KS
Kansas Senate Bill SB380

Kansas 2023-2024 Regular Session

Kansas Senate Bill SB380 Compare Versions

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11 Session of 2024
22 SENATE BILL No. 380
33 By Committee on Judiciary
44 1-23
55 AN ACT concerning crimes, punishment and criminal procedure; relating
66 to sentencing; clarifying a special sentencing rule applicable to
77 violations of criminal discharge of a firearm when a person was present
88 in the dwelling, building, structure or motor vehicle at which the
99 offender discharged a firearm; amending K.S.A. 21-6804 and repealing
1010 the existing section.
1111 Be it enacted by the Legislature of the State of Kansas:
1212 Section 1. K.S.A. 21-6804 is hereby amended to read as follows: 21-
1313 6804. (a) The provisions of this section shall be applicable to the
1414 sentencing guidelines grid for nondrug crimes. The following sentencing
1515 guidelines grid shall be applicable to nondrug felony crimes:
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2727 12 1 (b) Sentences expressed in the sentencing guidelines grid for nondrug
2828 crimes represent months of imprisonment.
2929 (c) The sentencing guidelines grid is a two-dimensional crime
3030 severity and criminal history classification tool. The grid's vertical axis is
3131 the crime severity scale which classifies current crimes of conviction. The
3232 grid's horizontal axis is the criminal history scale which classifies criminal
3333 histories.
3434 (d) The sentencing guidelines grid for nondrug crimes as provided in
3535 this section defines presumptive punishments for felony convictions,
3636 subject to the sentencing court's discretion to enter a departure sentence.
3737 The appropriate punishment for a felony conviction should depend on the
3838 severity of the crime of conviction when compared to all other crimes and
3939 the offender's criminal history.
4040 (e) (1) The sentencing court has discretion to sentence at any place
4141 within the sentencing range. In the usual case it is recommended that the
4242 sentencing judge select the center of the range and reserve the upper and
4343 lower limits for aggravating and mitigating factors insufficient to warrant a
4444 departure.
4545 (2) In presumptive imprisonment cases, the sentencing court shall
4646 pronounce the complete sentence which shall include the:
4747 (A) Prison sentence;
4848 (B) maximum potential reduction to such sentence as a result of good
4949 time; and
5050 (C) period of postrelease supervision at the sentencing hearing.
5151 Failure to pronounce the period of postrelease supervision shall not negate
5252 the existence of such period of postrelease supervision.
5353 (3) In presumptive nonprison cases, the sentencing court shall
5454 pronounce the:
5555 (A) Prison sentence; and
5656 (B) duration of the nonprison sanction at the sentencing hearing.
5757 (f) Each grid block states the presumptive sentencing range for an
5858 offender whose crime of conviction and criminal history place such
5959 offender in that grid block. If an offense is classified in a grid block below
6060 the dispositional line, the presumptive disposition shall be
6161 nonimprisonment. If an offense is classified in a grid block above the
6262 dispositional line, the presumptive disposition shall be imprisonment. If an
6363 offense is classified in grid blocks 5-H, 5-I or 6-G, the court may impose
6464 an optional nonprison sentence as provided in subsection (q).
6565 (g) The sentence for a violation of K.S.A. 21-3415, prior to its repeal,
6666 aggravated battery against a law enforcement officer committed prior to
6767 July 1, 2006, or a violation of K.S.A. 21-5412(d), and amendments
6868 thereto, aggravated assault against a law enforcement officer, which places
6969 the defendant's sentence in grid block 6-H or 6-I shall be presumed
7070 imprisonment. The court may impose an optional nonprison sentence as
7171 provided in subsection (q).
7272 (h) When a firearm is used to commit any person felony, the
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119119 offender's sentence shall be presumed imprisonment. The court may
120120 impose an optional nonprison sentence as provided in subsection (q).
121121 (i) (1) The sentence for the violation of the felony provision of K.S.A.
122122 21-5414(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and 21-6416, and
123123 amendments thereto, shall be as provided by the specific mandatory
124124 sentencing requirements of that section and shall not be subject to the
125125 provisions of this section or K.S.A. 21-6807, and amendments thereto.
