Session Law

Identifying Information:L. 2003 ch. 135
Other Identifying Information:2003 Senate Bill 123
Tax Type:Other
Brief Description:An Act concerning crimes and punishment; relating to possession of drugs; mandatory treatment; amending K.S.A. 65-4160 and K.S.A. 2002 Supp. 21-4603d, 21-4705, 21- 4714, 22-3716 and 75-5291 and repealing the existing sections.
Keywords:


Body:

CHAPTER 135

SENATE BILL No. 123


An Act concerning crimes and punishment; relating to possession of drugs; mandatory

treatment; amending K.S.A. 65-4160 and K.S.A. 2002 Supp. 21-4603d, 21-4705, 21-


4714, 22-3716 and 75-5291 and repealing the existing sections.


Be it enacted by the Legislature of the State of Kansas:

New Section 1. On and after November 1, 2003: (a) There is hereby

established a nonprison sanction of certified drug abuse treatment pro-

grams for certain offenders who are sentenced on or after November 1,

2003. Placement of offenders in certified drug abuse treatment programs

by the court shall be limited to placement of adult offenders, convicted

of a felony violation of K.S.A. 65-4160 or 65-4162, and amendments

thereto:

(1) Whose offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H or

4-I of the sentencing guidelines grid for drug crimes and such offender

has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163

or 65-4164, and amendments thereto or any substantially similar offense

from another jurisdiction; or

(2) whose offense is classified in grid blocks 4-A, 4-B, 4-C or 4-D of

the sentencing guidelines grid for drug crimes and such offender has no

felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-

4164, and amendments thereto, or any substantially similar offense from

another jurisdiction, if such person felonies committed by the offender

were severity level 8, 9 or 10 or nongrid offenses of the sentencing guide-

lines grid for nondrug crimes and the court finds and sets forth with

particularity the reasons for finding that the safety of the members of the

public will not be jeopardized by such placement in a drug abuse treat-

ment program.

(b) (1) As a part of the presentence investigation pursuant to K.S.A.

21-4714, and amendments thereto, offenders who meet the requirements

of subsection (a) shall be subject to a drug abuse assessment.

(2) The drug abuse assessment shall include a statewide, mandatory,

standardized risk assessment tool and an instrument validated for drug

abuse treatment program placements and shall include a clinical interview

with a mental health professional. Such assessment shall assign a high or

low risk status to the offender and include a recommendation concerning

drug abuse treatment for the offender.

(c) The sentencing court shall commit the offender to treatment in a

drug abuse treatment program until determined suitable for discharge by

the court but the term of treatment shall not exceed 18 months.

(d) Offenders shall be supervised by community correctional services.

(e) Placement of offenders under subsection (a)(2) shall be subject

to the departure sentencing statutes of the Kansas sentencing guidelines

act.

(f)(1) Offenders in drug abuse treatment programs shall be dis-

charged from such program if the offender:

(A) Is convicted of a new felony, other than a felony conviction of

K.S.A. 65-4160 or 65-4162, and amendments thereto; or

(B) has a pattern of intentional conduct that demonstrates the of-

fender's refusal to comply with or participate in the treatment program,

as established by judicial finding.

(2) Offenders who are discharged from such program shall be subject

to the revocation provisions of subsection (n) of K.S.A. 21-4603d, and

amendments thereto.

(g) As used in this section, ``mental health professional'' includes li-

censed social workers, licensed psychiatrists, licensed psychologists, li-

censed professional counselors or registered alcohol and other drug abuse

counselors licensed or certified as addiction counselors who have been

certified by the secretary of corrections to treat offenders pursuant to

section 2, and amendments thereto.

New Sec. 2. (a) Drug abuse treatment programs certified in accord-

ance with subsection (b) shall provide:

(1) Presentence drug abuse assessments of any person who is con-

victed of a felony violation of K.S.A. 65-4160 or 65-4162, and amendments

thereto, and meets the requirements of section 1, and amendments

thereto;

(2) treatment of all persons who are convicted of a felony violation

of K.S.A. 65-4160 or 65-4162, and amendments thereto, and meet the

requirements of section 1, and amendments thereto, and whose sentence

requires completion of a certified drug abuse treatment program, as pro-

vided in this section;

(3) one or more treatment options in the continuum of services

needed to reach recovery: Detoxification, rehabilitation, continuing care

and aftercare, and relapse prevention;

(4) treatment options to incorporate family and auxiliary support serv-

ices; and

(5) treatment options for alcohol abuse when indicated by the as-

sessment of the offender or required by the court.

