Updated on September 24, 2019
Kansas’s Omnibus Criminal Justice Bill SB 18 Expands Definition of Person Felony for Criminal History Score
Andi is a 3L at the University of Kansas School of Law. She attended the University of Kansas for her Bachelor’s degree, where she studied Microbiology and Political Science. Andi is a Comments Editor on the Kansas Law Review, and also a council member on the KU Law Moot Court and Mock Trial teams.
Individuals who committed prior crimes out-of-state may now face harsher sentences than if they committed those crimes in Kansas under Senate Bill 18 which passed in May 2019. Kansas recently amended sentencing statutes in the Omnibus Crimes, Punishment, and Criminal Procedure Bill by altering how out-of-state felonies are classified as either person versus nonperson for sentencing purposes. 1
Prior to the 2019 Bill, out-of-state crimes—both misdemeanors and felonies—could be classified as person crimes only if elements of the out-of-state crime were “identical to, or narrower than, the elements of the Kansas crime to which it is being referenced” for purposes of sentencing an individual.2 The 2019 Bill requires prior criminal history to be calculated as a person felony rather than nonperson felonies if the prior history falls into a number of categories listed under the revised version of K.S.A. § 21-6811. 3 A person being sentenced may have a higher criminal history score for committing an out-of-state act than if they had committed it in Kansas. An out-of-state felony can now be defined as a person felony even if the foreign jurisdiction or Kansas does not designate it as a person felony. This in turn, will raise the individual’s criminal history score compared to an individual who committed those same acts in Kansas.
The Kansas Legislature passed the bill in response to State v. Wetrich4 and stated the amendments “are procedural in nature and shall be construed and applied retroactively.” 5Wetrich found Missouri’s burglary statute broader in “specific intent and the structure involved” than Kansas’s statute for a person felony for burglary.6 The Kansas Supreme Court found Kansas’s statute requires the specific intent to commit “a felony, theft, or sexual battery therein” while Missouri’s statute was broader and only required the intent “to commit any crime.”7 The Kansas statute did not include the intent to commit misdemeanors while Missouri’s statute was broader and included “any crime.” In Wetrich, the defendant was granted a resentencing after being scored too high under the Kansas Sentencing Guidelines because his prior Missouri burglary conviction was scored as a person felony.8 Two recent Kansas Supreme Court cases evaluated the 2018 sentencing statutes and reaffirmed the Wetrich reasoning that the Kansas criminal offense statute must be identical to or narrower than out-of-state crimes used for sentencing.9
To illustrate the potential conflict, Missouri creates a specific felony for distribution of meth in the presence of a minor where Kansas does not. The Kansas Criminal Code only designates two drug related activities as person crimes—distribution of a controlled substance causing great bodily harm10 and unlawful administration of a substance.11 Additionally, a person may be convicted of a person felony if a certain controlled substance “was distributed to or possessed with the intent to distribute to a minor.”12 The 2019 Bill allows an out-of-state felony to be considered a person crime if out-of-state elements require “the presence of a person, other than the defendant, a charged accomplice or another person with whom the defendant is engaged in the sale, distribution or transfer of a controlled substance or non-controlled substance.”13 Missouri specifically criminalizes the sale of methamphetamine in the presence of a child less than seventeen.14 Missouri classifies this crime as a class D felony with additional aggravating elements which can increase the felony to class C, B, or A.15 A person who had committed this crime prior to the 2019 Bill would have been sentenced as if this was a nonperson crime. After the 2019 Bill, this becomes a person felony even though Kansas does not recognize it as such in their own statutes.
Looking forward, it is important to note “Kansas law prohibits prosecutors and criminal defendants from engaging in any form of plea bargaining over the criminal history of the defendant.” 16 A defendant found guilty, or accepting a plea agreement, now must rely on the judge’s interpretation of an out-of-state criminal statute and determine whether it fits into a one of several person felony categories included in the 2019 Bill.17 The Kansas Legislature has taken away the protection from defendants of the “narrower or same” test and now allows for additional prison time for felonies that Kansas itself does not consider severe enough to designate as a person felony in its criminal code.
Amendments to K.S.A. § 21-6811(e)(3)
(3) The state of Kansas shall classify the crime as person or nonperson.
(A) In designating
crime misdemeanor as person or nonperson, comparable offenses under the
Kansas criminal code in effect on the date the current crime of conviction was
committed shall be referred to. If the state of Kansas does not have a
comparable person offense in effect
on the date the current crime of conviction was committed, the out-of-state
crime shall be classified as a nonperson crime.
