2006 Kansas Code - 21-4724

      21-4724.   Sentencing; application of guidelines to persons who committed crimes prior to July 1, 1993; modification and conversion of certain sentences; review of sentences of persons in custody; department to determine criminal history classification and prepare sentencing guideline report on inmates; filing of reports; request for hearing; determination by court; crimes committed prior to July 1, 1993, but sentence imposed after such date. (a) The sentencing grid for nondrug crimes as provided in K.S.A. 21-4704 and the sentencing grid for drug crimes as provided in K.S.A. 21-4705 shall be applied for crimes committed before July 1, 1993, as provided in this section.

      (b) (1)   Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-I or 6-G of the nondrug grid or in grid blocks 3-H or 3-I of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 21-4705 and amendments thereto, if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.

      (2)   Except as provided in subsection (d), offenders on probation, assignment to community corrections, conditional release or parole for crimes classified in subsection (b)(1) committed prior to July 1, 1993, who have such probation, assignment to community corrections, conditional release or parole revoked shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.

      (c) (1)   Except as provided in subsection (f), the department of corrections shall conduct a review of all persons who committed crimes and were sentenced prior to July 1, 1993, and are imprisoned in the custody of the secretary of corrections as of that date. The department shall prepare a sentencing guidelines report on all such imprisoned inmates except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes or a severity level 1, 2 or 3 felony on the sentencing guidelines grid for drug crimes, but, including those in grid blocks 3-H or 3-I of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 21-4705 and amendments thereto, which shall review and determine what the person's sentence as provided by the crime severity and criminal history grid matrix established by the Kansas sentencing commission guidelines act would be as if the crime were committed on or after July 1, 1993. A copy of the report shall be transmitted to the inmate, the county or district attorney for the county from which the inmate was sentenced, and the sentencing court.

      (2)   In determining the criminal history classification, the department of corrections shall conduct a reasonable search of the inmate's file and available presentence report, and make a reasonable inquiry of the Kansas bureau of investigation and the federal bureau of investigation, for other records of criminal or juvenile convictions which would affect the criminal history classification.

      (3)   The department of corrections shall have access to any juvenile records maintained by the Kansas bureau of investigation or the department of social and rehabilitation services for use in determining the person's criminal history classification.

      (4)   The criminal history classification as determined by the department of corrections shall be deemed to be correct unless objection thereto is filed by either the person or the prosecution officer within the 30-day period provided to request a hearing. If an objection is filed, the sentencing court shall determine the person's criminal history classification. The burden of proof shall be on the prosecution officer regarding disputed criminal history issues.

      (5)   The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would constitute a severity level 9 or 10 felony on the sentencing guidelines grid for nondrug crimes by August 15, 1993.

      (6)   The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would constitute a severity level 7 or 8 felony on the sentencing guidelines grid for nondrug crimes by October 15, 1993.

      (7)   The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would be classified in grid blocks 5-H, 5-I, 6-G, 6-H or 6-I of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-H or 3-I of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 21-4705 and amendments thereto, by December 1, 1993.

      (d) (1)   Within 30 days of the issuance of such report, the person who committed the crime and the prosecution officer shall have the right to request a hearing by filing a motion with the sentencing court, regarding conversion to a sentence under the Kansas sentencing guidelines act to be held in the jurisdiction where the original criminal case was filed. The secretary of corrections shall be provided written notice of any request for a hearing. If a request for a hearing is not filed within 30 days of the issuance of the report, the department shall convert the person's sentence to one provided for under the sentencing guidelines and provide notification of that action to the person, the prosecution officer, and the court in the jurisdiction where the original criminal case was held. The conversion by the department of corrections to the sentencing guidelines shall be to the mid-point of the range in the applicable grid box. The secretary of corrections shall be authorized to implement a converted sentence as provided in this section, if the secretary has not received written notice of a request for a hearing by the close of normal business hours on the fifth business day after expiration of the 30-day period.

      (2)   In the event a hearing is requested and held, the court shall determine the applicable sentence as prescribed by the Kansas sentencing guidelines act.

      (3)   In the event a hearing is requested, the court shall schedule and hold the hearing within 60 days after it was requested and shall rule on the issues raised by the parties within 30 days after the hearing.

      (4)   Such offender shall be represented by appointed counsel pursuant to the provisions of K.S.A. 22-4501 et seq. and amendments thereto.

      (5)   Nothing contained in this section shall be construed as requiring the appearance in person of the offender or creating such a right of appearance in person of the offender at the hearing provided in this section regarding conversion to a sentence under the Kansas sentencing guidelines act.

      (6)   The court shall enter an order regarding the person's sentence and forward that order to the secretary of corrections who shall administer the sentence.

      (e)   If a sentence is converted as provided by this section, then all the rights and privileges accorded by the Kansas sentencing guidelines act shall be applicable. A person's sentence shall not be increased in length through a conversion to one under sentencing guidelines.

      (f)   In the case of any person to whom the provisions of this section shall apply, who committed a crime prior to July 1, 1993, but was sentenced after July 1, 1993, the sentencing court shall impose a sentence as provided pursuant to law as the law existed prior to July 1, 1993, and shall compute the appropriate sentence had the person been sentenced pursuant to the Kansas sentencing guidelines.

      History:   L. 1992, ch. 239, § 24; L. 1993, ch. 291, § 268; July 1.