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),
judge shall impose the presumptive sentence provided by the
guidelines for crimes committed on or after July 1, 1993, unless
finds substantial and compelling reasons to impose a departure. If
sentencing judge departs from the presumptive sentence, the judge
state on the record at the time of sentencing the substantial and
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
beyond the statutory maximum, other than a prior conviction,
submitted to a jury and proved beyond a reasonable
(1) Subject to the provisions of subsection (b)(3), the
nonexclusive list of mitigating factors may be considered in
whether substantial and compelling reasons for a departure
(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
sufficient as a complete defense.
(C) The offender, because of physical or
mental impairment, lacked
substantial capacity for judgment when the offense was committed.
voluntary use of intoxicants, drugs or alcohol does not fall within
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
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
(2) Subject to the provisions of
subsection (b)(3), the following no-
nexclusive list of aggravating factors may be considered in
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
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
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
the offense was motivated by the defendant's belief or
or in part, of the race, color, religion, ethnicity, national
origin or sexual
orientation of the victim whether or not the defendant's belief
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
age to commit or assist in avoiding detection or apprehension for
mission of any person felony or any attempt, conspiracy or
defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments
to commit any person felony regardless of whether the defendant
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
(i) ``Crime of extreme sexual violence''
is a felony limited to the fol-
(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
less than 16 years of age and with whom a relationship has been
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
(ii) ``Predatory sex offender'' is an
offender who has been convicted
of a crime of extreme sexual violence as the current crime of
(a) Has one or more prior convictions of
any crimes of extreme sexual
violence. Any prior conviction used to establish the defendant as a
atory sex offender pursuant to this subsection shall also be
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
of extreme sexual violence.
(iii) ``Mental condition or personality
disorder'' means an emotional,
mental or physical illness, disease, abnormality, disorder,
condition which motivates the person, affects the predisposition or
of the person, or interferes with the capacity of the person to
impulses to commit crimes of extreme sexual violence.
(G) The defendant was incarcerated during
the commission of the
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,
of the current crime of conviction may be used as an aggravating or
igating factor only if the criminal conduct constituting that
aspect of the
current crime of conviction is significantly different from the
inal conduct captured by the aspect of the crime.
(c) In determining aggravating or
mitigating circumstances, the court
(1) Any evidence received during the
(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
motion of either the defendant or the state, shall hold a hearing
sider imposition of a departure sentence other than an upward
departure sentence. The motion shall state the type of
and the reasons and factors relied upon. The hearing shall be
so that the parties have adequate time to prepare and present
regarding the issues of departure sentencing. The victim of a crime
the victim's family shall be notified of the right to be present at
ing for the convicted person by the county or district attorney.
may submit written arguments to the court prior to the date of the
and may make oral arguments before the court at the hearing. The
shall review the victim impact statement. Prior to the hearing, the
shall transmit to the defendant or the defendant's attorney and the
ecuting attorney copies of the presentence investigation
(2) At the conclusion of the hearing or
within 20 days thereafter, the
court shall issue findings of fact and conclusions of law regarding
issues submitted by the parties, and shall enter an appropriate
(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
of its intent and allow reasonable time for either party to respond
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
fact as to the reasons for departure as provided in this
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
of such upward durational departure sentence in the manner
subsection (b)(2). The county or district attorney shall file
such motion to
seek an upward durational departure sentence not less than 30
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
(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
be presented to a jury and proved beyond a reasonable doubt
trial of the matter or following the determination of the
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
by the court, then the provisions of subsections (b)(5), (b)(6)
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
whether the defendant may be subject to an upward durational
sentence. Such proceeding shall be conducted by the court before
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
proceeding, the court shall substitute an alternate juror who
impaneled for the trial jury. If there are insufficient
alternate jurors to
replace trial jurors who are unable to serve at the upward
departure sentence proceeding, the court may conduct such upward
ational departure sentence proceeding before a jury which may
or less jurors, but at no time less than six jurors. Any
decision of an
upward durational departure sentence proceeding shall be decided
unanimous decision of the jury. Jury selection procedures,
of jurors and grounds for exemption or challenge of prospective
criminal trials shall be applicable to the selection of such
jury. The jury
at the upward durational departure sentence proceeding may be
in the manner provided by K.S.A. 22-3403, and amendments
waiver of a trial jury. If the jury at the upward durational
sentence proceeding has been waived or the trial jury has been
the upward durational departure sentence proceeding shall be
by the court.
(5) In the upward durational departure
sentence proceeding, evi-
dence may be presented concerning any matter that the court
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.
or 21-4717, and amendments thereto. Only such evidence as the
made known to the defendant prior to the upward durational
sentence proceeding shall be admissible, and no evidence secured
lation of the constitution of the United States or of the state
shall be admissible. No testimony by the defendant at the upward
tional departure sentence proceeding shall be admissible against
fendant at any subsequent criminal proceeding. At the conclusion
evidentiary presentation, the court shall allow the parties a
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.
4716 through 21-4719, and amendments thereto; otherwise, the
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
serve to enhance the maximum sentence exists, shall designate in
signed by the foreman of the jury, the specific factor or
factors which the
jury found beyond a reasonable doubt. If, after a reasonable
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
requirements of this subsection in determining if one or more of
cific factors exist that may serve to enhance the maximum
Sec. 3. K.S.A. 21-4718 and K.S.A. 2001 Supp. 21-4716 are
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.