Session Law

Identifying Information:L. 2002 ch. 163
Other Identifying Information:2002 House Substitute for Senate Bill 434
Tax Type:Other
Brief Description:(Amends Chapter 55)An Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-4715 and 74-7338 and K.S.A. 2001 Supp. 21-3520, 21-4619, 22-3437, 22-3717 and 22-4902, as amended by section 1 of 2002 House Bill No. 2399, and repealing the existing sections.
Keywords:


Body:

CHAPTER 163

HOUSE Substitute for SENATE BILL No. 434

(Amends Chapter 55)


An Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-4715

and 74-7338 and K.S.A. 2001 Supp. 21-3520, 21-4619, 22-3437, 22-3717 and 22-4902,


as amended by section 1 of 2002 House Bill No. 2399, and repealing the existing sections.


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

Section 1. K.S.A. 2001 Supp. 21-3520 is hereby amended to read as

follows: 21-3520. (a) Unlawful sexual relations is engaging in consensual

sexual intercourse, lewd fondling or touching, or sodomy with a person

who is not married to the offender if:

(1) The offender is an employee of the department of corrections or

the employee of a contractor who is under contract to provide services in

for a correctional institution and the person with whom the offender is

engaging in consensual sexual intercourse, lewd fondling or touching, or

sodomy is a person 16 years of age or older who is an inmate; or

(2) the offender is a parole officer or the employee of a contractor

who is under contract to provide supervision services for persons on pa-

role, conditional release or postrelease supervision and the person with

whom the offender is engaging in consensual sexual intercourse, lewd

fondling or touching, or sodomy is a person 16 years of age or older who

is an inmate who has been released on parole or conditional release or

postrelease supervision under the direct supervision and control of the

offender; or

(3) the offender is a law enforcement officer, an employee of a jail,

or the employee of a contractor who is under contract to provide services

in a jail and the person with whom the offender is engaging in consensual

sexual intercourse, lewd fondling or touching, or sodomy is a person 16

years of age or older who is confined by lawful custody to such jail; or

(4) the offender is a law enforcement officer, an employee of a ju-

venile detention facility or sanctions house, or the employee of a con-

tractor who is under contract to provide services in such facility or sanc-

tions house and the person with whom the offender is engaging in

consensual sexual intercourse, lewd fondling or touching, or sodomy is a

person 16 years of age or older who is confined by lawful custody to such

facility or sanctions house; or

(5) the offender is an employee of the juvenile justice authority or

the employee of a contractor who is under contract to provide services in

a juvenile correctional facility and the person with whom the offender is

engaging in consensual sexual intercourse, lewd fondling or touching, or

sodomy is a person 16 years of age or older who is confined by lawful

custody to such facility; or

(6) the offender is an employee of the juvenile justice authority or

the employee of a contractor who is under contract to provide direct

supervision and offender control services to the juvenile justice authority

and the person with whom the offender is engaging in consensual sexual

intercourse, lewd fondling or touching, or sodomy is 16 years of age or

older and (A) released on conditional release from a juvenile correctional

facility under the direct supervision and control of the offender or (B)

placed in the custody of the juvenile justice authority under the direct

supervision and control of the offender;

(7) the offender is an employee of the department of social and re-

habilitation services or the employee of a contractor who is under contract

to provide services in a social and rehabilitation services institution and

the person with whom the offender is engaging in consensual sexual in-

tercourse, not otherwise subject to subsection (a)(1)(C) of K.S.A. 21-3502,

and amendments thereto, lewd fondling or touching, or sodomy, not oth-

erwise subject to subsection (a)(3)(C) of K.S.A. 21-3506, and amendments

thereto, is a person 16 years of age or older who is a patient in such

institution; or

(8) the offender is a teacher or a person in a position of authority and

the person with whom the offender is engaging in consensual sexual in-

tercourse, lewd fondling or touching or sodomy is 16 or 17 years of age

and a student enrolled at the school where the offender is employed. If

the offender is the parent of the student, the provisions of K.S.A. 21-

3603, and amendments thereto, shall apply, not this subsection.

(b) For purposes of this act:

(1) ``Correctional institution'' means the same as prescribed by K.S.A.

75-5202, and amendments thereto;

(2) ``inmate'' means the same as prescribed by K.S.A. 75-5202, and

amendments thereto;

(3) ``parole officer'' means the same as prescribed by K.S.A. 75-5202,

and amendments thereto;

(4) ``postrelease supervision'' means the same as prescribed in the

Kansas sentencing guidelines act in K.S.A. 21-4703, and amendments

thereto;

(5) ``juvenile detention facility'' means the same as prescribed by

K.S.A. 38-1602, and amendments thereto;

(6) ``juvenile correctional facility'' means the same as prescribed by

K.S.A. 38-1602, and amendments thereto;

(7) ``sanctions house'' means the same as prescribed by K.S.A. 38-

1602, and amendments thereto;

(8) ``institution'' means the same as prescribed by K.S.A. 76-12a01,

and amendments thereto; and

(9) ``teacher'' means and includes teachers, supervisors, principals,

superintendents and any other professional employee in any public or

private school.

(c) Unlawful sexual relations is a severity level 10, person felony.

Sec. 2. K.S.A. 2001 Supp. 21-4619 is hereby amended to read as

follows: 21-4619. (a) (1) Except as provided in subsections (b) and (c),

any person convicted in this state of a traffic infraction, cigarette or to-

bacco infraction, misdemeanor or a class D or E felony, or for crimes

committed on or after July 1, 1993, nondrug crimes ranked in severity

levels 6 through 10 or any felony ranked in severity level 4 of the drug

grid, may petition the convicting court for the expungement of such con-

viction or related arrest records if three or more years have elapsed since

the person: (A) Satisfied the sentence imposed; or (B) was discharged

from probation, a community correctional services program, parole, post-

release supervision, conditional release or a suspended sentence.