(b) The presentence criminal risk-need assessment shall be con-

ducted by a court services officer or a community corrections officer. The

presentence drug abuse treatment program placement assessment shall

be conducted by a drug abuse treatment program certified in accordance

with the provisions of this subsection to provide assessment and treatment

services. A drug abuse treatment program shall be certified by the sec-

retary of corrections. The secretary may establish qualifications for the

certification of programs, which may include requirements for supervi-

sion and monitoring of clients; fee reimbursement procedures; handling

of conflicts of interest; delivery of services to clients unable to pay; and

other matters relating to quality and delivery of services by the program.

Drug abuse treatment may include community based and faith based

programs. The certification shall be for a four-year period. Recertification

of a program shall be by the secretary. To be eligible for certification

under this subsection, the secretary shall determine that a drug abuse

treatment program: (1) Meets the qualifications established by the sec-

retary; (2) is capable of providing the assessments, supervision and mon-

itoring required under subsection (a); (3) has employed or contracted with

certified treatment providers; and (4) meets any other functions and du-

ties specified by law.

(c) Any treatment provider who is employed or has contracted with

a certified drug abuse treatment program who provides services to of-

fenders shall be certified by the secretary of corrections. The secretary

shall require education and training which shall include, but not be lim-

ited to, case management and cognitive behavior training. The duties of

providers who prepare the presentence drug abuse assessment may also

include appearing at sentencing and probation hearings in accordance

with the orders of the court, monitoring offenders in the treatment pro-

grams, notifying the probation department and the court of any offender

failing to meet the conditions of probation or referrals to treatment, ap-

pearing at revocation hearings as may be required and providing assis-

tance and data reporting and program evaluation.

(d) The cost for all drug abuse assessments and certified drug abuse

treatment programs for any person shall be paid by the Kansas sentencing

commission from funds appropriated for such purpose. The Kansas sen-

tencing commission shall contract for payment for such services with the

supervising agency. The sentencing court shall determine the extent, if

any, that such person is able to pay for such assessment and treatment.

Such payments shall be used by the supervising agency to offset costs to

the state. If such financial obligations are not met or cannot be met, the

sentencing court shall be notified for the purpose of collection or review

and further action on the offender's sentence.

(e) The community corrections staff shall work with the substance

abuse treatment staff to ensure effective supervision and monitoring of

the offender.

(f) The secretary of corrections is hereby authorized to adopt rules

and regulations to carry out the provisions of this section.

Sec. 3. On and after November 1, 2003, K.S.A. 2002 Supp. 21-4603d

is hereby amended to read as follows: 21-4603d. (a) Whenever any person

has been found guilty of a crime, the court may adjudge any of the fol-

lowing:

(1) Commit the defendant to the custody of the secretary of correc-

tions if the current crime of conviction is a felony and the sentence pre-

sumes imprisonment, or the sentence imposed is a dispositional departure

to imprisonment; or, if confinement is for a misdemeanor, to jail for the

term provided by law;

(2) impose the fine applicable to the offense;

(3) release the defendant on probation if the current crime of con-

viction and criminal history fall within a presumptive nonprison category

or through a departure for substantial and compelling reasons subject to

such conditions as the court may deem appropriate. In felony cases except

for violations of K.S.A. 8-1567 and amendments thereto, the court may

include confinement in a county jail not to exceed 60 days, which need

not be served consecutively, as a condition of an original probation sen-

tence and up to 60 days in a county jail upon each revocation of the

probation sentence, or community corrections placement;

(4) assign the defendant to a community correctional services pro-

gram as provided in K.S.A. 75-5291, and amendments thereto, or through

a departure for substantial and compelling reasons subject to such con-

ditions as the court may deem appropriate, including orders requiring full

or partial restitution;

(5) assign the defendant to a conservation camp for a period not to

exceed six months as a condition of probation followed by a six-month

period of follow-up through adult intensive supervision by a community

correctional services program, if the offender successfully completes the

conservation camp program;

(6) assign the defendant to a house arrest program pursuant to K.S.A.

21-4603b and amendments thereto;

(7) order the defendant to attend and satisfactorily complete an al-

cohol or drug education or training program as provided by subsection

(3) of K.S.A. 21-4502 and amendments thereto;

(8) order the defendant to repay the amount of any reward paid by

any crime stoppers chapter, individual, corporation or public entity which

materially aided in the apprehension or conviction of the defendant; repay

the amount of any costs and expenses incurred by any law enforcement

agency in the apprehension of the defendant, if one of the current crimes

of conviction of the defendant includes escape, as defined in K.S.A. 21-

3809 and amendments thereto or aggravated escape, as defined in K.S.A.

