentence which shall include the prison sentence, the maximumpotential reduction to such sentence as a result of good time and the period ofpostrelease supervision at the sentencing hearing. Failure to pronounce theperiod of postrelease supervision shall not negate the existence of such periodof postrelease supervision.
(3) In presumptive nonprison cases, the sentencing court shall pronounce theprison sentence as well as the duration of the nonprison sanction at thesentencing hearing.
(f) Each grid block states the presumptive sentencing range for an offenderwhose crime of conviction and criminal history place such offender in that gridblock. If an offense is classified in a grid block below the dispositionalline, the presumptive disposition shall be nonimprisonment. If an offense isclassified in a grid block above the dispositional line, the presumptivedisposition shall be imprisonment. If an offense is classified in grid blocks5-H, 5-I or 6-G, the court may impose an optional nonprison sentence uponmaking the following findings on the record:
(1) An appropriate treatment program exists which is likely to be moreeffective than the presumptive prison term in reducing the risk of offenderrecidivism; and
(2) the recommended treatment program is available and the offender can beadmitted to such program within a reasonable period of time; or
(3) the nonprison sanction will serve community safety interests bypromoting offender reformation.
Any decision made by the court regarding the imposition of an optionalnonprison sentence if the offense is classified in grid blocks 5-H, 5-I or 6-Gshall not be considered a departure and shall not be subject to appeal.
(g) The sentence for the violation of K.S.A. 21-3415, andamendments thereto, aggravated battery against a law enforcement officercommitted prior to July 1, 2006, or K.S.A. 21-3411,and amendments thereto,aggravated assault against a law enforcement officer, which places thedefendant's sentence in grid block 6-H or6-I shall be presumed imprisonment. The court may impose an optional nonprisonsentence upon making a finding on the record that the nonprison sanction willserve community safety interests by promoting offender reformation. Anydecision made by the court regarding the imposition of the optional nonprisonsentence, if the offense is classified in grid block 6-H or 6-I, shall not beconsidered departure and shall not be subject to appeal.
(h) When a firearm is used to commit any person felony, the offender'ssentence shall be presumed imprisonment. The court may impose an optionalnonprison sentence upon making a finding on the record that the nonprisonsanction will serve community safety interests by promoting offenderreformation. Any decision made by the court regarding the imposition of theoptional nonprison sentence shall not be considered a departure and shall notbe subject to appeal.
(i) The sentence for the violation of the felony provision of K.S.A. 8-1567,subsection (b)(3) of K.S.A. 21-3412a, subsections (b)(3)and (b)(4) ofK.S.A. 21-3710, K.S.A. 21-4310 and K.S.A. 21-4318,and amendments thereto, shall be as provided by the specificmandatory sentencing requirements of that section and shall not be subject tothe provisions of this section or K.S.A. 21-4707 and amendments thereto. Ifbecause of the offender's criminal history classification the offender issubject to presumptive imprisonment or if the judge departs from a presumptiveprobation sentence and the offender is subject to imprisonment, the provisionsof this section and K.S.A. 21-4707, and amendments thereto, shall apply and theoffender shall not be subject to the mandatory sentence as provided in K.S.A.21-3710, and amendments thereto. Notwithstanding the provisions of any othersection, the term of imprisonment imposed for the violation of the felonyprovision of K.S.A. 8-1567, subsection (b)(3) of K.S.A. 21-3412a,subsections (b)(3) and (b)(4) of K.S.A. 21-3710, K.S.A.21-4310 and K.S.A. 21-4318, and amendments thereto,shall not be served in a state facility in the custody of thesecretary of corrections, except that the term of imprisonment for felonyviolations of K.S.A. 8-1567, and amendments thereto, may be served in a statecorrectional facility designated by the secretary of corrections if thesecretary determines that substance abuse treatment resources and facilitycapacity is available. The secretary's determination regarding the availabilityof treatment resources and facility capacity shall not be subject toreview.
(j) (1) The sentence for any persistent sex offender whose currentconvicted crime carries a presumptive term of imprisonment shall be double themaximum duration of the presumptive imprisonment term. The sentence for anypersistent sex offender whose current conviction carries a presumptivenonprison term shall be presumed imprisonment and shall be double the maximumduration of the presumptive imprisonment term.
(2) Except as otherwise provided in this subsection, as used in thissubsection, "persistent sex offender" means a person who: (A) (i) Has beenconvicted in this state of a sexually violent crime, as defined in K.S.A.22-3717 and amendments thereto; and (ii) at the time of the conviction underparagraph (A) (i) 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 comparablefelony under the laws of another state, the federal government or a foreigngovernment; or (B) (i) has been convicted of rape, K.S.A. 21-3502, andamendments thereto; and (ii) at the time of the conviction under paragraph(B) (i) has at least one conviction for rape in this state or comparablefelony under the laws of another state, the federal government or aforeign government.
(3) Except as provided in paragraph (2)(B), the provisions of thissubsection shall not apply to any person whose current convicted crime is aseverity level 1 or 2 felony.
(k) If it is shown at sentencing that the offender committed any felonyviolation for the benefit of, at the direction of, or in association with anycriminal street gang, with the specific intent to promote, further or assist inany criminal conduct by gang members, the offender's sentence shall be presumedimprisonment. Any decision made by the court regarding the imposition of theoptional nonprison sentence shall not be considered a departure and shall notbe subject to appeal. As used in this subsection, "criminal street gang" meansany organization, association or group of three or more persons, whether formalor informal, having as one of its primary activities the commission of one ormore person felonies or felony violations ofK.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendmentsthereto, which has acommon name or common identifying sign or symbol, whose members, individuallyor collectively engage in or have engaged in the commission, attemptedcommission, conspiracy to commit or solicitation of two or more person feloniesor felony violations ofK.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendmentsthereto, or any substantially similaroffense from another jurisdiction.