(2) Except as provided in subsections (b) and (c), any person who has

fulfilled the terms of a diversion agreement may petition the district court

for the expungement of such diversion agreement and related arrest re-

cords if three or more years have elapsed since the terms of the diversion

agreement were fulfilled.

(b) Except as provided in subsection (c), no person may petition for

expungement until five or more years have elapsed since the person sat-

isfied the sentence imposed, the terms of a diversion agreement or was

discharged from probation, a community correctional services program,

parole, postrelease supervision, conditional release or a suspended sen-

tence, if such person was convicted of a class A, B or C felony, or for

crimes committed on or after July 1, 1993, if convicted of an off-grid

felony or any nondrug crime ranked in severity levels 1 through 5 or any

felony ranked in severity levels 1 through 3 of the drug grid, or:

(1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-

ments thereto or as prohibited by any law of another state which is in

substantial conformity with that statute;

(2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-

tion of any law of another state, which declares to be unlawful the acts

prohibited by that statute;

(3) driving while the privilege to operate a motor vehicle on the public

highways of this state has been canceled, suspended or revoked, as pro-

hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any

law of another state which is in substantial conformity with that statute;

(4) perjury resulting from a violation of K.S.A. 8-261a and amend-

ments thereto or resulting from the violation of a law of another state

which is in substantial conformity with that statute;

(5) violating the provisions of the fifth clause of K.S.A. 8-142 and

amendments thereto, relating to fraudulent applications or violating the

provisions of a law of another state which is in substantial conformity with

that statute;

(6) any crime punishable as a felony wherein a motor vehicle was

used in the perpetration of such crime;

(7) failing to stop at the scene of an accident and perform the duties

required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,

or required by a law of another state which is in substantial conformity

with those statutes;

(8) violating the provisions of K.S.A. 40-3104 and amendments

thereto, relating to motor vehicle liability insurance coverage; or

(9) a violation of K.S.A. 21-3405b, prior to its repeal.

(c) There shall be no expungement of convictions for the following

offenses or of convictions for an attempt to commit any of the following

offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and

amendments thereto; (2) indecent liberties with a child as defined in

K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-

ties with a child as defined in K.S.A. 21-3504 and amendments thereto;

(4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-

3505 and amendments thereto; (5) aggravated criminal sodomy as defined

in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a

child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-

vated indecent solicitation of a child as defined in K.S.A. 21-3511 and

amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.

21-3516 and amendments thereto; (9) aggravated incest as defined in

K.S.A. 21-3603 and amendments thereto; (10) endangering a child as

defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child

as defined in K.S.A. 21-3609 and amendments thereto; (12) capital mur-

der as defined in K.S.A. 21-3439 and amendments thereto; (13) murder

in the first degree as defined in K.S.A. 21-3401 and amendments thereto;

(14) murder in the second degree as defined in K.S.A. 21-3402 and

amendments thereto; (15) voluntary manslaughter as defined in K.S.A.

21-3403 and amendments thereto; (16) involuntary manslaughter as de-

fined in K.S.A. 21-3404 and amendments thereto; (17) involuntary man-

slaughter while driving under the influence of alcohol or drugs as defined

in K.S.A. 2001 Supp. 21-3442 and amendments thereto; or (18) sexual

battery as defined in K.S.A. 21-3517 and amendments thereto; (19) ag-

gravated sexual battery as defined in K.S.A. 21-3518 and amendments

thereto; or (20) any conviction for any offense in effect at any time prior

to the effective date of this act, that is comparable to any offense as

provided in this subsection.

(d) When a petition for expungement is filed, the court shall set a

date for a hearing of such petition and shall cause notice of such hearing

to be given to the prosecuting attorney and the arresting law enforcement

agency. The petition shall state: (1) The defendant's full name;

(2) the full name of the defendant at the time of arrest, conviction or

diversion, if different than the defendant's current name;

(3) the defendant's sex, race and date of birth;

(4) the crime for which the defendant was arrested, convicted or di-

verted;

(5) the date of the defendant's arrest, conviction or diversion; and

(6) the identity of the convicting court, arresting law enforcement

authority or diverting authority. There shall be no docket fee for filing a

petition pursuant to this section. All petitions for expungement shall be

docketed in the original criminal action. Any person who may have rel-

evant information about the petitioner may testify at the hearing. The

court may inquire into the background of the petitioner and shall have

access to any reports or records relating to the petitioner that are on file

with the secretary of corrections or the Kansas parole board.

(e) At the hearing on the petition, the court shall order the peti-

tioner's arrest record, conviction or diversion expunged if the court finds

that:

(1) The petitioner has not been convicted of a felony in the past two

years and no proceeding involving any such crime is presently pending

or being instituted against the petitioner;

(2) the circumstances and behavior of the petitioner warrant the

expungement; and

(3) the expungement is consistent with the public welfare.

(f) When the court has ordered an arrest record, conviction or diver-

sion expunged, the order of expungement shall state the information re-

quired to be contained in the petition. The clerk of the court shall send

a certified copy of the order of expungement to the Kansas bureau of

investigation which shall notify the federal bureau of investigation, the

secretary of corrections and any other criminal justice agency which may

have a record of the arrest, conviction or diversion. After the order of

expungement is entered, the petitioner shall be treated as not having been

arrested, convicted or diverted of the crime, except that:

(1) Upon conviction for any subsequent crime, the conviction that

was expunged may be considered as a prior conviction in determining the

sentence to be imposed;

(2) the petitioner shall disclose that the arrest, conviction or diversion

occurred if asked about previous arrests, convictions or diversions:

(A) In any application for licensure as a private detective, private

detective agency, certification as a firearms trainer pursuant to K.S.A.

