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21-6804. Sentencing grid for nondrug crimes; authority and responsibility of sentencing court; presumptive disposition. (a) The provisions of this section shall be applicable to the sentencing guidelines grid for nondrug crimes. The following sentencing guidelines grid shall be applicable to nondrug felony crimes:

Sentencing guidelines grid for drug crimes.

(b) Sentences expressed in the sentencing guidelines grid for nondrug crimes represent months of imprisonment.

(c) The sentencing guidelines grid is a two-dimensional crime severity and criminal history classification tool. The grid's vertical axis is the crime severity scale which classifies current crimes of conviction. The grid's horizontal axis is the criminal history scale which classifies criminal histories.

(d) The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing court's discretion to enter a departure sentence. The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender's criminal history.

(e) (1) The sentencing court has discretion to sentence at any place within the sentencing range. In the usual case it is recommended that the sentencing judge select the center of the range and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.

(2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the:

(A) Prison sentence;

(B) maximum potential reduction to such sentence as a result of good time; and

(C) period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

(3) In presumptive nonprison cases, the sentencing court shall pronounce the:

(A) Prison sentence; and

(B) duration of the nonprison sanction at the sentencing hearing.

(f) Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional nonprison sentence as provided in subsection (q).

(g) The sentence for a violation of K.S.A. 21-3415, prior to its repeal, aggravated battery against a law enforcement officer committed prior to July 1, 2006, or a violation of K.S.A. 21-5412(d), and amendments thereto, aggravated assault against a law enforcement officer, which places the defendant's sentence in grid block 6-H or 6-I shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

(h) When a firearm is used to commit any person felony, the offender's sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

(i) (1) The sentence for the violation of the felony provision of K.S.A. 21-5414(c)(1)(C), 21-5823(b)(3)* and (b)(4), 21-6412 and 21-6416, and amendments thereto, shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-6807, and amendments thereto.

(2) If because of the offender's criminal history classification the offender is subject to presumptive imprisonment or if the judge departs from a presumptive probation sentence and the offender is subject to imprisonment, the provisions of this section and K.S.A. 21-6807, and amendments thereto, shall apply and the offender shall not be subject to the mandatory sentence as provided in K.S.A. 21-5823, and amendments thereto.

(3) Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 21-5414(c)(1)(C), 21-5823(b)(3)* and (b)(4), 21-6412 and 21-6416, and amendments thereto, shall not be served in a state facility in the custody of the secretary of corrections. Prior to imposing any sentence pursuant to this subsection, the court may consider assigning the defendant to a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto.

(j) (1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.

(2) Except as otherwise provided in this subsection, as used in this subsection, "persistent sex offender" means a person who:

(A) (i) Has been convicted 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 under clause (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 comparable felony under the laws of another state, the federal government or a foreign government; or

(B) (i) has been convicted of rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto; and

(ii) at the time of the conviction under clause (i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government.

(3) Except as provided in subsection (j)(2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.

(k) (1) If it is shown at sentencing that the offender committed any felony violation for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members, the offender's sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence as provided in subsection (q).

(2) As used in this subsection, "criminal street gang" means any organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities:

(A) The commission of one or more person felonies; or

(B) the commission of felony violations of article 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, or any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009; and

(C) its members have a common name or common identifying sign or symbol; and

(D) its members, individually or collectively, engage in or have engaged in the commission, attempted commission, conspiracy to commit or solicitation of two or more person felonies or felony violations of article 57 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009, or any substantially similar offense from another jurisdiction.

(l) Except as provided in subsection (o), the sentence for a violation of K.S.A. 21-5807(a)(1), and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-3715(a) or (b), prior to its repeal, 21-3716, prior to its repeal, K.S.A. 21-5807(a)(1) or (a)(2) or 21-5807(b), and amendments thereto, or any attempt or conspiracy to commit such offense, shall be presumptive imprisonment.

(m) The sentence for a violation of K.S.A. 22-4903 or K.S.A. 21-5913(a)(2), and amendments thereto, shall be presumptive imprisonment. If an offense under such sections is classified in grid blocks 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose an optional nonprison sentence as provided in subsection (q).

(n) The sentence for a violation of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, and when such person being sentenced has any combination of two or more prior convictions of K.S.A. 21-3705(b), prior to its repeal, or of criminal deprivation of property, as defined in K.S.A. 21-5803, and amendments thereto, when such property is a motor vehicle, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

(o) (1) The sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has no prior convictions for a violation of K.S.A. 21-3701 or 21-3715, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-5807(a), and amendments thereto; or the sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has one or two prior felony convictions for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto; or the sentence for a felony violation of burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has one prior felony conviction for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto, shall be the sentence as provided by this section, except that the court may order an optional nonprison sentence for a defendant to participate in a drug treatment program, including, but not limited to, an approved aftercare plan, if the court makes the following findings on the record:

(A) Substance abuse was an underlying factor in the commission of the crime;

(B) substance abuse treatment in the community is likely to be more effective than a prison term in reducing the risk of offender recidivism; and

(C) participation in an intensive substance abuse treatment program will serve community safety interests.

