Session of 2000
HOUSE BILL No. 2958 By Representatives Osborne and Glasscock and Aday, Adkins, Ballou,
Barnes, Beggs, Bethell, Boston, Burroughs, Campbell, Compton,
Dahl, Dreher, Edmonds, Faber, Farmer, Findley, Flaharty, Flower,
Geringer, Gregory, Henry, Hermes, Horst, Howell, Huff, Humerick-
house, Hutchins, Jennison, Johnson, Phill Kline, Larkin, Light, Lloyd,
P. Long, Mayans, Mays, McCreary, Minor, Mollenkamp, Jim Morri-
son, Judy Morrison, Myers, O'Brien, O'Connor, Pauls, J. Peterson,
Phelps, Pottorff, Powell, Powers, Ray, Schwartz, Sharp, Showalter,
Shultz, Sloan, Spangler, Swenson, Tanner, Tomlinson, Toplikar, Vick-
rey, Vining, Wagle, Weiland and Wilk
2-9

19 AN ACT concerning crimes and punishment; relating to violent crimes
20 committed with a firearm; amending K.S.A. 1999 Supp. 21-4704 and
21 repealing the existing section.
22
23 Be it enacted by the Legislature of the State of Kansas:
24 Section 1. K.S.A. 1999 Supp. 21-4704 is hereby amended to read as
25 follows: 21-4704. (a) For purposes of sentencing, the following sentencing
26 guidelines grid for nondrug crimes shall be applied in felony cases for
27 crimes committed on or after July 1, 1993:

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1 (b) The provisions of this section shall be applicable to the sentencing
2 guidelines grid for nondrug crimes. Sentences expressed in such grid
3 represent months of imprisonment.
4 (c) The sentencing guidelines grid is a two-dimensional crime severity
5 and criminal history classification tool. The grid's vertical axis is the crime
6 severity scale which classifies current crimes of conviction. The grid's
7 horizontal axis is the criminal history scale which classifies criminal
8 histories.
9 (d) The sentencing guidelines grid for nondrug crimes as provided in
10 this section defines presumptive punishments for felony convictions, sub-
11 ject to judicial discretion to deviate for substantial and compelling reasons
12 and impose a different sentence in recognition of aggravating and miti-
13 gating factors as provided in this act. The appropriate punishment for a
14 felony conviction should depend on the severity of the crime of conviction
15 when compared to all other crimes and the offender's criminal history.
16 (e) (1) The sentencing court has discretion to sentence at any place
17 within the sentencing range. The sentencing judge shall select the center
18 of the range in the usual case and reserve the upper and lower limits for
19 aggravating and mitigating factors insufficient to warrant a departure.
20 (2) In presumptive imprisonment cases, the sentencing court shall
21 pronounce the complete sentence which shall include the prison sen-
22 tence, the maximum potential reduction to such sentence as a result of
23 good time and the period of postrelease supervision at the sentencing
24 hearing. Failure to pronounce the period of postrelease supervision shall
25 not negate the existence of such period of postrelease supervision.
26 (3) In presumptive nonprison cases, the sentencing court shall pro-
27 nounce the prison sentence as well as the duration of the nonprison sanc-
28 tion at the sentencing hearing.
29 (f) Each grid block states the presumptive sentencing range for an
30 offender whose crime of conviction and criminal history place such of-
31 fender in that grid block. If an offense is classified in a grid block below
32 the dispositional line, the presumptive disposition shall be nonimprison-
33 ment. If an offense is classified in a grid block above the dispositional
34 line, the presumptive disposition shall be imprisonment. If an offense is
35 classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional
36 nonprison sentence upon making the following findings on the record:
37 (1) An appropriate treatment program exists which is likely to be
38 more effective than the presumptive prison term in reducing the risk of
39 offender recidivism; and
40 (2) the recommended treatment program is available and the of-
41 fender can be admitted to such program within a reasonable period of
42 time; or
43 (3) the nonprison sanction will serve community safety interests by

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1 promoting offender reformation.
2 Any decision made by the court regarding the imposition of an optional
3 nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or
4 6-G shall not be considered a departure and shall not be subject to appeal.
5 (g) The sentence for the violation of K.S.A. 21-3411, aggravated as-
6 sault against a law enforcement officer or K.S.A. 21-3415, aggravated
7 battery against a law enforcement officer and amendments thereto which
8 places the defendant's sentence in grid block 6-H or 6-I shall be pre-
9 sumed imprisonment. The court may impose an optional nonprison sen-
10 tence upon making a finding on the record that the nonprison sanction
11 will serve community safety interests by promoting offender reformation.
12 Any decision made by the court regarding the imposition of the optional
13 nonprison sentence, if the offense is classified in grid block 6-H or 6-I,
14 shall not be considered departure and shall not be subject to appeal.
15 (h) Except as provided in subsection (m), when a firearm is used to
16 commit any person felony, the offender's sentence shall be presumed
17 imprisonment. The court may impose an optional nonprison sentence
18 upon making a finding on the record that the nonprison sanction will
19 serve community safety interests by promoting offender reformation. Any
20 decision made by the court regarding the imposition of the optional non-
21 prison sentence shall not be considered a departure and shall not be
22 subject to appeal.
23 (i) The sentence for the violation of the felony provision of K.S.A. 8-
24 1567 and subsection (c)(3) of K.S.A. 21-3412 and amendments thereto
25 shall be as provided by the specific mandatory sentencing requirements
26 of that section and shall not be subject to the provisions of this section or
27 K.S.A. 21-4707 and amendments thereto. Notwithstanding the provisions
28 of any other section, the term of imprisonment imposed for the violation
29 of the felony provision of K.S.A. 8-1567 and subsection (c)(3) of K.S.A.
30 21-3412 and amendments thereto shall not be served in a state facility in
31 the custody of the secretary of corrections.
32 (j) The sentence for any persistent sex offender whose current con-
33 victed crime carries a presumptive term of imprisonment shall be double
34 the maximum duration of the presumptive imprisonment term. The sen-
35 tence for any persistent sex offender whose current conviction carries a
36 presumptive nonprison term shall be presumed imprisonment and shall
37 be double the maximum duration of the presumptive imprisonment term.
38 Except as otherwise provided in this subsection, as used in this subsection,
39 "persistent sex offender" means a person who: (1) Has been convicted in
40 this state of a sexually violent crime, as defined in K.S.A. 22-3717 and
41 amendments thereto; and (2) at the time of the conviction under subsec-
42 tion (1) has at least one conviction for a sexually violent crime, as defined
43 in K.S.A. 22-3717 and amendments thereto in this state or comparable

