Kansas 2023-2024 Regular Session

Kansas House Bill HB2010 Compare Versions

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1	1	Senate Substitute for HOUSE BILL No. 2010
2	2	AN ACT concerning crimes, punishment and criminal procedure; relating to trials;
3	3	updating a statutory cross reference related to persons found not guilty by reason of
4	4	mental disease or defect; pertaining to housing, jury instructions and annual hearings
5	5	on continued commitment; relating to criminal discharge of a firearm; increasing the
6	6	penalty for violations when a person was present in the dwelling, building, structure
7	7	or motor vehicle at which the offender discharged a firearm; enacting the reduce
8	8	armed violence act; increasing criminal penalties for certain violations of criminal
9	9	possession of a weapon by a convicted felon that involve firearms; relating to
10	10	sentencing; allowing certain nondrug offenders to participate in a certified drug abuse
11	11	treatment program; relating to postrelease supervision; providing that such term does
12	12	not toll except as provided by law; amending K.S.A. 12-736 and K.S.A. 2022 Supp.
13	13	21-6308, 21-6804, 21-6824, 22-3428, 22-3428a and 22-3722 and repealing the
14	14	existing sections.
15	15	WHEREAS, The provisions of K.S.A. 2022 Supp. 21-6804(z), as
16	16	amended by this act, shall be known as the reduce armed violence act.
17	17	Now, therefore:
18	18	Be it enacted by the Legislature of the State of Kansas:
19	19	Section 1. K.S.A. 12-736 is hereby amended to read as follows:
20	20	12-736. (a) It is hereby declared to be the policy of the state of Kansas
21	21	that persons with a disability shall not be excluded from the benefits of
22	22	single family residential surroundings by any municipal zoning
23	23	ordinance, resolution or regulation.
24	24	(b) For the purpose of this act:
25	25	(1) "Group home" means any dwelling occupied by not more than
26	26	10 persons, including eight or fewer persons with a disability who need
27	27	not be related by blood or marriage and not to exceed two staff
28	28	residents who need not be related by blood or marriage to each other or
29	29	to the residents of the home, which dwelling is licensed by a regulatory
30	30	agency of this state;
31	31	(2) "municipality" means any township, city or county located in
32	32	Kansas;
33	33	(3) "disability" means, with respect to a person:
34	34	(A) A physical or mental impairment that substantially limits one
35	35	or more of such person's major life activities;
36	36	(B) a record of having such an impairment; or
37	37	(C) being regarded as having such an impairment. Such term does
38	38	not include current, illegal use of or addiction to a controlled substance,
39	39	as defined in section 102 of the controlled substance act, 21 U.S.C. §
40	40	802; and
41	41	(4) "licensed provider" means a person or agency who provides
42	42	mental health services and is licensed by:
43	43	(A) The Kansas department for aging and disability services
44	44	pursuant to K.S.A. 39-2001 et seq. or 65-425 et seq. or K.S.A. 39-2001
45	45	et seq., and amendments thereto; or
46	46	(B) the behavioral sciences regulatory board pursuant to K.S.A.
47	47	74-5301 et seq. or 75-5346 et seq. or 74-5301 et seq., and amendments
48	48	thereto; or
49	49	(C) the state board of healing arts pursuant to K.S.A. 65-2801 et
50	50	seq., and amendments thereto.
51	51	(c) (1) No mentally ill person shall be eligible for placement in a
52	52	group home unless such person has been evaluated by a licensed
53	53	provider and such provider determines that the mentally ill person is
54	54	not dangerous to others and is suitable for group-home placement. A
55	55	group home shall not be a licensed provider for the purposes of
56	56	evaluating or approving for placement a mentally ill person in a group
57	57	home.
58	58	(2) No person shall be eligible for placement in a group home if
59	59	such person is: (A) Assigned to a community corrections program or a
60	60	diversion program; (B) on parole from a correctional institution or on
61	61	probation for a felony offense; or (C) in a state mental institution
62	62	following a finding of mental disease or defect excluding criminal
63	63	responsibility, pursuant to K.S.A. 22-3220 and 22-3221, and
64	64	amendments thereto, and K.S.A. 2022 Supp. 21-5209, and amendments
65	65	thereto.
66	66	(d) No person shall be placed in a group home under this act
67	67	unless such dwelling is licensed as a group home by the Kansas Senate Substitue for HOUSE BILL No. 2010—page 2
68	68	department for aging and disability services or the department of health
69	69	and environment.
70	70	(e) No municipality shall prohibit the location of a group home in
71	71	any zone or area where single family dwellings are permitted. Any
72	72	zoning ordinance, resolution or regulation that prohibits the location of
73	73	a group home in such zone or area or that subjects group homes to
74	74	regulations not applicable to other single family dwellings in the same
75	75	zone or area is invalid. Notwithstanding the provisions of this act,
76	76	group homes shall be subject to all other regulations applicable to other
77	77	property and buildings located in the zone or area that are imposed by
78	78	any municipality through zoning ordinance, resolution or regulation, its
79	79	building regulatory codes, subdivision regulations or other
80	80	nondiscriminatory regulations.
81	81	(f) No person or entity shall contract or enter into a contract,
82	82	restrictive covenant, equitable servitude or such similar restriction that
83	83	would restrict group homes or their location in a manner inconsistent
84	84	with the provisions of subsection (e).
85	85	Sec. 2. K.S.A. 2022 Supp. 21-6308 is hereby amended to read as
86	86	follows: 21-6308. (a) Criminal discharge of a firearm is the:
87	87	(1) Reckless and unauthorized discharge of any firearm at:
88	88	(A) At A dwelling, building or structure in which there is a human
89	89	being, regardless of whether the person discharging the firearm knows
90	90	or has reason to know that there is a human being present;
91	91	(B) at a motor vehicle, in which there is a human being,
92	92	regardless of whether the person discharging the firearm knows or has
93	93	reason to know that there is a human being present; or
94	94	(C) an aircraft, watercraft, train, locomotive, railroad car, caboose,
95	95	rail-mounted work equipment or rolling stock or other means of
96	96	conveyance of persons, other than a motor vehicle, or property in
97	97	which there is a human being, regardless of whether the person
98	98	discharging the firearm knows or has reason to know that there is a
99	99	human being present;
100	100	(2) reckless and unauthorized discharge of any firearm at a
101	101	dwelling in which there is no human being; or
102	102	(3) discharge of any firearm:
103	103	(A) Upon any land or nonnavigable body of water of another,
104	104	without having obtained permission of the owner or person in
105	105	possession of such land; or
106	106	(B) upon or from any public road, public road right-of-way or
107	107	railroad right-of-way except as otherwise authorized by law.
108	108	(b) Criminal discharge of a firearm as defined in:
109	109	(1) Subsection (a)(1) is a:
110	110	(A) Severity level 7, person felony except as provided in
111	111	subsection (b)(1)(B) or (b)(1)(C);
112	112	(B) severity level 5, person felony if such criminal discharge
113	113	results in bodily harm to a person during the commission thereof; and
114	114	(C) severity level 3, person felony if such criminal discharge
115	115	results in great bodily harm to a person during the commission thereof;
116	116	or
117	117	(C) severity level 5, person felony if such criminal discharge
118	118	results in bodily harm to a person during the commission thereof;
119	119	(2) subsection (a)(2) is a severity level 8, person felony; and
120	120	(3) subsection (a)(3) is a class C nonperson misdemeanor.
121	121	(c) Subsection (a)(1) shall not apply if the act is a violation of
122	122	K.S.A. 2022 Supp. 21-5412(d), and amendments thereto.