126126 (2) If because of the offender's criminal history classification the
127127 offender is subject to presumptive imprisonment or if the judge departs
128128 from a presumptive probation sentence and the offender is subject to
129129 imprisonment, the provisions of this section and K.S.A. 21-6807, and
130130 amendments thereto, shall apply and the offender shall not be subject to
131131 the mandatory sentence as provided in K.S.A. 21-5823, and amendments
132132 thereto.
133133 (3) Notwithstanding the provisions of any other section, the term of
134134 imprisonment imposed for the violation of the felony provision of K.S.A.
135135 21-5414(c)(1)(C), 21-5823(b)(3) and (b)(4), 21-6412 and 21-6416, and
136136 amendments thereto, shall not be served in a state facility in the custody of
137137 the secretary of corrections. Prior to imposing any sentence pursuant to
138138 this subsection, the court may consider assigning the defendant to a house
139139 arrest program pursuant to K.S.A. 21-6609, and amendments thereto.
140140 (j) (1) The sentence for any persistent sex offender whose current
141141 convicted crime carries a presumptive term of imprisonment shall be
142142 double the maximum duration of the presumptive imprisonment term. The
143143 sentence for any persistent sex offender whose current conviction carries a
144144 presumptive nonprison term shall be presumed imprisonment and shall be
145145 double the maximum duration of the presumptive imprisonment term.
146146 (2) Except as otherwise provided in this subsection, as used in this
147147 subsection, "persistent sex offender" means a person who:
148148 (A) (i) Has been convicted in this state of a sexually violent crime, as
149149 defined in K.S.A. 22-3717, and amendments thereto; and
150150 (ii) at the time of the conviction under clause (i) has at least one
151151 conviction for a sexually violent crime, as defined in K.S.A. 22-3717, and
152152 amendments thereto, in this state or comparable felony under the laws of
153153 another state, the federal government or a foreign government; or
154154 (B) (i) has been convicted of rape, as defined in K.S.A. 21-3502,
155155 prior to its repeal, or K.S.A. 21-5503, and amendments thereto; and
156156 (ii) at the time of the conviction under clause (i) has at least one
157157 conviction for rape in this state or comparable felony under the laws of
158158 another state, the federal government or a foreign government.
159159 (3) Except as provided in subsection (j)(2)(B), the provisions of this
160160 subsection shall not apply to any person whose current convicted crime is
161161 a severity level 1 or 2 felony.
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205205 (k) (1) If it is shown at sentencing that the offender committed any
206206 felony violation for the benefit of, at the direction of, or in association with
207207 any criminal street gang, with the specific intent to promote, further or
208208 assist in any criminal conduct by gang members, the offender's sentence
209209 shall be presumed imprisonment. The court may impose an optional
210210 nonprison sentence as provided in subsection (q).
211211 (2) As used in this subsection, "criminal street gang" means any
212212 organization, association or group of three or more persons, whether
213213 formal or informal, having as one of its primary activities:
214214 (A) (i) The commission of one or more person felonies; or
215215 (B)(ii) the commission of felony violations of article 57 of chapter 21
216216 of the Kansas Statutes Annotated, and amendments thereto, K.S.A. 2010
217217 Supp. 21-36a01 through 21-36a17, prior to their transfer, or any felony
218218 violation of any provision of the uniform controlled substances act prior to
219219 July 1, 2009; and
220220 (C)(B) its members have a common name or common identifying
221221 sign or symbol; and
222222 (D)(C) its members, individually or collectively, engage in or have
223223 engaged in the commission, attempted commission, conspiracy to commit
224224 or solicitation of two or more person felonies or felony violations of article
225225 57 of chapter 21 of the Kansas Statutes Annotated, and amendments
226226 thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their
227227 transfer, any felony violation of any provision of the uniform controlled
228228 substances act prior to July 1, 2009, or any substantially similar offense
229229 from another jurisdiction.