(2) A defendant sentenced to an optional nonprison sentence under this subsection shall be supervised by community correctional services. The provisions of K.S.A. 21-6824(f)(1), and amendments thereto, shall apply to a defendant sentenced under this subsection. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

(p) (1) The sentence for a felony violation of theft of property as defined in K.S.A. 21-5801, and amendments thereto, when such person being sentenced has any combination of three or more prior felony convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto; or the sentence for a violation of burglary as defined in K.S.A. 21-5807(a), and amendments thereto, when such person being sentenced has any combination of two or more prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21-3716, prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and amendments thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807, and amendments thereto, shall be presumed imprisonment and the defendant shall be sentenced to prison as provided by this section, except that the court may recommend that an offender be placed in the custody of the secretary of corrections, in a facility designated by the secretary to participate in an intensive substance abuse treatment program, upon making the following findings on the record:

(A) Substance abuse was an underlying factor in the commission of the crime;

(B) substance abuse treatment with a possibility of an early release from imprisonment is likely to be more effective than a prison term in reducing the risk of offender recidivism; and

(C) participation in an intensive substance abuse treatment program with the possibility of an early release from imprisonment will serve community safety interests by promoting offender reformation.

(2) The intensive substance abuse treatment program shall be determined by the secretary of corrections, but shall be for a period of at least four months. Upon the successful completion of such intensive treatment program, the offender shall be returned to the court and the court may modify the sentence by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If the offender's term of imprisonment expires, the offender shall be placed under the applicable period of postrelease supervision. The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

(q) (1) As used in this section, an "optional nonprison sentence" is a sentence which the court may impose, in lieu of the presumptive sentence, upon making the following findings on the record:

(A) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and

(B) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or

(C) the nonprison sanction will serve community safety interests by promoting offender reformation.

(2) Any decision made by the court regarding the imposition of an optional nonprison sentence shall not be considered a departure and shall not be subject to appeal.

(r) The sentence for a violation of K.S.A. 21-5413(c)(2), and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

(s) The sentence for a violation of K.S.A. 21-5512, and amendments thereto, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

(t) (1) If the trier of fact makes a finding beyond a reasonable doubt that an offender wore or used ballistic resistant material in the commission of, or attempt to commit, or flight from any felony, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 30 months' imprisonment.

(2) The sentence imposed pursuant to paragraph (1) shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

(3) As used in this subsection, "ballistic resistant material" means any:

(A) Commercially produced material designed with the purpose of providing ballistic and trauma protection, including, but not limited to, bulletproof vests and kevlar vests; and

(B) homemade or fabricated substance or item designed with the purpose of providing ballistic and trauma protection.

(u) The sentence for a violation of K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit such offense, when such person being sentenced has a prior conviction for a violation of K.S.A. 21-4018, prior to its repeal, or K.S.A. 21-6107, and amendments thereto, or any attempt or conspiracy to commit such offense, shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

(v) The sentence for a third or subsequent violation of K.S.A. 8-1568, and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

(w) The sentence for aggravated criminal damage to property as defined in K.S.A. 21-5813(b), and amendments thereto, when such person being sentenced has a prior conviction for any nonperson felony shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal.

(x) The sentence for a violation of K.S.A. 21-5807(a)(1), and amendments thereto, shall be presumptive imprisonment if the offense under such paragraph is classified in grid blocks 7-C, 7-D or 7-E. Such sentence shall not be considered a departure and shall not be subject to appeal.

(y) (1) Except as provided in paragraph (3), if the trier of fact makes a finding beyond a reasonable doubt that an offender committed a nondrug felony offense, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments thereto, to commit a nondrug felony offense, against a law enforcement officer, as defined in K.S.A. 21-5111(p)(1) and (3), and amendments thereto, while such officer was engaged in the performance of such officer's duty, or in whole or in any part because of such officer's status as a law enforcement officer, the sentence for such offense shall be:

(A) If such offense is classified in severity level 2 through 10, one severity level above the appropriate level for such offense; and

(B) (i) if such offense is classified in severity level 1, except as otherwise provided in clause (ii), imprisonment for life, and such offender shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, such offender shall not be eligible for parole prior to serving 25 years' imprisonment, and such 25 years' imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted.

(ii) The provisions of clause (i) requiring the court to impose a mandatory minimum term of imprisonment of 25 years shall not apply if the court finds the offender, because of the offender's criminal history classification, is subject to presumptive imprisonment and the sentencing range exceeds 300 months. In such case, the offender is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.

(2) The sentence imposed pursuant to paragraph (1) shall not be considered a departure and shall not be subject to appeal.

(3) The provisions of this subsection shall not apply to an offense described in paragraph (1) if the factual aspect concerning a law enforcement officer is a statutory element of such offense.

(z) (1) Notwithstanding K.S.A. 21-5109(b)(2), and amendments thereto, or any other provision of law to the contrary, the sentence for a violation of criminal possession of a weapon by a convicted felon as defined in K.S.A. 21-6304, and amendments thereto, shall be presumptive imprisonment and shall be served consecutively to any other term or terms of imprisonment imposed if the trier of fact makes a finding beyond a reasonable doubt that:

(A) The weapon the offender possessed during such violation was a firearm; and

(B) such firearm was used by the offender during the commission of any violent felony.