123	123	(d) Subsection (a)(3) shall not apply to any of the following:
124	124	(1) Law enforcement officers, or any person summoned by any
125	125	such officers to assist in making arrests or preserving the peace while
126	126	actually engaged in assisting such officer;
127	127	(2) wardens, superintendents, directors, security personnel and
128	128	keepers of prisons, penitentiaries, jails and other institutions for the
129	129	detention of persons accused or convicted of crime, while acting within
130	130	the scope of their authority;
131	131	(3) members of the armed services or reserve forces of the United Senate Substitue for HOUSE BILL No. 2010—page 3
132	132	States or the national guard while in the performance of their official
133	133	duty;
134	134	(4) watchmen, while actually engaged in the performance of the
135	135	duties of their employment;
136	136	(5) private detectives licensed by the state to carry the firearm
137	137	involved, while actually engaged in the duties of their employment;
138	138	(6) detectives or special agents regularly employed by railroad
139	139	companies or other corporations to perform full-time security or
140	140	investigative service, while actually engaged in the duties of their
141	141	employment;
142	142	(7) the state fire marshal, the state fire marshal's deputies or any
143	143	member of a fire department authorized to carry a firearm pursuant to
144	144	K.S.A. 31-157, and amendments thereto, while engaged in an
145	145	investigation in which such fire marshal, deputy or member is
146	146	authorized to carry a firearm pursuant to K.S.A. 31-157, and
147	147	amendments thereto; or
148	148	(8) the United States attorney for the district of Kansas, the
149	149	attorney general, or any district attorney or county attorney, while
150	150	actually engaged in the duties of their employment or any activities
151	151	incidental to such duties; any assistant United States attorney if
152	152	authorized by the United States attorney for the district of Kansas and
153	153	while actually engaged in the duties of their employment or any
154	154	activities incidental to such duties; any assistant attorney general if
155	155	authorized by the attorney general and while actually engaged in the
156	156	duties of their employment or any activities incidental to such duties; or
157	157	any assistant district attorney or assistant county attorney if authorized
158	158	by the district attorney or county attorney by whom such assistant is
159	159	employed and while actually engaged in the duties of their employment
160	160	or any activities incidental to such duties.
161	161	Sec. 3. K.S.A. 2022 Supp. 21-6804 is hereby amended to read as
162	162	follows: 21-6804. (a) The provisions of this section shall be applicable
163	163	to the sentencing guidelines grid for nondrug crimes. The following
164	164	sentencing guidelines grid shall be applicable to nondrug felony crimes: Senate Substitue for HOUSE BILL No. 2010—page 4 Senate Substitue for HOUSE BILL No. 2010—page 5
165	165	(b) Sentences expressed in the sentencing guidelines grid for
166	166	nondrug crimes represent months of imprisonment.
167	167	(c) The sentencing guidelines grid is a two-dimensional crime
168	168	severity and criminal history classification tool. The grid's vertical axis
169	169	is the crime severity scale which classifies current crimes of conviction.
170	170	The grid's horizontal axis is the criminal history scale which classifies
171	171	criminal histories.
172	172	(d) The sentencing guidelines grid for nondrug crimes as provided
173	173	in this section defines presumptive punishments for felony convictions,
174	174	subject to the sentencing court's discretion to enter a departure
175	175	sentence. The appropriate punishment for a felony conviction should
176	176	depend on the severity of the crime of conviction when compared to all
177	177	other crimes and the offender's criminal history.
178	178	(e) (1) The sentencing court has discretion to sentence at any place
179	179	within the sentencing range. In the usual case it is recommended that
180	180	the sentencing judge select the center of the range and reserve the upper
181	181	and lower limits for aggravating and mitigating factors insufficient to
182	182	warrant a departure.
183	183	(2) In presumptive imprisonment cases, the sentencing court shall
184	184	pronounce the complete sentence which shall include the:
185	185	(A) Prison sentence;
186	186	(B) maximum potential reduction to such sentence as a result of
187	187	good time; and
188	188	(C) period of postrelease supervision at the sentencing hearing.
189	189	Failure to pronounce the period of postrelease supervision shall not
190	190	negate the existence of such period of postrelease supervision.
191	191	(3) In presumptive nonprison cases, the sentencing court shall
192	192	pronounce the:
193	193	(A) Prison sentence; and
194	194	(B) duration of the nonprison sanction at the sentencing hearing.
195	195	(f) Each grid block states the presumptive sentencing range for an
196	196	offender whose crime of conviction and criminal history place such
197	197	offender in that grid block. If an offense is classified in a grid block
198	198	below the dispositional line, the presumptive disposition shall be
199	199	nonimprisonment. If an offense is classified in a grid block above the
200	200	dispositional line, the presumptive disposition shall be imprisonment. If
201	201	an offense is classified in grid blocks 5-H, 5-I or 6-G, the court may
202	202	impose an optional nonprison sentence as provided in subsection (q).
203	203	(g) The sentence for a violation of K.S.A. 21-3415, prior to its
204	204	repeal, aggravated battery against a law enforcement officer committed
205	205	prior to July 1, 2006, or a violation of K.S.A. 2022 Supp. 21-5412(d),
206	206	and amendments thereto, aggravated assault against a law enforcement
207	207	officer, which places the defendant's sentence in grid block 6-H or 6-I
208	208	shall be presumed imprisonment. The court may impose an optional
209	209	nonprison sentence as provided in subsection (q).
210	210	(h) When a firearm is used to commit any person felony, the
211	211	offender's sentence shall be presumed imprisonment. The court may
212	212	impose an optional nonprison sentence as provided in subsection (q).
213	213	(i) (1) The sentence for the violation of the felony provision of
214	214	K.S.A. 2022 Supp. 21-5414(b)(3)(c)(1)(C), 21-5823(b)(3) and (b)(4),
215	215	21-6412 and 21-6416, and amendments thereto, shall be as provided by
216	216	the specific mandatory sentencing requirements of that section and
217	217	shall not be subject to the provisions of this section or K.S.A. 2022
218	218	Supp. 21-6807, and amendments thereto.
219	219	(2) If because of the offender's criminal history classification the
220	220	offender is subject to presumptive imprisonment or if the judge departs
221	221	from a presumptive probation sentence and the offender is subject to
222	222	imprisonment, the provisions of this section and K.S.A. 2022 Supp. 21-
223	223	6807, and amendments thereto, shall apply and the offender shall not be
224	224	subject to the mandatory sentence as provided in K.S.A. 2022 Supp.
225	225	21-5823, and amendments thereto.
226	226	(3) Notwithstanding the provisions of any other section, the term
227	227	of imprisonment imposed for the violation of the felony provision of
228	228	K.S.A. 2022 Supp. 21-5414(b)(3)(c)(1)(C), 21-5823(b)(3) and (b)(4), Senate Substitue for HOUSE BILL No. 2010—page 6
229	229	21-6412 and 21-6416, and amendments thereto, shall not be served in a
230	230	state facility in the custody of the secretary of corrections. Prior to
231	231	imposing any sentence pursuant to this subsection, the court may
232	232	consider assigning the defendant to a house arrest program pursuant to
233	233	K.S.A. 2022 Supp. 21-6609, and amendments thereto.
234	234	(j) (1) The sentence for any persistent sex offender whose current
235	235	convicted crime carries a presumptive term of imprisonment shall be
236	236	double the maximum duration of the presumptive imprisonment term.
237	237	The sentence for any persistent sex offender whose current conviction
238	238	carries a presumptive nonprison term shall be presumed imprisonment
239	239	and shall be double the maximum duration of the presumptive
240	240	imprisonment term.
241	241	(2) Except as otherwise provided in this subsection, as used in this
242	242	subsection, "persistent sex offender" means a person who:
243	243	(A) (i) Has been convicted in this state of a sexually violent crime,
244	244	as defined in K.S.A. 22-3717, and amendments thereto; and
245	245	(ii) at the time of the conviction under subsection (j)(2)(A)(i)
246	246	clause (i) has at least one conviction for a sexually violent crime, as
247	247	defined in K.S.A. 22-3717, and amendments thereto, in this state or
248	248	comparable felony under the laws of another state, the federal
249	249	government or a foreign government; or
250	250	(B) (i) has been convicted of rape, as defined in K.S.A. 21-3502,
251	251	prior to its repeal, or K.S.A. 2022 Supp. 21-5503, and amendments
252	252	thereto; and
253	253	(ii) at the time of the conviction under subsection (j)(2)(B)(i)
254	254	clause (i) has at least one conviction for rape in this state or comparable
255	255	felony under the laws of another state, the federal government or a
256	256	foreign government.
