SESSION OF 2023
SUPPLEMENTAL NOTE ON SENATE SUBSTITUTE FOR
HOUSE BILL NO. 2010
As Recommended by Senate Committee on
Judiciary
Brief*
Senate Sub. for HB 2010 would make technical updates
to certain cross references to statutes that have been
repealed; would amend the definition of criminal discharge of
a firearm; would create special sentencing rules related to the
use of firearms; would amend law concerning eligibility for
certain offenders for the nonprison sanction of placement in a
certified drug abuse treatment (SB 123) program; and would
amend law concerning the tolling of postrelease supervision
time.
Statutory Cross References (Sections 1, 5, and 6)
The bill would update statutory cross references in
statutes concerning:
●Jury instructions for persons who lack the required
mental state to commit a crime;
●Annual hearings on the continued commitment of
persons who were found to lack the required
mental state to commit a crime; and
●Municipal zoning of group homes.
The bill would also make technical amendments to
ensure consistency in statutory phrasing.
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org Definition of Criminal Discharge of a Firearm (Section 2)
The bill would amend the definition of criminal discharge
of a firearm to include the reckless and unauthorized
discharge of any firearm at a motor vehicle in which there is a
human being, regardless of whether the offender knows or
has reason to know that a human being is present. The bill
would also make technical changes to the definition.
Special Sentencing Rules (Section 3)
Violation of Criminal Possession of a Weapon by a Convicted
Felon
The bill would create a special sentencing rule stating
that, notwithstanding statutory provisions regarding lesser
and included crimes or any other provisions of law to the
contrary, the sentence for a violation of criminal possession of
a weapon by a convicted felon would be a presumptive term
of imprisonment, required to be served consecutively to any
other term(s) of imprisonment imposed. The rule would be
triggered if the trier of fact finds beyond a reasonable doubt
that:
●The weapon the offender possessed during such
violation was a firearm; and
●Such firearm was used by the offender during the
commission of any violent felony, as defined by the
bill.
The bill would specify that this sentencing rule would not
apply to an offender who is prohibited from possessing a
weapon as a result of a juvenile adjudication.
The bill would define “violent felony” to mean the
following crimes as defined in statute:
●Capital murder or first- or second-degree murder;
2- 2010 ●Voluntary manslaughter;
●Kidnapping, when the crime involves holding a
person for ransom or as a shield or hostage, or
aggravated kidnapping;
●Aggravated assault, when committed with a deadly
weapon, or aggravated assault of a law
enforcement officer, when committed with a deadly
weapon;
●Aggravated battery, when the conduct causes great
bodily harm or disfigurement, or when the conduct
causes bodily harm that could cause great bodily
harm, disfigurement or death or aggravated battery
against a law enforcement officer, unless the
conduct involves bodily harm caused with a motor
vehicle;
●Mistreatment of a dependent adult or mistreatment
of an elder person, when the conduct involves
infliction of physical injury or unreasonable
confinement or punishment;
●Rape;
●Aggravated criminal sodomy;
●Abuse of a child, unless the acts constituting the
crime are committed recklessly;
●Any felony offense under statutes prohibiting the
unlawful manufacturing, cultivation, or distribution
of controlled substances;
●Treason;
●Criminal discharge of a firearm, when the acts
constituting the crime are committed in the
presence of another human being;
3- 2010 ●Fleeing or attempting to elude a police officer;
●Any felony that includes the domestic violence
designation, as determined by the trier of fact
under the relevant statutory procedure; or
●Any attempt, conspiracy, or criminal solicitation of
any felony offense described above.
A whereas clause would designate amendments made
in this section as the “Reduce Armed Violence Act.”
Violation of Criminal Discharge of a Firearm
The bill would create a special sentencing rule for a
violation of criminal discharge of a firearm involving the
reckless and unauthorized discharge of a firearm at a
dwelling, building, structure, or motor vehicle.
The rule would be triggered 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 a person was present at the
above-mentioned locations.
