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Kansas Senate Bill SB216

Kansas 2023-2024 Regular Session

Kansas Senate Bill SB216 Compare Versions

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11 Session of 2023
22 SENATE BILL No. 216
33 By Committee on Judiciary
44 2-8
55 AN ACT concerning crimes, punishment and criminal procedure; relating
66 to crimes against the public safety; adding possessing or using a
77 firearm during the commission of certain drug crimes to the crime of
88 criminal use of weapons; creating a special sentencing rule of
99 presumptive imprisonment for violations thereof; amending K.S.A.
1010 2022 Supp. 21-6301 and 21-6804 and repealing the existing sections.
1111 Be it enacted by the Legislature of the State of Kansas:
1212 Section 1. K.S.A. 2022 Supp. 21-6301 is hereby amended to read as
1313 follows: 21-6301. (a) Criminal use of weapons is knowingly:
1414 (1) Selling, manufacturing, purchasing or possessing any bludgeon,
1515 sand club or metal knuckles;
1616 (2) possessing with intent to use the same unlawfully against another,
1717 a dagger, dirk, billy, blackjack, slungshot, dangerous knife, straight-edged
1818 razor, throwing star, stiletto or any other dangerous or deadly weapon or
1919 instrument of like character;
2020 (3) setting a spring gun;
2121 (4) possessing any device or attachment of any kind designed, used or
2222 intended for use in suppressing the report of any firearm;
2323 (5) selling, manufacturing, purchasing or possessing a shotgun with a
2424 barrel less than 18 inches in length, or any firearm designed to discharge or
2525 capable of discharging automatically more than once by a single function
2626 of the trigger, whether the person knows or has reason to know the length
2727 of the barrel or that the firearm is designed or capable of discharging
2828 automatically;
2929 (6) possessing, manufacturing, causing to be manufactured, selling,
3030 offering for sale, lending, purchasing or giving away any cartridge which
3131 can be fired by a handgun and which has a plastic-coated bullet that has a
3232 core of less than 60% lead by weight, whether the person knows or has
3333 reason to know that the plastic-coated bullet has a core of less than 60%
3434 lead by weight;
3535 (7) selling, giving or otherwise transferring any firearm with a barrel
3636 less than 12 inches long to any person under 18 years of age whether the
3737 person knows or has reason to know the length of the barrel;
3838 (8) selling, giving or otherwise transferring any firearms to any
3939 person who is both addicted to and an unlawful user of a controlled
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7676 substance;
7777 (9) selling, giving or otherwise transferring any firearm to any person
7878 who is or has been a mentally ill person subject to involuntary
7979 commitment for care and treatment, as defined in K.S.A. 59-2946, and
8080 amendments thereto, or a person with an alcohol or substance abuse
8181 problem subject to involuntary commitment for care and treatment as
8282 defined in K.S.A. 59-29b46, and amendments thereto;
8383 (10) possessing any firearm by a person who is both addicted to and
8484 an unlawful user of a controlled substance;
8585 (11) possessing any firearm by any person, other than a law
8686 enforcement officer, in or on any school property or grounds upon which is
8787 located a building or structure used by a unified school district or an
8888 accredited nonpublic school for student instruction or attendance or
8989 extracurricular activities of pupils enrolled in kindergarten or any of the
9090 grades one through 12 or at any regularly scheduled school sponsored
9191 activity or event whether the person knows or has reason to know that such
9292 person was in or on any such property or grounds;
9393 (12) refusing to surrender or immediately remove from school
9494 property or grounds or at any regularly scheduled school sponsored
9595 activity or event any firearm in the possession of any person, other than a
9696 law enforcement officer, when so requested or directed by any duly
9797 authorized school employee or any law enforcement officer;
9898 (13) possessing any firearm by a person who is or has been a
9999 mentally ill person subject to involuntary commitment for care and
100100 treatment, as defined in K.S.A. 59-2946, and amendments thereto, or
101101 persons with an alcohol or substance abuse problem subject to involuntary
102102 commitment for care and treatment as defined in K.S.A. 59-29b46, and
103103 amendments thereto;
104104 (14) possessing a firearm with a barrel less than 12 inches long by
105105 any person less than 18 years of age;
106106 (15) possessing any firearm while a fugitive from justice;
107107 (16) possessing any firearm by a person who is an alien illegally or
108108 unlawfully in the United States;
109109 (17) possessing any firearm by a person while such person is subject
