STEP 14 – PREPARING FOR SENTENCING
A guilty verdict rendered by a jury is only half of the judgment against the defendant. The trial court must determine the sentence to be imposed as well. Kansas utilizes a sentencing system based upon the severity of the crime convicted of and past criminal convictions of the defendant. These two factors are plugged into a sentencing grid to produce a presumptive sentence length and disposition of either imprisonment or probation. The judge may deviate from the presumptive sentence when he or she finds substantial and compelling circumstances warrant it. However, in order to present evidence of such circumstances, those facts must be discovered. This is accomplished through presentencing investigation.
Presentencing Report
To understand the investigation, it is helpful to start with what the court is looking for. Section 21-6813 outlines the requirements of a presentence investigation report. The report has to include detailed information about previous convictions of the defendants. Specifically, the factual circumstances of that crime, the classification of the offense on the “severity scale,” and any victim report from those crimes. This information is all used to establish the “criminal history,” component used with the sentencing grid. A defendant is also allowed to present his or her side of each conviction for the court’s consideration. The report may also include a risk assessment in the form of Level of Service Inventory-Revised (LSI-R) report, drug and alcohol report, and psychological evaluation.
Investigation
A court services officer will conduct the investigation and ultimately prepare the presentence report. This task is assigned to a third-party in an attempt to achieve a neutral, fact-based report. The attorneys will have the opportunity to argue about such facts at a sentencing hearing once they have been found and presented in the report. As the court noted in State v. Wood, the officer is given wide latitude in gathering the necessary information. This includes communication with either the state or defendant, witnesses, and record custodians. Unlike during the preparation for trial, each side is not entitled to be present for each of these interactions. So long as the results of such interactions are made known to each side, the officer can investigate as he/she sees fit.
A key component of the report is the criminal history worksheet. This document seeks to establish the required information regarding prior convictions for the defendant. The general rule is that all convictions apply in determining a criminal history score. Diversions are special kinds of plea agreements for driving while intoxicated charges that result in a dismissal of charges rather than a guilty plea. Diversions will not count unless the current charge being sentenced for involves driving while intoxicated, such as involuntary manslaughter or a subsequent DUI. The officer will generally support each conviction with a copy of the judgment. Necessary summaries and supporting documents, such as a victim’s report, will also be included.
The officer will also gather various other information about the defendant. This includes basic “pedigree” information, such as date of birth, social security number, and address, as well as more detailed law enforcement information such as KBI number (number assigned to an individual upon his or her first entry into Kansas’s criminal records database). A DNA sample will also be obtained from the defendant during this investigation process. Additionally, family and employment histories will be collected, as well as any connections the defendant has with his or her particular community. All this information gathering is relatively noncontroversial, but is still necessary for a complete report.
Finally, in appropriate situations, mental examinations of a defendant may take place. These examinations are performed in an effort to determine if a defendant needs special treatment while incarcerated. These examinations are proper considerations for a sentencing court, even though they lack the formal warnings required in police investigation activity. Thus, in State v. Schaeffer, the court allowed statements made during such an evaluation to be considered in sentencing the defendant without the need for any Miranda or other warnings. The distinction the court honed in on was the evidence’s use to determine sentencing, rather than to determine guilt.
Submitting The Report
After the investigation is complete, the officer turns in the sentencing report to the court. This document does become part of the public court records, with only very specific sections being redacted. Each side may challenge the information in the report on various grounds before the court. The judge will ultimately hear the arguments and determine if portions of the report should be struck and not considered in sentencing the defendant.
The difference in a person's criminal history score can dramatically impact the possible punishment range that a person is facing during sentencing. It is important that you sit down with an experienced criminal defense lawyer to determine if the score is accurate or if any challenges to prior convictions are warranted.
The next Stage in the Criminal Case process is "The LSIR and Getting it Done." Click the Link for More Information.