When the person present is 14 years of age or older, the
sentence would be a presumptive term of imprisonment per
the Kansas Sentencing Guidelines, plus 60 months of
additional imprisonment, to be served consecutively to any
other term(s) of imprisonment.
When the person present is less than 14 years of age,
the sentence would be a presumptive term of imprisonment
per the Kansas Sentencing Guidelines plus 120 months of
additional imprisonment, to be served consecutively to any
other term(s) of imprisonment.
The bill would provide that a sentence imposed under
both special rules would not be considered a departure
4- 2010 sentence and would not be subject to appeal, and for a
sentence imposed for a violation of criminal possession of a
weapon by a convicted felon, no other sentence would be
permitted.
SB 123 Program Eligibility (Section 4)
The bill would amend law to expand eligibility for certain
offenders for the nonprison sanction of placement in a
certified drug abuse treatment (SB 123) program.
The bill would amend law to allow a defendant convicted
of a nonperson severity level 7, 8, 9, or 10 felony with a
criminal history score of C through I to participate in a
certified drug abuse treatment program if the defendant has
no prior convictions for manufacturing a controlled substance,
cultivating or distributing a controlled substance, or unlawful
acts involving proceeds from drug crimes.
The bill would amend law to allow a defendant convicted
of a nonperson severity level 7, 8, 9, or 10 felony with a
criminal history score of A or B to be able to participate in a
certified drug abuse treatment program if the defendant has
no prior convictions for manufacturing a controlled substance,
cultivating or distributing a controlled substance, or unlawful
acts involving proceeds from drug crimes, and:
●The person felonies in the defendant’s history are
nondrug severity level 8 or lower, and
●The court finds that the safety of the members of
the public will not be jeopardized by the placement
of the defendant in a certified drug abuse treatment
program.
Tolling of Postrelease Supervision Time (Section 7)
The bill would amend a statute governing parole,
conditional release, and postrelease supervision to specify
5- 2010 that the service of postrelease supervision time shall not toll,
except as provided in the statute governing violations of
conditions of release.
Background
The bill was prefiled for introduction by Representative
Highberger on January 6, 2023. The Senate Committee on
Judiciary recommended a substitute bill be passed containing
the provisions of HB 2010, HB 2069, HB 2070, all as passed
by the House, and SB 193, as amended by the Senate
Committee on Judiciary.
HB 2010 (Statutory Cross References)
House Committee on Judiciary
In the House Committee on Judiciary hearing on the bill
on January 23, 2023, Representative Highberger testified as
a proponent, stating he had come across the needed
updates while conducting research.
The House Committee amended the bill to add updated
statutory references in statutes concerning commitment of
persons found not guilty due to lacking the required mental
state to commit a crime and municipal zoning of group
homes.
Senate Committee on Judiciary
In the Senate Committee on Judiciary hearing on the bill
on March 15, 2023, a Senior Assistant Revisor of Statutes
provided an overview of the bill. No conferees provided
testimony on the bill.
On March 22, 2023, the Senate Committee
recommended a substitute bill be passed containing the
provisions of the bill, as passed by the House; the provisions
6- 2010 of SB 193, as amended by the Senate Committee on
Judiciary; and the provisions of HB 2069 and HB 2070, as
passed by the House.
SB 193 and SB 183 (Special Sentencing Rules; Criminal
Discharge of Firearm Definition)
[Note: Provisions concerning a special sentencing rule
related to a violation of a criminal discharge of a firearm, and
the definition of that crime (SB 183) were amended into SB
193 when the Senate Committee took final action on that bill.]
SB 193 (Special Sentencing Rule)
The bill was introduced by the Senate Committee on
Judiciary at the request of Senator Warren.
[Note: A companion bill, HB 2031, was introduced by the
House Committee on Corrections and Juvenile Justice on
January 13, 2023. The bill was recommended favorably, as
amended, by the House Committee on February 6, 2023, and
was stricken from the Calendar on February 23, 2023.]