110110 to a court order that:
111111 (A) Was issued after a hearing, of which such person received actual
112112 notice, and at which such person had an opportunity to participate;
113113 (B) restrains such person from harassing, stalking or threatening an
114114 intimate partner of such person or a child of such person or such intimate
115115 partner, or engaging in other conduct that would place an intimate partner
116116 in reasonable fear of bodily injury to the partner or the child; and
117117 (C) (i) includes a finding that such person represents a credible threat
118118 to the physical safety of such intimate partner or child; or
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162162 (ii) by its terms explicitly prohibits the use, attempted use or
163163 threatened use of physical force against such intimate partner or child that
164164 would reasonably be expected to cause bodily injury; or
165165 (18) possessing any firearm by a person who, within the preceding
166166 five years, has been convicted of a misdemeanor for a domestic violence
167167 offense, or a misdemeanor under a law of another jurisdiction which is
168168 substantially the same as such misdemeanor offense; or
169169 (19) possessing or using any firearm during the commission or in
170170 furtherance of a felony violation of:
171171 (A) Unlawful manufacturing of controlled substances as defined in
172172 K.S.A. 2022 Supp. 21-5703, and amendments thereto; or
173173 (B) unlawful cultivation or distribution of controlled substances as
174174 defined in K.S.A. 2022 Supp. 21-5705, and amendments thereto.
175175 (b) Criminal use of weapons as defined in:
176176 (1) Subsection (a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9) or (a)(12) is a
177177 class A nonperson misdemeanor;
178178 (2) subsection (a)(4), (a)(5) or (a)(6) is a severity level 9, nonperson
179179 felony;
180180 (3) subsection (a)(10) or (a)(11) is a class B nonperson select
181181 misdemeanor;
182182 (4) subsection (a)(13), (a)(15), (a)(16), (a)(17) or (a)(18) is a severity
183183 level 8, nonperson felony; and
184184 (5) subsection (a)(14) is a:
185185 (A) Class A nonperson misdemeanor except as provided in subsection
186186 (b)(5)(B); and
187187 (B) severity level 8, nonperson felony upon a second or subsequent
188188 conviction; and
189189 (6) subsection (a)(19) is a:
190190 (A) Severity level 7, nonperson felony except as provided in
191191 subsection (b)(6)(B); and
192192 (B) severity level 6, person felony when the firearm is discharged
193193 during commission of the offense.
194194 (c) Subsections (a)(1), (a)(2) and (a)(5) shall not apply to:
195195 (1) Law enforcement officers, or any person summoned by any such
196196 officers to assist in making arrests or preserving the peace while actually
197197 engaged in assisting such officer;
198198 (2) wardens, superintendents, directors, security personnel and
199199 keepers of prisons, penitentiaries, jails and other institutions for the
200200 detention of persons accused or convicted of crime, while acting within the
201201 scope of their authority;
202202 (3) members of the armed services or reserve forces of the United
203203 States or the Kansas national guard while in the performance of their
204204 official duty; or
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248248 (4) the manufacture of, transportation to, or sale of weapons to a
249249 person authorized under subsections (c)(1), (c)(2) and (c)(3) to possess
250250 such weapons.
251251 (d) Subsections (a)(4) and (a)(5) shall not apply to any person who
252252 sells, purchases, possesses or carries a firearm, device or attachment which
253253 has been rendered unserviceable by steel weld in the chamber and
254254 marriage weld of the barrel to the receiver and which has been registered
255255 in the national firearms registration and transfer record in compliance with
256256 26 U.S.C. § 5841 et seq. in the name of such person and, if such person
257257 transfers such firearm, device or attachment to another person, has been so
258258 registered in the transferee's name by the transferor.
259259 (e) Subsection (a)(6) shall not apply to a governmental laboratory or
260260 solid plastic bullets.
261261 (f) Subsection (a)(4) shall not apply to a law enforcement officer who
262262 is:
263263 (1) Assigned by the head of such officer's law enforcement agency to
264264 a tactical unit which receives specialized, regular training;
265265 (2) designated by the head of such officer's law enforcement agency
266266 to possess devices described in subsection (a)(4); and
267267 (3) in possession of commercially manufactured devices which are:
268268 (A) Owned by the law enforcement agency;
269269 (B) in such officer's possession only during specific operations; and
270270 (C) approved by the bureau of alcohol, tobacco, firearms and
271271 explosives of the United States department of justice.