2001 Supp. 75-7b21, and amendments thereto, or employment as a de-

tective with a private detective agency, as defined by K.S.A. 75-7b01 and

amendments thereto; as security personnel with a private patrol operator,

as defined by K.S.A. 75-7b01 and amendments thereto; or with an insti-

tution, as defined in K.S.A. 76-12a01 and amendments thereto, of the

department of social and rehabilitation services;

(B) in any application for admission, or for an order of reinstatement,

to the practice of law in this state;

(C) to aid in determining the petitioner's qualifications for employ-

ment with the Kansas lottery or for work in sensitive areas within the

Kansas lottery as deemed appropriate by the executive director of the

Kansas lottery;

(D) to aid in determining the petitioner's qualifications for executive

director of the Kansas racing commission, for employment with the com-

mission or for work in sensitive areas in parimutuel racing as deemed

appropriate by the executive director of the commission, or to aid in

determining qualifications for licensure or renewal of licensure by the

commission;

(E) upon application for a commercial driver's license under K.S.A.

8-2,125 through 8-2,142, and amendments thereto;

(F) to aid in determining the petitioner's qualifications to be an em-

ployee of the state gaming agency;

(G) to aid in determining the petitioner's qualifications to be an em-

ployee of a tribal gaming commission or to hold a license issued pursuant

to a tribal-state gaming compact;

(H) in any application for registration as a broker-dealer, agent, in-

vestment adviser or investment adviser representative all as defined in

K.S.A. 17-1252 and amendments thereto; or

(I) in any application for a commercial guide permit or associate

guide permit under K.S.A. 32-964, and amendments thereto;

(3) the court, in the order of expungement, may specify other cir-

cumstances under which the conviction is to be disclosed;

(4) the conviction may be disclosed in a subsequent prosecution for

an offense which requires as an element of such offense a prior conviction

of the type expunged; and

(5) upon commitment to the custody of the secretary of corrections,

any previously expunged record in the possession of the secretary of cor-

rections may be reinstated and the expungement disregarded, and the

record continued for the purpose of the new commitment.

(g) Whenever a person is convicted of a crime, pleads guilty and pays

a fine for a crime, is placed on parole, postrelease supervision or proba-

tion, is assigned to a community correctional services program, is granted

a suspended sentence or is released on conditional release, the person

shall be informed of the ability to expunge the arrest records or convic-

tion. Whenever a person enters into a diversion agreement, the person

shall be informed of the ability to expunge the diversion.

(h) Subject to the disclosures required pursuant to subsection (f), in

any application for employment, license or other civil right or privilege,

or any appearance as a witness, a person whose arrest records, conviction

or diversion of a crime has been expunged under this statute may state

that such person has never been arrested, convicted or diverted of such

crime, but the expungement of a felony conviction does not relieve an

individual of complying with any state or federal law relating to the use

or possession of firearms by persons convicted of a felony.

(i) Whenever the record of any arrest, conviction or diversion has

been expunged under the provisions of this section or under the provi-

sions of any other existing or former statute, the custodian of the records

of arrest, conviction, diversion and incarceration relating to that crime

shall not disclose the existence of such records, except when requested

by:

(1) The person whose record was expunged;

(2) a private detective agency or a private patrol operator, and the

request is accompanied by a statement that the request is being made in

conjunction with an application for employment with such agency or op-

erator by the person whose record has been expunged;

(3) a court, upon a showing of a subsequent conviction of the person

whose record has been expunged;

(4) the secretary of social and rehabilitation services, or a designee of

the secretary, for the purpose of obtaining information relating to em-

ployment in an institution, as defined in K.S.A. 76-12a01 and amend-

ments thereto, of the department of social and rehabilitation services of

any person whose record has been expunged;

(5) a person entitled to such information pursuant to the terms of the

expungement order;

(6) a prosecuting attorney, and such request is accompanied by a

statement that the request is being made in conjunction with a prosecu-

tion of an offense that requires a prior conviction as one of the elements

of such offense;

(7) the supreme court, the clerk or disciplinary administrator thereof,

the state board for admission of attorneys or the state board for discipline

of attorneys, and the request is accompanied by a statement that the

request is being made in conjunction with an application for admission,

or for an order of reinstatement, to the practice of law in this state by the

person whose record has been expunged;

(8) the Kansas lottery, and the request is accompanied by a statement

that the request is being made to aid in determining qualifications for

employment with the Kansas lottery or for work in sensitive areas within

the Kansas lottery as deemed appropriate by the executive director of the

Kansas lottery;

(9) the governor or the Kansas racing commission, or a designee of

the commission, and the request is accompanied by a statement that the

request is being made to aid in determining qualifications for executive

director of the commission, for employment with the commission, for

work in sensitive areas in parimutuel racing as deemed appropriate by

the executive director of the commission or for licensure, renewal of

licensure or continued licensure by the commission;

(10) the Kansas sentencing commission;

(11) the state gaming agency, and the request is accompanied by a

statement that the request is being made to aid in determining qualifi-

cations: (A) To be an employee of the state gaming agency; or (B) to be

an employee of a tribal gaming commission or to hold a license issued

pursuant to a tribal-gaming compact;

(12) the Kansas securities commissioner or a designee of the com-

missioner, and the request is accompanied by a statement that the request

is being made in conjunction with an application for registration as a

broker-dealer, agent, investment adviser or investment adviser represen-

tative by such agency and the application was submitted by the person

whose record has been expunged; or

(13) the department of wildlife and parks and the request is accom-

panied by a statement that the request is being made to aid in determining

qualifications for a permit as a commercial guide or associate guide under

K.S.A. 32-964, and amendments thereto.

Sec. 3. K.S.A. 21-4715 is hereby amended to read as follows: 21-

4715. (a) The offender's criminal history shall be admitted in open court

by the offender or determined by a preponderance of the evidence at the

sentencing hearing by the sentencing judge.

(b) Except to the extent disputed in accordance with subsection (c),

the summary of the offender's criminal history prepared for the court by

the state shall satisfy the state's burden of proof regarding an offender's

criminal history.

(c) Upon receipt of the criminal history worksheet prepared for the

court, the offender shall immediately notify the district attorney and the

court with written notice of any error in the proposed criminal history

worksheet. Such notice shall specify the exact nature of the alleged error.

