Session of 1998
                   
HOUSE BILL No. 2795
         
By Representative Johnston
         
2-4
            9             AN ACT concerning crimes, punishment and criminal procedure; relating
10             to the punishment for capital murder; sentencing to imprisonment for
11             life; amending K.S.A. 21-4622, 21-4623, 21-4624, 21-4627, 21-4629,
12             21-4631, 21-4634 and 21-4635 and K.S.A. 1997 Supp. 21-4706, 22-
13             3717, 22-4505 and 22-4506 and repealing the existing sections.
14            
15       Be it enacted by the Legislature of the State of Kansas:
16           New Section 1. (a) A defendant who is sentenced to imprisonment
17       for life shall not be eligible for probation, parole, assignment to a com-
18       munity correctional services program, conditional release, postrelease su-
19       pervision, or suspension, modification or reduction of sentence.
20           (b) Upon sentencing a defendant to imprisonment for life, the court
21       shall commit the defendant to the custody of the secretary of corrections
22       and the court shall state in the sentencing order of the judgment form or
23       journal entry, whichever is delivered with the defendant to the correc-
24       tional institution, that the defendant has been sentenced to imprisonment
25       for life.
26           Sec. 2. K.S.A. 21-4622 is hereby amended to read as follows: 21-
27       4622. Upon conviction of a defendant of capital murder and a finding
28       that the defendant was less than 18 years of age at the time of the com-
29       mission thereof, the court shall sentence the defendant as otherwise pro-
30       vided by law, and no sentence of death or imprisonment for life pursuant
31       to section 1 shall be imposed hereunder.
32           Sec. 3. K.S.A. 21-4623 is hereby amended to read as follows: 21-
33       4623. (a) If, under K.S.A. 21-4624 and amendments thereto, the county
34       or district attorney has filed a notice of intent to request a separate sen-
35       tencing proceeding to determine whether the defendant should be sen-
36       tenced to death or imprisonment for life pursuant to section 1 and the
37       defendant is convicted of the crime of capital murder, the defendant's
38       counsel or the warden of the correctional institution or sheriff having
39       custody of the defendant may request a determination by the court of
40       whether the defendant is mentally retarded. If the court determines that
41       there is not sufficient reason to believe that the defendant is mentally
42       retarded, the court shall so find and the defendant shall be sentenced in
43       accordance with K.S.A. 21-4624 through 21-4627, 21-4629 and 21-4631

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  1       and amendments thereto. If the court determines that there is sufficient
  2       reason to believe that the defendant is mentally retarded, the court shall
  3       conduct a hearing to determine whether the defendant is mentally re-
  4       tarded.
  5           (b) At the hearing, the court shall determine whether the defendant
  6       is mentally retarded. The court shall order a psychiatric or psychological
  7       examination of the defendant. For that purpose, the court shall appoint
  8       two licensed physicians or licensed psychologists, or one of each, qualified
  9       by training and practice to make such examination, to examine the de-
10       fendant and report their findings in writing to the judge within 10 days
11       after the order of examination is issued. The defendant shall have the
12       right to present evidence and cross-examine any witnesses at the hearing.
13       No statement made by the defendant in the course of any examination
14       provided for by this section, whether or not the defendant consents to
15       the examination, shall be admitted in evidence against the defendant in
16       any criminal proceeding.
17           (c) If, at the conclusion of a hearing pursuant to this section, the court
18       determines that the defendant is not mentally retarded, the defendant
19       shall be sentenced in accordance with K.S.A. 21-4624 through 21-4627,
20       21-4629 and 21-4631 and amendments thereto.
21           (d) If, at the conclusion of a hearing pursuant to this section, the court
22       determines that the defendant is mentally retarded, the court shall sen-
23       tence the defendant as otherwise provided by law, and no sentence of
24       death or imprisonment for life shall be imposed hereunder.
25           (e) As used in this section, ``mentally retarded'' means having signif-
26       icantly subaverage general intellectual functioning, as defined by K.S.A.
27       76-12b01 and amendments thereto, to an extent which substantially im-
28       pairs one's capacity to appreciate the criminality of one's conduct or to
29       conform one's conduct to the requirements of law.
30           Sec. 4. K.S.A. 21-4624 is hereby amended to read as follows: 21-
31       4624. (a) If a defendant is charged with capital murder, the county or
32       district attorney shall file written notice if such attorney intends, upon
33       conviction of the defendant, to request a separate sentencing proceeding
34       to determine whether the defendant should be sentenced to death or
35       imprisonment for life pursuant to section 1. Such notice shall be filed with
36       the court and served on the defendant or the defendant's attorney not
37       later than five days after the time of arraignment. If such notice is not
38       filed and served as required by this subsection, the county or district
39       attorney may not request such a sentencing proceeding and the defend-
40       ant, if convicted of capital murder, shall be sentenced as otherwise pro-
41       vided by law, and no sentence of death or imprisonment for life shall be
42       imposed hereunder.
43           (b) Except as provided in K.S.A. 21-4622 and 21-4623, and amend-

