State v. George, 71264

• Decision Date: 10 March 1995
• Docket Number: No. 71264,71264
• Citation: 891 P.2d 1118,20 Kan.App.2d 648
• Parties: STATE of Kansas, Appellee, v. Terry GEORGE, Appellant.
• Court: Kansas Court of Appeals

Page 1118

891 P.2d 1118

20 Kan.App.2d 648

STATE of Kansas, Appellee, v. Terry GEORGE, Appellant.

No. 71264.

Court of Appeals of Kansas.

March 10, 1995.

As Modified March 28, 1995.

Review Denied May 2, 1995.

Syllabus by the Court

1. K.S.A.1993 Supp. 21-4704(h) mandates a presumptive sentence of imprisonment for crimes in which a firearm was used. The statute does not preclude retroactive application of the sentencing guidelines to those crimes.

2. After the sentencing guidelines have been retroactively applied, the trial court may consider the stipulated facts underlying the defendant's plea of guilty or nolo contendere, in addition to the well-pleaded facts in the charging instrument and findings of fact in the journal entry, to determine whether the defendant used a firearm in the commission of a crime as set out in K.S.A.1993 Supp. 21-4704(h).

3. The appellate court has the same opportunity as the trial court to consider evidence submitted on stipulated facts and, thus, may determine de novo what the facts establish.

4. The concept of use of a firearm should be broadly construed in the context of K.S.A.1993 Supp. 21-4704(h).

5. The use of a gun as a club to hit another person constitutes use of a firearm under K.S.A.1993 Supp. 21-4704(h).

6. The presumptive sentence of imprisonment under K.S.A.1993 Supp. 21-4704(h) may be overcome when the sentencing court makes a finding on the record that a nonprison sanction will serve community safety interests by promoting offender reformation.

Hazel Haupt, Asst. Appellate Defender and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Robert Forer, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Before BRAZIL, P.J., and GERNON, J., and DAVID J. KING, District Judge, Assigned.

BRAZIL, Judge:

Terry George appeals the district court's denial of his request for conversion under the sentencing guidelines.

George struck his ex-wife in the face three or four times, hit her on the head with a handgun, and stabbed her in the leg with a "Rambo-style serrated knife." Pursuant to a plea agreement, George pled guilty to aggravated battery as defined in K.S.A. 21-3414(b), a class C felony. The State dismissed a charge of aggravated assault. George was sentenced to a term of 5 to 15 years, which the court later modified to 4 to 15 years. He committed the crime and was sentenced prior to July 1, 1993.

The Department of Corrections (DOC) submitted a sentencing guidelines report in October 1993 which indicated that the aggravated battery conviction constituted a severity level 7 offense. The report stated that George had one prior misdemeanor battery conviction, resulting in criminal history category I on the sentencing grid. The report stated that the guidelines sentence was 18 months. The report concluded that although a 7-I classification would otherwise merit sentence conversion, George was not eligible for retroactive application of the guidelines because he used a firearm in the commission of the crime.

George filed an objection to the report and requested a hearing. At the hearing, George argued that he did not use a firearm in the commission of aggravated battery. The court agreed that a firearm was not used in the commission of the offense but pointed out that the report erroneously categorized the aggravated battery as severity level 7. The court stated that the severity level should be 4, making George ineligible for sentence conversion. The court denied George's request for sentence conversion.

George argues that the district court erred in classifying his offense as a severity level 4 aggravated battery under the new statute. Statutory interpretation is a question of law and is subject to this court's unlimited review. State v. Williams, 19 Kan.App.2d 903, 904, 878 P.2d 854 (1994).

George was charged with aggravated battery pursuant to K.S.A. 21-3414, which states: "Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which ... (b) [c]auses any disfigurement or dismemberment to or of his person." The aggravated battery statute was amended in 1993. Under 21-3414(a), aggravated battery is defined in part as:

"(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or

(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted." K.S.A.1993 Supp. 21-3414(a).

