SENTENCING
WHAT IS A “SPECIAL RULE” FOR SENTENCING?
Kansas’ sentencing grid lays out a crime’s “presumptive punishment” by utilizing the defendant’s criminal history and the crime’s severity. The presumptive punishment is usually either supervision via probation or prison time. The sentencing grid makes it easy for an attorney to tell someone “how much time they’re looking at” or “how much trouble they’re in”. However, there are factors or circumstances than can either lengthen or limit this presumptive punishment. These factors or circumstances are called “special rules.” If a special rule is involved in your case, your possible sentence is determined by these other factors. The special sentencing rules are discussed below.
TREATMENT PROGRAM IN LIEU OF PRESUMPTIVE INCARCERATION
Some special rules permit the judge to place the defendant in some sort of treatment program. The court held in State v. Mays, that the decision to place a defendant in these programs solely belongs to the sentencing judge and this decision is not appealable. The Kansas Legislature has laid out three criteria that have to be met before someone can be sentenced to this non-prison sentence. First, the judge finds the appropriate treatment program (can include, drug/alcohol abuse, anger management, etc) is likely to be more effective than incarceration. Second, the program must have space for the defendant immediately or shortly after sentencing. Finally, this non-prison sentence has to still promote community safety. This means that the program must be reputable and secure, as well as focused on fixing the problem which has caused the defendant to commit criminal activity.
AGGRAVATED ASSAULT AGAINST A LEO
The crime of aggravated assault of a law enforcement officer has a presumptive sentence of incarceration. The Kansas Supreme Court held that when this is the offense, no additional elements are required. In State v. Wood, the court found that when a defendant is found guilty of this offense, the special sentencing rule applies and there is nothing else to determine. The legislature determined that this offense is susceptible to further penalization as compared to difference crimes, and this is a valid reason to justify the special rule.
It is vital to separate this offense from battery against law enforcement. Aggravated assault is placing the officer in danger of injury by using a deadly weapon, intending to commit a felony, or concealing one’s identity. The injury doesn’t have to occur and could even be caused by a different individual. Battery (which is discussed more below) is when the accused goes beyond assault and harms the officer themselves. This difference is crucial because aggravated assault permits a treatment program sentencing option when battery does not.
AGGRAVATED BATTERY AGAINST LEO
Similar to aggravated assault, this crime’s sentence is also presumptive prison. However, unlike aggravated assault, battery requires bodily harm to be inflicted on the officer. This crime also applies to batteries against correction officers, judges, and attorneys. Separating this from aggravated assault is important because the sentencing rules for this offense are more severe.
In State v. Clayter, the court held that the special sentencing rule’s strictness applies to this offense and that review of the rule was not permitted. Three specific things happen when the defendant is sentenced. First, the punishment is presumptive incarceration. Second, the sentence is required to be served consecutively to any addition sentence ordered; that is, it is calculated separately or “on top of” the other sentences. Finally, the special rule’s applicability is not reviewable upon appeal.
FELONY COMMITTED WITH A FIREARM
If a firearm is used in the commission of the crime, the sentence is presumptive prison. The term “used” is broadly defined, and in State v. George the defendant hitting the victim with an unloaded firearm was considered “use.” The court doesn’t mandate that offense require a firearm to be used, but rather it is sufficient if the accused simply uses the firearm as an “instrumentality of the crime.” Essentially the firearm has to be part of the circumstances which allowed for the crime to occur, as evident in George when he used the unloaded gun to commit a battery. The court did establish that the special rule only applied to firearms, not to props or realistic toys which are presented as firearms. Under this special rule, the sentencing judge does have the ability to impose a treatment program in lieu of a sentence.
PERSISTENT SEX OFFENDER
When the defendant is a “persistent sex offender”, Kansas law mandates that the duration of the presumptive prison sentence term be doubled. The Kansas Court of Appeals in State v. Campbell clarified that this special rule pertains to the sentencing of the current offense which are already presumptive prison. Further, the accused has to have already been convicted of two “sexually violent crimes.” If the accused has committed an “off-grid” offense (a severe crime not within the sentencing grid) a more severe presumptive punishment will apply rather than the doubling in this special rule. Furthermore, presumptive prison applies to violations for failing to register as a sex offender. Usually, treatment programs are not available in lieu of incarceration under this special rule.
GANG ACTIVITY
If a crime is committed in connection with a criminal gang, the sentence is presumptive prison. In State v. Garcia, the Kansas Supreme Court held that in order to apply this special rule the sentencing court has to review three things. First, the gang in reference has to fit within the statutory definition of “criminal street gang.” Second, the offense has to have been committed in connection with this gang. To clarify this, the crime has to have been done under gang instruction, for gang benefit, or as associated with the gang. Finally, the accused has to have intended the offense to be gang connected. This special rule is appropriate only when these three factors are reviewed and found. The sentencing judge can impose a treatment program in lieu of prison under this special rule.
