If a prior conviction of any crime operates to enhance the severity level for the current crime of conviction, elevate the current crime of conviction from a misdemeanor to a felony, or constitute elements of the present crime of conviction, that prior conviction cannot be counted in the offender’s criminal history. K.S.A. 2024 Supp. 21-6810(d)(10). Note, however, that prior convictions which elevate the penalty or punishment without raising the severity level of the current crime may be counted for criminal history purposes. State v. Pearce, 51 Kan. App. 2d 116, 342 P.3d 963 (2015).

The classification of a prior conviction will be made in accordance with the law applicable at the time of the current crime of conviction. See State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). We have found no cases that specifically apply Keel to marijuana priors, but in an unpublished Court of Appeals decision, State v. Patrick, the court applied Keel to a prior Driving While Habitual Violator conviction. When the defendant was convicted of Driving While Habitual Violator, it was a non-person felony. However, when he was convicted of the current offenses, it was classified as a non-person misdemeanor, thus applying Keel, the court said that it should have been classified as a misdemeanor. See State v. Patrick, No. 116,660, 2018 WL 4373053 (Kan. App. 2018) (unpublished opinion). Using this rationale, previous First Possession of Marijuana convictions would be classified as a B misdemeanor. Thus, it would not be scored for criminal history purposes. Previous Second Possession of Marijuana convictions would be scored as Class A non-person misdemeanors.

KSSC believes that pursuant to Kansas Supreme Court case law, reckless criminal threat convictions cannot be counted in an offender’s criminal history. The Kansas Supreme Court recently held that a defendant’s prior conviction for reckless criminal threat should not be counted in his criminal history because a “literal reading” of K.S.A. 21-6810(d)(9) implies that reckless criminal threat convictions can never be included in a criminal history score “because at one point in time, the Kansas Supreme Court determined that the reckless criminal threat statute violated the First Amendment.” See State v. Smith, 563 P.3d 697, 718 (Kan. February 14, 2025). 

Under K.S.A. 21-6810(d)(9), prior convictions of a crime defined by a statute that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes.

Deferred adjudications and other processes that result in a finding of guilt without punishment from a foreign jurisdiction may be counted in the defendant's criminal history. See State v. Macias, 30 Kan. App. 2d 79, 39 P.3d 85 (2002). However, an entry of a judgment of guilt by the foreign court is necessary to meet Kansas' definition of a conviction. See State v. Hankins, 304 Kan. 226, 372 P. 3d 1124 at 1132 (2016).

KSSC believes that the 2022 amendments would increase punishment for felony DUI offenders invoking the Ex Post Facto Clause, thus, sentencing courts should apply the version of K.S.A. 8-1567 in effect when the DUI was committed. The Kansas Supreme Court recently held that a sentencing court should apply the version of the DUI statute, K.S.A. 8-1567, in effect at the time of sentencing unless the Legislature amended the statutory provisions after the offense was committed and that amendment increases the defendant's penalty (or otherwise disadvantages the defendant as contemplated in Beazell). See State v. Patton, 503 P.3d 1022, 1032 (Kan. February 11, 2022). In those circumstances, the sentencing court must apply the law in effect when the offense was committed. Id. Because the 2022 amendments would increase the punishment for felony DUI offenders, KSSC believes sentencing courts should apply the version of K.S.A. 8-1567 in effect when the DUI offense was committed when sentencing offenders.

Yes, if the prior DUI is in the lookback period. Prior DUI convictions have been consistently and repeatedly treated as sentence enhancements, rather than elements of the crime. State v. Reese, 300 Kan. 650, 655, 333 P.3d 149 (2014). Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored. K.S.A. 21-6810(d)(10). Thus, if a prior DUI conviction is being used to enhance the current sentence, it would not be counted in an offender’s criminal history. However, if a prior DUI conviction is past the lookback period, the conviction would not be treated as an enhancement.