21-3810 and amendments thereto; repay expenses incurred by a fire dis-

trict, fire department or fire company responding to a fire which has been

determined to be arson under K.S.A. 21-3718 or 21-3719, and amend-

ments thereto, if the defendant is convicted of such crime; or repay the

amount of any public funds utilized by a law enforcement agency to pur-

chase controlled substances from the defendant during the investigation

which leads to the defendant's conviction. Such repayment of the amount

of any such costs and expenses incurred by a law enforcement agency,

fire district, fire department or fire company or any public funds utilized

by a law enforcement agency shall be deposited and credited to the same

fund from which the public funds were credited to prior to use by the

law enforcement agency, fire district, fire department or fire company;

(9) order the defendant to pay the administrative fee authorized by

K.S.A. 2002 Supp. 22-4529 and amendments thereto, unless waived by

the court;

(10) order the defendant to pay a domestic violence special program

fee authorized by K.S.A. 2002 Supp. 20-369, and amendments thereto;

(11) impose any appropriate combination of (1), (2), (3), (4), (5), (6),

(7), (8), (9) and (10); or

(12) suspend imposition of sentence in misdemeanor cases.

(b) (1) In addition to or in lieu of any of the above, the court shall

order the defendant to pay restitution, which shall include, but not be

limited to, damage or loss caused by the defendant's crime, unless the

court finds compelling circumstances which would render a plan of res-

titution unworkable. If the court finds a plan of restitution unworkable,

the court shall state on the record in detail the reasons therefor.

(2) If the court orders restitution, the restitution shall be a judgment

against the defendant which may be collected by the court by garnishment

or other execution as on judgments in civil cases. If, after 60 days from

the date restitution is ordered by the court, a defendant is found to be in

noncompliance with the plan established by the court for payment of

restitution, and the victim to whom restitution is ordered paid has not

initiated proceedings in accordance with K.S.A. 2002 Supp. 60-4301 et

seq. and amendments thereto, the court shall assign an agent procured

by the attorney general pursuant to K.S.A. 75-719 and amendments

thereto to collect the restitution on behalf of the victim. The administra-

tive judge of each judicial district may assign such cases to an appropriate

division of the court for the conduct of civil collection proceedings.

(c) In addition to or in lieu of any of the above, the court shall order

the defendant to submit to and complete an alcohol and drug evaluation,

and pay a fee therefor, when required by subsection (4) of K.S.A. 21-

4502 and amendments thereto.

(d) In addition to any of the above, the court shall order the defend-

ant to reimburse the county general fund for all or a part of the expend-

itures by the county to provide counsel and other defense services to the

defendant. Any such reimbursement to the county shall be paid only after

any order for restitution has been paid in full. In determining the amount

and method of payment of such sum, the court shall take account of the

financial resources of the defendant and the nature of the burden that

payment of such sum will impose. A defendant who has been required

to pay such sum and who is not willfully in default in the payment thereof

may at any time petition the court which sentenced the defendant to

waive payment of such sum or any unpaid portion thereof. If it appears

to the satisfaction of the court that payment of the amount due will im-

pose manifest hardship on the defendant or the defendant's immediate

family, the court may waive payment of all or part of the amount due or

modify the method of payment.

(e) In imposing a fine the court may authorize the payment thereof

in installments. In releasing a defendant on probation, the court shall

direct that the defendant be under the supervision of a court services

officer. If the court commits the defendant to the custody of the secretary

of corrections or to jail, the court may specify in its order the amount of

restitution to be paid and the person to whom it shall be paid if restitution

is later ordered as a condition of parole or, conditional release or post-

release supervision.

(f) When a new felony is committed while the offender is incarcer-

ated and serving a sentence for a felony or while the offender is on pro-

bation, assignment to a community correctional services program, parole,

conditional release, or postrelease supervision for a felony, a new sentence

shall be imposed pursuant to the consecutive sentencing requirements of

K.S.A. 21-4608, and amendments thereto, and the court may sentence

the offender to imprisonment for the new conviction, even when the new

crime of conviction otherwise presumes a nonprison sentence. In this

event, imposition of a prison sentence for the new crime does not con-

stitute a departure. When a new felony is committed while the offender

is on release for a felony pursuant to the provisions of article 28 of chapter

22 of the Kansas Statutes Annotated, a new sentence may be imposed

pursuant to the consecutive sentencing requirements of K.S.A. 21-4608

and amendments thereto, and the court may sentence the offender to

imprisonment for the new conviction, even when the new crime of con-

viction otherwise presumes a nonprison sentence. In this event, imposi-

tion of a prison sentence for the new crime does not constitute a depar-

ture.