272272 (g) Subsections (a)(4), (a)(5) and (a)(6) shall not apply to any person
273273 employed by a laboratory which is certified by the United States
274274 department of justice, national institute of justice, while actually engaged
275275 in the duties of their employment and on the premises of such certified
276276 laboratory. Subsections (a)(4), (a)(5) and (a)(6) shall not affect the
277277 manufacture of, transportation to or sale of weapons to such certified
278278 laboratory.
279279 (h) Subsections (a)(4) and (a)(5) shall not apply to or affect any
280280 person or entity in compliance with the national firearms act, 26 U.S.C. §
281281 5801 et seq.
282282 (i) (1) Subsection (a)(4) shall not apply to or affect any person in
283283 possession of a device or attachment designed, used or intended for use in
284284 suppressing the report of any firearm, if such device or attachment satisfies
285285 the description of a Kansas-made firearm accessory as set forth in K.S.A.
286286 2022 Supp. 50-1204, and amendments thereto.
287287 (2) The provisions of this subsection shall apply to any violation of
288288 subsection (a)(4) that occurred on or after April 25, 2013.
289289 (j) Subsection (a)(11) shall not apply to:
290290 (1) Possession of any firearm in connection with a firearms safety
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334334 course of instruction or firearms education course approved and authorized
335335 by the school;
336336 (2) possession of any firearm specifically authorized in writing by the
337337 superintendent of any unified school district or the chief administrator of
338338 any accredited nonpublic school;
339339 (3) possession of a firearm secured in a motor vehicle by a parent,
340340 guardian, custodian or someone authorized to act in such person's behalf
341341 who is delivering or collecting a student;
342342 (4) possession of a firearm secured in a motor vehicle by a registered
343343 voter who is on the school grounds, which contain a polling place for the
344344 purpose of voting during polling hours on an election day; or
345345 (5) possession of a concealed handgun by an individual who is not
346346 prohibited from possessing a firearm under either federal or state law, and
347347 who is either: (A) 21 years of age or older; or (B) possesses a valid
348348 provisional license issued pursuant to K.S.A. 75-7c03, and amendments
349349 thereto, or a valid license to carry a concealed handgun issued by another
350350 jurisdiction that is recognized in this state pursuant to K.S.A. 75-7c03, and
351351 amendments thereto.
352352 (k) Subsections (a)(9) and (a)(13) shall not apply to a person who has
353353 received a certificate of restoration pursuant to K.S.A. 75-7c26, and
354354 amendments thereto.
355355 (l) Subsection (a)(14) shall not apply if such person, less than 18
356356 years of age, was:
357357 (1) In attendance at a hunter's safety course or a firearms safety
358358 course;
359359 (2) engaging in practice in the use of such firearm or target shooting
360360 at an established range authorized by the governing body of the
361361 jurisdiction in which such range is located, or at another private range with
362362 permission of such person's parent or legal guardian;
363363 (3) engaging in an organized competition involving the use of such
364364 firearm, or participating in or practicing for a performance by an
365365 organization exempt from federal income tax pursuant to section 501(c)(3)
366366 of the internal revenue code of 1986 which uses firearms as a part of such
367367 performance;
368368 (4) hunting or trapping pursuant to a valid license issued to such
369369 person pursuant to article 9 of chapter 32 of the Kansas Statutes
370370 Annotated, and amendments thereto;
371371 (5) traveling with any such firearm in such person's possession being
372372 unloaded to or from any activity described in subsections (l)(1) through (l)
373373 (4), only if such firearm is secured, unloaded and outside the immediate
374374 access of such person;
375375 (6) on real property under the control of such person's parent, legal
376376 guardian or grandparent and who has the permission of such parent, legal
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420420 guardian or grandparent to possess such firearm; or
421421 (7) at such person's residence and who, with the permission of such
422422 person's parent or legal guardian, possesses such firearm for the purpose of
423423 exercising the rights contained in K.S.A. 2022 Supp. 21-5222, 21-5223 or
424424 21-5225, and amendments thereto.