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1 felony under the laws of another state, the federal government or a for-
2 eign government. The provisions of this subsection shall not apply to any
3 person whose current convicted crime is a severity level 1 or 2 felony.
4 (k) If it is shown at sentencing that the offender committed any felony
5 violation for the benefit of, at the direction of, or in association with any
6 criminal street gang, with the specific intent to promote, further or assist
7 in any criminal conduct by gang members, the offender's sentence shall
8 be presumed imprisonment. Any decision made by the court regarding
9 the imposition of the optional nonprison sentence shall not be considered
10 a departure and shall not be subject to appeal. As used in this subsection,
11 "criminal street gang" means any organization, association or group of
12 three or more persons, whether formal or informal, having as one of its
13 primary activities the commission of one or more person felonies or felony
14 violations of the uniform controlled substances act, K.S.A. 65-4101 et seq.,
15 and amendments thereto, which has a common name or common iden-
16 tifying sign or symbol, whose members, individually or collectively engage
17 in or have engaged in the commission, attempted commission, conspiracy
18 to commit or solicitation of two or more person felonies or felony viola-
19 tions of the uniform controlled substances act, K.S.A. 65-4101 et seq., and
20 amendments thereto, or any substantially similar offense from another
21 jurisdiction.
22 (l) The sentence for a violation of subsection (a) of K.S.A. 21-3715
23 and amendments thereto when such person being sentenced has a prior
24 conviction for a violation of subsection (a) or (b) of K.S.A. 21-3715 or 21-
25 3716 and amendments thereto shall be presumed imprisonment.
26 (m) (1) The sentence imposed when a violent crime is committed
27 armed with or using a firearm shall be imprisonment.
28 (2) In addition to any sentence imposed as provided by law for a
29 violent crime, if the offender:
30 (A) Commits the violent crime while armed with a firearm, up to 10
31 years may be added to the term of imprisonment imposed by the court,
32 unless the offender has a prior conviction for commission of a violent
33 crime while armed with a firearm, 10 years shall be added to the term of
34 imprisonment imposed by the court;
35 (B) personally discharges a firearm during the commission of a vio-
36 lent crime, up to 15 years may be added to the term of imprisonment
37 imposed by the court, unless the offender has a prior conviction for com-
38 mission of a violent crime while armed with a firearm, 15 years shall be
39 added to the term of imprisonment imposed by the court; or
40 (C) personally discharges a firearm during the commission of a vio-
41 lent crime, and such discharge causes great bodily harm, up to 25 years
42 may be added to the term of imprisonment imposed by the court, unless
43 the offender has a prior conviction for commission of a violent crime while

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1 armed with a firearm, 25 years shall be added to the term of imprisonment
2 imposed by the court.
3 (3) For a first conviction of a violent crime committed while armed
4 with or using a firearm, the court shall state on the record the reasons
5 for imposing or failing to impose a discretionary term of imprisonment.
6 (4) As used in this subsection: (A) "Violent crime" means:
7 (i) Capital murder as defined by K.S.A. 21-3439 and amendments
8 thereto;
9 (ii) murder in the first degree as defined by K.S.A. 21-3401 and
10 amendments thereto;
11 (iii) murder in the second degree as defined by K.S.A. 21-3402 and
12 amendments thereto;
13 (iv) voluntary manslaughter as defined by K.S.A. 21-3403 and
14 amendments thereto;
15 (v) aggravated battery as defined by K.S.A. 21-3414 and amendments
16 thereto;
17 (vi) aggravated battery of a law enforcement officer as defined by
18 K.S.A. 21-3415 and amendments thereto;
19 (vii) kidnapping as defined in K.S.A. 21-3420 and amendments
20 thereto, except by a parent;
21 (viii) aggravated kidnapping as defined in K.S.A. 21-3421 and
22 amendments thereto;
23 (ix) rape as defined in K.S.A. 21-3502 and amendments thereto;
24 (x) aggravated sexual battery as defined by K.S.A. 21-3518 and
25 amendments thereto;
26 (xi) an attempt, conspiracy or criminal solicitation, as defined in
27 K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a violent
28 crime, as listed above.
29 (B) "Armed with a firearm" is when a person carries on or about such
30 person or is otherwise armed with a firearm.
31 (C) "Personally discharged a firearm" is when a person, while armed
32 with a firearm, knowingly and intentionally fires a firearm causing the
33 ammunition projectile to be forcefully expelled from the firearm.
34 Sec. 2. K.S.A. 1999 Supp. 21-4704 is hereby repealed.
35 Sec. 3. This act shall take effect and be in force from and after its
36 publication in the statute book.