230230 (l) Except as provided in subsection (o), the sentence for a violation
231231 of K.S.A. 21-5807(a)(1), and amendments thereto, or any attempt or
232232 conspiracy, as defined in K.S.A. 21-5301 and 21-5302, and amendments
233233 thereto, to commit such offense, when such person being sentenced has a
234234 prior conviction for a violation of K.S.A. 21-3715(a) or (b), prior to its
235235 repeal, 21-3716, prior to its repeal, K.S.A. 21-5807(a)(1) or (a)(2) or 21-
236236 5807(b), and amendments thereto, or any attempt or conspiracy to commit
237237 such offense, shall be presumptive imprisonment.
238238 (m) The sentence for a violation of K.S.A. 22-4903 or K.S.A. 21-
239239 5913(a)(2), and amendments thereto, shall be presumptive imprisonment.
240240 If an offense under such sections is classified in grid blocks 5-E, 5-F, 5-G,
241241 5-H or 5-I, the court may impose an optional nonprison sentence as
242242 provided in subsection (q).
243243 (n) The sentence for a violation of criminal deprivation of property, as
244244 defined in K.S.A. 21-5803, and amendments thereto, when such property
245245 is a motor vehicle, and when such person being sentenced has any
246246 combination of two or more prior convictions of K.S.A. 21-3705(b), prior
247247 to its repeal, or of criminal deprivation of property, as defined in K.S.A.
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291291 21-5803, and amendments thereto, when such property is a motor vehicle,
292292 shall be presumptive imprisonment. Such sentence shall not be considered
293293 a departure and shall not be subject to appeal.
294294 (o) (1) The sentence for a felony violation of theft of property as
295295 defined in K.S.A. 21-5801, and amendments thereto, or burglary as
296296 defined in K.S.A. 21-5807(a), and amendments thereto, when such person
297297 being sentenced has no prior convictions for a violation of K.S.A. 21-3701
298298 or 21-3715, prior to their repeal, or theft of property as defined in K.S.A.
299299 21-5801, and amendments thereto, or burglary as defined in K.S.A. 21-
300300 5807(a), and amendments thereto; or the sentence for a felony violation of
301301 theft of property as defined in K.S.A. 21-5801, and amendments thereto,
302302 when such person being sentenced has one or two prior felony convictions
303303 for a violation of K.S.A. 21-3701, 21-3715 or 21-3716, prior to their
304304 repeal, or theft of property as defined in K.S.A. 21-5801, and amendments
305305 thereto, or burglary or aggravated burglary as defined in K.S.A. 21-5807,
306306 and amendments thereto; or the sentence for a felony violation of burglary
307307 as defined in K.S.A. 21-5807(a), and amendments thereto, when such
308308 person being sentenced has one prior felony conviction for a violation of
309309 K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal, or theft of
310310 property as defined in K.S.A. 21-5801, and amendments thereto, or
311311 burglary or aggravated burglary as defined in K.S.A. 21-5807, and
312312 amendments thereto, shall be the sentence as provided by this section,
313313 except that the court may order an optional nonprison sentence for a
314314 defendant to participate in a drug treatment program, including, but not
315315 limited to, an approved aftercare plan, if the court makes the following
316316 findings on the record:
317317 (A) Substance abuse was an underlying factor in the commission of
318318 the crime;
319319 (B) substance abuse treatment in the community is likely to be more
320320 effective than a prison term in reducing the risk of offender recidivism;
321321 and
322322 (C) participation in an intensive substance abuse treatment program
323323 will serve community safety interests.
324324 (2) A defendant sentenced to an optional nonprison sentence under
325325 this subsection shall be supervised by community correctional services.
326326 The provisions of K.S.A. 21-6824(f)(1), and amendments thereto, shall
327327 apply to a defendant sentenced under this subsection. The sentence under
328328 this subsection shall not be considered a departure and shall not be subject
329329 to appeal.