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  1       ments thereto, upon conviction of a defendant of capital murder, the
  2       court, upon motion of the county or district attorney, shall conduct a
  3       separate sentencing proceeding to determine whether the defendant shall
  4       be sentenced to death or imprisonment for life. The proceeding shall be
  5       conducted by the trial judge before the trial jury as soon as practicable.
  6       If any person who served on the trial jury is unable to serve on the jury
  7       for the sentencing proceeding, the court shall substitute an alternate juror
  8       who has been impaneled for the trial jury. If there are insufficient alter-
  9       nate jurors to replace trial jurors who are unable to serve at the sentencing
10       proceeding, the trial judge may summon a special jury of 12 persons
11       which shall determine the question of whether a sentence of death or
12       imprisonment for life shall be imposed. Jury selection procedures, qual-
13       ifications of jurors and grounds for exemption or challenge of prospective
14       jurors in criminal trials shall be applicable to the selection of such special
15       jury. The jury at the sentencing proceeding may be waived in the manner
16       provided by K.S.A. 22-3403 and amendments thereto for waiver of a trial
17       jury. If the jury at the sentencing proceeding has been waived or the trial
18       jury has been waived, the sentencing proceeding shall be conducted by
19       the court.
20           (c) In the sentencing proceeding, evidence may be presented con-
21       cerning any matter that the court deems relevant to the question of sen-
22       tence and shall include matters relating to any of the aggravating circum-
23       stances enumerated in K.S.A. 21-4625 and amendments thereto and any
24       mitigating circumstances. Any such evidence which the court deems to
25       have probative value may be received regardless of its admissibility under
26       the rules of evidence, provided that the defendant is accorded a fair op-
27       portunity to rebut any hearsay statements. Only such evidence of aggra-
28       vating circumstances as the state has made known to the defendant prior
29       to the sentencing proceeding shall be admissible, and no evidence se-
30       cured in violation of the constitution of the United States or of the state
31       of Kansas shall be admissible. No testimony by the defendant at the sen-
32       tencing proceeding shall be admissible against the defendant at any sub-
33       sequent criminal proceeding. At the conclusion of the evidentiary pres-
34       entation, the court shall allow the parties a reasonable period of time in
35       which to present oral argument.
36           (d) At the conclusion of the evidentiary portion of the sentencing
37       proceeding, the court shall provide oral and written instructions to the
38       jury to guide its deliberations.
39           (e) If, by unanimous vote, the jury finds beyond a reasonable doubt
40       that one or more of the aggravating circumstances enumerated in K.S.A.
41       21-4625 and amendments thereto exist and, further, that the existence of
42       such aggravating circumstances is not outweighed by any mitigating cir-
43       cumstances which are found to exist, the defendant shall be sentenced to

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  1       death. In the alternative, by unanimous vote, the jury may sentence the
  2       defendant to imprisonment for life; otherwise, the defendant shall be sen-
  3       tenced as provided by law. The jury, if its verdict is a unanimous rec-
  4       ommendation of a sentence of death, shall designate in writing, signed
  5       by the foreman of the jury, the statutory aggravating circumstances which
  6       it found beyond a reasonable doubt. If, after a reasonable time for delib-
  7       eration, the jury is unable to reach a verdict, the judge shall dismiss the
  8       jury and impose a sentence of imprisonment as provided by law and shall
  9       commit the defendant to the custody of the secretary of corrections. In
10       nonjury cases, the court shall follow the requirements of this subsection
11       in determining the sentence to be imposed.
12           (f) Notwithstanding the verdict of the jury, the trial court shall review
13       any jury verdict imposing a sentence of death or imprisonment for life
14       hereunder to ascertain whether the imposition of such sentence is sup-
15       ported by the evidence. If the court determines that the imposition of
16       such a sentence is not supported by the evidence, the court shall modify
17       the sentence and sentence the defendant as otherwise provided by law,
18       and no sentence of death or imprisonment for life shall be imposed here-
19       under. Whenever the court enters a judgment modifying the sentencing
20       verdict of the jury, the court shall set forth its reasons for so doing in a
21       written memorandum which shall become part of the record.
22           Sec. 5. K.S.A. 21-4627 is hereby amended to read as follows: 21-
23       4627. (a) A judgment of conviction resulting in a sentence of death or
24       imprisonment for life pursuant to section 1 shall be subject to automatic
25       review by and appeal to the supreme court of Kansas in the manner
26       provided by the applicable statutes and rules of the supreme court gov-
27       erning appellate procedure. The review and appeal shall be expedited in
28       every manner consistent with the proper presentation thereof and given
29       priority pursuant to the statutes and rules of the supreme court governing
30       appellate procedure.
31           (b) The supreme court of Kansas shall consider the question of sen-
32       tence as well as any errors asserted in the review and appeal and shall be
33       authorized to notice unassigned errors appearing of record if the ends of
34       justice would be served thereby.
35           (c) With regard to the sentence, the court shall determine:
36           (1) Whether the sentence of death or imprisonment for life imposed
37       under the influence of passion, prejudice or any other arbitrary factor;
38       and
39           (2) whether the evidence supports the findings that an aggravating
40       circumstance or circumstances existed and that any mitigating circum-
41       stances were insufficient to outweigh the aggravating circumstances.
42           (d) The court shall be authorized to enter such orders as are necessary
43       to effect a proper and complete disposition of the review and appeal.

