Chapter 21: Crimes And Punishments

PART III.--CLASSIFICATION OF CRIMES AND SENTENCING

Article 47: Sentencing Guidelines

Statute 21-4705: Same; grid for drug crimes applied in felony cases under uniform controlled substances act; authority and responsibility of sentencing court; presumptive disposition. (a) For the purpose of sentencing, the following sentencing guidelines grid for drug crimes shall be applied in felony cases under K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto, for crimes committed on or after July 1, 1993:

      (b)   The provisions of subsection (a) will apply for the purpose of sentencing violations of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto, except as otherwise provided by law. Sentences expressed in the sentencing guidelines grid for drug crimes in subsection (a) represent months of imprisonment.

      (c) (1)   The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure. The sentencing court shall not distinguish between the controlled substances cocaine base (9041L000) and cocaine hydrochloride (9041L005) when sentencing within the sentencing range of the grid block.

      (2)   In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.

      (3)   In presumptive nonprison cases, the sentencing court shall pronounce the prison sentence as well as the duration of the nonprison sanction at the sentencing hearing.

      (d)   Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 3-E, 3-F, 3-G, 3-H or 3-I, the court may impose an optional nonprison sentence upon making the following findings on the record:

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

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

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

      Any decision made by the court regarding the imposition of an optional nonprison sentence if the offense is classified in grid blocks 3-E, 3-F, 3-G, 3-H or 3-I shall not be considered a departure and shall not be subject to appeal.

      (e)   The sentence for a second or subsequent conviction of K.S.A. 65-4159, prior to its repeal, or K.S.A. 2009 Supp. 21-36a03, and amendments thereto, manufacture of any controlled substance or controlled substance analog shall be a presumptive term of imprisonment of two times the maximum duration of the presumptive term of imprisonment. The court may impose an optional reduction in such sentence of not to exceed 50% of the mandatory increase provided by this subsection upon making a finding on the record that one or more of the mitigating factors as specified in K.S.A. 21-4716 and amendments thereto justify such a reduction in sentence. Any decision made by the court regarding the reduction in such sentence shall not be considered a departure and shall not be subject to appeal.

      (f) (1)   The sentence for a third or subsequent felony conviction of K.S.A. 65-4160 or 65-4162, prior to such section's repeal, or K.S.A. 2009 Supp. 21-36a06, and amendments thereto, shall be a presumptive term of imprisonment and the defendant shall be sentenced to prison as provided by this section. Subject to appropriations therefor, such term of imprisonment shall be served in a facility designated by the secretary of corrections in the custody of the secretary of corrections to participate in an intensive substance abuse treatment program. If the secretary determines that substance abuse treatment resources are otherwise available, such term of imprisonment may be served in a facility designated by the secretary of corrections in the custody of the secretary of corrections to participate in an intensive substance abuse treatment program. The secretary's determination regarding the availability of treatment resources shall not be subject to review. The intensive substance abuse treatment program shall be determined by the secretary of corrections, but shall be for a period of at least four months. Upon the successful completion of such intensive treatment program, the offender shall be returned to the court and the court may modify the sentence by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If the offender's term of imprisonment expires, the offender shall be placed under the applicable period of postrelease supervision.

      (2)   If the defendant has previously completed a certified drug abuse treatment program, as provided in K.S.A. 2009 Supp. 75-52,144, and amendments thereto, has been discharged or refused to participate in a certified drug abuse treatment program, as provided in K.S.A. 2009 Supp. 75-52,144, and amendments thereto, has completed an intensive substance abuse treatment program under paragraph (1) or has been discharged or refused to participate in an intensive substance abuse treatment program under paragraph (1), such defendant's term of imprisonment shall not be subject to modification under paragraph (1).

      The sentence under this subsection shall not be considered a departure and shall not be subject to appeal.

      (g) (1)   Except as provided further, if the trier of fact makes a finding that an offender carried a firearm to commit a drug felony, or in furtherance of a drug felony, possessed a firearm, in addition to the sentence imposed pursuant to the Kansas sentencing guidelines act, the offender shall be sentenced to:

      (A)   Except as provided in subparagraph (1)(B), an additional 6 months' imprisonment; and

      (B)   if the trier of fact makes a finding that the firearm was discharged, an additional 18 months' imprisonment.

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

      (3)   The provisions of this subsection shall not apply to violations of K.S.A. 2009 Supp. 21-36a06 or 21-36a13, and amendments thereto.

      History:   L. 1992, ch. 239, § 5; L. 1993, ch. 291, § 255; L. 1994, ch. 291, § 51; L. 1994, ch. 338, § 9; L. 1996, ch. 258, § 11; L. 1997, ch. 181, § 3; L. 1999, ch. 170, § 1; L. 2003, ch. 135, § 4; L. 2008, ch. 183, § 5; L. 2009, ch. 132, § 11; July 1.