The state shall have the burden of producing further evidence to satisfy

its burden of proof regarding any disputed part, or parts, of the criminal

history and the sentencing judge shall allow the state reasonable time to

produce such evidence to establish the disputed portion of the criminal

history by a preponderance of the evidence.

Sec. 4. K.S.A. 2001 Supp. 22-3437 is hereby amended to read as

follows: 22-3437. (1) In any hearing or trial, a report concerning forensic

examinations and certificate of forensic examination executed pursuant

to this section shall be admissible in evidence if the report and certificate

are prepared and attested by a criminalist or other employee of the Kansas

bureau of investigation, Kansas highway patrol or any laboratory of the

federal bureau of investigation, federal postal inspection service, federal

bureau of alcohol, tobacco and firearms or federal drug enforcement ad-

ministration. If the examination involves a breath test for alcohol content,

the report must also be admissible pursuant to subsection (f)(1) of K.S.A.

8-1001, and amendments thereto, and be conducted by a law enforce-

ment officer or other person who is certified by the department of health

and environment as a breath test operator as provided by K.S.A. 65-1,107

et seq. and amendments thereto.

(2) Upon the request of any law enforcement agency, such person as

provided in subsection (1) performing the analysis shall prepare a certif-

icate. Such person shall sign the certificate under oath and shall include

in the certificate an attestation as to the result of the analysis. The pres-

entation of this certificate to a court by any party to a proceeding shall

be evidence that all of the requirements and provisions of this section

have been complied with. This certificate shall be supported by a written

declaration pursuant to K.S.A. 53-601 and amendments thereto or shall

be sworn to before a notary public or other person empowered by law to

take oaths and shall contain a statement establishing the following: The

type of analysis performed; the result achieved; any conclusions reached

based upon that result; that the subscriber is the person who performed

the analysis and made the conclusions; the subscriber's training or expe-

rience to perform the analysis; the nature and condition of the equipment

used; and the certification and foundation requirements for admissibility

of breath test results, when appropriate. When properly executed, the

certificate shall, subject to the provisions of subsection (3) and notwith-

standing any other provision of law, be admissible evidence of the results

of the forensic examination of the samples or evidence submitted for

analysis and the court shall take judicial notice of the signature of the

person performing the analysis and of the fact that such person is that

person who performed the analysis.

(3) Whenever a party intends to proffer in a criminal or civil pro-

ceeding, a certificate executed pursuant to this section, notice of an intent

to proffer that certificate and the reports relating to the analysis in ques-

tion, including a copy of the certificate, shall be conveyed to the opposing

party or parties within 20 days after arraignment, if a criminal proceeding

or at least 20 days before a civil trial begins. An opposing party who

intends to object to the admission into evidence of a certificate shall give

notice of objection and the grounds for the objection within 10 days upon

receiving the adversary's notice of intent to proffer the certificate. When-

ever a notice of objection is filed, admissibility of the certificate shall be

determined not later than two days before the beginning of the trial. A

proffered certificate shall be admitted in evidence unless it appears from

the notice of objection and grounds for that objection that the conclusions

of the certificate, including the composition, quality or quantity of the

substance submitted to the laboratory for analysis or the alcohol content

of a blood or breath sample will be contested at trial. A failure to comply

with the time limitations regarding the notice of objection required by

this section shall constitute a waiver of any objections to the admission of

the certificate. The time limitations set forth in this section may be ex-

tended upon a showing of good cause.

Sec. 5. K.S.A. 2001 Supp. 22-3717 is hereby amended to read as

follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.

1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-

4638 and amendments thereto, and K.S.A. 8-1567, and amendments

thereto, an inmate, including an inmate sentenced pursuant to K.S.A. 21-

4618 and amendments thereto, shall be eligible for parole after serving

the entire minimum sentence imposed by the court, less good time cred-

its.

(b) (1) Except as provided by K.S.A. 21-4635 through 21-4638 and

amendments thereto, an inmate sentenced to imprisonment for the crime

of capital murder, or an inmate sentenced for the crime of murder in the

first degree based upon a finding of premeditated murder, committed on

or after July 1, 1994, shall be eligible for parole after serving 25 years of

confinement, without deduction of any good time credits.

(2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993

Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,

and amendments thereto, an inmate sentenced to imprisonment for an

off-grid offense committed on or after July 1, 1993, but prior to July 1,

1999, shall be eligible for parole after serving 15 years of confinement,

without deduction of any good time credits and an inmate sentenced to

imprisonment for an off-grid offense committed on or after July 1, 1999,

shall be eligible for parole after serving 20 years of confinement without

deduction of any good time credits.

(3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its

repeal, an inmate sentenced for a class A felony committed before July

1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and

amendments thereto, shall be eligible for parole after serving 15 years of

confinement, without deduction of any good time credits.

(4) An inmate sentenced to imprisonment for a violation of subsec-

tion (a) of K.S.A. 21-3402 and amendments thereto committed on or after

July 1, 1996, but prior to July 1, 1999, shall be eligible for parole after

serving 10 years of confinement without deduction of any good time cred-

its.

(c) Except as provided in subsection (e), if an inmate is sentenced to

imprisonment for more than one crime and the sentences run consecu-

tively, the inmate shall be eligible for parole after serving the total of:

(1) The aggregate minimum sentences, as determined pursuant to

K.S.A. 21-4608 and amendments thereto, less good time credits for those

crimes which are not class A felonies; and

(2) an additional 15 years, without deduction of good time credits,

for each crime which is a class A felony.

(d) (1) Persons sentenced for crimes, other than off-grid crimes,

committed on or after July 1, 1993, will not be eligible for parole, but will

be released to a mandatory period of postrelease supervision upon com-

pletion of the prison portion of their sentence as follows:

(A) Except as provided in subparagraphs (D) and (E), persons sen-

tenced for nondrug severity level 1 through 4 crimes and drug severity

levels 1 and 2 crimes must serve 36 months, plus the amount of good

time earned and retained pursuant to K.S.A. 21-4722 and amendments

thereto, on postrelease supervision.