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  1           Sec. 6. K.S.A. 21-4629 is hereby amended to read as follows: 21-
  2       4629. In the event a sentence of death, imprisonment for life pursuant to
  3       section 1 or any provision of this act authorizing such sentence sentences
  4       is held to be unconstitutional by the supreme court of Kansas or the
  5       United States supreme court, the court having jurisdiction over a person
  6       previously sentenced shall cause such person to be brought before the
  7       court and shall modify the sentence and resentence the defendant as
  8       otherwise provided by law.
  9           Sec. 7. K.S.A. 21-4631 is hereby amended to read as follows: 21-
10       4631. (a) K.S.A. 21-4622 through 21-4630, and amendments thereto, shall
11       be supplemental to and a part of the Kansas criminal code.
12           (b) The provisions of K.S.A. 21-4622 through 21-4630, as they existed
13       immediately prior to July 1, 1994, shall be applicable only to persons
14       convicted of crimes committed on or after July 1, 1990, and before July
15       1, 1994.
16           (c) The provisions of K.S.A. 21-4622 through 21-4627 and 21-4629
17       and 21-4630, as amended by this act, shall be applicable only to persons
18       convicted of crimes committed on or after July 1, 1994.
19           (d) The provisions of section 1, K.S.A. 21-4622 through 21-4627 and
20       21-4629 and 21-4630, as amended by this act, shall be applicable only to
21       persons convicted of crimes committed on or after July 1, 1998.
22           Sec. 8. K.S.A. 21-4634 is hereby amended to read as follows: 21-
23       4634. (a) If a defendant is convicted of the crime of capital murder and
24       a sentence of death or imprisonment for life pursuant to section 1 is not
25       imposed, or if a defendant is convicted of the crime of murder in the first
26       degree based upon the finding of premeditated murder, the defendant's
27       counsel or the director of the correctional institution or sheriff having
28       custody of the defendant may request a determination by the court of
29       whether the defendant is mentally retarded. If the court determines that
30       there is not sufficient reason to believe that the defendant is mentally
31       retarded, the court shall so find and the defendant shall be sentenced in
32       accordance with K.S.A. 21-4635 through 21-4638. If the court determines
33       that there is sufficient reason to believe that the defendant is mentally
34       retarded, the court shall conduct a hearing to determine whether the
35       defendant is mentally retarded.
36           (b) At the hearing, the court shall determine whether the defendant
37       is mentally retarded. The court shall order a psychiatric or psychological
38       examination of the defendant. For that purpose, the court shall appoint
39       two licensed physicians or licensed psychologists, or one of each, qualified
40       by training and practice to make such examination, to examine the de-
41       fendant and report their findings in writing to the judge within 10 days
42       after the order of examination is issued. The defendant shall have the
43       right to present evidence and cross-examine any witnesses at the hearing.

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  1       No statement made by the defendant in the course of any examination
  2       provided for by this section, whether or not the defendant consents to
  3       the examination, shall be admitted in evidence against the defendant in
  4       any criminal proceeding.
  5           (c) If, at the conclusion of a hearing pursuant to this section, the court
  6       determines that the defendant is not mentally retarded, the defendant
  7       shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638.
  8           (d) If, at the conclusion of a hearing pursuant to this section, the court
  9       determines that the defendant is mentally retarded, the court shall sen-
10       tence the defendant as otherwise provided by law, and no mandatory term
11       of imprisonment shall be imposed hereunder.
12           (e) Unless otherwise ordered by the court for good cause shown, the
13       provisions of this section shall not apply if it has been determined, pur-
14       suant to K.S.A. 21-4623 and amendments thereto, that the defendant is
15       not mentally retarded.
16           (f) As used in this section, ``mentally retarded'' means having signif-
17       icantly subaverage general intellectual functioning, as defined by K.S.A.
18       76-12b01 and amendments thereto, to an extent which substantially im-
19       pairs one's capacity to appreciate the criminality of one's conduct or to
20       conform one's conduct to the requirements of law.
21           Sec. 9. K.S.A. 21-4635 is hereby amended to read as follows: 21-
22       4635. (a) Except as provided in K.S.A. 21-4634, if a defendant is convicted
23       of the crime of capital murder and a sentence of death or imprisonment
24       for life pursuant to section 1 is not imposed, or if a defendant is convicted
25       of murder in the first degree based upon the finding of premeditated
26       murder, the court shall determine whether the defendant shall be re-
27       quired to serve a mandatory term of imprisonment of 40 years or sen-
28       tenced as otherwise provided by law.
29           (b) In order to make such determination, the court may be presented
30       evidence concerning any matter that the court deems relevant to the
31       question of sentence and shall include matters relating to any of the ag-
32       gravating circumstances enumerated in K.S.A. 21-4636 and any mitigating
33       circumstances. Any such evidence which the court deems to have pro-
34       bative value may be received regardless of its admissibility under the rules
35       of evidence, provided that the defendant is accorded a fair opportunity
36       to rebut any hearsay statements. Only such evidence of aggravating cir-
37       cumstances as the state has made known to the defendant prior to the
38       sentencing shall be admissible and no evidence secured in violation of
39       the constitution of the United States or of the state of Kansas shall be
40       admissible. No testimony by the defendant at the time of sentencing shall
41       be admissible against the defendant at any subsequent criminal proceed-
42       ing. At the conclusion of the evidentiary presentation, the court shall allow
43       the parties a reasonable period of time in which to present oral argument.