425425 (m) As used in this section:
426426 (1) "Domestic violence" means the use or attempted use of physical
427427 force, or the threatened use of a deadly weapon, committed against a
428428 person with whom the offender is involved or has been involved in a
429429 dating relationship or is a family or household member.
430430 (2) "Fugitive from justice" means any person having knowledge that
431431 a warrant for the commission of a felony has been issued for the
432432 apprehension of such person under K.S.A. 22-2713, and amendments
433433 thereto.
434434 (3) "Intimate partner" means, with respect to a person, the spouse of
435435 the person, a former spouse of the person, an individual who is a parent of
436436 a child of the person or an individual who cohabitates or has cohabitated
437437 with the person.
438438 (4) "Throwing star" means any instrument, without handles,
439439 consisting of a metal plate having three or more radiating points with one
440440 or more sharp edges and designed in the shape of a polygon, trefoil, cross,
441441 star, diamond or other geometric shape, manufactured for use as a weapon
442442 for throwing.
443443 Sec. 2. K.S.A. 2022 Supp. 21-6804 is hereby amended to read as
444444 follows: 21-6804. (a) The provisions of this section shall be applicable to
445445 the sentencing guidelines grid for nondrug crimes. The following
446446 sentencing guidelines grid shall be applicable to nondrug felony crimes:
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475475 (b) Sentences expressed in the sentencing guidelines grid for nondrug
476476 crimes represent months of imprisonment.
477477 (c) The sentencing guidelines grid is a two-dimensional crime
478478 severity and criminal history classification tool. The grid's vertical axis is
479479 the crime severity scale which classifies current crimes of conviction. The
480480 grid's horizontal axis is the criminal history scale which classifies criminal
481481 histories.
482482 (d) The sentencing guidelines grid for nondrug crimes as provided in
483483 this section defines presumptive punishments for felony convictions,
484484 subject to the sentencing court's discretion to enter a departure sentence.
485485 The appropriate punishment for a felony conviction should depend on the
486486 severity of the crime of conviction when compared to all other crimes and
487487 the offender's criminal history.
488488 (e) (1) The sentencing court has discretion to sentence at any place
489489 within the sentencing range. In the usual case it is recommended that the
490490 sentencing judge select the center of the range and reserve the upper and
491491 lower limits for aggravating and mitigating factors insufficient to warrant a
492492 departure.
493493 (2) In presumptive imprisonment cases, the sentencing court shall
494494 pronounce the complete sentence which shall include the:
495495 (A) Prison sentence;
496496 (B) maximum potential reduction to such sentence as a result of good
497497 time; and
498498 (C) period of postrelease supervision at the sentencing hearing.
499499 Failure to pronounce the period of postrelease supervision shall not negate
500500 the existence of such period of postrelease supervision.
501501 (3) In presumptive nonprison cases, the sentencing court shall
502502 pronounce the:
503503 (A) Prison sentence; and
504504 (B) duration of the nonprison sanction at the sentencing hearing.
505505 (f) Each grid block states the presumptive sentencing range for an
506506 offender whose crime of conviction and criminal history place such
507507 offender in that grid block. If an offense is classified in a grid block below
508508 the dispositional line, the presumptive disposition shall be
509509 nonimprisonment. If an offense is classified in a grid block above the
510510 dispositional line, the presumptive disposition shall be imprisonment. If an
511511 offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose
512512 an optional nonprison sentence as provided in subsection (q).
513513 (g) The sentence for a violation of K.S.A. 21-3415, prior to its repeal,
514514 aggravated battery against a law enforcement officer committed prior to
515515 July 1, 2006, or a violation of K.S.A. 2022 Supp. 21-5412(d), and
516516 amendments thereto, aggravated assault against a law enforcement officer,
517517 which places the defendant's sentence in grid block 6-H or 6-I shall be
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561561 presumed imprisonment. The court may impose an optional nonprison
562562 sentence as provided in subsection (q).
563563 (h) When a firearm is used to commit any person felony, the
564564 offender's sentence shall be presumed imprisonment. The court may
565565 impose an optional nonprison sentence as provided in subsection (q).
566566 (i) (1) The sentence for the violation of the felony provision of K.S.A.
567567 2022 Supp. 21-5414(b)(3)(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and
568568 21-6416, and amendments thereto, shall be as provided by the specific
569569 mandatory sentencing requirements of that section and shall not be subject
570570 to the provisions of this section or K.S.A. 2022 Supp. 21-6807, and
571571 amendments thereto.