(B) Except as provided in subparagraphs (D) and (E), persons sen-

tenced for nondrug severity levels 5 and 6 crimes and drug severity level

3 crimes must serve 24 months, plus the amount of good time earned

and retained pursuant to K.S.A. 21-4722, and amendments thereto, on

postrelease supervision.

(C) Except as provided in subparagraphs (D) and (E), persons sen-

tenced for nondrug severity level 7 through 10 crimes and drug severity

level 4 crimes must serve 12 months, plus the amount of good time earned

and retained pursuant to K.S.A. 21-4722 and amendments thereto, on

postrelease supervision.

(D) (i) The sentencing judge shall impose the postrelease supervi-

sion period provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C),

unless the judge finds substantial and compelling reasons to impose a

departure based upon a finding that the current crime of conviction was

sexually violent or sexually motivated. In that event, departure may be

imposed to extend the postrelease supervision to a period of up to 60

months.

(ii) If the sentencing judge departs from the presumptive postrelease

supervision period, the judge shall state on the record at the time of

sentencing the substantial and compelling reasons for the departure. De-

partures in this section are subject to appeal pursuant to K.S.A. 21-4721

and amendments thereto.

(iii) In determining whether substantial and compelling reasons exist,

the court shall consider:

(a) Written briefs or oral arguments submitted by either the defend-

ant or the state;

(b) any evidence received during the proceeding;

(c) the presentence report, the victim's impact statement and any

psychological evaluation as ordered by the court pursuant to subsection

(e) of K.S.A. 21-4714 and amendments thereto; and

(d) any other evidence the court finds trustworthy and reliable.

(iv) The sentencing judge may order that a psychological evaluation

be prepared and the recommended programming be completed by the

offender. The department of corrections or the parole board shall ensure

that court ordered sex offender treatment be carried out.

(v) In carrying out the provisions of subparagraph (d)(1)(D), the court

shall refer to K.S.A. 21-4718 and amendments thereto.

(vi) Upon petition, the parole board may provide for early discharge

from the postrelease supervision period upon completion of court or-

dered programs and completion of the presumptive postrelease super-

vision period, as determined by the crime of conviction, pursuant to sub-

paragraph (d)(1)(A), (d)(1)(B) or (d)(1)(C). Early discharge from

postrelease supervision is at the discretion of the parole board.

(vii) Persons convicted of crimes deemed sexually violent or sexually

motivated, shall be registered according to the habitual sex offender reg-

istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.

(E) The period of postrelease supervision provided in subparagraphs

(A) and (B) may be reduced by up to 12 months and the period of post-

release supervision provided in subparagraph (C) may be reduced by

up to six months based on the offender's compliance with conditions of

supervision and overall performance while on postrelease supervision.

The reduction in the supervision period shall be on an earned basis pur-

suant to rules and regulations adopted by the secretary of corrections.

(F) In cases where sentences for crimes from more than one severity

level have been imposed, the offender shall serve the longest period of

postrelease supervision as provided by this section available for any crime

upon which sentence was imposed irrespective of the severity level of the

crime. Supervision periods will not aggregate.

(2) As used in this section, ``sexually violent crime'' means:

(A) Rape, K.S.A. 21-3502, and amendments thereto;

(B) indecent liberties with a child, K.S.A. 21-3503, and amendments

thereto;

(C) aggravated indecent liberties with a child, K.S.A. 21-3504, and

amendments thereto;

(D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505

and amendments thereto;

(E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments

thereto;

(F) indecent solicitation of a child, K.S.A. 21-3510, and amendments

thereto;

(G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and

amendments thereto;

(H) sexual exploitation of a child, K.S.A. 21-3516, and amendments

thereto;

(I) aggravated sexual battery, K.S.A. 21-3518, and amendments

thereto;

(J) any conviction for a felony offense in effect at any time prior to

the effective date of this act, that is comparable to a sexually violent crime

as defined in subparagraphs (A) through (I), or any federal or other state

conviction for a felony offense that under the laws of this state would be

a sexually violent crime as defined in this section;

(K) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually

violent crime as defined in this section; or

(L) any act which at the time of sentencing for the offense has been

determined beyond a reasonable doubt to have been sexually motivated.

As used in this subparagraph, ``sexually motivated'' means that one of the

purposes for which the defendant committed the crime was for the pur-

pose of the defendant's sexual gratification.

(e) If an inmate is sentenced to imprisonment for a crime committed

while on parole or conditional release, the inmate shall be eligible for

parole as provided by subsection (c), except that the Kansas parole board

may postpone the inmate's parole eligibility date by assessing a penalty

not exceeding the period of time which could have been assessed if the

inmate's parole or conditional release had been violated for reasons other

than conviction of a crime.

(f) If a person is sentenced to prison for a crime committed on or

after July 1, 1993, while on probation, parole, conditional release or in a

community corrections program, for a crime committed prior to July 1,

1993, and the person is not eligible for retroactive application of the

sentencing guidelines and amendments thereto pursuant to K.S.A. 21-

4724 and amendments thereto, the new sentence shall not be aggregated

with the old sentence, but shall begin when the person is paroled or

reaches the conditional release date on the old sentence. If the offender

was past the offender's conditional release date at the time the new of-

fense was committed, the new sentence shall not be aggregated with the

old sentence but shall begin when the person is ordered released by the

Kansas parole board or reaches the maximum sentence expiration date

on the old sentence, whichever is earlier. The new sentence shall then

be served as otherwise provided by law. The period of postrelease su-

pervision shall be based on the new sentence, except that those offenders

whose old sentence is a term of imprisonment for life, imposed pursuant

to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate

sentence with a maximum term of life imprisonment, for which there is

no conditional release or maximum sentence expiration date, shall remain

on postrelease supervision for life or until discharged from supervision

by the Kansas parole board.