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  1           (c) If the court finds that one or more of the aggravating circum-
  2       stances enumerated in K.S.A. 21-4636 and amendments thereto exist and,
  3       further, that the existence of such aggravating circumstances is not out-
  4       weighed by any mitigating circumstances which are found to exist, the
  5       defendant shall be sentenced pursuant to K.S.A. 21-4638 and amend-
  6       ments thereto; otherwise, the defendant shall be sentenced as provided
  7       by law. The court shall designate, in writing, the statutory aggravating
  8       circumstances which it found. The court may make the findings required
  9       by this subsection for the purpose of determining whether to sentence a
10       defendant pursuant to K.S.A. 21-4638 notwithstanding contrary findings
11       made by the jury or court pursuant to subsection (e) of K.S.A. 21-4624
12       and amendments thereto for the purpose of determining whether to sen-
13       tence such defendant to death or imprisonment for life.
14           Sec. 10. K.S.A. 1997 Supp. 21-4706 is hereby amended to read as
15       follows: 21-4706. (a) For crimes committed on or after July 1, 1993, the
16       sentences of imprisonment shall represent the time a person shall actually
17       serve, subject to a reduction of up to 15% of the primary sentence for
18       good time as authorized by law.
19           (b) The sentencing court shall pronounce sentence in all felony cases.
20           (c) Violations of K.S.A. 21-3401, subsection (a) of K.S.A. 21-3402, 21-
21       3439 and 21-3801 and amendments thereto are off-grid crimes for the
22       purpose of sentencing. Except as otherwise provided by section 1, K.S.A.
23       21-4622 through 21-4627, and 21-4629 through 21-4631, and amend-
24       ments thereto, the sentence shall be imprisonment for life, subject to
25       K.S.A. 22-3717, and amendments thereto.
26           Sec. 11. K.S.A. 1997 Supp. 22-3717 is hereby amended to read as
27       follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.
28       1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-
29       4638 and amendments thereto, an inmate, including an inmate sentenced
30       pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for
31       parole after serving the entire minimum sentence imposed by the court,
32       less good time credits.
33           (b) (1) Except as provided by section 1 or K.S.A. 21-4635 through
34       21-4638, and amendments thereto, an inmate sentenced to imprisonment
35       for the crime of capital murder committed on or after July 1, 1998, shall
36       be eligible for parole after serving 25 years of confinement, without de-
37       duction of any good time credits.
38           (2)  Except as provided by K.S.A. 21-4635 through 21-4638 and
39       amendments thereto, an inmate sentenced to imprisonment for the crime
40       of capital murder, or an inmate sentenced for the crime of murder in the
41       first degree based upon a finding of premeditated murder, committed on
42       or after July 1, 1994, shall be eligible for parole after serving 25 years of
43       confinement, without deduction of any good time credits.

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  1           (2) (3) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
  2       Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,
  3       and amendments thereto, an inmate sentenced to imprisonment for an
  4       off-grid offense committed on or after July 1, 1993, shall be eligible for
  5       parole after serving 15 years of confinement, without deduction of any
  6       good time credits.
  7           (3) (4) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its
  8       repeal, an inmate sentenced for a class A felony committed before July
  9       1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and
10       amendments thereto, shall be eligible for parole after serving 15 years of
11       confinement, without deduction of any good time credits.
12           (4) (5) An inmate sentenced to imprisonment for a violation of sub-
13       section (a) of K.S.A. 21-3402 and amendments thereto committed on or
14       after July 1, 1996, shall be eligible for parole after serving 10 years of
15       confinement without deduction of any good time credits.
16           (c) Except as provided in subsection (e), if an inmate is sentenced to
17       imprisonment for more than one crime and the sentences run consecu-
18       tively, the inmate shall be eligible for parole after serving the total of:
19           (1) The aggregate minimum sentences, as determined pursuant to
20       K.S.A. 21-4608 and amendments thereto, less good time credits for those
21       crimes which are not class A felonies; and
22           (2) an additional 15 years, without deduction of good time credits,
23       for each crime which is a class A felony.
24           (d) (1) Persons sentenced for crimes, other than off-grid crimes,
25       committed on or after July 1, 1993, will not be eligible for parole, but will
26       be released to a mandatory period of postrelease supervision upon com-
27       pletion of the prison portion of their sentence as follows:
28           (A) Except as provided in subparagraphs (C) and (D), persons sen-
29       tenced for nondrug severity level 1 through 6 crimes and drug severity
30       levels 1 through 3 crimes must serve 36 months, plus the amount of good
31       time earned and retained pursuant to K.S.A. 21-4722 and amendments
32       thereto, on postrelease supervision.
33           (B) Except as provided in subparagraphs (C) and (D), persons sen-
34       tenced for nondrug severity level 7 through 10 crimes and drug severity
35       level 4 crimes must serve 24 months, plus the amount of good time earned
36       and retained pursuant to K.S.A. 21-4722 and amendments thereto, on
37       postrelease supervision.
38           (C) (i) The sentencing judge shall impose the postrelease supervision
39       period provided in subparagraph (d)(1)(A) or (d)(1)(B), unless the judge
40       finds substantial and compelling reasons to impose a departure based
41       upon a finding that the current crime of conviction was sexually violent
42       or sexually motivated. In that event, departure may be imposed to extend
43       the postrelease supervision to a period of up to 60 months.