257	257	(3) Except as provided in subsection (j)(2)(B), the provisions of
258	258	this subsection shall not apply to any person whose current convicted
259	259	crime is a severity level 1 or 2 felony.
260	260	(k) (1) If it is shown at sentencing that the offender committed any
261	261	felony violation for the benefit of, at the direction of, or in association
262	262	with any criminal street gang, with the specific intent to promote,
263	263	further or assist in any criminal conduct by gang members, the
264	264	offender's sentence shall be presumed imprisonment. The court may
265	265	impose an optional nonprison sentence as provided in subsection (q).
266	266	(2) As used in this subsection, "criminal street gang" means any
267	267	organization, association or group of three or more persons, whether
268	268	formal or informal, having as one of its primary activities:
269	269	(A) The commission of one or more person felonies; or
270	270	(B) the commission of felony violations of article 57 of chapter 21
271	271	of the Kansas Statutes Annotated, and amendments thereto, K.S.A.
272	272	2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, or any
273	273	felony violation of any provision of the uniform controlled substances
274	274	act prior to July 1, 2009; and
275	275	(C) its members have a common name or common identifying
276	276	sign or symbol; and
277	277	(D) its members, individually or collectively, engage in or have
278	278	engaged in the commission, attempted commission, conspiracy to
279	279	commit or solicitation of two or more person felonies or felony
280	280	violations of article 57 of chapter 21 of the Kansas Statutes Annotated,
281	281	and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-
282	282	36a17, prior to their transfer, any felony violation of any provision of
283	283	the uniform controlled substances act prior to July 1, 2009, or any
284	284	substantially similar offense from another jurisdiction.
285	285	(l) Except as provided in subsection (o), the sentence for a
286	286	violation of K.S.A. 2022 Supp. 21-5807(a)(1), and amendments
287	287	thereto, or any attempt or conspiracy, as defined in K.S.A. 2022 Supp.
288	288	21-5301 and 21-5302, and amendments thereto, to commit such
289	289	offense, when such person being sentenced has a prior conviction for a
290	290	violation of K.S.A. 21-3715(a) or (b), prior to its repeal, 21-3716, prior
291	291	to its repeal, K.S.A. 2022 Supp. 21-5807(a)(1) or (a)(2) or 21-5807(b),
292	292	and amendments thereto, or any attempt or conspiracy to commit such Senate Substitue for HOUSE BILL No. 2010—page 7
293	293	offense, shall be presumptive imprisonment.
294	294	(m) The sentence for a violation of K.S.A. 22-4903 or K.S.A.
295	295	2022 Supp. 21-5913(a)(2), and amendments thereto, shall be
296	296	presumptive imprisonment. If an offense under such sections is
297	297	classified in grid blocks 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose
298	298	an optional nonprison sentence as provided in subsection (q).
299	299	(n) The sentence for a violation of criminal deprivation of
300	300	property, as defined in K.S.A. 2022 Supp. 21-5803, and amendments
301	301	thereto, when such property is a motor vehicle, and when such person
302	302	being sentenced has any combination of two or more prior convictions
303	303	of K.S.A. 21-3705(b), prior to its repeal, or of criminal deprivation of
304	304	property, as defined in K.S.A. 2022 Supp. 21-5803, and amendments
305	305	thereto, when such property is a motor vehicle, shall be presumptive
306	306	imprisonment. Such sentence shall not be considered a departure and
307	307	shall not be subject to appeal.
308	308	(o) (1) The sentence for a felony violation of theft of property as
309	309	defined in K.S.A. 2022 Supp. 21-5801, and amendments thereto, or
310	310	burglary as defined in K.S.A. 2022 Supp. 21-5807(a), and amendments
311	311	thereto, when such person being sentenced has no prior convictions for
312	312	a violation of K.S.A. 21-3701 or 21-3715, prior to their repeal, or theft
313	313	of property as defined in K.S.A. 2022 Supp. 21-5801, and amendments
314	314	thereto, or burglary as defined in K.S.A. 2022 Supp. 21-5807(a), and
315	315	amendments thereto; or the sentence for a felony violation of theft of
316	316	property as defined in K.S.A. 2022 Supp. 21-5801, and amendments
317	317	thereto, when such person being sentenced has one or two prior felony
318	318	convictions for a violation of K.S.A. 21-3701, 21-3715 or 21-3716,
319	319	prior to their repeal, or theft of property as defined in K.S.A. 2022
320	320	Supp. 21-5801, and amendments thereto, or burglary or aggravated
321	321	burglary as defined in K.S.A. 2022 Supp. 21-5807, and amendments
322	322	thereto; or the sentence for a felony violation of burglary as defined in
323	323	K.S.A. 2022 Supp. 21-5807(a), and amendments thereto, when such
324	324	person being sentenced has one prior felony conviction for a violation
325	325	of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of
326	326	property as defined in K.S.A. 2022 Supp. 21-5801, and amendments
327	327	thereto, or burglary or aggravated burglary as defined in K.S.A. 2022
328	328	Supp. 21-5807, and amendments thereto, shall be the sentence as
329	329	provided by this section, except that the court may order an optional
330	330	nonprison sentence for a defendant to participate in a drug treatment
331	331	program, including, but not limited to, an approved aftercare plan, if the
332	332	court makes the following findings on the record:
333	333	(1)(A) Substance abuse was an underlying factor in the
334	334	commission of the crime;
335	335	(2)(B) substance abuse treatment in the community is likely to be
336	336	more effective than a prison term in reducing the risk of offender
337	337	recidivism; and
338	338	(3)(C) participation in an intensive substance abuse treatment
339	339	program will serve community safety interests.
340	340	(2) A defendant sentenced to an optional nonprison sentence under
341	341	this subsection shall be supervised by community correctional services.
342	342	The provisions of K.S.A. 2022 Supp. 21-6824(f)(1), and amendments
343	343	thereto, shall apply to a defendant sentenced under this subsection. The
344	344	sentence under this subsection shall not be considered a departure and
345	345	shall not be subject to appeal.
346	346	(p) (1) The sentence for a felony violation of theft of property as
347	347	defined in K.S.A. 2022 Supp. 21-5801, and amendments thereto, when
348	348	such person being sentenced has any combination of three or more
349	349	prior felony convictions for violations of K.S.A. 21-3701, 21-3715 or
350	350	21-3716, prior to their repeal, or theft of property as defined in K.S.A.
351	351	2022 Supp. 21-5801, and amendments thereto, or burglary or
352	352	aggravated burglary as defined in K.S.A. 2022 Supp. 21-5807, and
353	353	amendments thereto; or the sentence for a violation of burglary as
354	354	defined in K.S.A. 2022 Supp. 21-5807(a), and amendments thereto,
355	355	when such person being sentenced has any combination of two or more
356	356	prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21- Senate Substitue for HOUSE BILL No. 2010—page 8
357	357	3716, prior to their repeal, or theft of property as defined in K.S.A.
358	358	2022 Supp. 21-5801, and amendments thereto, or burglary or
359	359	aggravated burglary as defined in K.S.A. 2022 Supp. 21-5807, and
360	360	amendments thereto, shall be presumed imprisonment and the
361	361	defendant shall be sentenced to prison as provided by this section,
362	362	except that the court may recommend that an offender be placed in the
363	363	custody of the secretary of corrections, in a facility designated by the
364	364	secretary to participate in an intensive substance abuse treatment
365	365	program, upon making the following findings on the record:
366	366	(1)(A) Substance abuse was an underlying factor in the
367	367	commission of the crime;
368	368	(2)(B) substance abuse treatment with a possibility of an early
369	369	release from imprisonment is likely to be more effective than a prison
370	370	term in reducing the risk of offender recidivism; and
371	371	(3)(C) participation in an intensive substance abuse treatment
372	372	program with the possibility of an early release from imprisonment will
373	373	serve community safety interests by promoting offender reformation.