(g) Subject to the provisions of this section, the Kansas parole board

may release on parole those persons confined in institutions who are el-

igible for parole when: (1) The board believes that the inmate should be

released for hospitalization, for deportation or to answer the warrant or

other process of a court and is of the opinion that there is reasonable

probability that the inmate can be released without detriment to the com-

munity or to the inmate; or (2) the secretary of corrections has reported

to the board in writing that the inmate has satisfactorily completed the

programs required by any agreement entered under K.S.A. 75-5210a and

amendments thereto, or any revision of such agreement, and the board

believes that the inmate is able and willing to fulfill the obligations of a

law abiding citizen and is of the opinion that there is reasonable proba-

bility that the inmate can be released without detriment to the community

or to the inmate. Parole shall not be granted as an award of clemency and

shall not be considered a reduction of sentence or a pardon.

(h) The Kansas parole board shall hold a parole hearing at least the

month prior to the month an inmate will be eligible for parole under

subsections (a), (b) and (c). At least the month preceding the parole hear-

ing, the county or district attorney of the county where the inmate was

convicted shall give written notice of the time and place of the public

comment sessions for the inmate to any victim of the inmate's crime who

is alive and whose address is known to the county or district attorney or,

if the victim is deceased, to the victim's family if the family's address is

known to the county or district attorney. Except as otherwise provided,

failure to notify pursuant to this section shall not be a reason to postpone

a parole hearing. In the case of any inmate convicted of an off-grid felony

or a class A felony the secretary of corrections shall give written notice

of the time and place of the public comment session for such inmate at

least one month preceding the public comment session to any victim of

such inmate's crime or the victim's family pursuant to K.S.A. 74-7338 and

amendments thereto. If notification is not given to such victim or such

victim's family in the case of any inmate convicted of an off-grid felony

or a class A felony, the board shall postpone a decision on parole of the

inmate to a time at least 30 days after notification is given as provided in

this section. Nothing in this section shall create a cause of action against

the state or an employee of the state acting within the scope of the em-

ployee's employment as a result of the failure to notify pursuant to this

section. If granted parole, the inmate may be released on parole on the

date specified by the board, but not earlier than the date the inmate is

eligible for parole under subsections (a), (b) and (c). At each parole hear-

ing and, if parole is not granted, at such intervals thereafter as it deter-

mines appropriate, the Kansas parole board shall consider: (1) Whether

the inmate has satisfactorily completed the programs required by any

agreement entered under K.S.A. 75-5210a and amendments thereto, or

any revision of such agreement; and (2) all pertinent information regard-

ing such inmate, including, but not limited to, the circumstances of the

offense of the inmate; the presentence report; the previous social history

and criminal record of the inmate; the conduct, employment, and attitude

of the inmate in prison; the reports of such physical and mental exami-

nations as have been made; comments of the victim and the victim's

family including in person comments, contemporaneous comments and

prerecorded comments made by any technological means; comments of

the public; official comments; and capacity of state correctional institu-

tions.

(i) In those cases involving inmates sentenced for a crime committed

after July 1, 1993, the parole board will review the inmates proposed

release plan. The board may schedule a hearing if they desire. The board

may impose any condition they deem necessary to insure public safety,

aid in the reintegration of the inmate into the community, or items not

completed under the agreement entered into under K.S.A. 75-5210a and

amendments thereto. The board may not advance or delay an inmate's

release date. Every inmate while on postrelease supervision shall remain

in the legal custody of the secretary of corrections and is subject to the

orders of the secretary.

(j) Before ordering the parole of any inmate, the Kansas parole board

shall have the inmate appear before either in person or via a video con-

ferencing format and shall interview the inmate unless impractical be-

cause of the inmate's physical or mental condition or absence from the

institution. Every inmate while on parole shall remain in the legal custody

of the secretary of corrections and is subject to the orders of the secretary.

Whenever the Kansas parole board formally considers placing an inmate

on parole and no agreement has been entered into with the inmate under

K.S.A. 75-5210a and amendments thereto, the board shall notify the in-

mate in writing of the reasons for not granting parole. If an agreement

has been entered under K.S.A. 75-5210a and amendments thereto and

the inmate has not satisfactorily completed the programs specified in the

agreement, or any revision of such agreement, the board shall notify the

inmate in writing of the specific programs the inmate must satisfactorily

complete before parole will be granted. If parole is not granted only

because of a failure to satisfactorily complete such programs, the board

shall grant parole upon the secretary's certification that the inmate has

successfully completed such programs. If an agreement has been entered

under K.S.A. 75-5210a and amendments thereto and the secretary of

corrections has reported to the board in writing that the inmate has sat-

isfactorily completed the programs required by such agreement, or any

revision thereof, the board shall not require further program participa-

tion. However, if the board determines that other pertinent information

regarding the inmate warrants the inmate's not being released on parole,

the board shall state in writing the reasons for not granting the parole. If

parole is denied for an inmate sentenced for a crime other than a class A

or class B felony or an off-grid felony, the board shall hold another parole

hearing for the inmate not later than one year after the denial unless the

parole board finds that it is not reasonable to expect that parole would

be granted at a hearing if held in the next three years or during the interim

period of a deferral. In such case, the parole board may defer subsequent

parole hearings for up to three years but any such deferral by the board

shall require the board to state the basis for its findings. If parole is denied

for an inmate sentenced for a class A or class B felony or an off-grid

felony, the board shall hold another parole hearing for the inmate not

later than three years after the denial unless the parole board finds that

it is not reasonable to expect that parole would be granted at a hearing if

held in the next 10 years or during the interim period of a deferral. In

such case, the parole board may defer subsequent parole hearings for up

to 10 years but any such deferral shall require the board to state the basis

for its findings.

(k) Parolees and persons on postrelease supervision shall be assigned,

upon release, to the appropriate level of supervision pursuant to the cri-

teria established by the secretary of corrections.