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  1           (ii) If the sentencing judge departs from the presumptive postrelease
  2       supervision period, the judge shall state on the record at the time of
  3       sentencing the substantial and compelling reasons for the departure. De-
  4       partures in this section are subject to appeal pursuant to K.S.A. 21-4721
  5       and amendments thereto.
  6           (iii) In determining whether substantial and compelling reasons exist,
  7       the court shall consider:
  8           (a) Written briefs or oral arguments submitted by either the defend-
  9       ant or the state;
10           (b) any evidence received during the proceeding;
11           (c) the presentence report, the victim's impact statement and any
12       psychological evaluation as ordered by the court pursuant to subsection
13       (e) of K.S.A. 21-4714 and amendments thereto; and
14           (d) any other evidence the court finds trustworthy and reliable.
15           (iv) The sentencing judge may order that a psychological evaluation
16       be prepared and the recommended programming be completed by the
17       offender. The department of corrections or the parole board shall ensure
18       that court ordered sex offender treatment be carried out.
19           (v) In carrying out the provisions of subparagraph (d)(1)(C), the court
20       shall refer to K.S.A. 21-4718 and amendments thereto.
21           (vi) Upon petition, the parole board may provide for early discharge
22       from the postrelease supervision period upon completion of court or-
23       dered programs and completion of the presumptive postrelease super-
24       vision period, as determined by the crime of conviction, pursuant to sub-
25       paragraph (d)(1)(A) or (B). Early discharge from postrelease supervision
26       is at the discretion of the parole board.
27           (vii) Persons convicted of crimes deemed sexually violent or sexually
28       motivated, shall be registered according to the habitual sex offender reg-
29       istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.
30           (D) The period of postrelease supervision provided in subparagraphs
31       (A) and (B) may be reduced by up to 12 months based on the offender's
32       compliance with conditions of supervision and overall performance while
33       on postrelease supervision. The reduction in the supervision period shall
34       be on an earned basis pursuant to rules and regulations adopted by the
35       secretary of corrections.
36           (E) In cases where sentences for crimes from more than one severity
37       level have been imposed, the highest severity level offense will dictate
38       the period of postrelease supervision. Supervision periods will not aggre-
39       gate.
40           (2) As used in this section, ``sexually violent crime'' means:
41           (A) Rape, K.S.A. 21-3502, and amendments thereto;
42           (B) indecent liberties with a child, K.S.A. 21-3503, and amendments
43       thereto;

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  1           (C) aggravated indecent liberties with a child, K.S.A. 21-3504, and
  2       amendments thereto;
  3           (D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
  4       and amendments thereto;
  5           (E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments
  6       thereto;
  7           (F) indecent solicitation of a child, K.S.A. 21-3510, and amendments
  8       thereto;
  9           (G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and
10       amendments thereto;
11           (H) sexual exploitation of a child, K.S.A. 21-3516, and amendments
12       thereto;
13           (I) aggravated sexual battery, K.S.A. 21-3518, and amendments
14       thereto;
15           (J) any conviction for a felony offense in effect at any time prior to
16       the effective date of this act, that is comparable to a sexually violent crime
17       as defined in subparagraphs (A) through (I), or any federal or other state
18       conviction for a felony offense that under the laws of this state would be
19       a sexually violent crime as defined in this section;
20           (K) an attempt, conspiracy or criminal solicitation, as defined in
21       K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually
22       violent crime as defined in this section; or
23           (L) any act which at the time of sentencing for the offense has been
24       determined beyond a reasonable doubt to have been sexually motivated.
25       As used in this subparagraph, ``sexually motivated'' means that one of the
26       purposes for which the defendant committed the crime was for the pur-
27       pose of the defendant's sexual gratification.
28           (e) If an inmate is sentenced to imprisonment for a crime committed
29       while on parole or conditional release, the inmate shall be eligible for
30       parole as provided by subsection (c), except that the Kansas parole board
31       may postpone the inmate's parole eligibility date by assessing a penalty
32       not exceeding the period of time which could have been assessed if the
33       inmate's parole or conditional release had been violated for reasons other
34       than conviction of a crime.
35           (f) If a person is sentenced to prison for a crime committed on or
36       after July 1, 1993, while on probation, parole, conditional release or in a
37       community corrections program, for a crime committed prior to July 1,
38       1993, and the person is not eligible for retroactive application of the
39       sentencing guidelines and amendments thereto pursuant to K.S.A. 21-
40       4724 and amendments thereto, the new sentence shall not be aggregated
41       with the old sentence, but shall begin when the person is paroled or
42       reaches the conditional release date on the old sentence. If the offender
43       was past the offender's conditional release date at the time the new of-

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  1       fense was committed, the new sentence shall not be aggregated with the
  2       old sentence but shall begin when the person is ordered released by the
  3       Kansas parole board or reaches the maximum sentence expiration date
  4       on the old sentence, whichever is earlier. The new sentence shall then
  5       be served as otherwise provided by law. The period of postrelease su-
  6       pervision shall be based on the new sentence, except that those offenders
  7       whose old sentence is a term of imprisonment for life, imposed pursuant
  8       to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate
  9       sentence with a maximum term of life imprisonment, for which there is
10       no conditional release or maximum sentence expiration date, shall remain
11       on postrelease supervision for life or until discharged from supervision
12       by the Kansas parole board.
13           (g) Subject to the provisions of this section, the Kansas parole board
14       may release on parole those persons confined in institutions who are el-
15       igible for parole when: (1) The board believes that the inmate should be
16       released for hospitalization, for deportation or to answer the warrant or
17       other process of a court and is of the opinion that there is reasonable
18       probability that the inmate can be released without detriment to the com-
19       munity or to the inmate; or (2) the secretary of corrections has reported
20       to the board in writing that the inmate has satisfactorily completed the
21       programs required by any agreement entered under K.S.A. 75-5210a and
22       amendments thereto, or any revision of such agreement, and the board
23       believes that the inmate is able and willing to fulfill the obligations of a
24       law abiding citizen and is of the opinion that there is reasonable proba-
25       bility that the inmate can be released without detriment to the community
26       or to the inmate. Parole shall not be granted as an award of clemency and
27       shall not be considered a reduction of sentence or a pardon.
28           (h) The Kansas parole board shall hold a parole hearing at least the
29       month prior to the month an inmate will be eligible for parole under
30       subsections (a), (b) and (c). At least the month preceding the parole hear-
31       ing, the county or district attorney of the county where the inmate was
32       convicted shall give written notice of the time and place of the public
33       comment sessions for the inmate to any victim of the inmate's crime who
34       is alive and whose address is known to the county or district attorney or,
35       if the victim is deceased, to the victim's family if the family's address is
36       known to the county or district attorney. Except as otherwise provided,
37       failure to notify pursuant to this section shall not be a reason to postpone
38       a parole hearing. In the case of any inmate convicted of a class A felony
39       the secretary of corrections shall give written notice of the time and place
40       of the public comment session for such inmate at least one month pre-
41       ceding the public comment session to any victim of such inmate's crime
42       or the victim's family pursuant to K.S.A. 74-7338 and amendments
43       thereto. If notification is not given to such victim or such victim's family