572572 (2) If because of the offender's criminal history classification the
573573 offender is subject to presumptive imprisonment or if the judge departs
574574 from a presumptive probation sentence and the offender is subject to
575575 imprisonment, the provisions of this section and K.S.A. 2022 Supp. 21-
576576 6807, and amendments thereto, shall apply and the offender shall not be
577577 subject to the mandatory sentence as provided in K.S.A. 2022 Supp. 21-
578578 5823, and amendments thereto.
579579 (3) Notwithstanding the provisions of any other section, the term of
580580 imprisonment imposed for the violation of the felony provision of K.S.A.
581581 2022 Supp. 21-5414(b)(3)(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and
582582 21-6416, and amendments thereto, shall not be served in a state facility in
583583 the custody of the secretary of corrections. Prior to imposing any sentence
584584 pursuant to this subsection, the court may consider assigning the defendant
585585 to a house arrest program pursuant to K.S.A. 2022 Supp. 21-6609, and
586586 amendments thereto.
587587 (j) (1) The sentence for any persistent sex offender whose current
588588 convicted crime carries a presumptive term of imprisonment shall be
589589 double the maximum duration of the presumptive imprisonment term. The
590590 sentence for any persistent sex offender whose current conviction carries a
591591 presumptive nonprison term shall be presumed imprisonment and shall be
592592 double the maximum duration of the presumptive imprisonment term.
593593 (2) Except as otherwise provided in this subsection, as used in this
594594 subsection, "persistent sex offender" means a person who:
595595 (A) (i) Has been convicted in this state of a sexually violent crime, as
596596 defined in K.S.A. 22-3717, and amendments thereto; and
597597 (ii) at the time of the conviction under subsection (j)(2)(A)(i) has at
598598 least one conviction for a sexually violent crime, as defined in K.S.A. 22-
599599 3717, and amendments thereto, in this state or comparable felony under
600600 the laws of another state, the federal government or a foreign government;
601601 or
602602 (B) (i) has been convicted of rape, as defined in K.S.A. 21-3502,
603603 prior to its repeal, or K.S.A. 2022 Supp. 21-5503, and amendments
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647647 thereto; and
648648 (ii) at the time of the conviction under subsection (j)(2)(B)(i) has at
649649 least one conviction for rape in this state or comparable felony under the
650650 laws of another state, the federal government or a foreign government.
651651 (3) Except as provided in subsection (j)(2)(B), the provisions of this
652652 subsection shall not apply to any person whose current convicted crime is
653653 a severity level 1 or 2 felony.
654654 (k) (1) If it is shown at sentencing that the offender committed any
655655 felony violation for the benefit of, at the direction of, or in association with
656656 any criminal street gang, with the specific intent to promote, further or
657657 assist in any criminal conduct by gang members, the offender's sentence
658658 shall be presumed imprisonment. The court may impose an optional
659659 nonprison sentence as provided in subsection (q).
660660 (2) As used in this subsection, "criminal street gang" means any
661661 organization, association or group of three or more persons, whether
662662 formal or informal, having as one of its primary activities:
663663 (A) The commission of one or more person felonies; or
664664 (B) the commission of felony violations of article 57 of chapter 21 of
665665 the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010
666666 Supp. 21-36a01 through 21-36a17, prior to their transfer, or any felony
667667 violation of any provision of the uniform controlled substances act prior to
668668 July 1, 2009; and
669669 (C) its members have a common name or common identifying sign or
670670 symbol; and
671671 (D) its members, individually or collectively, engage in or have
672672 engaged in the commission, attempted commission, conspiracy to commit
673673 or solicitation of two or more person felonies or felony violations of article
674674 57 of chapter 21 of the Kansas Statutes Annotated, and amendments
675675 thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their
676676 transfer, any felony violation of any provision of the uniform controlled
677677 substances act prior to July 1, 2009, or any substantially similar offense
678678 from another jurisdiction.