(l) The Kansas parole board shall adopt rules and regulations in ac-

cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-

consistent with the law and as it may deem proper or necessary, with

respect to the conduct of parole hearings, postrelease supervision reviews,

revocation hearings, orders of restitution, reimbursement of expenditures

by the state board of indigents' defense services and other conditions to

be imposed upon parolees or releasees. Whenever an order for parole or

postrelease supervision is issued it shall recite the conditions thereof.

(m) Whenever the Kansas parole board orders the parole of an in-

mate or establishes conditions for an inmate placed on postrelease su-

pervision, the board:

(1) Unless it finds compelling circumstances which would render a

plan of payment unworkable, shall order as a condition of parole or post-

release supervision that the parolee or the person on postrelease super-

vision pay any transportation expenses resulting from returning the pa-

rolee or the person on postrelease supervision to this state to answer

criminal charges or a warrant for a violation of a condition of probation,

assignment to a community correctional services program, parole, con-

ditional release or postrelease supervision;

(2) to the extent practicable, shall order as a condition of parole or

postrelease supervision that the parolee or the person on postrelease su-

pervision make progress towards or successfully complete the equivalent

of a secondary education if the inmate has not previously completed such

educational equivalent and is capable of doing so;

(3) may order that the parolee or person on postrelease supervision

perform community or public service work for local governmental agen-

cies, private corporations organized not-for-profit or charitable or social

service organizations performing services for the community;

(4) may order the parolee or person on postrelease supervision to pay

the administrative fee imposed pursuant to K.S.A. 2001 Supp. 22-4529,

and amendments thereto, unless the board finds compelling circum-

stances which would render payment unworkable; and

(5) unless it finds compelling circumstances which would render a

plan of payment unworkable, shall order that the parolee or person on

postrelease supervision reimburse the state for all or part of the expend-

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

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

method of payment of such sum, the parole board shall take account of

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

the payment of such sum will impose. Such amount shall not exceed the

amount claimed by appointed counsel on the payment voucher for indi-

gents' defense services or the amount prescribed by the board of indi-

gents' defense services reimbursement tables as provided in K.S.A. 22-

4522 and amendments thereto, whichever is less, minus any previous

payments for such services.

(n) If the court which sentenced an inmate specified at the time of

sentencing the amount and the recipient of any restitution ordered as a

condition of parole or postrelease supervision, the Kansas parole board

shall order as a condition of parole or postrelease supervision that the

inmate pay restitution in the amount and manner provided in the journal

entry unless the board finds compelling circumstances which would ren-

der a plan of restitution unworkable.

(o) Whenever the Kansas parole board grants the parole of an inmate,

the board, within 10 days of the date of the decision to grant parole, shall

give written notice of the decision to the county or district attorney of the

county where the inmate was sentenced.

(p) When an inmate is to be released on postrelease supervision, the

secretary, within 30 days prior to release, shall provide the county or

district attorney of the county where the inmate was sentenced written

notice of the release date.

(q) Inmates shall be released on postrelease supervision upon the

termination of the prison portion of their sentence. Time served while

on postrelease supervision will vest.

(r) An inmate who is allocated regular good time credits as provided

in K.S.A. 22-3725 and amendments thereto may receive meritorious good

time credits in increments of not more than 90 days per meritorious act.

These credits may be awarded by the secretary of corrections when an

inmate has acted in a heroic or outstanding manner in coming to the

assistance of another person in a life threatening situation, preventing

injury or death to a person, preventing the destruction of property or

taking actions which result in a financial savings to the state.

(s) The provisions of subsections (d)(1)(A), (d)(1)(B), (d)(1)(C) and

(d)(1)(E) shall be applied retroactively as provided in subsection (t).

(t) For offenders sentenced prior to the effective date of this act who

are eligible for modification of their postrelease supervision obligation,

the department of corrections shall modify the period of postrelease su-

pervision as provided for by this section for offenders convicted of severity

level 9 and 10 crimes on the sentencing guidelines grid for nondrug

crimes and severity level 4 crimes on the sentencing guidelines grid for

drug crimes on or before September 1, 2000; for offenders convicted of

severity level 7 and 8 crimes on the sentencing guidelines grid for nondrug

crimes on or before November 1, 2000; and for offenders convicted of

severity level 5 and 6 crimes on the sentencing guidelines grid for nondrug

crimes and severity level 3 crimes on the sentencing guidelines grid for

drug crimes on or before January 1, 2001.

Sec. 6. K.S.A. 2001 Supp. 22-4902, as amended by section 1 of 2002

House Bill No. 2399, is hereby amended to read as follows: 22-4902. As

used in this act, unless the context otherwise requires:

(a) ``Offender'' means: (1) A sex offender as defined in subsection (b);

(2) a violent offender as defined in subsection (d);

(3) a sexually violent predator as defined in subsection (f);

(4) any person who, on and after the effective date of this act, is

convicted of any of the following crimes when the victim is less than 18

years of age:

(A) Kidnapping as defined in K.S.A. 21-3420 and amendments

thereto, except by a parent;

(B) aggravated kidnapping as defined in K.S.A. 21-3421 and amend-

ments thereto; or

(C) criminal restraint as defined in K.S.A. 21-3424 and amendments

thereto, except by a parent;

(5) any person convicted of any of the following criminal sexual con-

duct if one of the parties involved is less than 18 years of age:

(A) Adultery as defined by K.S.A. 21-3507, and amendments thereto;

(B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-

3505, and amendments thereto;

(C) promoting prostitution as defined by K.S.A. 21-3513, and amend-

ments thereto;

(D) patronizing a prostitute as defined by K.S.A. 21-3515, and

amendments thereto;

(E) lewd and lascivious behavior as defined by K.S.A. 21-3508, and

amendment amendments thereto; or

(F) unlawful sexual relations as defined by K.S.A. 21-3520, and

amendments thereto;

(6) any person who is a resident of this state who has been required

to register under any federal, military or other state's law;

(7) any person who has been convicted of an offense in effect at any

time prior to the effective date of this act, that is comparable to any crime

defined in subsection (4) or (5), or any federal, military or other state

conviction for an offense that under the laws of this state would be an

offense defined in subsection (4) or (5); or

(8) any person who has been convicted of an attempt, conspiracy or

criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303

and amendments thereto, of an offense defined in subsection (4) or (5).