The primary crime is determined pursuant to K.S.A. 2024 Supp. 21-6819(b)(2). Generally, the crime with the highest severity ranking is the primary crime. Presumptive imprisonment crime is primary over a presumptive non imprisonment crime.

When an off-grid crime is part of a multiple count case, the primary on-grid crime should be used for determining the base guideline sentence, using full criminal history. See K.S.A. 2024 Supp. 21-6819(b)(2). Additionally, if the sentences are consecutive, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and post-release term is based on the off-grid sentence. Id.

When the offender is convicted of crimes sentenced on nondrug and drug grids, and when the crimes simultaneously have a presumption of imprisonment and probation, the sentencing judge shall use the crime which presumes imprisonment as the primary crime. Additionally, in sentencing with the drug grid and nondrug, both crimes having the same presumption of probation or imprisonment, the primary crime shall be the crime with the longest sentence term. See K.S.A. 2024 Supp. 21-6819(b)(2).

The Primary Offense will be the grid-felony. See State v. Fowler, 55 Kan. App. 2d 92, 101-102, 408 P.3d 119 (Kan.App. 2017).

Not unless the cases have been consolidated by the court. In Shipley, where a defendant argued that his two cases were effectively consolidated, the Court of Appeals found that the cases counted as prior convictions for criminal history purposes because the cases were never joined for trial. See State v. Shipley, 62 Kan.App.2d 272, 280, 510 P.3d 1194 (Kan. App. 2022). Shipley had no trial because he pleaded, but his cases were set for trial on the same day, he pleaded to both cases by a joint plea agreement on the same day, and he was sentenced in both cases on the same day. Id. at 276. Neither party asked the court to consolidate the cases for trial. See id. at 272.

The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the non-base sentences imposed to be served consecutively to the base sentence. The post-release supervision term will reflect only the longest such term assigned to any of the crimes for which consecutive sentences are imposed. Supervision periods shall not be aggregated. K.S.A. 2024 Supp. 21-6819(b)(4).

No. Offenders convicted of attempted possession are not eligible for SB 123. See State v. Perry-Coutcher, 45 Kan. App. 2d 911, 254 P.3d 566 (2011). Likewise, offenders convicted of conspiracy and solicitation to commit drug possession will not be eligible for SB 123 treatment.

In State v. Andelt, where the defendant committed a crime while on felony parole, the Court found that he should have been sentenced to SB 123 instead of prison because SB 123 is mandatory for qualifying offenders whereas K.S.A. 21–4603d(f)(1) gives district courts discretion to impose a prison sanction when probation is presumed if an offender commits a new crime while on felony parole. See State v. Andelt, 289 Kan. 763, 772, 217 P.3d 976 (2009).

No. A sentencing court need not impose probation with drug treatment when the three strikes rule applies. State v. Daniels, No. 119,946, 2019 WL 4725329, at *3 (Kan.App.2019) (unpublished opinion). Third or subsequent felony drug possession shall be presumed imprisonment. K.S.A. 2024 Supp. 21-6805(f)(1).

No. Because of the ruling in State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), KSSC believes that the prior conviction in this instance would be treated as a misdemeanor for SB 123 eligibility purposes.

Like Special Sentencing Rule 26, there is mandatory imprisonment language (shall) found in both Special Rules 27 and 29. However, a district court does not have discretion to sentence an offender otherwise qualifying for a certified drug abuse treatment program to imprisonment. Thus, there is a battle of the “shalls” found in Special Rules 27 and 29 and the SB 123 statute (K.S.A. 21-6824). If the Rule of Lenity is applied, then the offender would get SB 123+ treatment.

The Kansas Court of Appeals has found that SB 123 can include multiple conviction cases where the designated primary crime is a qualifying drug offense. See State v. Sims, Nos. 104,406, 104,407, 2011 WL 3891878 at *5 (Kan.App.2011)(unpublished opinion).