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January 2022
February 10th: Special Sentencing Rules webinar. Register here.*
February 25th: Kansas Sentencing Commission meeting
March 25th: Kansas Sentencing Commission meeting
*not approved for CLE credit.
If you have any questions about trainings or would like to request specific training, contact Francis Givens at francis.givens@ks.gov.
2022 KSSC Bills for 2022 Legislative Session
The legislative proposals approved by the commission for the current session can be found here.
Additionally, the commission has introduced HB 2517 which would transfer the responsibility to certify drug treatment providers from KDOC to KSSC. Read the bill here.
Recent Cases Affecting Criminal Sentencing*
- In determining whether a prior out-of-state DUI conviction is comparable to the Kansas DUI statute, the Kansas Supreme Court recently held that, “the Legislature intended the 2018 amendments to K.S.A. 2020 Supp. 8-1567 to require sentencing courts to count out-of-state convictions under laws similar to, though perhaps broader than, K.S.A. 2020 Supp. 8-1567.” See State v. Myers, No. 122,046, 2021 WL 5751390 at *9 (Kan. December 3, 2021).
- The Kansas Supreme Court recently held unconstitutional and thus severed these statutes and portions of statutes related to restitution: K.S.A 60-4301, which establishes that an order of restitution shall be filed, recorded, and enforced as a civil judgment, in its entirety; K.S.A. 60-4302, which sets forth notice requirements when an order of restitution is filed as a civil judgment, in its entirety; K.S.A. 60-4303, which establishes the docket fee when filing an order of restitution as a civil judgment, in its entirety; K.S.A. 2020 Supp. 21-6604(b)(2), which dictates that if the court orders restitution, the restitution shall be a judgment against the defendant that may be collected by the court by garnishment or other execution as on judgments in civil cases in accordance with K.S.A. 60-4301 et seq.; and Finally, only the last sentence of K.S.A. 2020 Supp. 22-3424(d)(1) which reads, "If the court orders restitution to be paid to the victim or the victim's family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. 60-4301 through 60-4304, and amendments thereto." State v. Arnett, 496 P.3d 928, 937-938 (Kan. 2021) and State v. Robison, 496 P.3d 892, 901 (Kan. 2021).
- Where a district court declined to depart down to a hard 25 sentence from a hard 50 sentence, the Kansas Supreme Court ruled that the district court did not abuse its discretion by finding that mental health issues and other mitigating circumstances combined did not provide substantial and compelling reasons to depart because the district court performed a comprehensive analysis of the attendant circumstances when denying departure and noted all the factors Grable advanced and weighed them against the facts. See State v. Grable, No. 123,120, 2021 WL 5409162 at *6 (Kan. November 19, 2021). Given Grable's eight felony offenses and their momentous repercussions to the victims and their families, the Court could not hold that the district court abused its discretion. See id.
- The Kansas Supreme Court ruled that based on Supreme Court decision, Jones v. Mississippi, 593 U.S.__, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021), a sentencing court is not required to explain on the record how it considered youth and its attendant characteristics or make an explicit finding of permanent incorrigibility before imposing life without parole on a juvenile offender. See Williams v. State, No. 121,815, 2021 WL 5990701 at *3 (Kan. December 17, 2021). In so ruling, the Supreme Court explained that "[u]nder Miller [], an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole . . . if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment." See id. Under the sentencing scheme used in this current case, the sentencing court was directed to consider aggravating and mitigating evidence, including the defendant's age at the time of the crime, to decide whether the hard 50 was the appropriate sanction. Id. at 4. If the court found that the mitigating factors outweighed the aggravating factors, it was permitted to impose a hard 25. Id. As the State argues, this is not a mandatory sentencing scheme as contemplated by Jones because the court had discretion to impose a lesser sentence than the hard 50. See Jones, 141 S. Ct. at 1322 (sentencing scheme at issue was constitutional "because the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones's youth"). Id.
- In a case where the victim reported the defendant had been beating her for 6 weeks and threatened to kill her and her son, the Kansas Court of Appeals upheld the defendant’s criminal threat conviction because the evidence indicated that the defendant made his threat to the victim with the intent to place her in fear. See State v. Solton, No. 123,356, 2021 WL 4496188 at *5 (Kan. App. 2021)(unpublished opinion). The Court of Appeals found significant that there was no evidence that the defendant made prior empty threats, the defendant threatened the victim after weeks of escalating abuse, the victim told police that she truly feared the defendant would kill her and there was no evidence that the defendant retreated from his threat. See id. at *5.
- The Kansas Court of Appeals recently held as a matter of first impression, that a defendant who fails to object under K.S.A. 2020 Supp. 21-6814(c) at sentencing to the constitutional validity of a prior conviction used to enhance a current sentence, based on a claim of the absence of counsel without a valid waiver, has the burden to show the prior conviction is invalid, regardless of whether the defendant's constitutional challenge to the allegedly uncounseled conviction in criminal history is brought on direct appeal of the current sentence or in a proceeding collaterally attacking that sentence. State v. Roberts, Nos. 121,682, 121,823, 2021 WL 5409140 at *10 (Kan. App. November 19, 2021)(unpublished opinion).
*This is not an exhaustive list of cases affecting sentencing. To view all recent cases, click here.
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