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  1       in the case of any inmate convicted of a class A felony, the board shall
  2       postpone a decision on parole of the inmate to a time at least 30 days
  3       after notification is given as provided in this section. Nothing in this sec-
  4       tion shall create a cause of action against the state or an employee of the
  5       state acting within the scope of the employee's employment as a result
  6       of the failure to notify pursuant to this section. If granted parole, the
  7       inmate may be released on parole on the date specified by the board, but
  8       not earlier than the date the inmate is eligible for parole under subsec-
  9       tions (a), (b) and (c). At each parole hearing and, if parole is not granted,
10       at such intervals thereafter as it determines appropriate, the Kansas parole
11       board shall consider: (1) Whether the inmate has satisfactorily completed
12       the programs required by any agreement entered under K.S.A. 75-5210a
13       and amendments thereto, or any revision of such agreement; and (2) all
14       pertinent information regarding such inmate, including, but not limited
15       to, the circumstances of the offense of the inmate; the presentence report;
16       the previous social history and criminal record of the inmate; the conduct,
17       employment, and attitude of the inmate in prison; the reports of such
18       physical and mental examinations as have been made; comments of the
19       victim and the victim's family; comments of the public; official comments;
20       and capacity of state correctional institutions.
21           (i) In those cases involving inmates sentenced for a crime committed
22       after July 1, 1993, the parole board will review the inmates proposed
23       release plan. The board may schedule a hearing if they desire. The board
24       may impose any condition they deem necessary to insure public safety,
25       aid in the reintegration of the inmate into the community, or items not
26       completed under the agreement entered into under K.S.A. 75-5210a and
27       amendments thereto. The board may not advance or delay an inmate's
28       release date. Every inmate while on postrelease supervision shall remain
29       in the legal custody of the secretary of corrections and is subject to the
30       orders of the secretary.
31           (j) Before ordering the parole of any inmate, the Kansas parole board
32       shall have the inmate appear before either in person or via a video con-
33       ferencing format and shall interview the inmate unless impractical be-
34       cause of the inmate's physical or mental condition or absence from the
35       institution. Every inmate while on parole shall remain in the legal custody
36       of the secretary of corrections and is subject to the orders of the secretary.
37       Whenever the Kansas parole board formally considers placing an inmate
38       on parole and no agreement has been entered into with the inmate under
39       K.S.A. 75-5210a and amendments thereto, the board shall notify the in-
40       mate in writing of the reasons for not granting parole. If an agreement
41       has been entered under K.S.A. 75-5210a and amendments thereto and
42       the inmate has not satisfactorily completed the programs specified in the
43       agreement, or any revision of such agreement, the board shall notify the

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  1       inmate in writing of the specific programs the inmate must satisfactorily
  2       complete before parole will be granted. If parole is not granted only
  3       because of a failure to satisfactorily complete such programs, the board
  4       shall grant parole upon the secretary's certification that the inmate has
  5       successfully completed such programs. If an agreement has been entered
  6       under K.S.A. 75-5210a and amendments thereto and the secretary of
  7       corrections has reported to the board in writing that the inmate has sat-
  8       isfactorily completed the programs required by such agreement, or any
  9       revision thereof, the board shall not require further program participa-
10       tion. However, if the board determines that other pertinent information
11       regarding the inmate warrants the inmate's not being released on parole,
12       the board shall state in writing the reasons for not granting the parole. If
13       parole is denied for an inmate sentenced for a crime other than a class A
14       or class B felony or an off-grid felony, the board shall hold another parole
15       hearing for the inmate not later than one year after the denial unless the
16       parole board finds that it is not reasonable to expect that parole would
17       be granted at a hearing if held in the next three years or during the interim
18       period of a deferral. In such case, the parole board may defer subsequent
19       parole hearings for up to three years but any such deferral by the board
20       shall require the board to state the basis for its findings. If parole is denied
21       for an inmate sentenced for a class A or class B felony or an off-grid
22       felony, the board shall hold another parole hearing for the inmate not
23       later than three years after the denial unless the parole board finds that
24       it is not reasonable to expect that parole would be granted at a hearing if
25       held in the next 10 years or during the interim period of a deferral. In
26       such case, the parole board may defer subsequent parole hearings for up
27       to 10 years but any such deferral shall require the board to state the basis
28       for its findings.
29           (k) Parolees and persons on postrelease supervision shall be assigned,
30       upon release, to the appropriate level of supervision pursuant to the cri-
31       teria established by the secretary of corrections.
32           (l) The Kansas parole board shall adopt rules and regulations in ac-
33       cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-
34       consistent with the law and as it may deem proper or necessary, with
35       respect to the conduct of parole hearings, postrelease supervision reviews,
36       revocation hearings, orders of restitution, reimbursement of expenditures
37       by the state board of indigents' defense services and other conditions to
38       be imposed upon parolees or releasees. Whenever an order for parole or
39       postrelease supervision is issued it shall recite the conditions thereof.
40           (m) Whenever the Kansas parole board orders the parole of an in-
41       mate or establishes conditions for an inmate placed on postrelease su-
42       pervision, the board:
43           (1) Unless it finds compelling circumstances which would render a