374	374	(2) The intensive substance abuse treatment program shall be
375	375	determined by the secretary of corrections, but shall be for a period of
376	376	at least four months. Upon the successful completion of such intensive
377	377	treatment program, the offender shall be returned to the court and the
378	378	court may modify the sentence by directing that a less severe penalty be
379	379	imposed in lieu of that originally adjudged within statutory limits. If the
380	380	offender's term of imprisonment expires, the offender shall be placed
381	381	under the applicable period of postrelease supervision. The sentence
382	382	under this subsection shall not be considered a departure and shall not
383	383	be subject to appeal.
384	384	(q) (1) As used in this section, an "optional nonprison sentence" is
385	385	a sentence which the court may impose, in lieu of the presumptive
386	386	sentence, upon making the following findings on the record:
387	387	(1)(A) An appropriate treatment program exists which is likely to
388	388	be more effective than the presumptive prison term in reducing the risk
389	389	of offender recidivism; and
390	390	(2)(B) the recommended treatment program is available and the
391	391	offender can be admitted to such program within a reasonable period of
392	392	time; or
393	393	(3)(C) the nonprison sanction will serve community safety
394	394	interests by promoting offender reformation.
395	395	(2) Any decision made by the court regarding the imposition of an
396	396	optional nonprison sentence shall not be considered a departure and
397	397	shall not be subject to appeal.
398	398	(r) The sentence for a violation of K.S.A. 2022 Supp. 21-5413(c)
399	399	(2), and amendments thereto, shall be presumptive imprisonment and
400	400	shall be served consecutively to any other term or terms of
401	401	imprisonment imposed. Such sentence shall not be considered a
402	402	departure and shall not be subject to appeal.
403	403	(s) The sentence for a violation of K.S.A. 2022 Supp. 21-5512,
404	404	and amendments thereto, shall be presumptive imprisonment. Such
405	405	sentence shall not be considered a departure and shall not be subject to
406	406	appeal.
407	407	(t) (1) If the trier of fact makes a finding beyond a reasonable
408	408	doubt that an offender wore or used ballistic resistant material in the
409	409	commission of, or attempt to commit, or flight from any felony, in
410	410	addition to the sentence imposed pursuant to the Kansas sentencing
411	411	guidelines act, the offender shall be sentenced to an additional 30
412	412	months' imprisonment.
413	413	(2) The sentence imposed pursuant to subsection (t)(1) paragraph
414	414	(1) shall be presumptive imprisonment and shall be served
415	415	consecutively to any other term or terms of imprisonment imposed.
416	416	Such sentence shall not be considered a departure and shall not be
417	417	subject to appeal.
418	418	(3) As used in this subsection, "ballistic resistant material" means
419	419	any:
420	420	(A) Any Commercially produced material designed with the Senate Substitue for HOUSE BILL No. 2010—page 9
421	421	purpose of providing ballistic and trauma protection, including, but not
422	422	limited to, bulletproof vests and kevlar vests; and
423	423	(B) any homemade or fabricated substance or item designed with
424	424	the purpose of providing ballistic and trauma protection.
425	425	(u) The sentence for a violation of K.S.A. 2022 Supp. 21-6107,
426	426	and amendments thereto, or any attempt or conspiracy, as defined in
427	427	K.S.A. 2022 Supp. 21-5301 and 21-5302, and amendments thereto, to
428	428	commit such offense, when such person being sentenced has a prior
429	429	conviction for a violation of K.S.A. 21-4018, prior to its repeal, or
430	430	K.S.A. 2022 Supp. 21-6107, and amendments thereto, or any attempt or
431	431	conspiracy to commit such offense, shall be presumptive imprisonment.
432	432	Such sentence shall not be considered a departure and shall not be
433	433	subject to appeal.
434	434	(v) The sentence for a third or subsequent violation of K.S.A. 8-
435	435	1568, and amendments thereto, shall be presumptive imprisonment and
436	436	shall be served consecutively to any other term or terms of
437	437	imprisonment imposed. Such sentence shall not be considered a
438	438	departure and shall not be subject to appeal.
439	439	(w) The sentence for aggravated criminal damage to property as
440	440	defined in K.S.A. 2022 Supp. 21-5813(b), and amendments thereto,
441	441	when such person being sentenced has a prior conviction for any
442	442	nonperson felony shall be presumptive imprisonment. Such sentence
443	443	shall not be considered a departure and shall not be subject to appeal.
444	444	(x) The sentence for a violation of K.S.A. 2022 Supp. 21-5807(a)
445	445	(1), and amendments thereto, shall be presumptive imprisonment if the
446	446	offense under such paragraph is classified in grid blocks 7-C, 7-D or 7-
447	447	E. Such sentence shall not be considered a departure and shall not be
448	448	subject to appeal.
449	449	(y) (1) Except as provided in subsection (y)(3) paragraph (3), if
450	450	the trier of fact makes a finding beyond a reasonable doubt that an
451	451	offender committed a nondrug felony offense, or any attempt or
452	452	conspiracy, as defined in K.S.A. 2022 Supp. 21-5301 and 21-5302, and
453	453	amendments thereto, to commit a nondrug felony offense, against a law
454	454	enforcement officer, as defined in K.S.A. 2022 Supp. 21-5111(p)(1)
455	455	and (3), and amendments thereto, while such officer was engaged in the
456	456	performance of such officer's duty, or in whole or in any part because
457	457	of such officer's status as a law enforcement officer, the sentence for
458	458	such offense shall be:
459	459	(A) If such offense is classified in severity level 2 through 10, one
460	460	severity level above the appropriate level for such offense; and
461	461	(B) (i) if such offense is classified in severity level 1, except as
462	462	otherwise provided in subsection (y)(1)(B)(ii) clause (ii), imprisonment
463	463	for life, and such offender shall not be eligible for probation or
464	464	suspension, modification or reduction of sentence. In addition, such
465	465	offender shall not be eligible for parole prior to serving 25 years'
466	466	imprisonment, and such 25 years' imprisonment shall not be reduced by
467	467	the application of good time credits. No other sentence shall be
468	468	permitted.
469	469	(ii) The provisions of subsection (y)(1)(B)(i) clause (i) requiring
470	470	the court to impose a mandatory minimum term of imprisonment of 25
471	471	years shall not apply if the court finds the offender, because of the
472	472	offender's criminal history classification, is subject to presumptive
473	473	imprisonment and the sentencing range exceeds 300 months. In such
474	474	case, the offender is required to serve a mandatory minimum term
475	475	equal to the sentence established pursuant to the sentencing range.
476	476	(2) The sentence imposed pursuant to subsection (y)(1) paragraph
477	477	(1) shall not be considered a departure and shall not be subject to
478	478	appeal.
479	479	(3) The provisions of this subsection shall not apply to an offense
480	480	described in subsection (y)(1) paragraph (1) if the factual aspect
481	481	concerning a law enforcement officer is a statutory element of such
482	482	offense.
483	483	(z) (1) Notwithstanding K.S.A. 2022 Supp. 21-5109(b)(2), and
484	484	amendments thereto, or any other provision of law to the contrary, the Senate Substitue for HOUSE BILL No. 2010—page 10
485	485	sentence for a violation of criminal possession of a weapon by a
486	486	convicted felon as defined in K.S.A. 2022 Supp. 21-6304, and
487	487	amendments thereto, shall be presumptive imprisonment and shall be
488	488	served consecutively to any other term or terms of imprisonment
489	489	imposed if the trier of fact makes a finding beyond a reasonable doubt
490	490	that:
491	491	(A) The weapon the offender possessed during such violation was
492	492	a firearm; and
493	493	(B) such firearm was used by the offender during the commission
494	494	of any violent felony.
