21-6818.
Departure sentencing; limitations.
(a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-6815, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-6815, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime.
(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment:
(1) The judge shall consider and apply the sentencing guidelines, to impose a sentence that is proportionate to the severity of the crime of conviction and the offender's criminal history; and
(2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term.
(c) When a sentencing judge imposes a prison term as a dispositional departure:
(1) The judge shall consider and apply the sentencing guidelines to impose a sentence that is proportionate to the severity of the crime of conviction; and
(2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.
(d) If the sentencing judge imposes a nonprison sentence as a dispositional departure from the guidelines, the recommended duration shall be as provided in subsection (c) of K.S.A. 21-6608, and amendments thereto.
History:
L. 2010, ch. 136, § 299; L. 2011, ch. 30, § 82; July 1.
Notes of Decisions
Cited in
23
cases (
17 in the last 5 years), 2015–2026 · leading case:
State v. Willis, 358 P.3d 107 (Kan. Ct. App. 2015).
State v. Willis, 358 P.3d 107 (Kan. Ct. App. 2015).
“” See K.S.A. 2011 Supp. 21-6818(a). At the sentencing hearing, Wilbs’ counsel reminded the district court that the jury deliberated for several hours and ultimately acquitted Willis on more than half of the charges.”
State v. Dunn, 444 P.3d 373 (Kan. Ct. App. 2019).
· cites it 9× “Instead, if the court departs, the defendant is sentenced pursuant to the provisions of K.S.A. 2018 Supp. 21-6818 and "no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.”
State v. Gibson (Kan. Ct. App. 2024).
· cites it 4× “For the first time on appeal, the State contends the district court could not depart to probation because the circumstances made the crime one of "extreme sexual violence" under K.S.A. 21-6818(a). But the statutory designation and the resulting limitation on sentencing require a…”
State v. Carlton (Kan. Ct. App. 2020).
· cites it 3× “Instead, if the court departs, the defendant is sentenced pursuant to the provisions of K.S.A. 2018 Supp. 21-6818 and 'no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.”
State v. Delaney (Kan. Ct. App. 2021).
· cites it 3× “K.S.A. 2020 Supp. 21-6818(b)(1); see K.S.”
State v. Clark (Kan. Ct. App. 2020).
· cites it 2× “" See K.S.A. 2019 Supp. 21-6818(b)(2) ("When a sentencing judge departs in setting the duration of a presumptive term of imprisonment .”
State v. Dunn (Kan. 2021).
· cites it 2× “It held that for convictions of extreme sexual violence, including the statutory rape for which Dunn pled no contest, K.S.A. 2018 Supp. 21-6818(a), prevents a sentencing judge from imposing a departure sentence to less than 50 percent of the standard penalty within the…”
State v. Dunn, 483 P.3d 446 (Kan. 2021).
· cites it 2× “It held that for convictions of extreme sexual violence, including the statutory rape for which Dunn pled no contest, K.S.A. 2018 Supp. 21-6818(a), prevents a sentencing judge from imposing a departure sentence of less than 50 percent of the standard penalty within the…”
State v. McComber (Kan. Ct. App. 2020).
“See K.S.A. 2019 Supp. 21-6818(a). Moreover, at his sentencing hearing, McComber brought up his 5 criminal history, or lack thereof, as a reason why the court should depart.”
State v. McMillan (Kan. Ct. App. 2021).
“See K.S.A. 2013 Supp. 21-6818(b)(2). The district court followed the 13 prosecutors' suggestion that the maximum permissible term of incarceration under the guidelines would be then 1,068 months, taking into account the aggravating factors on two of the three convictions and…”
State v. Morphis (Kan. Ct. App. 2021).
“See K.S.A. 2020 Supp. 21-6818(b)(1) (proportionality of sentence permissible factor to consider when granting departure).”
State v. Heit (Kan. Ct. App. 2021).
“The departure sentence shall be the sentence pursuant to the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, and, subject to the provisions of K.S.A. 2020 Supp. 21-6818, and amendments thereto, no…”
— K.S.A. § 21-6818(a) — 15 cases
State v. Willis, 358 P.3d 107 (Kan. Ct. App. 2015).
“” See K.S.A. 2011 Supp. 21-6818(a). At the sentencing hearing, Wilbs’ counsel reminded the district court that the jury deliberated for several hours and ultimately acquitted Willis on more than half of the charges.”
State v. Gibson (Kan. Ct. App. 2024).
“For the first time on appeal, the State contends the district court could not depart to probation because the circumstances made the crime one of "extreme sexual violence" under K.S.A. 21-6818(a). But the statutory designation and the resulting limitation on sentencing require a…”
State v. Dunn (Kan. 2021).
“It held that for convictions of extreme sexual violence, including the statutory rape for which Dunn pled no contest, K.S.A. 2018 Supp. 21-6818(a), prevents a sentencing judge from imposing a departure sentence to less than 50 percent of the standard penalty within the…”
State v. Dunn, 444 P.3d 373 (Kan. Ct. App. 2019).
“Instead, if the court departs, the defendant is sentenced pursuant to the provisions of K.S.A. 2018 Supp. 21-6818 and "no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.”
State v. Dunn, 483 P.3d 446 (Kan. 2021).
“It held that for convictions of extreme sexual violence, including the statutory rape for which Dunn pled no contest, K.S.A. 2018 Supp. 21-6818(a), prevents a sentencing judge from imposing a departure sentence of less than 50 percent of the standard penalty within the…”
— K.S.A. § 21-6818(b)(1) — 4 cases
State v. Dunn, 444 P.3d 373 (Kan. Ct. App. 2019).
“Instead, if the court departs, the defendant is sentenced pursuant to the provisions of K.S.A. 2018 Supp. 21-6818 and "no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.”
State v. Delaney (Kan. Ct. App. 2021).
“K.S.A. 2020 Supp. 21-6818(b)(1); see K.S.”
State v. Morphis (Kan. Ct. App. 2021).
“See K.S.A. 2020 Supp. 21-6818(b)(1) (proportionality of sentence permissible factor to consider when granting departure).”
— K.S.A. § 21-6818(b)(2) — 2 cases
State v. Clark (Kan. Ct. App. 2020).
“" See K.S.A. 2019 Supp. 21-6818(b)(2) ("When a sentencing judge departs in setting the duration of a presumptive term of imprisonment .”
State v. McMillan (Kan. Ct. App. 2021).
“See K.S.A. 2013 Supp. 21-6818(b)(2). The district court followed the 13 prosecutors' suggestion that the maximum permissible term of incarceration under the guidelines would be then 1,068 months, taking into account the aggravating factors on two of the three convictions and…”
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