Falk and Owens, P. A.

CATEGORIES OF CRIMES

A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction, a fine is authorized. In the State of Kansas, crimes are classified as felonies, misdemeanors, and traffic infractions.

Felony: A felony in the State of Kansas is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law. At common law, a felony was defined as a crime punishable by at least one year imprisonment. This is no longer correct for the State of Kansas as certain classes of felonies can carry as little as five months imprisonment, or probation, if the felon has little or no criminal history. As an example, destroying or altering the identification numbers on a vehicle is a Severity Level X non-person felony. The range of punishment is 5-13 months and in most instances will result in probation, not imprisonment.

Felonies are further broken down into two categories: (1) Person Felonies and (2) Non-person felonies. Person felonies are those felonies committed against other human beings. Robbery and Rape are examples of person felonies. Burglary of an occupied home would also be a person felony. Non-person felonies are mostly property crimes. Simple possession of most drugs would be non-person crimes.

Felonies, in Kansas State Court are broken down into one of three classifications. They are: (a) Drug Felonies; (b) Non-Drug Felonies; and (c) Off-Grid Felonies. Please see the attached grids, which appear at the end of this section. Drug Felonies are broken down into four different “severity levels” with a severity level of I being the worst, and severity level IV carrying the least possible sentence. The severity level of a drug felony is defined by statute. The severity level of each crime is displayed along the left column of the attached grid for drug offenses. Across the top axis of the grid is a person’s criminal history. This runs an A through I. An I has no prior criminal history or only one prior misdemeanor conviction. An accused person’s potential sentence is determined by finding the severity level of the crime charged, and then going across the grid until you reach the box corresponding with the accused’s prior criminal history.

Non-Drug Felonies, in Kansas, are classified by “severity level” also, but range from I to X. Again, this classification of the “crime severity level” is determined by statute. The same criminal history classification appears across the top of the chart, A through I. For either Drug or Non-Drug crimes, which are covered by the grid system, there are three separate colors of boxes that appear. A white box is presumptive imprisonment. That means that if the accused is convicted of the offense charged, the Court will presume that the appropriate disposition of the matter is imprisonment, and will sentence the accused to serve time in prison.

The Kansas sentencing Court can depart from the guidelines sentence if the Court finds that there are “substantial and compelling reasons” which warrant a departure. The departure can be either an upward or downward departure, and can be either dispositional or durational. A dispositional departure changes a presumptive imprisonment to presumptive probation, or vice versa. A durational departure changes the length of the sentence that someone is required to serve if convicted.

Off Grid Felonies in Kansas are crimes which are classified as felonies, but are punishable by either a sentence of death or life imprisonment, such as Murder in the First Degree or Capital Murder. Off grid felonies also include some minor infractions, such as a third or subsequent Driving While Under the Influence of Alcohol, where the sentence is served in the County Jail, rather than in the custody of the Secretary of Corrections. The punishment for these offenses, if convicted, is controlled by statute, and is not dependent upon any of the attached grids.

To look up a particular statute to determine what classification of crime is involved, you can go to the Kansas Legislatures Web Site. There you can insert the statute number for the statute involved and it will provide you with the current Kansas Statute on the subject.

Felonies and Misdemeanors in Federal Court are also governed by “sentencing guidelines” as well. These can be found by going to the United States Sentencing Commissions Web Site, www.ussc.gov. They have a similar grid system which classifies the “Offense Level” as being somewhere in a range of 1 to 43, and a criminal history category of I through VI. Because of the complexity of the Federal Sentencing Guidelines, it is best to discuss this with an attorney to determine where an accused person’s sentencing range is likely to fall if they are convicted.

Traffic Infractions: The State of Kansas has defined traffic infractions as violations of any of the provisions of K.S.A. 8-2118(c). Examples of traffic infractions would be failure to signal a lane change or speeding. Traffic infractions in the State of Kansas do not carry jail time, and are subject to a fine only.

Misdemeanors: In the State of Kansas, all crimes not classified as a felony or traffic infraction is a misdemeanor. Misdemeanors in the State of Kansas fall into one of four classifications. They are: (a) Class A Misdemeanors, which carry a possible penalty of up to one year in jail and a fine not to exceed $2,500.00; (b) Class B Misdemeanors which carry a possible sentence of up to six months in jail and a fine not to exceed $1,000.00; (c) Class C Misdemeanors which carry a possible sentence of not more than 30 days in jail, and a fine not to exceed $500.00; and (d) unclassified misdemeanors which specify their own punishment by statute. However, in the event that an unclassified misdemeanor does not have a penalty provision, then the punishment provisions for a Class C Misdemeanor apply.