495	495	(2) The sentence imposed pursuant to paragraph (1) shall not be
496	496	considered a departure and shall not be subject to appeal. No other
497	497	sentence shall be permitted.
498	498	(3) The provisions of this subsection shall not apply to an offender
499	499	who is prohibited from possessing a weapon pursuant to K.S.A. 2022
500	500	Supp. 21-6304, and amendments thereto, as a result of a juvenile
501	501	adjudication.
502	502	(4) As used in this subsection, "violent felony" means any of the
503	503	following:
504	504	(A) Capital murder, as defined in K.S.A. 2022 Supp. 21-5401, and
505	505	amendments thereto;
506	506	(B) murder in the first degree, as defined in K.S.A. 2022 Supp. 21-
507	507	5402, and amendments thereto;
508	508	(C) murder in the second degree, as defined in K.S.A. 2022 Supp.
509	509	21-5403, and amendments thereto;
510	510	(D) voluntary manslaughter, as defined in K.S.A. 2022 Supp. 21-
511	511	5404, and amendments thereto;
512	512	(E) kidnapping, as defined in K.S.A. 2022 Supp. 21-5408(a)(1),
513	513	and amendments thereto, or aggravated kidnapping, as defined in
514	514	K.S.A. 2022 Supp. 21-5408(b), and amendments thereto;
515	515	(F) aggravated assault, as defined in K.S.A. 2022 Supp. 21-
516	516	5412(b)(1), and amendments thereto, and aggravated assault of a law
517	517	enforcement officer, as defined in K.S.A. 2022 Supp. 21-5412(d)(1),
518	518	and amendments thereto;
519	519	(G) aggravated battery, as defined in K.S.A. 2022 Supp. 21-
520	520	5413(b)(1)(A) or (b)(1)(B), and amendments thereto, and aggravated
521	521	battery against a law enforcement officer, as defined in K.S.A. 2022
522	522	Supp. 21-5413(d)(1) or (d)(2), and amendments thereto;
523	523	(H) mistreatment of a dependent adult or mistreatment of an elder
524	524	person, as defined in K.S.A. 2022 Supp. 21-5417(a)(1), and
525	525	amendments thereto;
526	526	(I) rape, as defined in K.S.A. 2022 Supp. 21-5503, and
527	527	amendments thereto;
528	528	(J) aggravated criminal sodomy, as defined in K.S.A. 2022 Supp.
529	529	21-5504(b), and amendments thereto;
530	530	(K) abuse of a child, as defined in K.S.A. 2022 Supp. 21-5602(a)
531	531	(1) or (a)(3), and amendments thereto;
532	532	(L) any felony offense described in K.S.A. 2022 Supp. 21-5703 or
533	533	21-5705, and amendments thereto;
534	534	(M) treason, as defined in K.S.A. 2022 Supp. 21-5901, and
535	535	amendments thereto;
536	536	(N) criminal discharge of a firearm, as defined in K.S.A. 2022
537	537	Supp. 21-6308(a)(1), and amendments thereto;
538	538	(O) fleeing or attempting to elude a police officer, as defined in
539	539	K.S.A. 8-1568(b), and amendments thereto;
540	540	(P) any felony that includes the domestic violence designation
541	541	pursuant to K.S.A. 2022 Supp. 22-4616, and amendments thereto; or
542	542	(Q) any attempt, conspiracy or criminal solicitation, as defined in
543	543	K.S.A. 2022 Supp. 21-5301, 21-5302 and 21-5303, and amendments
544	544	thereto, of any felony offense defined in this subsection.
545	545	(aa) (1) The sentence for a violation of K.S.A. 2022 Supp. 21-
546	546	6308(a)(1)(A) or (a)(1)(B), and amendments thereto, if the trier of fact
547	547	makes a finding beyond a reasonable doubt that the offender
548	548	discharged a firearm and that the offender knew or reasonably should Senate Substitue for HOUSE BILL No. 2010—page 11
549	549	have known that:
550	550	(A) A person was present in the dwelling, building, structure or
551	551	motor vehicle at which the offender discharged a firearm, shall be
552	552	presumptive imprisonment and, in addition to the sentence imposed
553	553	pursuant to the Kansas sentencing guidelines act, the offender shall be
554	554	sentenced to an additional 60 months of imprisonment; and
555	555	(B) a person less than 14 years of age was present in the dwelling,
556	556	building, structure or motor vehicle at which the offender discharged a
557	557	firearm, shall be presumptive imprisonment and, in addition to the
558	558	sentence imposed pursuant to the Kansas sentencing guidelines act, the
559	559	offender shall be sentenced to an additional 120 months of
560	560	imprisonment.
561	561	(2) The sentence imposed pursuant to paragraph (1) shall be
562	562	served consecutively to any other term or terms of imprisonment
563	563	imposed. Such sentence shall not be considered a departure and shall
564	564	not be subject to appeal.
565	565	Sec. 4. K.S.A. 2022 Supp. 21-6824 is hereby amended to read as
566	566	follows: 21-6824. (a) There is hereby established a nonprison sanction
567	567	of certified drug abuse treatment programs for certain offenders who
568	568	are sentenced on or after November 1, 2003. Placement of offenders in
569	569	certified drug abuse treatment programs by the court shall be limited to
570	570	placement of adult offenders, who meet the requirements of this
571	571	subsection.
572	572	(1) Offenders convicted of a felony violation of K.S.A. 2022
573	573	Supp. 21-5705 or 21-5706, and amendments thereto, whose offense is
574	574	classified in grid blocks:
575	575	(1)(A) 5-C, 5-D, 5-E, 5-F, 5-G, 5-H or 5-I of the sentencing
576	576	guidelines grid for drug crimes and such offender has no felony
577	577	conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164,
578	578	prior to their repeal, K.S.A. 2010 Supp. 21-36a03, 21-36a05 or 21-
579	579	36a16, prior to their transfer, or K.S.A. 2022 Supp. 21-5703, 21-5705
580	580	or 21-5716, and amendments thereto, or any substantially similar
581	581	offense from another jurisdiction; or
582	582	(2)(B) 5-A, 5-B, 4-E, 4-F, 4-G, 4-H or 4-I of the sentencing
583	583	guidelines grid for drug crimes, and:
584	584	(i) Such offender has no felony conviction of K.S.A. 65-4142, 65-
585	585	4159, 65-4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010
586	586	Supp. 21-36a03, 21-36a05 or 21-36a16, prior to their transfer, or
587	587	K.S.A. 2022 Supp. 21-5703, 21-5705 or 21-5716, and amendments
588	588	thereto, or any substantially similar offense from another jurisdiction,
589	589	if;
590	590	(ii) the person felonies in the offender's criminal history were
591	591	severity level 8, 9 or 10 or nongrid offenses of the sentencing
592	592	guidelines grid for nondrug crimes,; and
593	593	(iii) the court finds and sets forth with particularity the reasons for
594	594	finding that the safety of the members of the public will not be
595	595	jeopardized by such placement in a drug abuse treatment program.