(g) Prior to imposing a dispositional departure for a defendant whose

offense is classified in the presumptive nonprison grid block of either

sentencing guideline grid, prior to sentencing a defendant to incarceration

whose offense is classified in grid blocks 5-H, 5-I or 6-G of the sentencing

guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H,

or 3-I, 4-E or 4-F of the sentencing guidelines grid for drug crimes, prior

to sentencing a defendant to incarceration whose offense is classified in

grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes

and whose offense does not meet the requirements of section 1, and

amendments thereto, prior to revocation of a nonprison sanction of a

defendant whose offense is classified in grid blocks 4-E or 4-F of the

sentencing guideline grid for drug crimes and whose offense does not meet

the requirements of section 1, and amendments thereto, or prior to rev-

ocation of a nonprison sanction of a defendant whose offense is classified

in the presumptive nonprison grid block of either sentencing guideline

grid or grid blocks 5-H, 5-I or 6-G of the sentencing guidelines grid for

nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I, 4-E or 4-F

of the sentencing guidelines grid for drug crimes, the court shall consider

placement of the defendant in the Labette correctional conservation

camp, conservation camps established by the secretary of corrections pur-

suant to K.S.A. 75-52,127, and amendment thereto or a community in-

termediate sanction center. Pursuant to this paragraph the defendant

shall not be sentenced to imprisonment if space is available in a conser-

vation camp or a community intermediate sanction center and the de-

fendant meets all of the conservation camp's or a community intermediate

sanction center's placement criteria unless the court states on the record

the reasons for not placing the defendant in a conservation camp or a

community intermediate sanction center.

(h) The court in committing a defendant to the custody of the sec-

retary of corrections shall fix a term of confinement within the limits

provided by law. In those cases where the law does not fix a term of

confinement for the crime for which the defendant was convicted, the

court shall fix the term of such confinement.

(i) In addition to any of the above, the court shall order the defendant

to reimburse the state general fund for all or a part of the expenditures

by the state board of indigents' defense services to provide counsel and

other defense services to the defendant. In determining the amount and

method of payment of such sum, the court shall take account of the

financial resources of the defendant and the nature of the burden that

payment of such sum will impose. A defendant who has been required

to pay such sum and who is not willfully in default in the payment thereof

may at any time petition the court which sentenced the defendant to

waive payment of such sum or any unpaid portion thereof. If it appears

to the satisfaction of the court that payment of the amount due will im-

pose manifest hardship on the defendant or the defendant's immediate

family, the court may waive payment of all or part of the amount due or

modify the method of payment. The amount of attorney fees to be in-

cluded in the court order for reimbursement shall be the amount claimed

by appointed counsel on the payment voucher for indigents' defense serv-

ices or the amount prescribed by the board of indigents' defense services

reimbursement tables as provided in K.S.A. 22-4522, and amendments

thereto, whichever is less.

(j) This section shall not deprive the court of any authority conferred

by any other Kansas statute to decree a forfeiture of property, suspend

or cancel a license, remove a person from office, or impose any other civil

penalty as a result of conviction of crime.

(k) An application for or acceptance of probation or assignment to a

community correctional services program shall not constitute an acqui-

escence in the judgment for purpose of appeal, and any convicted person

may appeal from such conviction, as provided by law, without regard to

whether such person has applied for probation, suspended sentence or

assignment to a community correctional services program.

(l) The secretary of corrections is authorized to make direct place-

ment to the Labette correctional conservation camp or a conservation

camp established by the secretary pursuant to K.S.A. 75-52,127, and

amendments thereto, of an inmate sentenced to the secretary's custody

if the inmate: (1) Has been sentenced to the secretary for a probation

revocation, as a departure from the presumptive nonimprisonment grid

block of either sentencing grid, or for an offense which is classified in

grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid for nondrug

crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I, 4-E, or 4-F of the

sentencing guidelines grid for drug crimes, or for an offense which is

classified in gridblocks 4-E or 4-F of the sentencing guidelines grid for

drug crimes and such offense does not meet the requirements of section

1, and amendments thereto, and (2) otherwise meets admission criteria

of the camp. If the inmate successfully completes a conservation camp

program, the secretary of corrections shall report such completion to the

sentencing court and the county or district attorney. The inmate shall

then be assigned by the court to six months of follow-up supervision

conducted by the appropriate community corrections services program.

The court may also order that supervision continue thereafter for the

length of time authorized by K.S.A. 21-4611 and amendments thereto.

(m) When it is provided by law that a person shall be sentenced pur-

suant to K.S.A. 1993 Supp. 21-4628, prior to its repeal, the provisions of

this section shall not apply.

(n) Except as provided by subsection (f) of K.S.A. 21-4705, and

amendments thereto, in addition to any of the above, for felony violations

of K.S.A. 65-4160 or 65-4162, and amendments thereto, the court shall

require the defendant who meets the requirements established in section

1, and amendments thereto, to participate in a certified drug abuse treat-

ment program, as provided in section 2, and amendments thereto, includ-

ing but not limited to, an approved after-care plan. If the defendant fails

to participate in or has a pattern of intentional conduct that demonstrates

the offender's refusal to comply with or participate in the treatment pro-

gram, as established by judicial finding, the defendant shall be subject to

revocation of probation and the defendant shall serve the underlying

prison sentence as established in K.S.A. 21-4705, and amendments

thereto. For those offenders who are convicted on or after the effective

date of this act, upon completion of the underlying prison sentence, the

defendant shall not be subject to a period of postrelease supervision. The

amount of time spent participating in such program shall not be credited

as service on the underlying prison sentence.