Senate Committee on Judiciary. In the Senate
Committee hearing on February 15, 2023, proponent
testimony was provided by a representative of the Johnson
County Sheriff’s Office and a representative of the Kansas
Association of Chiefs of Police, Kansas Peace Officers
Association, and Kansas Sheriffs Association, who indicated
the intent of the bill was to address a rise in violent crime
being committed by convicted felons while using firearms.
Opponent testimony was provided by a private citizen,
who in general was in support of the bill, except for the one
section that referenced crimes involving possession of
controlled substances.
No other testimony was provided.
7- 2010 On February 23, 2023, the bill was withdrawn from the
Senate Calendar and referred to the Senate Committee on
Ways and Means (SWAM). On March 1, 2023, the bill was
withdrawn from SWAM and re-referred to the Senate
Committee of the Whole. On March 21, 2023, the bill was
withdrawn from the Senate Calendar and re-referred to the
Senate Committee on Judiciary.
On March 22, 2023, the Senate Committee on Judiciary
amended the bill to:
●Require a firearm be used, rather than possessed,
during the commission of any violent felony to
trigger the special sentencing rule;
●Modify the list of crimes that would constitute a
“violent felony”; and
●Add provisions creating a special sentencing rule
for violations of criminal discharge of a firearm and
adjusting that crime’s definition (SB 183).
SB 183 (Special Sentencing Rule; Criminal Discharge of
Firearm Definition)
The bill was introduced by Senator Haley on February 7,
2023, and referred to the Senate Committee on Judiciary on
February 8, 2023.
HB 2069 (Tolling of Postrelease Supervision Time)
The bill was introduced by the House Committee on
Corrections and Juvenile Justice at the request of a
representative of the Kansas Sentencing Commission
(Commission).
8- 2010 House Committee on Corrections and Juvenile Justice
In the House Committee hearing on January 23, 2023,
representatives of the Commission and the Kansas
Department of Corrections (KDOC) testified as proponents
of the bill, stating the bill would clarify how time spent in jail
should be credited when a person is an alleged postrelease
supervision violator who has been arrested on a KDOC
warrant and at the same time is awaiting trial on new criminal
charges. No other testimony was provided.
Senate Committee on Judiciary
In the Senate Committee hearing on March 9, 2023, the
same proponents testified as in the House Committee
hearing, and provided substantially similar testimony. No
other testimony was provided
HB 2070 (SB 123 Program Eligibility)
SB 123 (2003) created a nonprison sanction of certified
drug abuse treatment for certain drug offenders. Commonly
referred to as the “Senate Bill 123 Program,” this program is
administered by the Kansas Sentencing Commission.
The bill was introduced by the House Committee on
Corrections and Juvenile Justice at the request of the
Commission.
9- 2010 House Committee on Corrections and Juvenile Justice
In the House Committee hearing on January 24, 2023, a
representative of the Commission testified as a proponent of
the bill, stating individuals convicted of these nondrug crimes
sometimes committed these crimes because of their
addiction, 85 percent of felons require appointed council
because they are indigent, and felony offenders are not likely
to have health insurance to seek their own substance abuse
treatment.
Written-only proponent testimony was submitted by a
representative of the Board of Indigents’ Defense Services
(BIDS) and a representative of the Kansas Association of
Chiefs of Police, Kansas Peace Officers Association, and
Kansas Sheriffs Association. The written testimony indicated
treating an individual’s drug addiction treats the underlying
cause of the crime and could prevent future criminal acts. No
other testimony was provided.
Senate Committee on Judiciary
In the Senate Committee hearing on March 9, 2023, the
same proponent testified as in the House Committee hearing
and gave substantially similar testimony. Written-only
proponent testimony was provided by representatives of
BIDS and the Kansas Community Corrections Association
and by a representative of the Kansas Association of Chiefs
of Police, Kansas Peace Officers Association, and Kansas
Sheriffs Association. No other testimony was provided.
Fiscal Information
HB 2010 (Statutory Cross References)
According to the fiscal note prepared by the Division of
Budget on the bill, as introduced, the Office of Judicial
10- 2010 Administration (OJA) states enactment of the bill would not
have a fiscal effect on the operations of the Judicial Branch.