330330 (p) (1) The sentence for a felony violation of theft of property as
331331 defined in K.S.A. 21-5801, and amendments thereto, when such person
332332 being sentenced has any combination of three or more prior felony
333333 convictions for violations of K.S.A. 21-3701, 21-3715 or 21-3716, prior to
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377377 their repeal, or theft of property as defined in K.S.A. 21-5801, and
378378 amendments thereto, or burglary or aggravated burglary as defined in
379379 K.S.A. 21-5807, and amendments thereto; or the sentence for a violation
380380 of burglary as defined in K.S.A. 21-5807(a), and amendments thereto,
381381 when such person being sentenced has any combination of two or more
382382 prior convictions for violations of K.S.A. 21-3701, 21-3715 and 21-3716,
383383 prior to their repeal, or theft of property as defined in K.S.A. 21-5801, and
384384 amendments thereto, or burglary or aggravated burglary as defined in
385385 K.S.A. 21-5807, and amendments thereto, shall be presumed
386386 imprisonment and the defendant shall be sentenced to prison as provided
387387 by this section, except that the court may recommend that an offender be
388388 placed in the custody of the secretary of corrections, in a facility
389389 designated by the secretary to participate in an intensive substance abuse
390390 treatment program, upon making the following findings on the record:
391391 (A) Substance abuse was an underlying factor in the commission of
392392 the crime;
393393 (B) substance abuse treatment with a possibility of an early release
394394 from imprisonment is likely to be more effective than a prison term in
395395 reducing the risk of offender recidivism; and
396396 (C) participation in an intensive substance abuse treatment program
397397 with the possibility of an early release from imprisonment will serve
398398 community safety interests by promoting offender reformation.
399399 (2) The intensive substance abuse treatment program shall be
400400 determined by the secretary of corrections, but shall be for a period of at
401401 least four months. Upon the successful completion of such intensive
402402 treatment program, the offender shall be returned to the court and the court
403403 may modify the sentence by directing that a less severe penalty be
404404 imposed in lieu of that originally adjudged within statutory limits. If the
405405 offender's term of imprisonment expires, the offender shall be placed
406406 under the applicable period of postrelease supervision. The sentence under
407407 this subsection shall not be considered a departure and shall not be subject
408408 to appeal.
409409 (q) (1) As used in this section, an "optional nonprison sentence" is a
410410 sentence which the court may impose, in lieu of the presumptive sentence,
411411 upon making the following findings on the record:
412412 (A) An appropriate treatment program exists which is likely to be
413413 more effective than the presumptive prison term in reducing the risk of
414414 offender recidivism; and
415415 (B) the recommended treatment program is available and the offender
416416 can be admitted to such program within a reasonable period of time; or
417417 (C) the nonprison sanction will serve community safety interests by
418418 promoting offender reformation.
419419 (2) Any decision made by the court regarding the imposition of an
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463463 optional nonprison sentence shall not be considered a departure and shall
464464 not be subject to appeal.
465465 (r) The sentence for a violation of K.S.A. 21-5413(c)(2), and
466466 amendments thereto, shall be presumptive imprisonment and shall be
467467 served consecutively to any other term or terms of imprisonment imposed.
468468 Such sentence shall not be considered a departure and shall not be subject
469469 to appeal.
470470 (s) The sentence for a violation of K.S.A. 21-5512, and amendments
471471 thereto, shall be presumptive imprisonment. Such sentence shall not be
472472 considered a departure and shall not be subject to appeal.
473473 (t) (1) If the trier of fact makes a finding beyond a reasonable doubt
474474 that an offender wore or used ballistic resistant material in the commission
475475 of, or attempt to commit, or flight from any felony, in addition to the
476476 sentence imposed pursuant to the Kansas sentencing guidelines act, the
477477 offender shall be sentenced to an additional 30 months' imprisonment.
478478 (2) The sentence imposed pursuant to paragraph (1) shall be
479479 presumptive imprisonment and shall be served consecutively to any other
480480 term or terms of imprisonment imposed. Such sentence shall not be
481481 considered a departure and shall not be subject to appeal.
482482 (3) As used in this subsection, "ballistic resistant material" means
483483 any:
484484 (A) Commercially produced material designed with the purpose of
485485 providing ballistic and trauma protection, including, but not limited to,
486486 bulletproof vests and kevlar vests; and
487487 (B) homemade or fabricated substance or item designed with the
488488 purpose of providing ballistic and trauma protection.