RETAINING AN ATTORNEY

A defendant may retain an attorney at any stage of their case whether during the investigation (before being charged) up to the day of trial.

All criminal defendants have the right to an attorney to assist in their defense. The Sixth Amendment to the Constitution of the United States guarantees this right once adversary judicial proceedings have been initiated against the defendant. Being charged is enough for this right to attach.

The Fifth Amendment to the Constitution of the United States also guarantees the right to counsel during custodial interrogation (police questioning). The reason for this is the right against self-incrimination. The police are required to advise everyone they arrest of this right. Once that right is invoked, police questioning must cease. This right can be waived! Once the defendant has invoked his right by requesting to speak to an attorney he should not initiate conversation with the police.

If the defendant cannot afford an attorney, one will be appointed by the State to represent him. The appointed attorney can be a Public Defender, those attorneys employed specifically to help those who cannot afford legal counsel, or an attorney who has signed up to be appointed in criminal cases.

PRE-ARREST INVESTIGATIONS

Pre-arrest investigations take place after the suspect has been contacted by a law enforcement agency. Charges have not been filed yet and the suspect has not been arrested. This is the best time to contact an attorney. Your attorney can attempt to prevent charges from being filed or reduce the severity of the charges that will be filed.

ARREST

A law enforcement officer may arrest a person under the following circumstances:

1) The officer has a warrant commanding that the person be arrested;
2) The officer has probable cause to believe that a warrant has been issued for the person’s arrest in this jurisdiction or another jurisdiction for a felony;
3)The officer has probable cause to believe the person has committed or is committing a felony;
4) The officer has probable cause to believe the person has committed or is committing a misdemeanor; and

a) the officer has probable cause to believe the person will not be apprehended or evidence will be lost unless the person is immediately apprehended;
b) the person may cause injury to self or others or damage to property unless arrested; or
c) the person has intentionally inflicted bodily harm on another person.

5) Any crime except a traffic infraction or a cigarette or tobacco infraction has been committed by the person in the officer’s view.

Miranda Warnings: Generally, the police should read the Miranda warnings to everyone who is arrested. However, the failure to read Miranda warnings will not invalidate the arrest or any charges filed. Instead, the failure to read Miranda warnings may be grounds for the suppression of certain statements or confessions made by an accused person.

The primary reason for the giving of Miranda warnings is to inform the person being arrested that they possess the right against self-incrimination. A person cannot knowingly and voluntarily waive their right to remain silent if they are not fully cognizant of that right. Your Miranda warnings may not have been read to you at the time of arrest, but when the police in the State of Kansas are going to interview a suspect they present that person with a waiver of rights form that has your rights on it.

BOOKING

When a person is arrested, they are taken to a police station to be booked. Booking involves a series of routine questions generally used to ascertain any medical problems a person might have and to ascertain the proper identity of the person. The person will also be photographed and fingerprinted for identity purposes. The person will be searched and all personal belongings will be retained by the police while the person is in jail. This is called an “inventory search” and is generally just to identify everything the person had on them so those things can be returned upon release from jail.

POST ARREST INVESTIGATIONS

Post arrest investigations are performed after the person is arrested but before they are charged, generally to try and get enough information to see if the person should be charged. The suspect still has the right against self-incrimination and the right to an attorney. If at any time during police questioning the suspect asserts they want an attorney present, questioning must cease until an attorney is present, unless the suspect reinitiates conversation with the police.

At this point in the investigation the police are not required to release the police reports. Those reports do not have to be released unless the person is charged. However, an attorney might be able to get the police to provide their reports early.

DECISION TO CHARGE

The authority to charge a person with a crime lies with the prosecutor. In state cases this is the District or County attorney. In city cases, the City Prosecutor has the authority to file charges. The police DO NOT file charges. They merely make recommendations to the prosecutor.

FILING THE COMPLAINT

A prosecution is deemed commenced when a complaint is filed before a magistrate in a court having jurisdiction. The standard practice in Sedgwick County, Kansas is to file a “Complaint” setting out the facts that are alleged to have taken place, sworn to in an affidavit. To be valid, the complaint must set forth enough information to show a crime has been committed by the person charged. A prosecution is also deemed commenced when a Grand Jury returns an Indictment. This is a rare proceeding in the state of Kansas. However, in Federal Court, Grand Jury indictments are generally obtained in felony cases.