Sec. 4. On and after November 1, 2003, K.S.A. 2002 Supp. 21-4705

is hereby amended to read as follows: 21-4705. (a) For the purpose of

sentencing, the following sentencing guidelines grid for drug crimes shall

be applied in felony cases under the uniform controlled substances act

for crimes committed on or after July 1, 1993:

(b) The provisions of subsection (a) will apply for the purpose of

sentencing violations of the uniform controlled substances act except as

otherwise provided by law. Sentences expressed in the sentencing guide-

lines grid for drug crimes in subsection (a) represent months of impris-

onment.

(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 sen-

tence, 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 pro-

nounce the prison sentence as well as the duration of the nonprison sanc-

tion 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 of-

fender in that grid block. If an offense is classified in a grid block below

the dispositional line, the presumptive disposition shall be nonimprison-

ment. 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, 4-E or 4-F, 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 of-

fender 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, 4-E or 4-F 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 and amendments thereto, manufacture of any controlled substance

or controlled substance analog shall be a presumptive term of imprison-

ment of two times the maximum duration of the presumptive term of

imprisonment. The court may impose an optional reduction in such sen-

tence 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 de-

parture and shall not be subject to appeal.

(f) The sentence for a third or subsequent felony conviction of K.S.A.

65-4160 or 65-4162, and amendments thereto, shall be a presumptive term

of imprisonment and the defendant shall be sentenced to prison as pro-

vided by this section, if the defendant has previously completed a certified

drug abuse treatment program, as provided in section 2, and amendments

thereto, or has been discharged or refused to participate in a certified

drug abuse treatment program, as provided in section 2, and amendments

thereto. Such sentence shall not be considered a departure and shall not

be subject to appeal.

Sec. 5. On and after November 1, 2003, K.S.A. 2002 Supp. 21-4714

is hereby amended to read as follows: 21-4714. (a) The court shall order

the preparation of the presentence investigation report by the court serv-

ices officer as soon as possible after conviction of the defendant.

(b) Each presentence report prepared for an offender to be sen-

tenced for one or more felonies committed on or after July 1, 1993, shall

be limited to the following information:

(1) A summary of the factual circumstances of the crime or crimes

of conviction.

(2) If the defendant desires to do so, a summary of the defendant's

version of the crime.

(3) When there is an identifiable victim, a victim report. The person

preparing the victim report shall submit the report to the victim and

request that the information be returned to be submitted as a part of the

presentence investigation. To the extent possible, the report shall include

a complete listing of restitution for damages suffered by the victim.

(4) An appropriate classification of each crime of conviction on the

crime severity scale.

(5) A listing of prior adult convictions or juvenile adjudications for

felony or misdemeanor crimes or violations of county resolutions or city

ordinances comparable to any misdemeanor defined by state law. Such

listing shall include an assessment of the appropriate classification of the

criminal history on the criminal history scale and the source of informa-

tion regarding each listed prior conviction and any available source of

journal entries or other documents through which the listed convictions

may be verified. If any such journal entries or other documents are ob-

tained by the court services officer, they shall be attached to the pre-

sentence investigation report. Any prior criminal history worksheets of

the defendant shall also be attached.

(6) A proposed grid block classification for each crime, or crimes of

conviction and the presumptive sentence for each crime, or crimes of

conviction.

(7) If the proposed grid block classification is a grid block which pre-

sumes imprisonment, the presumptive prison term range and the pre-

sumptive duration of postprison supervision as it relates to the crime

severity scale.

(8) If the proposed grid block classification does not presume prison,

the presumptive prison term range and the presumptive duration of the

nonprison sanction as it relates to the crime severity scale and the court

services officer's professional assessment as to recommendations for con-

ditions to be mandated as part of the nonprison sanction.

(9) For defendants who are being sentenced for a conviction of a fel-

ony violation of K.S.A. 65-4160 or 65-4162, and amendments thereto, and

meet the requirements of section 1, and amendments thereto, the drug

and alcohol assessment as provided in section 1, and amendments thereto.

(c) The presentence report will become part of the court record and

shall be accessible to the public, except that the official version, defend-

ant's version and the victim's statement, any psychological reports and

drug and alcohol reports and assessments shall be accessible only to the

parties, the sentencing judge, the department of corrections, and if re-

quested, the Kansas sentencing commission. If the offender is committed

to the custody of the secretary of corrections, the report shall be sent to

the secretary and, in accordance with K.S.A. 75-5220 and amendments

thereto to the warden of the state correctional institution to which the

defendant is conveyed.