679679 (l) Except as provided in subsection (o), the sentence for a violation
680680 of K.S.A. 2022 Supp. 21-5807(a)(1), and amendments thereto, or any
681681 attempt or conspiracy, as defined in K.S.A. 2022 Supp. 21-5301 and 21-
682682 5302, and amendments thereto, to commit such offense, when such person
683683 being sentenced has a prior conviction for a violation of K.S.A. 21-3715(a)
684684 or (b), prior to its repeal, 21-3716, prior to its repeal, K.S.A. 2022 Supp.
685685 21-5807(a)(1) or (a)(2) or 21-5807(b), and amendments thereto, or any
686686 attempt or conspiracy to commit such offense, shall be presumptive
687687 imprisonment.
688688 (m) The sentence for a violation of K.S.A. 22-4903 or K.S.A. 2022
689689 Supp. 21-5913(a)(2), and amendments thereto, shall be presumptive
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733733 imprisonment. If an offense under such sections is classified in grid blocks
734734 5-E, 5-F, 5-G, 5-H or 5-I, the court may impose an optional nonprison
735735 sentence as provided in subsection (q).
736736 (n) The sentence for a violation of criminal deprivation of property, as
737737 defined in K.S.A. 2022 Supp. 21-5803, and amendments thereto, when
738738 such property is a motor vehicle, and when such person being sentenced
739739 has any combination of two or more prior convictions of K.S.A. 21-
740740 3705(b), prior to its repeal, or of criminal deprivation of property, as
741741 defined in K.S.A. 2022 Supp. 21-5803, and amendments thereto, when
742742 such property is a motor vehicle, shall be presumptive imprisonment. Such
743743 sentence shall not be considered a departure and shall not be subject to
744744 appeal.
745745 (o) The sentence for a felony violation of theft of property as defined
746746 in K.S.A. 2022 Supp. 21-5801, and amendments thereto, or burglary as
747747 defined in K.S.A. 2022 Supp. 21-5807(a), and amendments thereto, when
748748 such person being sentenced has no prior convictions for a violation of
749749 K.S.A. 21-3701 or 21-3715, prior to their repeal, or theft of property as
750750 defined in K.S.A. 2022 Supp. 21-5801, and amendments thereto, or
751751 burglary as defined in K.S.A. 2022 Supp. 21-5807(a), and amendments
752752 thereto; or the sentence for a felony violation of theft of property as
753753 defined in K.S.A. 2022 Supp. 21-5801, and amendments thereto, when
754754 such person being sentenced has one or two prior felony convictions for a
755755 violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or
756756 theft of property as defined in K.S.A. 2022 Supp. 21-5801, and
757757 amendments thereto, or burglary or aggravated burglary as defined in
758758 K.S.A. 2022 Supp. 21-5807, and amendments thereto; or the sentence for a
759759 felony violation of burglary as defined in K.S.A. 2022 Supp. 21-5807(a),
760760 and amendments thereto, when such person being sentenced has one prior
761761 felony conviction for a violation of K.S.A. 21-3701, 21-3715 or 21-3716,
762762 prior to their repeal, or theft of property as defined in K.S.A. 2022 Supp.
763763 21-5801, and amendments thereto, or burglary or aggravated burglary as
764764 defined in K.S.A. 2022 Supp. 21-5807, and amendments thereto, shall be
765765 the sentence as provided by this section, except that the court may order an
766766 optional nonprison sentence for a defendant to participate in a drug
767767 treatment program, including, but not limited to, an approved aftercare
768768 plan, if the court makes the following findings on the record:
769769 (1) Substance abuse was an underlying factor in the commission of
770770 the crime;
771771 (2) substance abuse treatment in the community is likely to be more
772772 effective than a prison term in reducing the risk of offender recidivism;
773773 and
774774 (3) participation in an intensive substance abuse treatment program
775775 will serve community safety interests.
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819819 A defendant sentenced to an optional nonprison sentence under this
820820 subsection shall be supervised by community correctional services. The
821821 provisions of K.S.A. 2022 Supp. 21-6824(f)(1), and amendments thereto,
822822 shall apply to a defendant sentenced under this subsection. The sentence
823823 under this subsection shall not be considered a departure and shall not be
824824 subject to appeal.