489489 (u) The sentence for a violation of K.S.A. 21-6107, and amendments
490490 thereto, or any attempt or conspiracy, as defined in K.S.A. 21-5301 and
491491 21-5302, and amendments thereto, to commit such offense, when such
492492 person being sentenced has a prior conviction for a violation of K.S.A. 21-
493493 4018, prior to its repeal, or K.S.A. 21-6107, and amendments thereto, or
494494 any attempt or conspiracy to commit such offense, shall be presumptive
495495 imprisonment. Such sentence shall not be considered a departure and shall
496496 not be subject to appeal.
497497 (v) The sentence for a third or subsequent violation of K.S.A. 8-1568,
498498 and amendments thereto, shall be presumptive imprisonment and shall be
499499 served consecutively to any other term or terms of imprisonment imposed.
500500 Such sentence shall not be considered a departure and shall not be subject
501501 to appeal.
502502 (w) The sentence for aggravated criminal damage to property as
503503 defined in K.S.A. 21-5813(b), and amendments thereto, when such person
504504 being sentenced has a prior conviction for any nonperson felony shall be
505505 presumptive imprisonment. Such sentence shall not be considered a
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550550 (x) The sentence for a violation of K.S.A. 21-5807(a)(1), and
551551 amendments thereto, shall be presumptive imprisonment if the offense
552552 under such paragraph is classified in grid blocks 7-C, 7-D or 7-E. Such
553553 sentence shall not be considered a departure and shall not be subject to
554554 appeal.
555555 (y) (1) Except as provided in paragraph (3), if the trier of fact makes a
556556 finding beyond a reasonable doubt that an offender committed a nondrug
557557 felony offense, or any attempt or conspiracy, as defined in K.S.A. 21-5301
558558 and 21-5302, and amendments thereto, to commit a nondrug felony
559559 offense, against a law enforcement officer, as defined in K.S.A. 21-5111(p)
560560 (1) and (3), and amendments thereto, while such officer was engaged in
561561 the performance of such officer's duty, or in whole or in any part because
562562 of such officer's status as a law enforcement officer, the sentence for such
563563 offense shall be:
564564 (A) If such offense is classified in severity level 2 through 10, one
565565 severity level above the appropriate level for such offense; and
566566 (B) (i) if such offense is classified in severity level 1, except as
567567 otherwise provided in clause (ii), imprisonment for life, and such offender
568568 shall not be eligible for probation or suspension, modification or reduction
569569 of sentence. In addition, such offender shall not be eligible for parole prior
570570 to serving 25 years' imprisonment, and such 25 years' imprisonment shall
571571 not be reduced by the application of good time credits. No other sentence
572572 shall be permitted.
573573 (ii) The provisions of clause (i) requiring the court to impose a
574574 mandatory minimum term of imprisonment of 25 years shall not apply if
575575 the court finds the offender, because of the offender's criminal history
576576 classification, is subject to presumptive imprisonment and the sentencing
577577 range exceeds 300 months. In such case, the offender is required to serve a
578578 mandatory minimum term equal to the sentence established pursuant to the
579579 sentencing range.
580580 (2) The sentence imposed pursuant to paragraph (1) shall not be
581581 considered a departure and shall not be subject to appeal.
582582 (3) The provisions of this subsection shall not apply to an offense
583583 described in paragraph (1) if the factual aspect concerning a law
584584 enforcement officer is a statutory element of such offense.
585585 (z) (1) Notwithstanding K.S.A. 21-5109(b)(2), and amendments
586586 thereto, or any other provision of law to the contrary, the sentence for a
587587 violation of criminal possession of a weapon by a convicted felon as
588588 defined in K.S.A. 21-6304, and amendments thereto, shall be presumptive
589589 imprisonment and shall be served consecutively to any other term or terms
590590 of imprisonment imposed if the trier of fact makes a finding beyond a
591591 reasonable doubt that:
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635635 (A) The weapon the offender possessed during such violation was a
636636 firearm; and
637637 (B) such firearm was used by the offender during the commission of
638638 any violent felony.
639639 (2) The sentence imposed pursuant to paragraph (1) shall not be
640640 considered a departure and shall not be subject to appeal. No other
641641 sentence shall be permitted.
