Gross v. StateGross v. State
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- Knudson
Gordon E. Gross appeals from the district court’s denial of his motion requesting sentence modification under
We affirm.
In 1990, Gross was charged with attempted first-degree murder and felony theft after he stabbed a man in the chest numerous times and took the victim’s car. A preliminary hearing was held, and Gross was bound over for trial on both charges. Pursuant to a plea agreement, an amended Information was filed charging Gross with aggravated batteiy and felony theft; the attempted first-degree
Gross pled no contest to both charges, and consecutive terms of imprisonment were imposed by the district court.
The Department of Corrections, in its guidelines report, concluded Gross’ aggravated battery conviction was comparable to a severity level 4 aggravated battery conviction and, therefore, he was not eligible for modification of sentence under
Gross maintains, on appeal, that the district court erred; the aggravated battery conviction should be classified as a severity level 7 offense, not a severity level 4 offense.
In determining whether to modify a sentence under the KSGA for a crime committed prior to July 1, 1993, the court is to look at the actual conduct committed and to apply that conduct to an analogous crime under the KSGA. See State v. Fierro, 257 Kan. 639, 651, 895 P.2d 186 (1995). The court may consider any uncontested information to determine the actual conduct of the offender. See State v. Whitaker, 260 Kan. 85, 92-93, 917 P.2d 859 (1996).
The district court in its ruling concluded that the comparable crime under the KSGA was a violation of
Gross argues that the uncontested facts of his case establish only that he intended to injure another person and that intent to cause great bodily harm was disputed. He contends that the appropriate statutory provision is
Gross stabbed the victim six to nine times with a knife. At the plea hearing, in an effort to satisfy the district court as to Gross’ criminal intent, defense counsel asked that the district court consider as part of the factual basis to support his plea, Gross’ statements made during interrogation that he thought he had killed the victim and hoped that the victim would die. Subsequently, at the
We conclude the uncontested facts and the admissions by Gross are sufficient to establish his specific intent to cause great bodily harm. However, we also have concluded Gross’ specific intent is not a determinative factor as to whether there should be modification of his sentence.
Prior to its amendment in 1992, the crime of aggravated battery under
In reaching this conclusion, we are aware of the dicta in State v. Whitaker, 260 Kan. at 90-94, that implies aggravated battery is still a specific intent crime. However, in Whitaker, involving aggravated battery against a law enforcement officer, the Supreme Court held that the record did support the district court’s finding that great bodily harm had occurred and, therefore, the crime was appropriately classified as a severity level 3 offense. 260 Kan. at 94. We are persuaded that if the issue was squarely presented to the Supreme Court, it would conclude aggravated battery is no longer a specific intent crime.
Affirmed.