Kansas utilizes a sentencing grid that outlines a “presumptive punishment” for crimes based upon the severity of the crime and the criminal history of the defendant. The presumptive punishment is generally either prison time or supervision via probation. It is usually pretty easy for a criminal defense lawyer to sit down with a defendant and “tell them how much time they could be looking at,” or “tell them how much trouble they are in,” by utilizing the sentencing grid. However, there are some factors or circumstances that can alter the presumptive punishment—either by lengthening or limiting the sentence length. These factors or circumstances are commonly referred to as “special rules.” If your case involves a special rule there are other factors at play in determining a possible sentence. These special sentencing rules are briefly discussed below.

Treatment Program In Lieu Of Presumptive ImprisonmentMany of the special sentencing rules below allow a judge to place a defendant in a treatment program. In State v. Mays, the court noted that the decision to place a defendant in such a program belongs to the sentencing judge alone: there is no option to overturn the decision on appeal. However, the legislature has provided three criteria that must be met to make the non-prison sentence appropriate. First, an appropriate treatment program (which may include alcohol abuse, drug abuse, anger management, etc.) that the judge finds likely to be more effective than imprisonment. Second, there must be space within the program immediately or shortly after sentencing the defendant. Finally, the non-prison sentence must still promote the community’s safety. Basically, this means the facility should be secure and reputable, as well as aimed at correcting the problem experienced by the defendant that caused the criminal activity.

Aggravated Assault Against A Law Enforcement OfficerWhen the underlying crime is aggravated assault of a law enforcement officer, the presumption is one of imprisonment. The Kansas Supreme Court determined there are no additional elements required when this is the offense. In State v. Wood, the court held once a defendant is found guilty of the offense the special sentencing rule applies; there is nothing else to determine. The legislature decided to make the offense subject to further penalization as compared to other offenses, and this is a legitimate reason to support the special rule.

It is important to distinguish this crime from battery against an officer. Aggravated assault is placing a law enforcement office in danger of injury by using a deadly weapon, concealing one’s identity, or intending to commit a felony. The injury does not have to actually take place and may even be caused by another person. Battery (which is discussed further below) results when the defendant goes one step beyond assault and harms the officer his- or herself. This distinction is very important because aggravated assault of an officer allows for a treatment program to be sentenced rather than imprisonment; battery does not.

Aggravated Battery Against A Law Enforcement OfficerA similar crime to aggravated assault, aggravated battery against a law enforcement officer also carries a presumption of imprisonment. Battery, unlike aggravated assault, requires bodily harm be done to the officer. Further, this crime also applies to batteries against judges, corrections officers, and attorneys. Distinguishing this crime from aggravated assault against an officer is important because the special sentencing rules for battery are much more severe.

In State v. Clayter, the court noted the strictness of the special sentencing rule that applies to this crime, but also noted that review of the rule was not available. Three distinct things happen when a defendant is sentenced. First, the punishment is presumptive imprisonment. Second, the sentence must be served consecutively to any other sentence imposed; that is, it must be calculated as separate time. Finally, the application of the special rule is not available for review upon appeal.

Felony Committed With A FirearmIf a defendant used a firearm in the commission of his or her crime, the presumption is one of imprisonment. The term “used” is defined very broadly, and in State v. George the defendant’s striking of his girlfriend with an unload gun was considered “use.” The court doesn’t require that the crime necessarily require a firearm, instead it is enough that the defendant simply use the firearm as an “instrumentality of the crime.” Basically, the firearm must be part of the circumstances that allowed the crime to occur, such as with George using the unloaded weapon to commit a battery. The court did note that his special rule only applies to firearms, not to realistic toys or props that are presented as firearms. The sentencing judge does have to the option of imposing a treatment program in place of a sentence under this special rule.

Persistent Sex OffenderKansas law requires the doubling of the duration of a presumptive imprisonment term when the defendant is “persistent sex offender.” In State v. Campbell, the Kansas Court of Appeals clarified that this special rule applies to the sentencing of current offenses that already carry a presumptive imprisonment. Further, the defendant must have already been convicted of two “sexually violent crimes.” If the defendant commits an “off-grid” offense—a severe offense that is not within the sentencing grid—a more stringent presumptive punishment applies in place of the doubling of this special rule. Additionally, presumptive imprisonment applies to violations for failure to register as a sexual offender. Generally, no treatment program is available in place of imprisonment under this special rule.

Gang ActivityIf the crime was committed in connection with a criminal gang, the sentence is presumptive imprisonment. In State v. Garcia, the Kansas Supreme Court has instructed that to apply this provision a sentencing court must consider three things. First, the gang at issue must fit within the statutory definition of a “criminal street gang.” Second, the crime must have been committed in connection with the gang. This means the crime could have been done as instructed by the gang, for the benefit of the gang, or in association with the gang. Finally, the defendant must have intended for the crime to be in connection with the gang. Only when these three factors are considered and found is the imposition of the special rule proper. Additionally, the sentencing judge may impose a treatment program in place of imprisonment under this special rule.

Second Conviction For Burglary Of A HomeA defendant convicted of burglary of a home, whether as a conspiracy, attempt, or completed crime, will have a presumptive imprisonment for any sentence for an additional burglary of a home. In State v. Pearce, the court held that the prior conviction required serves to both inform the defendant’s criminal history and the special sentencing rule. Thus, a defendant convicted and sentenced under this special rule will receive an elevated criminal-history category and the presumptive imprisonment based upon the same past crime.