825825 (p) The sentence for a felony violation of theft of property as defined
826826 in K.S.A. 2022 Supp. 21-5801, and amendments thereto, when such
827827 person being sentenced has any combination of three or more prior felony
828828 convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716, prior to
829829 their repeal, or theft of property as defined in K.S.A. 2022 Supp. 21-5801,
830830 and amendments thereto, or burglary or aggravated burglary as defined in
831831 K.S.A. 2022 Supp. 21-5807, and amendments thereto; or the sentence for a
832832 violation of burglary as defined in K.S.A. 2022 Supp. 21-5807(a), and
833833 amendments thereto, when such person being sentenced has any
834834 combination of two or more prior convictions for violations of K.S.A. 21-
835835 3701, 21-3715 and 21-3716, prior to their repeal, or theft of property as
836836 defined in K.S.A. 2022 Supp. 21-5801, and amendments thereto, or
837837 burglary or aggravated burglary as defined in K.S.A. 2022 Supp. 21-5807,
838838 and amendments thereto, shall be presumed imprisonment and the
839839 defendant shall be sentenced to prison as provided by this section, except
840840 that the court may recommend that an offender be placed in the custody of
841841 the secretary of corrections, in a facility designated by the secretary to
842842 participate in an intensive substance abuse treatment program, upon
843843 making the following findings on the record:
844844 (1) Substance abuse was an underlying factor in the commission of
845845 the crime;
846846 (2) substance abuse treatment with a possibility of an early release
847847 from imprisonment is likely to be more effective than a prison term in
848848 reducing the risk of offender recidivism; and
849849 (3) participation in an intensive substance abuse treatment program
850850 with the possibility of an early release from imprisonment will serve
851851 community safety interests by promoting offender reformation.
852852 The intensive substance abuse treatment program shall be determined
853853 by the secretary of corrections, but shall be for a period of at least four
854854 months. Upon the successful completion of such intensive treatment
855855 program, the offender shall be returned to the court and the court may
856856 modify the sentence by directing that a less severe penalty be imposed in
857857 lieu of that originally adjudged within statutory limits. If the offender's
858858 term of imprisonment expires, the offender shall be placed under the
859859 applicable period of postrelease supervision. The sentence under this
860860 subsection shall not be considered a departure and shall not be subject to
861861 appeal.
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905905 (q) As used in this section, an "optional nonprison sentence" is a
906906 sentence which the court may impose, in lieu of the presumptive sentence,
907907 upon making the following findings on the record:
908908 (1) An appropriate treatment program exists which is likely to be
909909 more effective than the presumptive prison term in reducing the risk of
910910 offender recidivism; and
911911 (2) the recommended treatment program is available and the offender
912912 can be admitted to such program within a reasonable period of time; or
913913 (3) the nonprison sanction will serve community safety interests by
914914 promoting offender reformation.
915915 Any decision made by the court regarding the imposition of an optional
916916 nonprison sentence shall not be considered a departure and shall not be
917917 subject to appeal.
918918 (r) The sentence for a violation of K.S.A. 2022 Supp. 21-5413(c)(2),
919919 and amendments thereto, shall be presumptive imprisonment and shall be
920920 served consecutively to any other term or terms of imprisonment imposed.
921921 Such sentence shall not be considered a departure and shall not be subject
922922 to appeal.
923923 (s) The sentence for a violation of K.S.A. 2022 Supp. 21-5512, and
924924 amendments thereto, shall be presumptive imprisonment. Such sentence
925925 shall not be considered a departure and shall not be subject to appeal.
926926 (t) (1) If the trier of fact makes a finding beyond a reasonable doubt
927927 that an offender wore or used ballistic resistant material in the commission
928928 of, or attempt to commit, or flight from any felony, in addition to the
929929 sentence imposed pursuant to the Kansas sentencing guidelines act, the
930930 offender shall be sentenced to an additional 30 months' imprisonment.
931931 (2) The sentence imposed pursuant to subsection (t)(1) paragraph (1)
932932 shall be presumptive imprisonment and shall be served consecutively to
933933 any other term or terms of imprisonment imposed. Such sentence shall not
934934 be considered a departure and shall not be subject to appeal.
935935 (3) As used in this subsection, "ballistic resistant material" means:
936936 (A) Any commercially produced material designed with the purpose
937937 of providing ballistic and trauma protection, including, but not limited to,
938938 bulletproof vests and kevlar vests; and
939939 (B) any homemade or fabricated substance or item designed with the
940940 purpose of providing ballistic and trauma protection.
941941 (u) The sentence for a violation of K.S.A. 2022 Supp. 21-6107, and
942942 amendments thereto, or any attempt or conspiracy, as defined in K.S.A.