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  1       plan of payment unworkable, shall order as a condition of parole or post-
  2       release supervision that the parolee or the person on postrelease super-
  3       vision pay any transportation expenses resulting from returning the pa-
  4       rolee or the person on postrelease supervision to this state to answer
  5       criminal charges or a warrant for a violation of a condition of probation,
  6       assignment to a community correctional services program, parole, con-
  7       ditional release or postrelease supervision;
  8           (2) to the extent practicable, shall order as a condition of parole or
  9       postrelease supervision that the parolee or the person on postrelease su-
10       pervision make progress towards or successfully complete the equivalent
11       of a secondary education if the inmate has not previously completed such
12       educational equivalent and is capable of doing so;
13           (3) may order that the parolee or person on postrelease supervision
14       perform community or public service work for local governmental agen-
15       cies, private corporations organized not-for-profit or charitable or social
16       service organizations performing services for the community;
17           (4) may order the parolee or person on postrelease supervision to pay
18       the administrative fee imposed pursuant to K.S.A. 1997 Supp. 22-4529
19       unless the board finds compelling circumstances which would render pay-
20       ment unworkable; and
21           (5) unless it finds compelling circumstances which would render a
22       plan of payment unworkable, shall order that the parolee or person on
23       postrelease supervision reimburse the state for all or part of the expend-
24       itures by the state board of indigents' defense services to provide counsel
25       and other defense services to the person. In determining the amount and
26       method of payment of such sum, the parole board shall take account of
27       the financial resources of the person and the nature of the burden that
28       the payment of such sum will impose. Such amount shall not exceed the
29       amount claimed by appointed counsel on the payment voucher for indi-
30       gents' defense services or the amount prescribed by the board of indi-
31       gents' defense services reimbursement tables as provided in K.S.A. 22-
32       4522 and amendments thereto, whichever is less, minus any previous
33       payments for such services.
34           (n) If the court which sentenced an inmate specified at the time of
35       sentencing the amount and the recipient of any restitution ordered as a
36       condition of parole or postrelease supervision, the Kansas parole board
37       shall order as a condition of parole or postrelease supervision that the
38       inmate pay restitution in the amount and manner provided in the journal
39       entry unless the board finds compelling circumstances which would ren-
40       der a plan of restitution unworkable.
41           (o) Whenever the Kansas parole board grants the parole of an inmate,
42       the board, within 10 days of the date of the decision to grant parole, shall
43       give written notice of the decision to the county or district attorney of the

HB 2795

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  1       county where the inmate was sentenced.
  2           (p) When an inmate is to be released on postrelease supervision, the
  3       secretary, within 30 days prior to release, shall provide the county or
  4       district attorney of the county where the inmate was sentenced written
  5       notice of the release date.
  6           (q) Inmates shall be released on postrelease supervision upon the
  7       termination of the prison portion of their sentence. Time served while
  8       on postrelease supervision will vest.
  9           (r) An inmate who is allocated regular good time credits as provided
10       in K.S.A. 22-3725 and amendments thereto may receive meritorious good
11       time credits in increments of not more than 90 days per meritorious act.
12       These credits may be awarded by the secretary of corrections when an
13       inmate has acted in a heroic or outstanding manner in coming to the
14       assistance of another person in a life threatening situation, preventing
15       injury or death to a person, preventing the destruction of property or
16       taking actions which result in a financial savings to the state.
17           Sec. 12. K.S.A. 1997 Supp. 22-4505 is hereby amended to read as
18       follows: 22-4505. (a) When a defendant has been convicted in the district
19       court of any felony, the court shall inform the defendant of such defend-
20       ant's right to appeal the conviction to the appellate court having jurisdic-
21       tion and that if the defendant is financially unable to pay the costs of such
22       appeal such defendant may request the court to appoint an attorney to
23       represent the defendant on appeal and to direct that the defendant be
24       supplied with a transcript of the trial record.
25           (b) If the defendant files an affidavit stating that the defendant in-
26       tends to take an appeal in the case and if the court determines, as provided
27       in K.S.A. 22-4504 and amendments thereto, that the defendant is not
28       financially able to employ counsel, the court shall appoint counsel from
29       the panel for indigents' defense services or otherwise in accordance with
30       the applicable system for providing legal defense services for indigent
31       persons prescribed by the state board of indigents' defense services, to
32       represent the defendant and to perfect and handle the appeal. If the
33       defendant files a verified motion for transcript stating that a transcript of
34       the trial record is necessary to enable the defendant to prosecute the
35       appeal and that the defendant is not financially able to pay the cost of
36       procuring such transcript, and if the court finds that the statements con-
37       tained therein are true, the court shall order that such transcript be sup-
38       plied to the defendant as provided in K.S.A. 22-4509 and amendments
39       thereto and paid for by the state board of indigents' defense services
40       pursuant to claims submitted therefor.
41           (c) Upon an appeal or petition for certiorari addressed to the supreme
42       court of the United States, if the defendant is without means to pay the
43       cost of making and forwarding the necessary records, the supreme court

