21-4716. Imposition of presumptive sentence; jury requirements; departure sentencing; substantial and compelling reasons for departure; mitigating and aggravating factors.
21-4716
21-4716. Imposition of presumptive sentence; juryrequirements; departure sentencing; substantial and compelling reasons fordeparture; mitigating and aggravating factors.(a) Except as provided in subsection (b), the sentencing judge shallimpose the presumptive sentence provided by thesentencing guidelines for crimes committed on or after July 1, 1993,unless thejudge finds substantial and compelling reasons to imposea departure.If the sentencing judge departs from the presumptivesentence, thejudge shall state on the record at the time of sentencing the substantial andcompelling reasons for the departure.
(b) Subject to the provisions of subsection (b) of K.S.A. 21-4718, andamendments thereto, any fact that would increase the penalty for a crime beyondthe statutory maximum, other than a prior conviction, shall be submitted to ajury and proved beyond a reasonable doubt.
(c) (1) Subject to the provisions ofsubsections (c)(3) and (e), the followingnonexclusive list of mitigating factors may be considered in determiningwhether substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conductassociated with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participatedunder circumstances of duress or compulsion. This factor is not sufficient as acomplete defense.
(C) The offender, because of physical or mental impairment, lackedsubstantial capacity for judgment when the offense was committed. The voluntaryuse of intoxicants, drugs or alcohol does not fall within the purview of thisfactor.
(D) The defendant, or the defendant's children, suffered a continuingpattern of physical or sexual abuse by the victim of the offense and theoffense is a response to that abuse.
(E) The degree of harm or loss attributed to the current crime ofconvictionwas significantly less than typical for such an offense.
(2) Subject to the provisions of subsection (c)(3), thefollowingnonexclusive list of aggravating factors may be considered in determiningwhether substantial and compelling reasons for departure exist:
(A) The victim was particularly vulnerable due to age, infirmity, or reducedphysical or mental capacity which was known or should have been known to theoffender.
(B) The defendant's conduct during the commission of the current offensemanifested excessive brutality to the victim in a manner not normally presentin that offense.
(C) The offense was motivated entirely or in part by the race, color,religion, ethnicity, national origin or sexual orientation of the victimor the offense was motivatedby the defendant's belief or perception, entirely or in part, of the race,color, religion, ethnicity, national origin or sexual orientation of the victimwhether or not the defendant's belief or perception was correct.
(D) The offense involved a fiduciary relationship which existed between thedefendant and the victim.
(E) The defendant, 18 or more years of age, employed, hired,used,persuaded,induced, enticed or coerced any individual under 16 years of age to commit orassist in avoiding detection or apprehension for commission of any personfelonyor any attempt, conspiracy or solicitation as defined in K.S.A. 21-3301,21-3302 or 21-3303 and amendments thereto to commit any personfelony regardless of whether the defendant knew the age of the individual under16 years of age.
(F) The defendant's current crime of conviction is a crime ofextreme sexualviolence and the defendant is a predatory sex offender. As used in thissubsection:
(i) "Crime of extreme sexual violence" is a felony limited to thefollowing:
(a) A crime involving a nonconsensual act of sexual intercourse or sodomywith any person;
(b) a crime involving an act of sexual intercourse, sodomy or lewd fondlingand touching with any child who is 14 or more years of age but less than 16years of age and with whom a relationship has been established or promoted forthe primary purpose of victimization; or
(c) a crime involving an act of sexual intercourse, sodomy or lewdfondling and touching with any child who is less than 14 years of age.
(ii) "Predatory sex offender" is an offender who has been convicted of acrime ofextreme sexualviolence as the current crime of conviction and who:
(a) Has one or more prior convictions of any crimes of extreme sexualviolence. Any prior conviction used to establish the defendant as a predatorysex offender pursuant to this subsection shall also be counted in determiningthe criminal history category; or
(b) suffers from a mental condition or personality disorder which makes theoffender likely to engage in additional acts constituting crimes of extremesexual violence.
(iii) "Mental condition or personality disorder" means an emotional, mentalor physical illness, disease, abnormality, disorder, pathology or conditionwhich motivates the person, affects the predisposition or desires of theperson, or interferes with the capacity of the person to control impulses tocommit crimes of extreme sexual violence.
(G) The defendant was incarcerated during the commission of theoffense.
(H) The crime involved two or more participants in the criminal conduct,and the defendantplayed a major role in the crime as theorganizer, leader, recruiter, manager or supervisor.
In determining whether aggravating factors exist as provided in thissection, the court shall review the victim impact statement.
(3) If a factual aspect of a crime is a statutory element of the crime or isused to subclassify the crime on the crime severity scale, that aspect ofthe current crime of conviction may be used as an aggravating or mitigatingfactor only if the criminal conduct constituting that aspect of the currentcrime of conviction is significantly different from the usual criminal conductcaptured by the aspect of the crime.
(d) In determining aggravating or mitigating circumstances,thecourt shallconsider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
(3) written briefs and oral arguments of either the state or counsel forthe defendant; and
(4) any other evidence relevant to such aggravating ormitigating circumstances that the court finds trustworthy and reliable.
(e) Upon motion of the prosecutor stating that the defendant has providedsubstantial assistance in the investigation or prosecution of another personwho is alleged to have committed an offense, the court may consider suchmitigation in determining whether substantial and compelling reasons for adeparture exist. In considering this mitigating factor, the court may considerthe following:
(i) The court's evaluation of the significance and usefulness of thedefendant's assistance, taking into consideration the prosecutor's evaluationof the assistance rendered;
(ii) the truthfulness, completeness and reliability of any information ortestimony provided by the defendant;
(iii) the nature and extent of the defendant's assistance;
(iv) any injury suffered, or any danger or risk of injury to the defendant orthe defendant's family resulting from such assistance; and
(v) the timeliness of the defendant's assistance.
History: L. 1992, ch. 239, § 16;L. 1993, ch. 291, § 263;L. 1994, ch. 341, § 2;L. 1996, ch. 258, § 12;L. 2000, ch. 181, § 9;L. 2002, ch. 170, § 1;L. 2006, ch. 194, § 13; May 25.