(d) The criminal history worksheet will not substitute as a present-

ence report.

(e) The presentence report will not include optional report compo-

nents, which would be subject to the discretion of the sentencing court

in each district except for psychological reports and drug and alcohol

reports.

(f) The court can take judicial notice in a subsequent felony proceed-

ing of an earlier presentence report criminal history worksheet prepared

for a prior sentencing of the defendant for a felony committed on or after

July 1, 1993.

(g) All presentence reports in any case in which the defendant has

been convicted of a felony shall be on a form approved by the Kansas

sentencing commission.

Sec. 6. On and after November 1, 2003, K.S.A. 2002 Supp. 22-3716

is hereby amended to read as follows: 22-3716. (a) At any time during

probation, assignment to a community correctional services program, sus-

pension of sentence or pursuant to subsection (d) for defendants who

committed a crime prior to July 1, 1993, and at any time during which a

defendant is serving a nonprison sanction for a crime committed on or

after July 1, 1993, or pursuant to subsection (d), the court may issue a

warrant for the arrest of a defendant for violation of any of the conditions

of release or assignment, a notice to appear to answer to a charge of

violation or a violation of the defendant's nonprison sanction. The notice

shall be personally served upon the defendant. The warrant shall author-

ize all officers named in the warrant to return the defendant to the cus-

tody of the court or to any certified detention facility designated by the

court. Any court services officer or community correctional services of-

ficer may arrest the defendant without a warrant or may deputize any

other officer with power of arrest to do so by giving the officer a written

statement setting forth that the defendant has, in the judgment of the

court services officer or community correctional services officer, violated

the conditions of the defendant's release or a nonprison sanction. The

written statement delivered with the defendant by the arresting officer

to the official in charge of a county jail or other place of detention shall

be sufficient warrant for the detention of the defendant. After making an

arrest, the court services officer or community correctional services of-

ficer shall present to the detaining authorities a similar statement of the

circumstances of violation. Provisions regarding release on bail of persons

charged with a crime shall be applicable to defendants arrested under

these provisions.

(b) Upon arrest and detention pursuant to subsection (a), the court

services officer or community correctional services officer shall immedi-

ately notify the court and shall submit in writing a report showing in what

manner the defendant has violated the conditions of release or assignment

or a nonprison sanction. Thereupon, or upon an arrest by warrant as

provided in this section, the court shall cause the defendant to be brought

before it without unnecessary delay for a hearing on the violation charged.

The hearing shall be in open court and the state shall have the burden of

establishing the violation. The defendant shall have the right to be rep-

resented by counsel and shall be informed by the judge that, if the de-

fendant is financially unable to obtain counsel, an attorney will be ap-

pointed to represent the defendant. The defendant shall have the right

to present the testimony of witnesses and other evidence on the defend-

ant's behalf. Relevant written statements made under oath may be ad-

mitted and considered by the court along with other evidence presented

at the hearing. Except as otherwise provided, if the violation is estab-

lished, the court may continue or revoke the probation, assignment to a

community correctional services program, suspension of sentence or non-

prison sanction and may require the defendant to serve the sentence

imposed, or any lesser sentence, and, if imposition of sentence was sus-

pended, may impose any sentence which might originally have been im-

posed. Except as otherwise provided, no offender for whom a violation

of conditions of release or assignment or a nonprison sanction has been

established as provided in this section shall be required to serve any time

for the sentence imposed or which might originally have been imposed

in a state facility in the custody of the secretary of corrections for such

violation, unless such person has already at least one prior assignment to

a community correctional services program related to the crime for which

the original sentence was imposed, except these provisions shall not apply

to offenders who violate a condition of release or assignment or a non-

prison sanction by committing a new misdemeanor or felony offense. The

provisions of this subsection shall not apply to adult felony offenders as

described in subsection (a)(3) of K.S.A. 75-5291, and amendments

thereto. The court may require an offender for whom a violation of con-

ditions of release or assignment or a nonprison sanction has been estab-

lished as provided in this section to serve any time for the sentence im-

posed or which might originally have been imposed in a state facility in

the custody of the secretary of corrections without a prior assignment to

a community correctional services program if the court finds and sets

forth with particularity the reasons for finding that the safety of the mem-

bers of the public will be jeopardized or that the welfare of the inmate

will not be served by such assignment to a community correctional serv-

ices program. When a new felony is committed while the offender is on

probation or assignment to a community correctional services program,

the new sentence shall be imposed pursuant to the consecutive sentenc-

ing requirements of K.S.A. 21-4608 and amendments thereto, and the

court may sentence the offender to imprisonment for the new conviction,

even when the new crime of conviction otherwise presumes a nonprison

sentence. In this event, imposition of a prison sentence for the new crime

does not constitute a departure.