Convictions which result from or are connected with the same act, or

result from crimes committed at the same time, shall be counted for the

purpose of this section as one conviction. Any conviction set aside pur-

suant to law is not a conviction for purposes of this section. A conviction

from another state shall constitute a conviction for purposes of this sec-

tion.

(b) ``Sex offender'' includes any person who, after the effective date

of this act, is convicted of any sexually violent crime set forth in subsection

(c) or is adjudicated as a juvenile offender for an act which if committed

by an adult would constitute the commission of a sexually violent crime

set forth in subsection (c).

(c) ``Sexually violent crime'' means:

(1) Rape as defined in K.S.A. 21-3502 and amendments thereto;

(2) indecent liberties with a child as defined in K.S.A. 21-3503 and

amendments thereto;

(3) aggravated indecent liberties with a child as defined in K.S.A. 21-

3504 and amendments thereto;

(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of

K.S.A. 21-3505 and amendments thereto;

(5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and

amendments thereto;

(6) indecent solicitation of a child as defined by K.S.A. 21-3510 and

amendments thereto;

(7) aggravated indecent solicitation of a child as defined by K.S.A.

21-3511 and amendments thereto;

(8) sexual exploitation of a child as defined by K.S.A. 21-3516 and

amendments thereto;

(9) sexual battery as defined by K.S.A. 21-3517 and amendments

thereto;

(10) aggravated sexual battery as defined by K.S.A. 21-3518 and

amendments thereto;

(11) aggravated incest as defined by K.S.A. 21-3603 and amendments

thereto; or

(12) any conviction for an offense in effect at any time prior to the

effective date of this act, that is comparable to a sexually violent crime as

defined in subparagraphs (1) through (11), or any federal, military or

other state conviction for an offense that under the laws of this state would

be a sexually violent crime as defined in this section;

(13) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a sex-

ually violent crime, as defined in this section; or

(14) any act which at the time of sentencing for the offense has been

determined beyond a reasonable doubt to have been sexually motivated.

As used in this subparagraph, ``sexually motivated'' means that one of the

purposes for which the defendant committed the crime was for the pur-

pose of the defendant's sexual gratification.

(d) ``Violent offender'' includes any person who, after the effective

date of this act, is convicted of any of the following crimes:

(1) Capital murder as defined by K.S.A. 21-3439 and amendments

thereto;

(2) murder in the first degree as defined by K.S.A. 21-3401 and

amendments thereto;

(3) murder in the second degree as defined by K.S.A. 21-3402 and

amendments thereto;

(4) voluntary manslaughter as defined by K.S.A. 21-3403 and amend-

ments thereto;

(5) involuntary manslaughter as defined by K.S.A. 21-3404 and

amendments thereto; or

(6) any conviction for an offense in effect at any time prior to the

effective date of this act, that is comparable to any crime defined in this

subsection, or any federal, military or other state conviction for an offense

that under the laws of this state would be an offense defined in this

subsection; or

(7) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in this subsection.

(e) ``Law enforcement agency having jurisdiction'' means the sheriff

of the county in which the offender expects to reside upon the offender's

discharge, parole or release.

(f) ``Sexually violent predator'' means any person who, on or after July

1, 2001, is found to be a sexually violent predator pursuant to K.S.A. 59-

29a01 et seq. and amendments thereto.

(g) ``Nonresident student or worker'' includes any offender who

crosses into the state or county for more than 14 days, or for an aggregate

period exceeding 30 days in a calendar year, for the purposes of employ-

ment, with or without compensation, or to attend school as a student.

(h) ``Aggravated offenses'' means engaging in sexual acts involving

penetration with victims of any age through the use of force or the threat

of serious violence, or engaging in sexual acts involving penetration with

victims less than 14 years of age, and includes the following offenses:

(1) Rape as defined in subsection (a)(1)(A) and subsection (a)(2) of

K.S.A. 2001 Supp. 21-3502, and amendments thereto;

(2) aggravated criminal sodomy as defined in subsection (a)(1) and

subsection (a)(3)(A) of K.S.A. 21-3506, and amendments thereto; and

(3) any attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in this subsection (f).

Sec. 7. K.S.A. 74-7338 is hereby amended to read as follows: 74-

7338. (a) Notwithstanding the provisions of K.S.A. 74-7335 and amend-

ments thereto, in the case of any inmate convicted of an off-grid felony

or a class A felony, the secretary of corrections shall give written notice

of the time and place of the public comment session pursuant to K.S.A.

22-3717 and amendments thereto for such inmate, at least one month

preceding the public comment session, to any victim or the victim's family

pursuant to subsection (b).

(b) Any victim, or a member of the victim's family of a crime, if such

victim requests notice of the public comment session, shall give the sec-

retary of corrections such victim's name and current address or the name

and current address of the victim's family. It shall be the duty of the

victim or the victim's family to provide the secretary with any change in

name or address or change in the person to be notified pursuant to this

section.

(c) The secretary of corrections shall keep a record of all victims and

their current addresses or such victims' family and their current ad-

dresses, who give the secretary such victim or victims' family name pur-

suant to subsection (b), and shall update such record as notified by the

victims or the victims' family. Such record shall be kept confidential and

separate from all other records and shall not be available to the inmate

or any other party other than the victim or the victim's family.

Sec. 8. K.S.A. 21-4715 and 74-7338 and K.S.A. 2001 Supp. 21-3520,

21-4619, 22-3437, 22-3717 and 22-4902, as amended by section 1 of 2002

House Bill No. 2399, are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 29, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002