(B) In designating a felony crime as person or nonperson, the felony crime shall be classified as follows:
(i) An out-of-state conviction or adjudication for the commission of a felony offense, or an attempt, conspiracy or criminal solicitation to commit a felony offense, shall be classified as a person felony if one or more of the following circumstances is present as defined by the convicting jurisdiction in the elements of the out-of-state offense:
(a) Death or killing of any human being;
(b) threatening or causing fear of bodily or physical harm or violence, causing terror, physically intimidating or harassing any person;
(c) bodily harm or injury, physical neglect or abuse, restraint, confinement or touching of any person, without regard to degree;
(d) the presence of a person, other than the defendant, a charged accomplice or another person with whom the defendant is engaged in the sale, distribution or transfer of a controlled substance or non-controlled substance;
(e) possessing, viewing, depicting, distributing, recording or transmitting an image of any person;
(f) lewd fondling or touching, sexual intercourse or sodomy with or by any erson or an unlawful sexual act involving a child under the age of consent;
(g) being armed with, using, displaying or brandishing a firearm or other weapon, excluding crimes of mere unlawful possession; or
(h) entering or remaining within any residence, dwelling or habitation.
(ii) An out-of-state conviction or adjudication for the commission of a felony offense, or an attempt, conspiracy or criminal solicitation to commit a felony offense, shall be classified as a person felony if the elements of the out-of-state felony offense that resulted in the conviction or adjudication necessarily prove that a person was present during the commission of the offense. For purposes of this clause, the person present must be someone other than the defendant, a charged accomplice or another person with whom the defendant is engaged in the sale, distribution or transfer of a controlled substance or non-controlled substance. The presence of a person includes physical presence and presence by electronic or telephonic communication.
(iii) An out-of-state conviction or adjudication for the commission of a felony offense, or an attempt, conspiracy or criminal solicitation to commit a felony offense, shall be classified as a nonperson felony if the elements of the offense do not require proof of any of the circumstances in subparagraph (B)(i) or (ii).
- S.B. 18 § 13, 2019 Leg., 88th Sess. (Kan. 2019). https://perma.cc/E76P-QXVZ.
- State v. Ewing, ____ P.3d at ____, 2019 WL 3518564 at *6–7 (quoting K.S.A. 2018 Supp. § 21-6811(e)); see also The Omnibus Bill replaced “a crime” in K.S.A. 2018 Supp. § 21-6811(e) with “misdemeanor.” S.B. 18 § 13, 2019 Leg., 88th Sess. (Kan. 2019). https://perma.cc/XZ9N-372A; Ewing, at *8.
- Kan. Stat. Ann. § 21-6811(e)(3) (2019).
- H.B. 2048, Supplemental Note, at 3. (Kan. 2019) https://perma.cc/CWM2-9J9K; see also State v. Wetrich, 412 P.3d 984 (Kan. 2018) (holding Defendant’s burglary conviction in Missouri was improperly classified as a person felony in Kansas because the Missouri burglary statute was broader than the Kansas statute in defining intent and the structure burglarized).
- Omnibus Crimes, Punishment, and Criminal Procedure Bill, S.B. 18, 2019-2020 Sess. (Kan., May 2019), https://perma.cc/U8RB-UFBW.
- State v. Wetrich, 412 P.3d 984, 993 (Kan. 2018); compare K.S.A. 21-3715 (2011) (“Burglary is knowingly and without authority entering into or remaining within any…”), with Mo. Rev. Stat. § 569.170 (1986) (“A person commits the crime of burglary in the second degree when he knowing enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein”).
- Id. at 992.
- Id. at 993.
- See State v. Ewing, ____ P.3d ____, 2019 WL 3518564 (Kan. Aug. 2, 2019) (quoting K.S.A. 2018 Supp. § 21-6811(e)); see also State v. Saucedo, ____ P.3d ____, 2019 WL 3518901 (Kan. Aug. 2, 2019).
- Kan. Stat. Ann. § 21-5430 (2013).
- Kan. Stat. Ann. § 21-5425 (2011). (“Unlawful administration of a substance is the administration of a substance to another person without consent with the intent to impair such other person’s physical or mental ability to appraise or control such person’s conduct.”)
- Kan. Stat. Ann. § 21-5705(d)(6)(B) (2012).
- S.B. 18 § 13(e)(3)(B)(i)(d), 2019 Leg., 88th Sess. (Kan. 2019).
- Mo. Rev. Stat. § 568.045(1)(4) (2014) (“A person commits the offense of endangering the welfare of a child in the first degree if he or she: . . . In the presence of a child less than seventeen years of age or in a residence where a child less than seventeen years of age resides, unlawfully manufactures, or attempts to manufacture compounds, possesses, produces, prepares, sells, transports, tests or analyzes amphetamine or methamphetamine or any of their analogues.”)
- Mo. Rev. Stat. § 568.045(2) (2014).
- HB 2048 Testimony by Kansas Association of Criminal Defense Lawyers (citing Kan. Stat. Ann. § 21-6812(f)).
- S.B. 18 § 13(e)(3)(B), 2019 Leg., 88th Sess. (Kan. 2019).