SESSION OF 2019
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2048
As Amended by Senate Committee on Judiciary

Brief*
HB 2048, as amended, would amend statutes in the
Kansas Criminal Code and the Code of Criminal Procedure
related to criminal history, appeals, and correction of illegal
sentences, as follows.

Criminal History
The bill would amend a statute in the Kansas Criminal
Code governing criminal history classification to make current
provisions for classification of an out-of-state crime as person
or nonperson applicable only to misdemeanors. The bill
would then add the following provisions applicable to out-of-
state felony crimes.
Out-of-State Felony Crimes
The bill would require an out-of-state conviction or
adjudication for the commission of a felony offense or an
attempt, conspiracy, or criminal solicitation to commit a felony
offense (out-of-state felony) be classified as a person felony if
one or more of the following circumstances is present, as
defined by the convicting jurisdiction in the elements of the
out-of-state offense:
● Death or killing of any human being;

____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
 ● Threatening or causing fear of bodily or physical
harm or violence, causing terror, physically
intimidating, or harassing any person;
● Bodily harm or injury, physical neglect or abuse,
restraint, confinement, or touching of any person,
without regard to degree;
● The presence of a person, other than the
defendant, a charged accomplice, or another
person with whom the defendant is engaged in the
sale, distribution, or transfer of a controlled
substance or non-controlled substance;
● Possessing, viewing, depicting, distributing,
recording, or transmitting an image of any person;
● Lewd fondling or touching, sexual intercourse, or
sodomy with or by any person, or an unlawful
sexual act involving a child under the age of
consent;
● Being armed with, using, displaying, or brandishing
a firearm or other weapon, excluding crimes of
mere unlawful possession; or
● Entering or remaining within any residence,
dwelling, or habitation.
Additionally, the bill would require an out-of-state felony
be classified as a person felony if the elements of the out-of-
state felony necessarily prove a person was present during
the commission of the offense, if the person present was
someone other than the defendant, a charged accomplice, or
another person with whom the defendant is engaged in the
sale, distribution, or transfer of a controlled substance or non-
controlled substance. “Presence of a person” would include
physical presence and presence by electronic or telephonic
communication.

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 An out-of-state felony would be classified as nonperson
if the elements of the offense do not require proof of any of
the above circumstances.
[Note: The bill appears to make additional amendments
by adding statutory references. However, these amendments
are made to reconcile conflicting versions of the statute and
are non-substantive.]

Claims in Appeals Related to Criminal Cases
The bill would amend a provision listing certain claims
arising from criminal cases that may be reviewed in “any
appeal” to specify that these claims may be reviewed in “any
appeal from a judgment of conviction.” The claims, which
would not be amended by the bill, are:
● A departure sentence resulted from partiality,
prejudice, oppression, or corrupt motive;
● The sentencing court erred in including or
excluding recognition of a prior conviction or
juvenile adjudication for criminal history scoring
purposes; or
● The sentencing court erred in ranking the crime
severity level of the current crime or in determining
the appropriate classification of a prior conviction
or juvenile adjudication for criminal history
purposes.
The bill would state these amendments are procedural
and are to be construed and applied retroactively.

Correction of Illegal Sentence
The bill would amend the statute governing correction of
an illegal sentence to specify an illegal sentence may be
corrected only while the defendant is serving such sentence
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and to define “change in the law” as a statutory change or an
opinion by a Kansas appellate court, unless the opinion is
issued while the sentence is pending an appeal from the
judgment of conviction.
The bill would state these amendments are procedural
and are to be construed and applied retroactively.

Effective Date
The bill would be in effect upon publication in the
Kansas Register.

Background
The bill was introduced by the House Committee on
Corrections and Juvenile Justice at the request of the Kansas
Sentencing Commission (KSC). As introduced, the bill would
have added provisions requiring consideration of the name
and elements of the out-of-state offense and whether it
prohibits similar conduct to that prohibited by the closest
approximate Kansas offense. The bill also would have added
a statement of legislative intent.
In the House Committee hearing, the KSC executive
director testified in support of the bill, stating it was intended
to respond to the Kansas Supreme Court decision in State v.
Wetrich, 307 Kan. 552 (2018). Representatives of the Kansas
County and District Attorneys Association (KCDAA) and
Johnson County and Sedgwick County District Attorneys’
Offices offered neutral testimony supporting the intent of the
bill but offering alternative language to address the Wetrich
decision. A representative of the Office of the Attorney
General provided written-only neutral testimony supporting
consideration of alternative approaches. A representative of
the Kansas Association of Criminal Defense Lawyers
(KACDL) testified in opposition to the bill, stating it is
unnecessary and unconstitutional.

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 The House Committee amended the bill with language
based upon the neutral conferees’ suggestions and added a
retroactivity provision.
In the Senate Committee on Judiciary hearing,
representatives of the Johnson County and Sedgwick County
District Attorneys’ Offices and the Office of the Attorney
General testified in support of the bill. A representative of the
KCDAA testified as a neutral conferee. The proponent and
neutral conferees testified generally they supported the bill
with the adoption of a proposed amendment that had been
distributed at the hearing that would further adjust the
language of the House Committee amendment, remove the
retroactivity provision from the criminal history portion, and
add provisions related to appeals and correction of illegal
sentences. A representative of the KACDL testified in
opposition to the bill, expanding on the concerns expressed
before the House Committee.
The Senate Committee adopted the amendment
supported by the proponents and neutral conferee.
According to the KSC’s prison bed impact assessment
on the bill, as introduced, in FY 2018 536 out-of-state felony
convictions were recorded in offenders’ five most recent and
severe felony convictions.
According to the fiscal note prepared by the Division of
the Budget on the bill, as introduced, the KSC indicates
enactment of the bill may affect prison admissions, bed
space, and the KSC’s workload, but the KSC cannot
determine what the effects would be. The Office of Judicial
Administration indicates enactment of the bill would have no
fiscal effect on the Judicial Branch.


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Statutes affected:
As introduced: 21-6811c, 21-6811
As Amended by House Committee: 21-6811c, 21-6811
As Amended by Senate Committee: 21-6811c, 21-6811, 21-6820, 22-3504