(2) The sentence imposed pursuant to paragraph (1) shall not be considered a departure and shall not be subject to appeal. No other sentence shall be permitted.

(3) The provisions of this subsection shall not apply to an offender who is prohibited from possessing a weapon pursuant to K.S.A. 21-6304, and amendments thereto, as a result of a juvenile adjudication.

(4) As used in this subsection, "violent felony" means any of the following:

(A) Capital murder, as defined in K.S.A. 21-5401, and amendments thereto;

(B) murder in the first degree, as defined in K.S.A. 21-5402, and amendments thereto;

(C) murder in the second degree, as defined in K.S.A. 21-5403, and amendments thereto;

(D) voluntary manslaughter, as defined in K.S.A. 21-5404, and amendments thereto;

(E) kidnapping, as defined in K.S.A. 21-5408(a)(1), and amendments thereto, or aggravated kidnapping, as defined in K.S.A. 21-5408(b), and amendments thereto;

(F) aggravated assault, as defined in K.S.A. 21-5412(b)(1), and amendments thereto, and aggravated assault of a law enforcement officer, as defined in K.S.A. 21-5412(d)(1), and amendments thereto;

(G) aggravated battery, as defined in K.S.A. 21-5413(b)(1)(A) or (b)(1)(B), and amendments thereto, and aggravated battery against a law enforcement officer, as defined in K.S.A. 21-5413(d)(1) or (d)(2), and amendments thereto;

(H) mistreatment of a dependent adult or mistreatment of an elder person, as defined in K.S.A. 21-5417(a)(1), and amendments thereto;

(I) rape, as defined in K.S.A. 21-5503, and amendments thereto;

(J) aggravated criminal sodomy, as defined in K.S.A. 21-5504(b), and amendments thereto;

(K) abuse of a child, as defined in K.S.A. 21-5602(a)(1) or (a)(3), and amendments thereto;

(L) any felony offense described in K.S.A. 21-5703 or 21-5705, and amendments thereto;

(M) treason, as defined in K.S.A. 21-5901, and amendments thereto;

(N) criminal discharge of a firearm, as defined in K.S.A. 21-6308(a)(1), and amendments thereto;

(O) fleeing or attempting to elude a police officer, as defined in K.S.A. 8-1568(b), and amendments thereto;

(P) any felony that includes the domestic violence designation pursuant to K.S.A. 22-4616, and amendments thereto; or

(Q) any attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-5301, 21-5302 and 21-5303, and amendments thereto, of any felony offense defined in this subsection.

(aa) (1) The sentence for a violation of K.S.A. 21-6308(a)(1)(A) or (a)(1)(B), and amendments thereto, if the trier of fact makes a finding beyond a reasonable doubt that the offender discharged a firearm and that the offender knew or reasonably should have known that:

(A) A person was present in the dwelling, building, structure or motor vehicle at which the offender discharged a firearm, shall be presumptive imprisonment and, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 60 months of imprisonment; and

(B) a person less than 14 years of age was present in the dwelling, building, structure or motor vehicle at which the offender discharged a firearm, shall be presumptive imprisonment and, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to an additional 120 months of imprisonment.

(2) The sentence imposed pursuant to paragraph (1) shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.

History: L. 2010, ch. 136, § 285; L. 2011, ch. 37, § 1; L. 2011, ch. 100, § 21; L. 2012, ch. 172, § 30; L. 2013, ch. 122, § 9; L. 2014, ch. 76, § 2; L. 2015, ch. 96, § 11; L. 2016, ch. 90, § 4; L. 2017, ch. 62, § 7; L. 2018, ch. 106, § 25; L. 2022, ch. 80, § 18; L. 2023, ch. 93, § 3; July 1.

Source or Prior Law:

21-4704.

Revisor's Note:

Law Review and Bar Journal References:

"Let the Punishment Fit the Crime (Unless It's a Sex Crime): A Critique of the Kansas Supreme Court's Rubber Stamp of Approval upon Mandatory Lifetime Postrelease Supervision for Sex Offenders [State v. Mossman, 281 P.3d 153 (Kan. 2012)]," Nicolas R. Daugherty, 52 W.L.J. 649 (2013).

CASE ANNOTATIONS

1. When a defendant being sentenced for felony theft has 3 or more prior felony theft convictions, only 3 of such prior convictions are required to trigger enhancement of defendant's sentence to presumptive imprisonment. State v. Williams, 47 Kan. App. 2d 102, 272 P.3d 1282 (2012).

2. When a statute calls for a presumptive prison sentence, the court retains the discretion to grant a departure sentence of probation. State v. Currie, 49 Kan. App. 2d 499, 308 P.3d 1289 (2013).

3. Prior convictions considered under statute providing presumptive prison sentence for certain recidivist burglars are not excluded from consideration to determine defendant's criminal history score. State v. Pearce 51 Kan. App. 2d 116, 121, 342 P.3d 963 (2015).


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