943943 2022 Supp. 21-5301 and 21-5302, and amendments thereto, to commit
944944 such offense, when such person being sentenced has a prior conviction for
945945 a violation of K.S.A. 21-4018, prior to its repeal, or K.S.A. 2022 Supp. 21-
946946 6107, and amendments thereto, or any attempt or conspiracy to commit
947947 such offense, shall be presumptive imprisonment. Such sentence shall not
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991991 be considered a departure and shall not be subject to appeal.
992992 (v) The sentence for a third or subsequent violation of K.S.A. 8-1568,
993993 and amendments thereto, shall be presumptive imprisonment and shall be
994994 served consecutively to any other term or terms of imprisonment imposed.
995995 Such sentence shall not be considered a departure and shall not be subject
996996 to appeal.
997997 (w) The sentence for aggravated criminal damage to property as
998998 defined in K.S.A. 2022 Supp. 21-5813(b), and amendments thereto, when
999999 such person being sentenced has a prior conviction for any nonperson
10001000 felony shall be presumptive imprisonment. Such sentence shall not be
10011001 considered a departure and shall not be subject to appeal.
10021002 (x) The sentence for a violation of K.S.A. 2022 Supp. 21-5807(a)(1),
10031003 and amendments thereto, shall be presumptive imprisonment if the offense
10041004 under such paragraph is classified in grid blocks 7-C, 7-D or 7-E. Such
10051005 sentence shall not be considered a departure and shall not be subject to
10061006 appeal.
10071007 (y) (1) Except as provided in subsection (y)(3) paragraph (3), if the
10081008 trier of fact makes a finding beyond a reasonable doubt that an offender
10091009 committed a nondrug felony offense, or any attempt or conspiracy, as
10101010 defined in K.S.A. 2022 Supp. 21-5301 and 21-5302, and amendments
10111011 thereto, to commit a nondrug felony offense, against a law enforcement
10121012 officer, as defined in K.S.A. 2022 Supp. 21-5111(p)(1) and (3), and
10131013 amendments thereto, while such officer was engaged in the performance of
10141014 such officer's duty, or in whole or in any part because of such officer's
10151015 status as a law enforcement officer, the sentence for such offense shall be:
10161016 (A) If such offense is classified in severity level 2 through 10, one
10171017 severity level above the appropriate level for such offense; and
10181018 (B) (i) if such offense is classified in severity level 1, except as
10191019 otherwise provided in subsection (y)(1)(B)(ii) clause (ii), imprisonment for
10201020 life, and such offender shall not be eligible for probation or suspension,
10211021 modification or reduction of sentence. In addition, such offender shall not
10221022 be eligible for parole prior to serving 25 years' imprisonment, and such 25
10231023 years' imprisonment shall not be reduced by the application of good time
10241024 credits. No other sentence shall be permitted.
10251025 (ii) The provisions of subsection (y)(1)(B)(i) clause (i) requiring the
10261026 court to impose a mandatory minimum term of imprisonment of 25 years
10271027 shall not apply if the court finds the offender, because of the offender's
10281028 criminal history classification, is subject to presumptive imprisonment and
10291029 the sentencing range exceeds 300 months. In such case, the offender is
10301030 required to serve a mandatory minimum term equal to the sentence
10311031 established pursuant to the sentencing range.
10321032 (2) The sentence imposed pursuant to subsection (y)(1) paragraph
10331033 (1) shall not be considered a departure and shall not be subject to appeal.
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10771077 (3) The provisions of this subsection shall not apply to an offense
10781078 described in subsection (y)(1) paragraph (1) if the factual aspect
10791079 concerning a law enforcement officer is a statutory element of such
10801080 offense.
10811081 (z) The sentence for a violation of K.S.A. 2022 Supp. 21-6301(a)(19),
10821082 and amendments thereto, shall be presumptive imprisonment and shall be
10831083 served consecutively to any other term or terms of imprisonment imposed.
10841084 Such sentence shall not be considered a departure and shall not be subject
10851085 to appeal.
10861086 Sec. 3. K.S.A. 2022 Supp. 21-6301 and 21-6804 are hereby repealed.
10871087 Sec. 4. This act shall take effect and be in force from and after its
10881088 publication in the statute book.
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