Preparing For Sentencing
A jury rendering a guilty verdict against a defendant is only half of the judgement. The court must also impose a sentence on the defendant. Kansas uses a sentencing grid system which consists of two factors: the severity of the crime and the defendant’s past criminal convictions. These factors, when plugged into the sentencing grid, generate the presumptive length of the sentence as well as whether it is presumptive probation or prison. A judge can deviate from this presumptive sentence if he finds substantial and compelling circumstances that justify it. However, a presentencing investigation must be conducted in order to discover the facts which can then be presented to showcase such circumstances for a presumptive sentence to be deviated from.
Section 21-6812 lays out the presentence investigation report’s requirements. This report must include information regarding a defendant’s previous convictions. Particularly, the facts of the crime, the “severity level” of the crime, and any victim reports because of the crime. All of this information is compiled to produce the “criminal history” factor of the sentencing grid. A defendant is allowed to tell their side of each conviction for the judge’s consideration. The presentence investigation report could also include a risk assessment which is in the form of a LSI-R or Level of Service Inventory-Revised report, a drug/alcohol evaluation, and possibly a psych evaluation.
The investigation and report preparation are completed by a court services officer. In order for the report to be neutral, a third party is usually used. The district attorney and defense counsel will be allowed to argue the facts found in the report during the sentencing hearing. The court held in State v. Wood that the court services officer is given a wide breadth to gather the required information. This can include communication with the state, the defendant, witnesses, and/or record custodians. Neither side is permitted to be present during these interactions, unlike the process for trial preparation. The court services can investigate the matter as they see fit so long as each side is given the results of the interactions.
The criminal history worksheet is a vital part of the report. This document attempts to showcase the defendant’s prior convictions. Generally, all convictions will be used to determine the criminal history score. Traffic tickets and investigations by law enforcement are not used in the investigations. Diversions, which are special plea agreements that result in dismissal rather than a guilty plea, do not count. However, if the current charge a defendant is being sentenced for involves driving under the influence, such as a subsequent DUI or involuntary manslaughter, a previous DUI diversion will count. The court services officer will include a copy of the judgment, necessary summaries, and supporting documents to support each conviction in their report. Various other information about the defendant will also be obtained. This includes the usually “pedigree” information, such as birth date, social security number, address, and an individual’s KBI number (the number assigned to a person when they are first entered into Kansas’s criminal database). The defendant will also submit a DNA sample during the investigation process. Further, employment and family history, along with community connections the defendant might have, will be collected. This information is all necessary to furnish a complete report.
In some cases, a mental evaluation of the defendant will be conducted. These evaluations are done to determine if the defendant will need special treatment while imprisoned. Although they lack the formal warnings mandated in law enforcement investigations, these examinations are still considered proper for the sentencing phase. In State v. Schaeffer, the court permitted statements within the evaluation to be considered by the court without a need for Miranda or other warnings. The court justified this as the information was gathered for sentencing rather than to prove guilt.
Submitting the Report
Upon completing their report, the officer will submit it to the court. This report does become public court record; however, some specific sections are redacted. Either side can contest the information pertained in the report. The judge will determine whether any portions of the report should be struck and therefore not used in the defendant’s sentencing.
Get your questions answered - call for a free,
20-minute phone consultation (913) 451-9500.