(c) A defendant who is on probation, assigned to a community cor-

rectional services program, under suspension of sentence or serving a

nonprison sanction and for whose return a warrant has been issued by

the court shall be considered a fugitive from justice if it is found that the

warrant cannot be served. If it appears that the defendant has violated

the provisions of the defendant's release or assignment or a nonprison

sanction, the court shall determine whether the time from the issuing of

the warrant to the date of the defendant's arrest, or any part of it, shall

be counted as time served on probation, assignment to a community cor-

rectional services program, suspended sentence or pursuant to a nonpri-

son sanction.

(d) The court shall have 30 days following the date probation, assign-

ment to a community correctional service program, suspension of sen-

tence or a nonprison sanction was to end to issue a warrant for the arrest

or notice to appear for the defendant to answer a charge of a violation of

the conditions of probation, assignment to a community correctional serv-

ice program, suspension of sentence or a nonprison sanction.

(e) Notwithstanding the provisions of any other law to the contrary,

an offender whose nonprison sanction is revoked and a term of impris-

onment imposed pursuant to either the sentencing guidelines grid for

nondrug or drug crimes shall not serve a period of postrelease supervision

upon the completion of the prison portion of that sentence. The provi-

sions of this subsection shall not apply to offenders sentenced to a non-

prison sanction pursuant to a dispositional departure, whose offense falls

within a border box of either the sentencing guidelines grid for nondrug

or drug crimes, offenders sentenced for a ``sexually violent crime'' as de-

fined by K.S.A. 22-3717, and amendments thereto, or whose nonprison

sanction was revoked as a result of a conviction for a new misdemeanor

or felony offense. The provisions of this subsection shall not apply to

offenders who are serving or are to begin serving a sentence for any other

felony offense that is not excluded from postrelease supervision by this

subsection on the effective date of this subsection. The provisions of this

subsection shall be applied retroactively. The department of corrections

shall conduct a review of all persons who are in the custody of the de-

partment as a result of only a revocation of a nonprison sanction. On or

before September 1, 2000, the department shall have discharged from

postrelease supervision those offenders as required by this subsection.

(f) Offenders who have been sentenced pursuant to section 1, and

amendments thereto, and who subsequently violate a condition of the drug

and alcohol abuse treatment program shall be subject to an additional

nonprison sanction for any such subsequent violation. Such nonprison

sanctions shall include, but not be limited to, up to 60 days in a county

jail, fines, community service, intensified treatment, house arrest and elec-

tronic monitoring.

Sec. 7. On and after November 1, 2003, K.S.A. 65-4160 is hereby

amended to read as follows: 65-4160. (a) Except as authorized by the

uniform controlled substances act, it shall be unlawful for any person to

possess or have under such person's control any opiates, opium or narcotic

drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of

K.S.A. 65-4107 and amendments thereto. Except as provided in subsec-

tions (b) and (c), Any person who violates this subsection shall be guilty

of a drug severity level 4 felony.

(b) If any person who violates this section has one prior conviction

under this section or a conviction for a substantially similar offense from

another jurisdiction, then that person shall be guilty of a drug severity

level 2 felony.

(c) If any person who violates this section has two or more prior

convictions under this section or substantially similar offenses under the

laws of another jurisdiction, then such person shall be guilty of a drug

severity level 1 felony.

(d) It shall not be a defense to charges arising under this section that

the defendant was acting in an agency relationship on behalf of any other

party in a transaction involving a controlled substance.

(e) (c) For purposes of the uniform controlled substances act, the

prohibitions contained in this section shall apply to controlled substance

analogs as defined in subsection (bb) of K.S.A. 65-4101 and amendments

thereto.

(f) (d) The provisions of this section shall be part of and supplemental

to the uniform controlled substances act.

Sec. 8. On and after November 1, 2003, K.S.A. 2002 Supp. 75-5291

is hereby amended to read as follows: 75-5291. (a) (1) The secretary of

corrections may make grants to counties for the development, imple-

mentation, operation and improvement of community correctional serv-

ices including, but not limited to, restitution programs, victim services

programs, preventive or diversionary correctional programs, community

corrections centers and facilities for the detention or confinement, care

or treatment of offenders as provided in this section except that no com-

munity corrections funds shall be expended by the secretary for the pur-

pose of establishing or operating a conservation camp as provided by

K.S.A. 75-52,127 and amendments thereto.