596	596	(2) Offenders convicted of a nonperson felony whose offense is
597	597	classified in grid blocks:
598	598	(A) 10-C, 10-D, 10-E, 10-F, 10-G, 10-H, 10-I, 9-C, 9-D, 9-E, 9-F,
599	599	9-G, 9-H, 9-I, 8-C, 8-D, 8-E, 8-F, 8-G, 8-H, 8-I, 7-C, 7-D, 7-E, 7-F, 7-
600	600	G, 7-H or 7-I of the sentencing guidelines grid for nondrug crimes and
601	601	such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-
602	602	4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010 Supp. 21-
603	603	36a03, 21-36a05 or 21-36a16, prior to their transfer, or K.S.A. 2022
604	604	Supp. 21-5703, 21-5705 or 21-5716, and amendments thereto, or any
605	605	substantially similar offense from another jurisdiction; or
606	606	(B) 10-A, 10-B, 9-A, 9-B, 8-A, 8-B, 7-A or 7-B of the sentencing
607	607	guidelines grid for nondrug crimes and:
608	608	(i) Such offender has no felony conviction of K.S.A. 65-4142, 65-
609	609	4159, 65-4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010
610	610	Supp. 21-36a03, 21-36a05 or 21-36a16, prior to their transfer, or
611	611	K.S.A. 2022 Supp. 21-5703, 21-5705 or 21-5716, and amendments
612	612	thereto, or any substantially similar offense from another jurisdiction; Senate Substitue for HOUSE BILL No. 2010—page 12
613	613	(ii) the person felonies in the offender's criminal history were
614	614	severity level 8, 9 or 10 or nongrid offenses of the sentencing
615	615	guidelines grid for nondrug crimes; and
616	616	(iii) the court finds and sets forth with particularity the reasons
617	617	for finding that the safety of the members of the public will not be
618	618	jeopardized by such placement in a drug abuse treatment program.
619	619	(b) As a part of the presentence investigation pursuant to K.S.A.
620	620	2022 Supp. 21-6813, and amendments thereto, offenders who meet the
621	621	requirements of subsection (a), unless otherwise specifically ordered by
622	622	the court, shall be subject to:
623	623	(1) A drug abuse assessment which that shall include a clinical
624	624	interview with a mental health professional and a recommendation
625	625	concerning drug abuse treatment for the offender; and
626	626	(2) a criminal risk-need assessment. The criminal risk-need
627	627	assessment shall assign a risk status to the offender.
628	628	(c) If the offender is assigned a risk status as determined by the
629	629	drug abuse assessment performed pursuant to subsection (b)(1) and a
630	630	risk status as determined by the criminal risk-need assessment
631	631	performed pursuant to subsection (b)(2) that meets the criteria for
632	632	participation in a drug abuse treatment program as determined by the
633	633	Kansas sentencing commission, the sentencing court shall commit the
634	634	offender to treatment in a drug abuse treatment program until the court
635	635	determines the offender is suitable for discharge by the court. The term
636	636	of treatment shall not exceed 18 months. The court may extend the term
637	637	of probation, pursuant to K.S.A. 2022 Supp. 21-6608(c)(3), and
638	638	amendments thereto. The term of treatment may not exceed the term of
639	639	probation.
640	640	(d) (1) Offenders who are committed to a drug abuse treatment
641	641	program pursuant to subsection (c) shall be supervised by community
642	642	correctional services.
643	643	(2) Offenders who are not committed to a drug abuse treatment
644	644	program pursuant to subsection (c) shall be supervised by community
645	645	correctional services or court services based on the result of the
646	646	criminal risk assessment.
647	647	(3) If the offender is permitted to go from the judicial district of
648	648	the sentencing court, the court may, pursuant to K.S.A. 2022 Supp. 21-
649	649	6610, and amendments thereto:
650	650	(A) Transfer supervision of the offender from that judicial district
651	651	to another; and
652	652	(B) either transfer or retain jurisdiction of the offender.
653	653	(e) Placement of offenders under subsection (a)(2) (a)(1)(B) or (a)
654	654	(2)(B) shall be subject to the departure sentencing statutes of the
655	655	revised Kansas sentencing guidelines act.
656	656	(f) (1) Offenders in drug abuse treatment programs shall be
657	657	discharged from such program if the offender:
658	658	(A) Is convicted of a new felony; or
659	659	(B) has a pattern of intentional conduct that demonstrates the
660	660	offender's refusal to comply with or participate in the treatment
661	661	program, as established by judicial finding.
662	662	(2) Offenders who are discharged from such program shall be
663	663	subject to the revocation provisions of K.S.A. 2022 Supp. 21-6604(n),
664	664	and amendments thereto.
665	665	(g) As used in this section, "mental health professional" includes
666	666	licensed social workers, persons licensed to practice medicine and
667	667	surgery, licensed psychologists, licensed professional counselors or
668	668	registered alcohol and other drug abuse counselors licensed or certified
669	669	as addiction counselors who have been certified by the Kansas
670	670	sentencing commission to treat offenders pursuant to K.S.A. 75-52,144,
671	671	and amendments thereto.
672	672	(h) (1) Offenders who meet the requirements of subsection (a)
673	673	shall not be subject to the provisions of this section and shall be
674	674	sentenced as otherwise provided by law, if such offenders:
675	675	(A) Are residents of another state and are returning to such state
676	676	pursuant to the interstate corrections compact or the interstate compact Senate Substitue for HOUSE BILL No. 2010—page 13
677	677	for adult offender supervision;
678	678	(B) are not lawfully present in the United States and being
679	679	detained for deportation; or
680	680	(C) do not meet the risk assessment levels provided in subsection
681	681	(c).
682	682	(2) Such sentence shall not be considered a departure and shall not
683	683	be subject to appeal.
684	684	(i) The court may order an offender who otherwise does not meet
685	685	the requirements of subsection (c) to undergo one additional drug abuse
686	686	assessment while such offender is on probation. Such offender may be
687	687	ordered to undergo drug abuse treatment pursuant to subsection (a) if
688	688	such offender is determined to meet the requirements of subsection (c).
689	689	The cost of such assessment shall be paid by such offender.
690	690	Sec. 5. K.S.A. 2022 Supp. 22-3428 is hereby amended to read as
691	691	follows: 22-3428. (a) (1) When a defendant is acquitted and the jury
692	692	answers in the affirmative to the special question asked pursuant to
693	693	K.S.A. 22-3221, and amendments thereto, the defendant shall be
694	694	committed to the state security hospital or an appropriate secure facility
695	695	for safekeeping and treatment and the prosecuting attorney shall
696	696	provide victim notification. A finding of not guilty and the jury
697	697	answering in the affirmative to the special question asked pursuant to
698	698	K.S.A. 22-3221, and amendments thereto, shall be prima facie evidence
699	699	that the acquitted defendant is presently likely to cause harm to self or
700	700	others.
701	701	(2) Within 90 days of the defendant's admission, the chief medical
702	702	officer of the state security hospital or licensed psychologist at the
703	703	appropriate secure facility shall send to the court a written evaluation
704	704	report. Upon receipt of the report, the court shall set a hearing to
705	705	determine whether or not the defendant is currently a mentally ill
706	706	person. The hearing shall be held within 30 days after the receipt by the
707	707	court of the chief medical officer's report unless the court finds that
708	708	exceptional circumstances warrant delay of the hearing.
709	709	(3) The court shall give notice of the hearing to the chief medical
710	710	officer of the state security hospital or licensed psychologist at the
711	711	appropriate secure facility, the prosecuting attorney, the defendant and
712	712	the defendant's attorney. The prosecuting attorney shall provide victim
713	713	notification. The court shall inform the defendant that such defendant is
714	714	entitled to counsel and that counsel will be appointed to represent the
715	715	defendant if the defendant is not financially able to employ an attorney
716	716	as provided in K.S.A. 22-4503 et seq., and amendments thereto. The
717	717	defendant shall remain at the state security hospital pending the
718	718	hearing.
719	719	(4) At the hearing, the defendant shall have the right to present
720	720	evidence and cross-examine witnesses. At the conclusion of the
721	721	hearing, if the court finds by clear and convincing evidence that the
722	722	defendant is not currently a mentally ill person, the court shall dismiss
723	723	the criminal proceeding and discharge the defendant, otherwise the
724	724	court may commit the defendant to the state security hospital or an
725	725	appropriate secure facility for treatment or may place the defendant on
726	726	conditional release pursuant to subsection (d). The prosecuting attorney
727	727	shall provide victim notification regarding the outcome of the hearing.