(l) Except as provided in subsection (o),the sentence for a violation of subsection (a) of K.S.A.21-3715 andamendments thereto when such person being sentenced has a prior conviction fora violation of subsection (a) or (b) of K.S.A. 21-3715 or 21-3716 andamendments thereto shall be presumed imprisonment.
(m) The sentence for a violation of K.S.A 22-4903 or subsection (d) ofK.S.A. 21-3812, and amendments thereto, shall be presumptive imprisonment. Ifan offense under such sections is classified in grid blocks 5-E, 5-F, 5-G, 5-Hor 5-I, the court may impose an optional nonprison sentence upon making thefollowing findings on the record:
(1) An appropriate treatment program exists which is likely to be moreeffective than the presumptive prison term in reducing the risk of offenderrecidivism, such program is available and the offender can be admitted to suchprogram within a reasonable period of time; or
(2) the nonprison sanction will serve community safety interests by promotingoffender reformation.
Any decision made by the court regarding the imposition of an optionalnonprison sentence pursuant to this section shall not be considered a departureand shall not be subject to appeal.
(n) The sentence for a third or subsequent violation of subsection (b) ofK.S.A. 21-3705, and amendments thereto, shall be presumptive imprisonment. Suchsentence shall not be considered a departure and shall not be subject toappeal.
(o) The sentence for a felony violation of K.S.A. 21-3701 or 21-3715, andamendmentsthereto, when such person being sentenced has no prior convictions for aviolation of K.S.A. 21-3701 or 21-3715, and amendments thereto; or the sentencefor a felony violation of K.S.A. 21-3701, andamendments thereto, whensuch person being sentenced has one or two prior felony convictions for aviolation ofK.S.A. 21-3701, 21-3715 or 21-3716, and amendments thereto; or the sentence fora felony violation of K.S.A. 21-3715, and amendments thereto, when such personbeing sentenced has one priorfelony conviction fora violation of K.S.A. 21-3701, 21-3715 or 21-3716, and amendments thereto,shall be the sentenceas provided by this section, except that the court may order an optionalnonprison sentence for adefendant to participate in a drug treatment program, including, but notlimited to, an approved after-care plan, if the court makes the followingfindings on the record:
(1) Substance abuse was an underlying factor in the commission of the crime;
(2) substance abuse treatment in the community is likely to be more effectivethan a prisonterm in reducing the risk of offender recidivism; and
(3) participation in an intensive substance abuse treatment program willserve communitysafety interests.
A defendant sentenced to an optional nonprison sentence under this subsectionshall besupervised by community correctional services. The provisions of subsection(f)(1) of K.S.A. 21-4729, and amendments thereto, shall apply to a defendantsentenced under thissubsection.
The sentence under this subsection shall not be considered a departure andshall not besubject to appeal.
(p) The sentence for a felony violation of K.S.A. 21-3701, and amendmentsthereto, when such person being sentenced hasany combination ofthreeor more prior felonyconvictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716and amendments thereto, or thesentence for a violation of K.S.A. 21-3715, and amendments thereto, when suchperson being sentenced has any combination of two or more prior convictions forviolations ofK.S.A. 21-3701, 21-3715and 21-3716, and amendments thereto, shall be presumed imprisonment and thedefendant shall be sentenced to prison as provided by this section, except thatthe court may recommend that an offender be placedinthe custodyof the secretary of corrections,in a facility designated by the secretaryto participate in an intensive substance abusetreatment program, upon making the following findings on the record:
(1) Substance abuse was an underlying factor in the commission of thecrime;
(2) substance abuse treatment with a possibility of an early release fromimprisonment is likely to be moreeffective than a prison term in reducing the risk of offender recidivism; and
(3) participation in an intensive substance abuse treatment program with thepossibility of an early release from imprisonment will serve communitysafety interests by promoting offender reformation.
The intensive substanceabuse treatment program shall be determined by the secretary of corrections,but shall be for a period of at least four months. Upon the successfulcompletion of suchintensive treatment program, the offender shall be returned to the courtand the court may modify the sentence by directing that a less severe penaltybe imposed in lieu of that originally adjudged within statutory limits. If theoffender's term of imprisonment expires, the offender shall be placed under theapplicable period of postrelease supervision.
Thesentence under this subsectionshall not be considered a departure and shall not be subject to appeal.
(q) The sentence for a violation of subsection (a)(2) of K.S.A. 21-3413,and amendments thereto, shall be presumptive imprisonmentand shall be served consecutively to any other term or terms of imprisonmentimposed. Such sentence shallnot be considered a departure and shall not be subject to appeal.
History: L. 1992, ch. 239, § 4;L. 1993, ch. 291, § 254;L. 1994, ch. 341, § 1;L. 1995, ch. 251, § 3;L. 1996, ch. 258, § 10;L. 1999, ch. 164, § 17;L. 2001, ch. 186, § 2;L. 2002, ch. 10, § 1;L. 2004, ch. 175, § 3;L. 2006, ch. 126, § 4;L. 2006, ch. 212, § 16;L. 2007, ch. 169, § 3;L. 2008, ch. 183, § 4;L. 2009, ch. 132, § 10; July 1.