PRELIMINARY EXAMINATION

In Kansas State courts every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate, unless the warrant was issued from an Indictment of a grand jury. The preliminary examination shall be had within ten days of arrest or personal appearance by the defendant. The purpose of the preliminary examination is for the magistrate to determine if there is probable cause to believe a crime was committed and that the defendant committed the crime. If the magistrate does not find probable cause to believe the defendant committed a crime, the defendant will be released. If the magistrate finds probable cause to believe the defendant committed the crime the accused shall be bound over for trial.

At the preliminary hearing, the defendant has the right to confront witnesses against him and present evidence on his behalf. The defendant has the right to counsel at said hearing. The defendant can waive his right to a preliminary hearing and in such cases, the magistrate will order the defendant bound over for trial in the district court.

If the defendant is bound over for trial, the prosecutor shall file an information formally charging the defendant. If the complaint was drafted to meet the requirements of the information, it shall serve as the information. In most cases, the prosecutor simply files the complaint as a “complaint and information.”

ARRAIGNMENT

A defendant charged with a felony in an information shall appear for an arraignment upon such information in the district court no later than one working day after the order binding the defendant over for trial unless the defendant requests additional time. At the arraignment, the defendant is required to enter his plea in answer to the charges, either guilty, not guilty or nolo contendere (no contest). The judge at the preliminary hearing has the discretion to conduct arraignment at the end of the hearing.

Bail is set during arraignment. Bail is used as a kind of “insurance policy” that the defendant will appear before the court as ordered. The amount of bail is determined by the seriousness of the offense and by the judge. Bail can be as little as $0, if the person is released “on their own recognizance.” This is called an O.R. bond. If the person fails to appear before the court as ordered, a warrant will be issued for their arrest.

PRE-TRIAL MATTERS

Discovery: In criminal trials the prosecution has a duty to provide discovery upon request from the defense. Discovery generally includes police reports, medical and psychological examinations, photographs, diagrams and any physical evidence obtained for the case. The prosecution has the duty to disclose certain kinds of information to the defense. Neither side is allowed the element of surprise in introducing evidence at trial.

Motions: There are certain kinds of motions that defense attorneys generally file to aid in the defense. If there appear to be any facts to support either the arrest or search of a person as illegal, or if there are confessions or other incriminating statements, the defense attorney can file a motion to suppress that evidence. A motion to suppress must be heard before the judge outside the hearing of the jury and witnesses can be called and evidence presented to support the motion.

In certain cases the defense attorney might want to file a motion in limine to keep certain things out of the trial. Prior convictions and evidence of bad character or conduct are the most common types of evidence sought to be limited in this way. There are very limited purposes for the admission of these types of evidence because they can be overly prejudicial to the defense.

Plea bargaining: There is always a certain element of risk in trying a case before a jury or a judge. The defendant is ultimately placing his fate in the hands of twelve common people or in the hands of the judge, a person who has likely convicted hundreds of people. Sometimes it is advantageous to try and work out a deal. Some charges could be dropped if the defendant agrees to plead to one or two. The prosecution can agree to recommend a lesser punishment if the defendant cooperates with the State. All in all, the defendant can significantly decrease the amount of time he is looking at. Some people find this possibility better than trusting their fate to a trial.

TRIAL

All felony charges are tried to a jury unless the defendant waives his right to a jury trial. Generally, misdemeanors are tried before a judge unless the defendant formally requests a jury. A jury trial begins with Voir Dire, or jury selection. Once the jury is impaneled, the trial begins. Both bench trials and jury trials have the following process in common:

1. Opening statements: The prosecutor begins with their opening statement. The opening statement is used to give an overview of the evidence the prosecutor expects to introduce in the case. The defense attorney can then proceed with his opening statement, or reserve the statement for the close of the State’s case, or waive it altogether.

2. State’s case: Evidence is introduced through the testimony of witnesses. The prosecutor will call witnesses and ask direct questions to elicit information. This is called direct examination. Once the prosecutor finishes direct examination, the defense can cross-examine the witness. Cross-examination allows the defense to challenge the veracity of the information being provided by the State, either by exposing lies and inconsistencies or through an attack on the credibility of the witness. The State can then proceed with redirect examination, recross-examination and so on. This process will continue for all the State’s witnesses.