Aggravated battery under (a)(1)(A) is a severity level 4 person felony; the other two classifications are severity level 7 person felonies. K.S.A.1993 Supp. 21-3414(b). The court translated the offense into subsection (a)(1)(A) because George pled guilty to K.S.A. 21-3414(b), intentionally applying force causing disfigurement of another person.

George pled guilty to a crime consisting of two elements: intent to injure and causing disfigurement or dismemberment. The charging instrument stated that George "did ... willfully apply force to the person of another ... with the intent to injure that person, and which did cause ... disfigurement or dismemberment to or of said person in violation of K.S.A. 21[-]3414(b)." K.S.A.1993 Supp. 21-3414(a)(1)(A), however, contains different elements: intentionally causing great bodily harm or intentionally causing disfigurement. The charging document does not mention either element.

In State v. Houdyshell, 20 Kan.App.2d 90, 95, 884 P.2d 437 (1994), the Houdyshells were charged and convicted of unlawfully applying force to the victim " 'with the intent to injure that person and which inflicted great bodily harm upon him or was done in a manner whereby great bodily harm, disfigurement, dismemberment, or death could be inflicted.' " The trial judge stated that he remembered the cases and concluded that the evidence showed the Houdyshells intentionally caused great bodily harm to the victim. The trial court then translated the offense into a severity level 4 under the new aggravated battery statute.

This court reversed, stating that severity level 4 aggravated battery under the new statute included an element not charged: intent to commit great bodily harm. This court concluded that since the charging document is a jurisdictional instrument upon which an accused stands trial, the court does not have jurisdiction to sentence a person for a crime consisting of elements not alleged in the charging document. 20 Kan.App.2d at 96, 884 P.2d 437.

Houdyshell might be distinguished by the fact that the court calculated the guidelines sentence for purposes of original sentencing pursuant to K.S.A.1993 Supp. 21-4724(f), since the crime was committed prior to July 1, 1993, and the Houdyshells were sentenced after July 1, 1993. There was no DOC report and no conversion hearing. Further, the Houdyshells did not plead guilty, but had a jury trial on the charges.

Houdyshell is otherwise on point. George was not charged with intent to disfigure or intent to inflict great bodily harm. He was charged with intent to injure his victim, and the injury caused disfigurement. His eligibility for sentence conversion cannot be calculated based on a crime for which he was not charged or convicted. Further, George's offense does not fit the definition in 21-3414(a)(1)(C) because it lacks the element of making physical contact in a rude, insulting, or angry manner. George's offense can only translate into the definition in 21-3414(a)(1)(B), which requires an intent to cause bodily harm inflicted in a manner that could cause disfigurement or death. This is a severity level 7 offense. George is thus eligible for sentence conversion. See K.S.A.1993 Supp. 21-4724(c)(1).

George alternatively argues that his offense translates into one of the definitions of reckless aggravated battery under K.S.A.1993 Supp. 21-3414(a)(2). Reckless aggravated battery is either a severity level 5 or 8 offense. K.S.A.1993 Supp. 21-3414(b). This argument is without merit. The charging document plainly states that George "willfully" applied force to his victim "with the intent to injure that person." Intentional acts are willful and not accidental, while reckless acts are done merely with a "realization of the imminence of danger" and an unjustifiable disregard for it. K.S.A.1993 Supp. 21-3201(b) and (c). George's crime clearly cannot be construed as any form of reckless aggravated battery.

The State argues that if this court concludes the district court erred in determining the severity level of George's offense, denial of the conversion could still be upheld on the basis that George used a firearm in the commission of the aggravated battery. The district court held that George did not use a firearm, but that since he committed a severity level 4 offense, his sentence would not be converted. In essence, the State argues that the district court correctly denied conversion, but erred in holding that George did not use a firearm.

K.S.A.1993 Supp. 21-4704(h) states that when a firearm is used to commit aggravated assault or aggravated battery, the offender's sentence shall be presumed imprisonment. The State and the district court coupled this provision with K.S.A.1993 Supp. 21-4724(b)(1), which states in part that

"persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, [or] in grid blocks 5-H, 5-I or 6-G of the nondrug grid ... and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act."

The State takes these provisions to mean that if a person uses a firearm in the commission of...