642642 (3) The provisions of this subsection shall not apply to an offender
643643 who is prohibited from possessing a weapon pursuant to K.S.A. 21-6304,
644644 and amendments thereto, as a result of a juvenile adjudication.
645645 (4) As used in this subsection, "violent felony" means any of the
646646 following:
647647 (A) Capital murder, as defined in K.S.A. 21-5401, and amendments
648648 thereto;
649649 (B) murder in the first degree, as defined in K.S.A. 21-5402, and
650650 amendments thereto;
651651 (C) murder in the second degree, as defined in K.S.A. 21-5403, and
652652 amendments thereto;
653653 (D) voluntary manslaughter, as defined in K.S.A. 21-5404, and
654654 amendments thereto;
655655 (E) kidnapping, as defined in K.S.A. 21-5408(a)(1), and amendments
656656 thereto, or aggravated kidnapping, as defined in K.S.A. 21-5408(b), and
657657 amendments thereto;
658658 (F) aggravated assault, as defined in K.S.A. 21-5412(b)(1), and
659659 amendments thereto, and aggravated assault of a law enforcement officer,
660660 as defined in K.S.A. 21-5412(d)(1), and amendments thereto;
661661 (G) aggravated battery, as defined in K.S.A. 21-5413(b)(1)(A) or (b)
662662 (1)(B), and amendments thereto, and aggravated battery against a law
663663 enforcement officer, as defined in K.S.A. 21-5413(d)(1) or (d)(2), and
664664 amendments thereto;
665665 (H) mistreatment of a dependent adult or mistreatment of an elder
666666 person, as defined in K.S.A. 21-5417(a)(1), and amendments thereto;
667667 (I) rape, as defined in K.S.A. 21-5503, and amendments thereto;
668668 (J) aggravated criminal sodomy, as defined in K.S.A. 21-5504(b), and
669669 amendments thereto;
670670 (K) abuse of a child, as defined in K.S.A. 21-5602(a)(1) or (a)(3), and
671671 amendments thereto;
672672 (L) any felony offense described in K.S.A. 21-5703 or 21-5705, and
673673 amendments thereto;
674674 (M) treason, as defined in K.S.A. 21-5901, and amendments thereto;
675675 (N) criminal discharge of a firearm, as defined in K.S.A. 21-6308(a)
676676 (1), and amendments thereto;
677677 (O) fleeing or attempting to elude a police officer, as defined in
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721721 K.S.A. 8-1568(b), and amendments thereto;
722722 (P) any felony that includes the domestic violence designation
723723 pursuant to K.S.A. 22-4616, and amendments thereto; or
724724 (Q) any attempt, conspiracy or criminal solicitation, as defined in
725725 K.S.A. 21-5301, 21-5302 and 21-5303, and amendments thereto, of any
726726 felony offense defined in this subsection.
727727 (aa) (1) The sentence for a violation of K.S.A. 21-6308(a)(1)(A) or
728728 (a)(1)(B), and amendments thereto, if the trier of fact makes a finding
729729 beyond a reasonable doubt that the offender discharged a firearm and that
730730 the offender knew or reasonably should have known that:
731731 (A) A person was present in the dwelling, building, structure or motor
732732 vehicle at which the offender discharged a firearm, shall be presumptive
733733 imprisonment and, in addition to the sentence imposed pursuant to the
734734 Kansas sentencing guidelines act, the offender shall be sentenced to an
735735 additional 60 months of imprisonment; and or
736736 (B) a person less than 14 years of age was present in the dwelling,
737737 building, structure or motor vehicle at which the offender discharged a
738738 firearm, shall be presumptive imprisonment and, in addition to the
739739 sentence imposed pursuant to the Kansas sentencing guidelines act, the
740740 offender shall be sentenced to an additional 120 months of imprisonment.
741741 (2) The sentence imposed pursuant to paragraph (1) shall be served
742742 consecutively to any other term or terms of imprisonment imposed. Such
743743 sentence shall not be considered a departure and shall not be subject to
744744 appeal.
745745 Sec. 2. K.S.A. 21-6804 is hereby repealed.
746746 Sec. 3. This act shall take effect and be in force from and after its
747747 publication in the statute book.
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