Persistent Sex Offenders and Due Process

Under K.S.A. 21-4704(j), if a defendant qualifies as a “persistent sex offender,” their presumptive guidelines sentence is double the maximum duration they would normally receive under the Kansas Sentencing Guidelines. In other words, take the top of the presumptive guidelines box for the defendant’s offense, and double that. This “persistent sex offender” status is usually sprung on the defendant at sentencing, after they have gone to trial or through the plea process without ever knowing the true seriousness of the offense for which they were charged.

I recently argued to the COA that the State is required to give notice in the complaint of the defendant’s “persistent sex offender” status. The argument is based on K.S.A. 22-3201(c), which creates a due process notice requirement by requiring a complaint, indictment, or information to “allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.” See State v. Masterson, 261 Kan. 158, 163-64, 929 P.2d 127 (1996).

K.S.A. 22-3201(c) does not state that the complaint must state the “severity level” of the offense. It states that the complaint must “allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.” To me, this means that the complaint is supposed to tell defendants the crime they are charged with, the elements of that crime, and essentially how serious the crime is (maximum punishment, etc.).

In Masterson, the KSC held that the complaint should allege the defendant’s prior convictions if they bump a defendant’s crime up from a misdemeanor to a felony. It seems to follow that the complaint should set forth a prior conviction that would make the presumptive sentence double the usual maximum KSG sentence.

I have had more than one client who received a sentence twice as high as the “maximum” they were told at the plea hearing because of the “persistent sex offender” sentencing provision of K.S.A. 21-4704(j). Requiring the State to allege the prior conviction in the complaint seems to be consistent with the legislative intent behind K.S.A. 22-3201(c) and would give defendants adequate notice of the real seriousness of the crime they are charged with.