Moreover, there is no option for implementing a treatment program when this special rule applies. When the previous burglary or burglary being sentenced is not of a home, this special rule does not apply. Instead, another rule applies, which is discussed in detail below.

Aiding A Sex OffenderA defendant convicted of aiding another who has failed to register as a sexual offender, as required by law, will have a sentence of presumptive imprisonment. This provision is new to Kansas law, and the courts have not yet had a chance to fully explore its validity and meanings. It is clear that the presumptive imprisonment would only apply when the crime reaches a high severity level (between I and V) and the defendant has a criminal history of felonies. Further, the statute requires the defendant to have knowledge of the need for the past offender to register. If the accused did not know they were providing assistance to a past offender outside of registration, the conviction itself would fail. Additionally, treatment programs are available in lieu of imprisonment for under this special rule.

Third Conviction of Criminal Deprivation of a VehicleA defendant that commits “criminal deprivation of property” may be subject to a sentence of presumptive imprisonment. In State v. Shaw, the court noted that this presumption requires the defendant to have at least two prior convictions of the same crime, and for all three of these crimes the property involved must be a motor vehicle. If the prior convictions and property requirements are met, the special rule applies. This means there is no treatment option in lieu of imprisonment, and the determination is not subject to appeal.

Theft/Burglary When Substance Abuse Is Underlying FactorWhen a defendant is convicted of theft or burglary, the court may find that substance abuse treatment is needed in lieu of or addition to probation or imprisonment. As noted by the court in State v. Mays, this option is appropriate if three criteria are met: (1) the defendant’s substance abuse was an underlying factor that led to the criminal activity; (2) the treatment is likely to be more effective than imprisonment; and (3) the community’s safety interest are served by the program. The decision to grant this option is completely discretionary, meaning the trial judge will determine if the special rule should be applied in each case. Further, the decision of the judge is not available for review on appeal.

There are two different types of treatment available as special rules, depending on the number of prior convictions for burglary or theft the defendant has. If the defendant has two or fewer past convictions, he or she may be granted a non-prison sentence to participate in a substance abuse treatment. This treatment may include an aftercare element, meaning supervision to some degree will continue after completion of the program.

If the defendant has three or more past convictions, the sentence is initially presumptive imprisonment. However, the court can assign the individual to a substance abuse program ran by the Secretary of Corrections. This program will last at least four months, and following its completion the defendant will return to court. The presumptive imprisonment can be lifted at this point, and the defendant’s sentence may be modified to include probation or a lesser term of imprisonment.

Unlawful Sexual RelationsCertain sexual relations that would otherwise be considered lawful are criminalized in Kansas based upon the “business” relationship between the defendant and victim. These include corrections or law enforcement officers and inmates; parole officers and parolees; teacher and student; bail bondsman and bailed party; or employee of state supervising entity and patient. As noted in State v. Edwards, a conviction under this statute results in a sentence of presumptive imprisonment, without the option of a treatment program as an alternative, and the application of this special rule cannot be reviewed upon appeal.

Ballistic Resistant Material UsedWhen a defendant utilizes kevlar or other similar anti-ballistic armor in the commission or attempted commission of a crime, a special sentencing rule applies. This special rule in State v. Holt, where the court noted the use of such armor carries an independent, mandatory sentence of 30 months of imprisonment. This sentence is applied consecutively to all other sentences for the underlying crimes. Thus, the defendant is required to spend the full 30 months in prison in addition to any other jail time. This special rule does not make the corresponding offense’s sentence presumptive imprisonment, though. Finally, the application of this rule is not subject to replacement with a treatment program or review upon appeal.

Second Conviction For Identity TheftA defendant convicted of identity theft for a second time is sentenced to a presumptive imprisonment. In State v. Dillard, the court applied this special rule to conviction of identity theft. Because the application of this rule is not reviewable by appeal, the court did not question the trial court’s application of the special rule. The result was a sentence of presumptive imprisonment. Additionally, alternative sentencing to a treatment program is not available under this special sentencing rule.

Third Conviction For Fleeing PoliceWhen a defendant is convicted of fleeing the police for a third time, a special sentencing rule applies. This rule was applied in State v. Hosie, where the Kansas Court of Appeals noted it could not be reviewed upon appeal. Not only does this cause the sentence to be one of presumptive imprisonment, but it also requires the sentence be served consecutively with all other sentences. Thus, if any other sentences are issued, the sentence for the fleeing charge will have to be served separately from all others. Finally, a sentence under this special rule cannot be replaced with a treatment program.

Second Conviction For Aggravated Criminal Damage To PropertyA defendant convicted of aggravated criminal damage to property for a second time is subjected to this special sentencing rule. Aggravated criminal damage requires damages in excess of $5,000, and this requirement applies to both the current and previous conviction. As noted in State v. Glover, the cost of repairs or replacement are appropriate considerations for the current crime. The former conviction only needs to be shown as for aggravated criminal damage; the previous court should have ensured the requisite amount was met. This special rule applies a presumptive imprisonment sentence and cannot be reviewed upon appeal. The sentencing judge may not sentence the defendant to a treatment program in place of the prison sentence under this rule.