3. Defense case: Once the State rests, the defense then has the opportunity to present evidence. The defense does not have an obligation to present evidence, they do not even have to cross-examine the State’s witnesses if they feel there is no need. The defendant can literally sit through a whole trial without having done anything. This is because the burden of proof rests with the State. It is the State’s responsibility to prove beyond a reasonable doubt that a crime or crimes were committed and that the defendant committed them. The process is the same as for the State’s case.

4. Closing arguments: In a bench trial, once the defense rests closing arguments will be taken. In a jury trial closing arguments do not take place until after the jury is instructed by the judge as to the law applicable in the case. The State gets to go first. Both sides are limited to arguing based on facts that were introduced into evidence but they are given wide latitude in presenting their arguments. The defense goes next and the State gets to go again to present a rebuttal argument.

Jury Instructions

In jury trials, the judge must instruct the jury on the laws applicable to the case. It is then the jury’s duty to apply the law to the facts in the case to reach a verdict. The prosecution and the defense both get to submit recommended jury instructions to the judge. The judge will decide which instructions to give. The instructions are read to the jury in open court and written copies are given to the jury.

Deliberations

During deliberation the jury will decide whether the defendant is guilty or not guilty, using the instructions given to them by the judge. In the case of a bench trial, the judge will decide guilt or innocence.

SENTENCING

Sentencing is a court hearing where the judge determines punishment.

Felony Crimes

Kansas has comprehensive sentencing guidelines that determine the sentence imposed for a crime. The sentencing guidelines rank felony crimes by Severity Level. As an example, Aggravated Kidnapping is a Severity Level One offense. Certain crimes are called off-grid crimes. First Degree Murder is an off-grid crime.

In addition, the person’s criminal history helps to determine the sentence. A pre-sentence investigation report is prepared to determine the appropriate criminal history classification of the defendant. The sentence is determined by looking on a grid and matching the severity level with the appropriate criminal history. As an example, if a person has committed three non-person felonies in the past, they will have a criminal history score of E.

If this person is convicted of Aggravated Kidnapping, the appropriate grid box would be I-E. Each grid box contains three numbers: a high number, a mid number, and a low number. The middle number is the normal sentence for that grid. The high number is used when the judge finds aggravating circumstances. The low number is used when the judge finds mitigating circumstances. The judge has discretion to choose any number within the box. In our example, the grid box for I-E shows the sentencing range to be 246 months, 234 months, and 221 months.

The Kansas Sentencing Guidelines use different grids for drug crimes and non-drug crimes. Drug crimes range from Severity Level One (third subsequent possession, manufacture of a controlled substance) to Severity Level Four (possession of cocaine-first offense). Non-drug crimes range from Severity Level One to Severity Level Ten.

Each grid box is broken down into presumptive imprisonment, presumptive probation, and “border boxes.” Border boxes are presumptive imprisonment but the judge has the discretion to choose probation by making “border box findings.” Border box findings are basically mitigating circumstances such as the defendant obtaining drug treatment (for crimes where drugs were a factor) or if the person qualifies for community corrections. The rules for sentencing are fairly complex so you should ask your attorney to explain them more fully to you.

Misdemeanor crimes

The punishment for misdemeanors is controlled by each individual statute.

Traffic infractions

The punishment for traffic infractions are also listed by statute.

Collateral consequences

In addition to the sentence imposed by the court, a conviction can have a number of independent consequences. Persons convicted of a felony lose their right to bear firearms. Certain felony convictions require the person to submit DNA or be subject to periodic testing of blood, breath or urine. The right to bear firearms can also be taken away for certain misdemeanor convictions. Federal law mandates persons convicted of domestic violence give up this right. This is not a comprehensive list.

APPEAL

If convicted, the defendant has an absolute right to appeal the conviction. In Kansas, an appeal is taken to the Kansas Court of Appeals. Certain kinds of cases are appealed directly to the Kansas Supreme Court. All Severity Level One convictions are appealable to the Kansas Supreme Court. If you lose your appeal in the Kansas Court of Appeals you can appeal that decision to the Kansas Supreme Court.

POST RELEASE SUPERVISION

Upon completion of the prison-portion of a sentence, the person will be released to serve a term of post-release supervision, plus any amount of good-time credit earned while in prison. Post-release supervision is conducted just like probation, with the person reporting regularly to a corrections officer.

EXPUNGEMENT

Expungement means the sealing of records so that only the person convicted or arrested and certain criminal justice agencies have access to the records. Arrests, convictions and diversion agreements can be expunged if they meet certain criteria.

Download Drug Grid Charts

2003 Drug Grid Download in Adobe .pdf format

2003 Non-Drug Grid Download in Adobe .pdf format