KANSAS PLEA AGREEMENTS & SENTENCING
In Kansas City, Kansas, and across the state, your defense attorney's job covers a number of phases. Whether you are charged with a sex crime, misdemeanor or other felony, don't mistake being offered, or anticipating, a quick plea agreement as something you should mange on your own. That is for a number of reasons:
- Not all plea agreements are created the same. The Kansas prosecutor will likely offer you what they offer everyone else in your shoes, without consider your unique circumstances (ex. living outside of the State, your job, your medical needs, your lack of criminal history, drug treatment options, diversion, etc.). There are parts of those agreements that can, and must be, negotiated. For instance, depending on the type of crime you plead to you may have other negative consequences to (ex. loss of work, requirement to register, loss of housing, inability to later have your record sealed, etc.);
- Even though you have a plea agreement, the Court can sentence you to the maximum of each crime. First, whether you enter a plea of "guilty" or "no contest" (nolo contendere) matters. Second, once the Court has accepted that plea you can be sentenced to the maximum penalties of the crime, no matter what the State has agreed to propose. Finally, sentencing is it's own hearing and written and oral arguments can be made that impact the final sentence;
- A Pre-Sentence Investigation Report (PSI) will influence the actual outcome in your case. For all felony convictions a PSI report will be produced. This report will reveal prior criminal history (Criminal History Worksheet), social, emotional, financial, defendant's version, victim's statement, any psychological reports, drug and alcohol reports, and etc. concerns and be included. You must make formal objections to the report to prevent unjust sentencing; however, if you fail to do so all can be considered. The severity level of your crime can be raised based on your priors (State v. Johnson);
- Departure Motions. There is an opportunity to argue departure (durational and dispositional) but that must be done by written or oral motion. Your attorney will obviously argue departure down from the normal guidelines. The State can seek departure upward from the normal guidelines. Additionally, the Court, on its own, can seek departure up or down. This is based on mitigating and aggravating factors. Understand that filing a Departure Motion may not be appropriate in all circumstances, and that if you later violate conditions of supervision you after being granted departure, you can be facing some automatic imprisonment. These are based in case law, not personal opinion, and there are important steps that must be taken to maneuver this successfully;
- DUIs. There are mandatory minimums, in Kansas, related to DUI charges. The prosecutor cannot make you, and the Court will not accept, deals that allow you to escape those. Additionally, Diversion is only allowed: (a) once in a lifetime; (b) only if no accident, personal injury or death was involved in your case; and (c) you have no prior DUI (or similar) convictions or pleas;
- Drug Treatment. You must meet very specific criteria to be considered for diversion or standard drug treatment. You should seek legal advice about the nuisances.
- Diversion. If you have been told that Diversion is an option, be aware that it is not available for: (a) any class A or B felony, off-grid crime; (b) any nondrug severity level 1, 2 or 3 felony; (c) any recent drug severity level 1, 2 or 3 felon;, or (d) in domestic violence offences where other domestic violence diversion was granted two or more times in the previous five years . Additionally, you can only receive diversion once in your lifetime related to buying sexual relations. Diversions are not later considered "convictions" except for in DUI, domestic battery, buying sexual relations and involuntary manslaughter cases; and
- Sentencing Options. Even if the prosecutor is requesting jail time, and you may not qualify for Diversion, there are alternative to time in jail/prison. (ex. treatment, house arrest, probation (there negotiable levels and terms), fines and fees, work release, etc.). However, if you don't argue why alternatives are firmly based in case law then the Court nor the prosecutor has a duty to do it for. There are also special circumstances crimes that will prohibit, restrict or increase potential sentences (ex. aggravated endangering a child, gun related charges, drug charges, Jessica's Law crimes, crimes against law enforcement officers (LEO), etc.). Finally, you will want to consider if you will be facing concurrent or consecutive sentences.