SECOND CONVICTION FOR BURGLARY OF A HOME
A defendant found guilty for burglary of a home, no matter if is attempt, conspiracy, or the completed crime, will face presumptive prison for any sentence of a subsequent burglary of a home. The court in State v. Pearce, held that this prior conviction requirement serves both this special sentencing rule and to form the defendant’s criminal history. Therefore, an individual convicted and sentenced under this special rule will receive an inflated criminal history category and presumptive prison because of the same past crime.
There is no option for a treatment program when this special rule is in place. This special rule does not apply when the previous (or current) burglary is not of a home. Rather, a different rule applies, and it is discussed below.
AIDING A SEX OFFENDER
An individual convicted of helping another who failed to register as a sex offender will face a sentence of presumptive prison. This provision is new to Kansas law and the courts have not yet fully explored its validity and meanings. It is apparent that presumptive prison would only apply when the crime is of a high severity level and the accused has felonies on their criminal history. Further, the statute mandates that the accused have knowledge of the past offender’s need to register. If they were not aware they were providing assistance to the non-registering past offender, the conviction itself wouldn’t hold up. This special rule allows for treatment programs instead of imprisonment.
THIRD CONVICTION OF CRIMINAL DEPRIVATION OF A VEHICLE
An individual who commits “criminal deprivation of property” could be subject to a presumptive prison sentence. In State v. Shaw, the court held that the defendant must have at least two prior convictions of the same crime and that all three of the crimes must have involved property being a motor vehicle. This special rule applies if the prior convictions and property factors are met. Therefore, for this rule, no treatment programs are available, and it is not reviewable under appeal.
THEFT/BURGLARY WHEN SUBSTANCE ABUSE IS UNDERLYING FACTOR
A court can find that substance abuse treatment is needed instead of or in addition to incarceration or probation for a defendant convicted of theft or burglary. The court in State v. Mays stated that this option is proper when three factors are met: 1) the substance abuse is an underlying factor which led to the crime; 2) treatment will be more effective than incarceration; and 3) the program serves the community’s safety interest. The decision to grant this option is discretionary and cannot be reviewed upon appeal.
There are two different treatment types available as special rules, depending on the number of prior convictions for theft or burglary the accused has. If the individual has two or less convictions, they may be given a non-prison sentence to complete substance abuse treatment. Treatment could include aftercare, which means supervision will continue after program completion, to some degree.
If the individual has three or more prior convictions, the sentence will initially be presumptive prison. However, the court has the ability to sentence the defendant to a Secretary of Corrections ran substance abuse program. This program will be at least four months and upon completion, the defendant returns to court. At this point the presumptive prison can be removed, and the sentence could be modified to include probation or a shorter term of incarceration.
UNLAWFUL SEXUAL RELATIONS
Kansas criminalizes certain lawful sexual relations based upon the “business” relationship between the victim and the defendant. This includes; teach and a student, bail bondsman and bailed party, corrections or police officers and inmates, parole officers and paroles, or employee of state supervising entity and patient. The court noted in State v. Edwards that a conviction under this statute carries a sentence of presumptive prison, without an option for treatment, and the special rule cannot be reviewed on appeal.
BALLISTIC RESISTANT MATERIAL USED
A special sentencing rule applies when a defendant uses Kevlar or a similar anti-ballistic armor during the commission or attempted commission of the crime. The court noted in State v. Holt, that the use of such armor includes an independent, mandatory sentence of 30 months in prison. This sentence will be applied consecutively to any other sentences imposed. Therefore, the defendant will be mandated to serve the full 30 months on top of any other incarceration time. However, this special rule doesn’t make the corresponding offense’s sentence presumptive prison. This rule does not allow for a treatment program or a review upon appeal.
SECOND CONVICTION FOR IDENTITY THEFT
An individual convicted of identity theft for a second or subsequent time faces a sentence of presumptive prison. The court in State v. Dillard applied this special rule to an identity theft conviction. The court did not review the trial court’s decision as this rule application is not reviewable upon appeal. Further, an alternate sentence of a treatment program is not available.
THIRD CONVICTION FOR FLEEING POLICE
Special sentencing applies when an individual is convicted of fleeing law enforcement for the third time. In State v. Hosie, this rule was applied and the Kansas Court of Appeals stated it could not be reviewed by appeal. This rule requires the sentence be presumptive prison as well as to be served consecutively with any additional sentences. This sentence cannot be replaced with a treatment program.
SECOND CONVICTION FOR AGGRAVATED CRIMINAL DAMAGE TO PROPERTY
This special sentencing rule comes into play when an individual is convicted of aggravated criminal damage to property for the second time. Aggravated criminal damages requires the damage to be in excess of $5000, and this requirement applies to both the previous and the current conviction. The court noted in State v. Glover, that the costs of repair or replacement can be considered for the current crime. The past conviction only has to be shown as aggravated criminal damage as the previous court would have ensured the threshold amount was met. This rule cannot be reviewed upon appeal, does not allow for an alternate treatment program, and applies a presumptive prison sentence.