HB 2795

16

  1       of Kansas may by order provide for the furnishing of necessary records.
  2           (d) (1) The state board of indigents' defense services shall provide
  3       by rule and regulation for: (A) The assignment of attorneys to the panel
  4       for indigents' defense services to represent indigent persons who have
  5       been convicted of capital murder and are under sentence of death or
  6       imprisonment for life, in the direct review of the judgment;
  7           (B) standards of competency and qualification for the appointment
  8       of counsel in capital cases under this section; and
  9           (C) the reasonable compensation of counsel appointed to represent
10       individuals convicted of capital murder and under a sentence of death or
11       imprisonment for life in the appeal of such cases and for reasonable and
12       necessary litigation expense associated with such appeals.
13           (2) If a defendant has been convicted of capital murder and is under
14       a sentence of death or imprisonment for life, the district court shall make
15       a determination on the record whether the defendant is indigent. Upon
16       a finding that the defendant is indigent and accepts the offer of repre-
17       sentation or is unable competently to decide whether to accept or reject
18       the offer, the court shall appoint one or more counsel, in accordance with
19       subsection (d)(1), to represent the defendant. If the defendant rejects the
20       offer of representation, the court shall find on the record, after a hearing
21       if necessary, whether the defendant rejected the offer of representation
22       with the understanding of its legal consequences. The court shall deny
23       the appointment of counsel upon a finding that the defendant is com-
24       petent and not indigent.
25           (3) Counsel appointed to represent the defendant, under this section,
26       shall not have represented the defendant at trial unless the defendant and
27       counsel expressly request continued representation.
28           Sec. 13. K.S.A. 1997 Supp. 22-4506 is hereby amended to read as
29       follows: 22-4506. (a) Whenever any person who is in custody under a
30       sentence of imprisonment upon conviction of a felony files a petition for
31       writ of habeas corpus or a motion attacking sentence under K.S.A. 60-
32       1507 and files with such petition or motion such person's affidavit stating
33       that the petition or motion is filed in good faith and that such person is
34       financially unable to pay the costs of such action and to employ counsel
35       therefor, the court shall make a preliminary examination of the petition
36       or motion and the supporting papers.
37           (b) If the court finds that the petition or motion presents substantial
38       questions of law or triable issues of fact and if the petitioner or movant
39       has been or is thereafter determined to be an indigent person as provided
40       in K.S.A. 22-4504 and amendments thereto, the court shall appoint coun-
41       sel from the panel for indigents' defense services or otherwise in accord-
42       ance with the applicable system for providing legal defense services for
43       indigent persons prescribed by the state board of indigents' defense serv-

HB 2795

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  1       ices, to assist such person and authorize the action to be filed without a
  2       deposit of security for costs. If the petition or motion in such case raises
  3       questions shown by the trial record, the court shall order that the peti-
  4       tioner or movant be supplied with a transcript of the trial proceedings,
  5       or so much thereof as may be necessary to present the issue, without cost
  6       to such person.
  7           (c) If an appeal is taken in such action and if the trial court finds that
  8       the petitioner or movant is an indigent person, the trial court shall appoint
  9       counsel to conduct the appeal, order that the appellant be supplied with
10       a record of the proceedings or so much thereof as such counsel deter-
11       mines to be necessary and order that the deposit of security for costs be
12       waived.
13           (d) (1) The state board of indigents' defense services shall provide
14       by rule and regulation for: (A) The assignment of attorneys to the panel
15       for indigents' defense services to represent indigent persons, who have
16       been convicted of capital murder and are under sentence of death or
17       imprisonment for life, upon a filing of a petition for writ of habeas corpus
18       or a motion attacking sentence under K.S.A. 60-1507 and amendments
19       thereto;
20           (B) standards of competency and qualification for the appointment
21       of counsel in capital cases under this section; and
22           (C) the reasonable compensation of counsel appointed to represent
23       individuals convicted of capital murder and under a sentence of death or
24       imprisonment for life, during proceedings conducted pursuant to subsec-
25       tion (a), (b) or (c) and for reasonable and necessary litigation expense
26       associated with such proceedings.
27           (2) If a petitioner or movant, who has been convicted of capital mur-
28       der and is under a sentence of death or imprisonment for life, files a
29       petition for writ of habeas corpus or a motion attacking sentence under
30       K.S.A. 60-1507 and amendments thereto, the district court shall make a
31       determination on the record whether the petitioner or movant is indigent.
32       Upon a finding that the petitioner or movant is indigent and accepts the
33       offer of representation or is unable competently to decide whether to
34       accept or reject the offer, the court shall appoint one or more counsel,
35       in accordance with subsection (d) (1), to represent the petitioner or mov-
36       ant. If the petitioner or movant rejects the offer of representation, the
37       court shall find on the record, after a hearing if necessary, whether the
38       petitioner or movant rejected the offer of representation with the under-
39       standing of its legal consequences. The court shall deny the appointment
40       of counsel upon a finding that the petitioner or movant is competent and
41       not indigent.
42           (3) Counsel appointed to represent the petitioner or movant shall not
43       have represented the petitioner or movant at trial or on direct appeal

HB 2795

18

  1       therefrom unless the petitioner or movant and counsel expressly request
  2       continued representation.
  3           New Sec. 14. If any provisions of this act or the application thereof
  4       to any person or circumstances is held invalid, the invalidity shall not
  5       affect other provisions or applications of the act which can be given effect
  6       without the invalid provisions or application, and to this end the provisions
  7       of this act are severable.
  8           Sec. 15. K.S.A. 21-4622, 21-4623, 21-4624, 21-4627, 21-4629, 21-
  9       4631, 21-4634 and 21-4635 and K.S.A. 1997 Supp. 21-4706, 22-3717, 22-
10       4505 and 22-4506 are hereby repealed.
11           Sec. 16. This act shall take effect and be in force from and after its
12       publication in the statute book.
13      
14