The KSC framed the question as "whether a defendant convicted of a felony drug offense qualifying for a certified drug abuse treatment program under K.S.A. 21-4729 may be sentenced to prison under K.S.A. 21-4603d(f)(1), which authorizes a departure prison sentence where the underlying offense was committed while the defendant is on felony parole." The court held:
We conclude that the plain language of K.S.A. 21-4729 and K.S.A. 21-4603d makes certified drug abuse treatment programs mandatory for individuals who qualify for such programs under K.S.A. 21-4729. A district court does not have discretion to sentence an offender otherwise qualifying for a drug abuse treatment program to imprisonment.The court adopted the COA's reasoning set forth in State v. Casey, 42 Kan. App. 2d 309, 211 P.3d 847 (2009), blogged about here.
Thus, if a defendant qualifies for SB 123 drug treatment, the sentencing court is required to order drug treatment despite the existence of any special sentencing rule that might make the sentence presumptive imprisonment.