21-4705. Same; grid for drug crimes applied in felony cases under uniform controlled substances act; authority and responsibility of sentencing court; presumptive disposition.
21-4705
21-4705. Same; grid for drug crimesapplied in felony cases under uniform controlled substances act; authority andresponsibility of sentencing court; presumptive disposition.(a) For the purpose of sentencing, the following sentencingguidelines grid for drug crimes shall be applied in felony cases underK.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendmentsthereto,for crimes committed on orafter July 1, 1993:
(b) The provisions of subsection (a) will apply for the purpose ofsentencing violations ofK.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendmentsthereto,except asotherwise provided by law. Sentences expressed in the sentencing guidelinesgrid for drug crimes in subsection (a) represent monthsof imprisonment.
(c) (1) The sentencing court has discretion to sentence at anyplace withinthe sentencing range. The sentencing judge shall select the center of the rangein the usual case and reserve the upper and lower limits for aggravating andmitigating factors insufficient to warrant a departure.The sentencing court shall not distinguish between the controlled substancescocaine base (9041L000) and cocaine hydrochloride (9041L005) when sentencingwithin the sentencing range of the grid block.
(2) In presumptive imprisonment cases, the sentencing court shall pronouncethe complete sentence which shall include the prison sentence, the maximumpotential reduction to such sentence as a result of good time and the period ofpostrelease supervision at the sentencing hearing. Failure to pronounce theperiod of postrelease supervision shall not negate the existence of such periodof postrelease supervision.
(3) In presumptive nonprison cases, the sentencing court shall pronounce theprison sentence as well as the duration of the nonprison sanction at thesentencing hearing.
(d) Each grid block states the presumptive sentencing range for anoffender whose crime of conviction and criminal history place such offender inthat grid block. If an offense is classified in a grid block below thedispositional line, the presumptive disposition shall be nonimprisonment. If anoffense is classified in a grid block above the dispositional line, thepresumptive disposition shall be imprisonment. If an offense is classified ingrid blocks 3-E, 3-F, 3-G, 3-H or 3-I, thecourt may impose anoptional nonprison sentence upon making the following findings on the record:
(1) An appropriate treatment program exists which is likely to be moreeffective than the presumptive prison term in reducing the risk of offenderrecidivism; and
(2) the recommended treatment program is available and the offender can beadmitted to such program within a reasonable period of time; or
(3) the nonprison sanction will serve community safety interests bypromoting offender reformation.
Any decision made by the court regarding the imposition of an optionalnonprison sentence if the offense is classified in grid blocks 3-E, 3-F, 3-G,3-H or 3-I shall not be considered adeparture and shall not besubject 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 controlledsubstance analogshall be a presumptiveterm of imprisonment of two times the maximum duration of the presumptive termof imprisonment. The court may impose an optional reduction in such sentenceof not to exceed 50% of the mandatory increase provided by this subsection uponmaking a finding on the record that one or more of the mitigating factors asspecified in K.S.A. 21-4716 and amendments thereto justify such a reduction insentence. Any decision made by the court regarding the reduction in suchsentence shall not be considered a departure and shall not be subject toappeal.
(f) (1) The sentence for a third or subsequentfelonyconviction 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 ofimprisonment and the defendant shall be sentenced to prison as provided by thissection.Subject to appropriations therefor,such term ofimprisonment shall be served ina facility designated by thesecretary of correctionsin the custody of the secretary ofcorrections to participate in an intensive substance abuse treatment program.If the secretary determines that substance abuse treatment resources areotherwise available, such term of imprisonment may be served in a facilitydesignated by the secretary of corrections in the custody of the secretary ofcorrections to participate in an intensive substance abuse treatment program.The secretary's determination regarding the availability of treatment resourcesshall not be subject to review.The intensivesubstance abuse treatment program shall be determined by the secretary ofcorrections, but shall be for a period of at least four months. Upon thesuccessful completion ofsuch intensive treatment program,the offender shall be returned to the courtand the court may modify the sentence by directing that a less severe penaltybe imposed in lieu of that originally adjudged within statutory limits. If theoffender's term of imprisonment expires, the offender shall be placed under theapplicable period of postrelease supervision.
(2) If the defendant has previously completed a certified drug abusetreatment program, as provided inK.S.A. 2009 Supp.75-52,144, and amendmentsthereto, hasbeen discharged or refused to participate in a certified drug abuse treatmentprogram,as provided inK.S.A. 2009 Supp.75-52,144, and amendments thereto, has completed an intensivesubstance abuse treatment program under paragraph (1) or has been discharged orrefused to participate in an intensive substance abuse treatment program underparagraph (1), such defendant's term ofimprisonment shall not be subject to modification under paragraph (1).
The sentence under this subsection shall not beconsidered a departure and shall not be subject to appeal.
(g) (1) Except as provided further, if the trier of fact makes a findingthatan offendercarried 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 sentencingguidelines act, theoffender 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, anadditional 18months' imprisonment.
(2) The sentence imposed pursuant to paragraph (1) shall be presumptiveimprisonment.Such sentence shall not be considered a departure and shall not be subject toappeal.
(3) The provisions of this subsection shall not apply to violations ofK.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.