SB 193 (Special Sentencing Rule)
According to the fiscal note prepared by the Division of
the Budget on the bill, as introduced, the Commission
estimates that enactment of the bill would result in an
increase of 29 adult prison beds needed by the end of FY
2024. By the end of FY 2033, 232 additional beds would be
needed. The current estimated available bed capacity is
9,428 for males and 936 for females. Based upon the
Commission’s most recent ten-year projection contained in its
FY 2023 Adult Inmate Prison Population Projections report, it
is estimated that the year-end population will total 7,933 male
and 764 female inmates in FY 2023 and 8,043 male and 740
female inmates in FY 2024.
KDOC indicates enactment of the bill would increase
marginal costs for the operation of the correctional facilities
for food, clothing, and other supplies. The annual cost would
total $100,769 based on the FY 2022 marginal cost of $9.52
per day per occupied bed ($9.52 x 365 days x 29 beds).
OJA indicates enactment of the bill would require
findings of certain facts to sentence an offender, which could
result in extending the length of trials in certain cases.
However, a fiscal effect cannot be estimated.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2024 Governor’s Budget Report.
SB 183 (Special Sentencing Rule; Criminal Discharge of
Firearm Definition)
According to the fiscal note prepared by the Division of
the Budget on the bill, the Commission estimates that
enactment of the bill would result in an increase of eight adult
11- 2010 prison beds needed by the end of FY 2024. By the end of FY
2033, 128 additional beds would be needed. The current
estimated available bed capacity is 9,428 for males and 936
for females. Based upon the Commission’s most recent ten-
year projection contained in its FY 2023 Adult Inmate Prison
Population Projections report, it is estimated that the year-end
population will total 7,933 male and 764 female inmates in FY
2023 and 8,043 male and 740 female inmates in FY 2024.
KDOC states that enactment of the bill would have a
negligible impact on current operations that could be
absorbed within existing resources. The Department notes
that marginal costs such as food, clothing, and supplies for
each resident total $9.52 per day per resident.
OJA indicates enactment of the bill would have a
negligible fiscal effect on the Judicial Branch that could be
absorbed within existing resources.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2024 Governor’s Budget Report.
HB 2070 (SB 123 Program Eligibility)
According to the fiscal note prepared by the Division of
Budget on the bill, the Commission estimates enactment of
the bill may have an impact on prison admissions and bed
space, but the effect cannot be determined at this time. The
Commission indicates the bill would increase the SB 123
program cost by $592,322, $1,184,644, or $1,776,966 in FY
2024, depending on which scenario occurs. The Commission
reports an average cost of $4,057 per SB 123 treatment
offender in FY 2022.
KDOC indicates the bill would not have a significant
fiscal effect on the agency.
OJA indicates the bill would require courts to hold
hearings and provide rulings, and could require court services
12- 2010 officers to provide supervision to defendants who participate
in a certified drug treatment program instead of going to
prison. This would require additional work by district court
judges, clerks, and court services officers. OJA is unable to
estimate the fiscal effect on its budget.
The Kansas Association of Counties (KAC) indicates the
fiscal effect on local governments would depend on how
many qualified defendants participate in the certified drug
abuse programs but it is unable to estimate the fiscal effect.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2024 Governor’s Budget Report.
HB 2069 (Tolling of Postrelease Supervision Time)
According to the fiscal note prepared by the Division of
Budget on the bill, the Commission indicates enactment of
the bill could result in a need for additional prison beds, but
the fiscal effect cannot be determined. OJA and KDOC
indicate the bill would have no fiscal effect on their agencies.
Any fiscal effect associated with enactment of the bill is not
reflected in The FY 2024 Governor’s Budget Report.
Statutory cross references; sentencing; postrelease supervision jail time; Kansas
Department of Corrections; parole; conditional release; jail time credit; certified drug
abuse treatment program; SB 123 Program; Office of Judicial Administration; Kansas
Association of Counties; sentencing grid; felons; firearms; sentence enhancement;
violent felony; crimes; punishment; criminal discharge of a firearm
13- 2010