(2) Except as otherwise provided, placement of offenders in com-

munity correctional services programs by the court shall be limited to

placement of adult offenders, convicted of a felony offense:

(A) Whose offense is classified in grid blocks 5-H, 5-I or 6-G of the

sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F,

3-G, 3-H, or 3-I, 4-E or 4-F of the sentencing guidelines grid for drug

crimes. In addition, the court may place in a community correctional

services program adult offenders, convicted of a felony offense, whose

offense is classified in grid blocks 6-H, 6-I, 7-C, 7-D, 7-E, 7-F, 7-G, 7-H

or 7-I of the sentencing guidelines grid for nondrug crimes;

(B) whose severity level and criminal history score designate a pre-

sumptive prison sentence on either sentencing guidelines grid but receive

a nonprison sentence as a result of departure;

(C) all offenders convicted of an offense which satisfies the definition

of offender pursuant to K.S.A. 22-4902, and amendments thereto, and

which is classified as a severity level 7 or higher offense and who receive

a nonprison sentence, regardless of the manner in which the sentence is

imposed;

(D) any offender for whom a violation of conditions of release or

assignment or a nonprison sanction has been established as provided in

K.S.A. 22-3716, and amendments thereto, prior to revocation resulting

in the offender being required to serve any time for the sentence imposed

or which might originally have been imposed in a state facility in the

custody of the secretary of corrections;

(E) any offender who is determined to be ``high risk or needs, or

both'' by the use of a statewide, mandatory, standardized risk assessment

tool or instrument validated for drug abuse treatment program placement

as provided for by subsection (d) of section 1, and amendments thereto,

for community correctional placements; or

(F) placed in community correctional services programs as a condi-

tion of supervision following the successful completion of a conservation

camp program.

(3) Notwithstanding any law to the contrary and subject to the avail-

ability of funding therefor, adult offenders sentenced to community su-

pervision in Johnson county for felony crimes that occurred on or after

July 1, 2002, but before July 1, 2004, shall be placed under court services

or community corrections supervision based upon court rules issued by

the chief judge of the 10th judicial district. The provisions contained in

this subsection shall not apply to offenders transferred by the assigned

agency to an agency located outside of Johnson county. The provisions of

this section shall expire on July 1, 2004.

(4) Nothing in this act shall prohibit a community correctional serv-

ices program from providing services to juvenile offenders upon approval

by the local community corrections advisory board. Grants from com-

munity corrections funds administered by the secretary of corrections

shall not be expended for such services.

(5) The court may require an offender for whom a violation of con-

ditions of release or assignment or a nonprison sanction has been estab-

lished, as provided in K.S.A. 22-3716, and amendments thereto, to serve

any time for the sentence imposed or which might originally have been

imposed in a state facility in the custody of the secretary of corrections

without a prior assignment to a community correctional services program

if the court finds and sets forth with particularity the reasons for finding

that the safety of the members of the public will be jeopardized or that

the welfare of the inmate will not be served by such assignment to a

community correctional services program.

(b) (1) In order to establish a mechanism for community correctional

services to participate in the department of corrections annual budget

planning process, the secretary of corrections shall establish a community

corrections advisory committee to identify new or enhanced correctional

or treatment interventions designed to divert offenders from prison.

(2) The secretary shall appoint one member from the southeast com-

munity corrections association region, one member from the northeast

community corrections association region, one member from the central

community corrections association region and one member from the

western community corrections association region. The deputy secretary

of community corrections and field services shall designate two members

from the state at large. The secretary shall have final appointment ap-

proval of the members designated by the deputy secretary. The commit-

tee shall reflect the diversity of community correctional services with re-

spect to geographical location and average daily population of offenders

under supervision.

(3) Each member shall be appointed for a term of three years, except

of the initial appointments, such terms shall be staggered as determined

by the secretary. Members shall be eligible for reappointment.

(4) The committee, in collaboration with the deputy secretary of com-

munity corrections and field services or the deputy secretary's designee,

shall routinely examine and report to the secretary on the following issues:

(A) Efficiencies in the delivery of field supervision services;

(B) effectiveness and enhancement of existing interventions; and

(C) identification of new interventions.

(5) The committee's report concerning enhanced or new interven-

tions shall address:

(A) measurable goals and objectives;

(B) projected costs;

(C) the impact on public safety; and

(D) the evaluation process.

(6) The committee shall submit its report to the secretary annually

on or before July 15 in order for the enhanced or new interventions to

be considered for inclusion within the department of corrections budget

request for community correctional services or in the department's en-

hanced services budget request for the subsequent fiscal year.

New Sec. 9. If there is no funding for the nonprison sanction of cer-

tified drug abuse treatment and supervision programs, as established in

section 1, and amendments thereto, the provisions of this act, including

the amendments to statutes, shall not take effect and be in force.

Sec. 10. On and after November 1, 2003, K.S.A. 65-4160 and K.S.A.

2002 Supp. 21-4603d, 21-4705, 21-4714, 22-3716 and 75-5291 are hereby

repealed.

Sec. 11. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 21, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003