728	728	(b) Subject to the provisions of subsection (c):
729	729	(1) Whenever it appears to the chief medical officer of the state
730	730	security hospital or a licensed psychologist at the appropriate secure
731	731	facility that a person committed under subsection (a)(4) is not likely to
732	732	cause harm to other persons in a less restrictive hospital environment,
733	733	the officer may transfer the person to any state hospital, subject to the
734	734	provisions of subsection (c). At any time subsequent thereto during
735	735	which such person is still committed to a state hospital, if the chief
736	736	medical officer of that hospital or the licensed psychologist at the
737	737	appropriate secure facility finds that the person may be likely to cause
738	738	harm or has caused harm, to others, such officer may transfer the
739	739	person back to the state security hospital.
740	740	(2) Any person committed under subsection (a)(4) may be granted Senate Substitue for HOUSE BILL No. 2010—page 14
741	741	conditional release or discharge as an involuntary patient.
742	742	(c) Before transfer of a person from the state security hospital or
743	743	appropriate secure facility pursuant to subsection (b)(1) or conditional
744	744	release or discharge of a person pursuant to subsection (b)(2), the chief
745	745	medical officer of the state security hospital or the state hospital where
746	746	the patient is under commitment or the licensed psychologist at the
747	747	appropriate secure facility shall give notice to the district court of the
748	748	county from which the person was committed that transfer of the
749	749	patient is proposed or that the patient is ready for proposed conditional
750	750	release or discharge. Such notice shall include, but not be limited to: (1)
751	751	Identification of the patient; (2) the course of treatment; (3) a current
752	752	assessment of the defendant's mental illness; (4) recommendations for
753	753	future treatment, if any; and (5) recommendations regarding conditional
754	754	release or discharge, if any. Upon receiving notice, the district court
755	755	shall order that a hearing be held on the proposed transfer, conditional
756	756	release or discharge. The court shall give notice of the hearing to the
757	757	appropriate secure facility, state hospital or state security hospital
758	758	where the patient is under commitment, to the prosecuting attorney of
759	759	the county from which the person was originally ordered committed.
760	760	The prosecuting attorney shall provide victim notification regarding the
761	761	hearing. The court shall order the involuntary patient to undergo a
762	762	mental evaluation by a person designated by the court. A copy of all
763	763	orders of the court shall be sent to the involuntary patient and the
764	764	patient's attorney. The report of the court ordered mental evaluation
765	765	shall be given to the prosecuting attorney, the involuntary patient and
766	766	the patient's attorney at least seven days prior to the hearing. The
767	767	hearing shall be held within 30 days after the receipt by the court of the
768	768	chief medical officer's notice unless the court finds that exceptional
769	769	circumstances warrant delay of the hearing. The involuntary patient
770	770	shall remain in the appropriate secure facility, state hospital or state
771	771	security hospital where the patient is under commitment until the
772	772	hearing on the proposed transfer, conditional release or discharge is to
773	773	be held. At the hearing, the court shall receive all relevant evidence,
774	774	including the written findings and recommendations of the chief
775	775	medical officer of the state security hospital or the state hospital or the
776	776	licensed psychologist of the appropriate secure facility where the
777	777	patient is under commitment, and shall determine whether the patient
778	778	shall be transferred to a less restrictive hospital environment or whether
779	779	the patient shall be conditionally released or discharged. The patient
780	780	shall have the right to present evidence at such hearing and to cross-
781	781	examine any witnesses called by the prosecuting attorney. At the
782	782	conclusion of the hearing, if the court finds by clear and convincing
783	783	evidence that the patient will not be likely to cause harm to self or
784	784	others if transferred to a less restrictive hospital environment, the court
785	785	shall order the patient transferred. If the court finds by clear and
786	786	convincing evidence that the patient is not currently a mentally ill
787	787	person, the court shall order the patient discharged or conditionally
788	788	released; otherwise, the court shall order the patient to remain in the
789	789	state security hospital or state hospital where the patient is under
790	790	commitment. If the court orders the conditional release of the patient in
791	791	accordance with subsection (d), the court may order as an additional
792	792	condition to the release that the patient continue to take prescribed
793	793	medication and report as directed to a person licensed to practice
794	794	medicine and surgery to determine whether or not the patient is taking
795	795	the medication or that the patient continue to receive periodic
796	796	psychiatric or psychological treatment. The prosecuting attorney shall
797	797	notify any victims of the outcome of the hearing.
798	798	(d) In order to ensure the safety and welfare of a patient who is to
799	799	be conditionally released and the citizenry of the state, the court may
800	800	allow the patient to remain in custody at a facility under the supervision
801	801	of the secretary for aging and disability services or the head of the
802	802	appropriate secure facility for a period of time not to exceed 45 days in
803	803	order to permit sufficient time for the secretary to prepare
804	804	recommendations to the court for a suitable reentry program for the Senate Substitue for HOUSE BILL No. 2010—page 15
805	805	patient and allow adequate time for the prosecuting attorney to provide
806	806	victim notification. The reentry program shall be specifically designed
807	807	to facilitate the return of the patient to the community as a functioning,
808	808	self-supporting citizen, and may include appropriate supportive
809	809	provisions for assistance in establishing residency, securing gainful
810	810	employment, undergoing needed vocational rehabilitation, receiving
811	811	marital and family counseling, and such other outpatient services that
812	812	appear beneficial. If a patient who is to be conditionally released will
813	813	be residing in a county other than the county where the district court
814	814	that ordered the conditional release is located, the court shall transfer
815	815	venue of the case to the district court of the other county and send a
816	816	copy of all of the court's records of the proceedings to the other court.
817	817	In all cases of conditional release the court shall:
818	818	(1) Order that the patient be placed under the temporary
819	819	supervision of district court probation and parole services, community
820	820	treatment facility or any appropriate private agency; and
821	821	(2) require as a condition precedent to the release that the patient
822	822	agree in writing to waive extradition in the event a warrant is issued
823	823	pursuant to K.S.A. 22-3428b, and amendments thereto.
824	824	(e) At any time during the conditional release period, a
825	825	conditionally released patient, through the patient's attorney, or the
826	826	prosecuting attorney of the county where the district court having
827	827	venue is located may file a motion for modification of the conditions of
828	828	release, and the court shall hold an evidentiary hearing on the motion
829	829	within 14 days of its filing. The court shall give notice of the time for
830	830	the hearing to the patient and the prosecuting attorney. If the court finds
831	831	from the evidence at the hearing that the conditional provisions of
832	832	release should be modified or vacated, it shall so order. If at any time
833	833	during the transitional period the designated medical officer or
834	834	supervisory personnel or the treatment facility informs the court that
835	835	the patient is not satisfactorily complying with the provisions of the
836	836	conditional release, the court, after a hearing for which notice has been
837	837	given to the prosecuting attorney and the patient, may make orders: (1)
838	838	For additional conditions of release designed to effect the ends of the
839	839	reentry program; (2) requiring the prosecuting attorney to file a petition
840	840	to determine whether the patient is a mentally ill person as provided in
841	841	K.S.A. 59-2957, and amendments thereto; or (3) requiring that the
842	842	patient be committed to the appropriate secure facility, state security
843	843	hospital or any state hospital. In cases where a petition is ordered to be
844	844	filed, the court shall proceed to hear and determine the petition
845	845	pursuant to the care and treatment act for mentally ill persons and that
846	846	act shall apply to all subsequent proceedings. If a patient is committed
847	847	to any state hospital pursuant to this act the prosecuting attorney shall
848	848	provide victim notification. The costs of all proceedings, the mental
849	849	evaluation and the reentry program authorized by this section shall be
850	850	paid by the county from which the person was committed.
851	851	(f) In any case in which the defense that the defendant lacked the
852	852	required mental state pursuant to K.S.A. 22-3220 2022 Supp. 21-5209,
853	853	and amendments thereto, is relied on, the court shall instruct the jury on
854	854	the substance of this section.
855	855	(g) As used in this section and K.S.A. 22-3428a, and amendments
856	856	thereto:
857	857	(1) "Likely to cause harm to self or others" means that the person
858	858	is likely, in the reasonably foreseeable future, to cause substantial
859	859	physical injury or physical abuse to self or others or substantial damage
860	860	to another's property, or evidenced by behavior causing, attempting or
861	861	threatening such injury, abuse or neglect.
862	862	(2) "Mentally ill person" means any person who:
863	863	(A) Is suffering from a severe mental disorder to the extent that
864	864	such person is in need of treatment; and
865	865	(B) is likely to cause harm to self or others.
866	866	(3) "Treatment facility" means any mental health center or clinic,
867	867	psychiatric unit of a medical care facility, psychologist, physician or
868	868	other institution or individual authorized or licensed by law to provide Senate Substitue for HOUSE BILL No. 2010—page 16
869	869	either inpatient or outpatient treatment to any patient.
870	870	Sec. 6. K.S.A. 2022 Supp. 22-3428a is hereby amended to read as
871	871	follows: 22-3428a. (1) (a) Any person found not guilty, pursuant to
872	872	K.S.A. 22-3220 and 22-3221, and amendments thereto, and K.S.A.
873	873	2022 Supp. 21-5209, and amendments thereto, who remains in the state
874	874	security hospital or a state hospital for over one year pursuant to a
875	875	commitment under K.S.A. 22-3428, and amendments thereto, shall be
876	876	entitled annually to request a hearing to determine whether or not the
877	877	person continues to be a mentally ill person. The request shall be made
878	878	in writing to the district court of the county where the person is
879	879	hospitalized and shall be signed by the committed person or the
880	880	person's counsel. When the request is filed, the court shall give notice
881	881	of the request to: (a) (1) The county or district attorney of the county in
882	882	which the person was originally ordered committed; and (b) (2) the
883	883	chief medical officer of the state security hospital or state hospital
884	884	where the person is committed. The chief medical officer receiving the
885	885	notice, or the officer's designee, shall conduct a mental examination of
886	886	the person and shall send to the district court of the county where the
887	887	person is hospitalized and to the county or district attorney of the
888	888	county in which the person was originally ordered committed a report
889	889	of the examination within 21 days from the date when notice from the
890	890	court was received. Within 14 days after receiving the report of the
891	891	examination, the county or district attorney receiving it may file a
892	892	motion with the district court that gave the notice, requesting the court
893	893	to change the venue of the hearing to the district court of the county in
894	894	which the person was originally committed, or the court that gave the
895	895	notice on its own motion may change the venue of the hearing to the
896	896	district court of the county in which the person was originally
897	897	committed. Upon receipt of that motion and the report of the mental
898	898	examination or upon the court's own motion, the court shall transfer the
899	899	hearing to the district court specified in the motion and send a copy of
900	900	the court's records of the proceedings to that court.
901	901	(2)(b) After the time in which a change of venue may be requested
902	902	has elapsed, the court having venue shall set a date for the hearing,
903	903	giving notice thereof to the county or district attorney of the county, the
904	904	committed person and the person's counsel. The county or district
905	905	attorney shall provide victim notification. If there is no counsel of
906	906	record, the court shall appoint a counsel for the committed person. The
907	907	committed person shall have the right to procure, at the person's own
908	908	expense, a mental examination by a physician or licensed psychologist
909	909	of the person's own choosing. If a committed person is financially
910	910	unable to procure such an examination, the aid to indigent defendants
911	911	provisions of article 45 of chapter 22 of the Kansas Statutes Annotated,
912	912	and amendments thereto, shall be applicable to that person. A
913	913	committed person requesting a mental examination pursuant to K.S.A.
914	914	22-4508, and amendments thereto, may request a physician or licensed
915	915	psychologist of the person's own choosing and the court shall request
916	916	the physician or licensed psychologist to provide an estimate of the cost
917	917	of the examination. If the physician or licensed psychologist agrees to
918	918	accept compensation in an amount in accordance with the
919	919	compensation standards set by the board of supervisors of panels to aid
920	920	indigent defendants, the judge shall appoint the requested physician or
921	921	licensed psychologist; otherwise, the court shall designate a physician
922	922	or licensed psychologist to conduct the examination. Copies of each
923	923	mental examination of the committed person shall be filed with the
924	924	court at least seven days prior to the hearing and shall be supplied to
925	925	the county or district attorney receiving notice pursuant to this section
926	926	and the committed person's counsel.
927	927	(3)(c) At the hearing the committed person shall have the right to
928	928	present evidence and cross-examine the witnesses. The court shall
929	929	receive all relevant evidence, including the written findings and
930	930	recommendations of the chief medical officer of the state security
931	931	hospital or state hospital where the person is under commitment, and
932	932	shall determine whether the committed person continues to be a Senate Substitue for HOUSE BILL No. 2010—page 17
933	933	mentally ill person. At the hearing the court may make any order that a
934	934	court is empowered to make pursuant to subsections (3), (4) and (5) of
935	935	K.S.A. 22-3428(c), (d) and (e), and amendments thereto. If the court
936	936	finds by clear and convincing evidence the committed person is not a
937	937	mentally ill person, the court shall order the person discharged;
938	938	otherwise, the person shall remain committed or be conditionally
939	939	released. The county or district attorney shall provide victim
940	940	notification regarding the outcome of the hearing.
941	941	(4)(d) Costs of a hearing held pursuant to this section shall be
942	942	assessed against and paid by the county in which the person was
943	943	originally ordered committed.
944	944	Sec. 7. K.S.A. 2022 Supp. 22-3722 is hereby amended to read as
945	945	follows: 22-3722. (a) The period served on parole or conditional
946	946	release shall be deemed service of the term of confinement, and, subject
947	947	to the provisions contained in K.S.A. 75-5217, and amendments
948	948	thereto, relating to an inmate who is a fugitive from or has fled from
949	949	justice, the total time served may not exceed the maximum term or
950	950	sentence. The period served on postrelease supervision shall vest in and
951	951	be subject to the provisions contained in K.S.A. 75-5217, and
952	952	amendments thereto, relating to an inmate who is a fugitive from or has
953	953	fled from justice. The service of the postrelease supervision period
954	954	shall not toll except as provided by K.S.A. 75-5217, and amendments
955	955	thereto. The total time served shall not exceed the postrelease
956	956	supervision period established at sentencing.
957	957	(b) When an inmate on parole or conditional release has
958	958	performed the obligations of the release for such time as shall satisfy
959	959	the prisoner review board that final release is not incompatible with the
960	960	best interest of society and the welfare of the individual, the board may
961	961	make a final order of discharge and issue a certificate of discharge to
962	962	the inmate but no such order of discharge shall be made in any case
963	963	within a period of less than one year after the date of release except
964	964	where the sentence expires earlier thereto. When an inmate has reached
965	965	the end of the postrelease supervision period, the board shall issue a
966	966	certificate of discharge to the releasee. Such discharge, and the
967	967	discharge of an inmate who has served the inmate's term of
968	968	imprisonment, shall have the effect of restoring all civil rights lost by
969	969	operation of law upon commitment, and the certification of discharge
970	970	shall so state. Nothing herein contained shall be held to impair the
971	971	power of the governor to grant a pardon or commutation of sentence in
972	972	any case. Senate Substitue for HOUSE BILL No. 2010—page 18
973	973	Sec. 8. K.S.A. 12-736 and K.S.A. 2022 Supp. 21-6308, 21-6804,
974	974	21-6824, 22-3428, 22-3428a and 22-3722 are hereby repealed.
975	975	Sec. 9. This act shall take effect and be in force from and after its
976	976	publication in the statute book.
977	977	I hereby certify that the above BILL originated in the
978	978	HOUSE, and was adopted by that body
979	979
980	980	HOUSE adopted
981	981	Conference Committee Report
982	982
983	983	Speaker of the House.
984	984
985	985	Chief Clerk of the House.
986	986	Passed the SENATE
987	987	as amended
988	988	SENATE adopted
989	989	Conference Committee Report
990	990
991	991	President of the Senate.
992	992
993	993	Secretary of the Senate.
994	994	APPROVED
995	995
996	996
997	997	Governor.