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State v. Gordon

Court of Appeals of Kansas

November 14, 2014

STATE OF KANSAS, Appellee,
v.
GARY NEIL GORDON, SR., Appellant

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge.

SYLLABUS

BY THE COURT

1. Our Kansas Code of Criminal Procedure, at K.S.A. 2013 Supp. 22-4616, provides a special statutory designation for domestic violence offenses--a designation which carries with it a specific sentencing provision. The trier of fact is to make a determination in every criminal case as to whether the offense is one of domestic violence and therefore possibly subject to the domestic violence designation.

2. Applying the statutory domestic violence designation under K.S.A. 2013 Supp. 22-4616 is a multistep process: (1) If there is evidence in a criminal case that the offense in question is a domestic violence offense, the trier of fact shall determine whether the offense is indeed one of domestic violence; (2) If that determination is made, the district court shall place a domestic violence designation on the case; (3) If that designation is applied, the defendant shall be subject to a domestic violence assessment and shall follow its recommendations as part of his or her sentence.

3. There is an exception that may prevent a case from receiving a domestic violence designation. If the district court finds on the record that the defendant has never before committed or entered into a diversion for a domestic violence offense and that the offense in question was not used " to coerce, control, punish, intimidate, or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member," the court shall not apply the designation. K.S.A. 2013 Supp. 22-4616(a)(2).

4. After an initial determination that an offense is a domestic violence offense, the application of the domestic violence designation is the default and can only be lifted if the district court explicitly finds " on the record" that the two conditions set out in K.S.A. 2013 Supp. 22-4616(a)(2) have been satisfied. Without those findings, the designation stands, and the offender is subject to the domestic violence assessment as set out in K.S.A. 2013 Supp. 21-6604(p).

5. The district court is not required to make findings on the record that the conditions outlined in K.S.A. 2013 Supp. 22-4616(a)(2) have not been satisfied. The statute only requires specific findings on the record when the conditions have been satisfied.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., ARNOLD-BURGER, J., and LARSON, S.J.

OPINION

Page 721

Arnold-Burger, J.:

Since 2011, Kansas law has required that the trier of fact in a criminal case determine if there is evidence that the defendant committed a domestic violence offense. K.S.A. 2013 Supp. 22-4616. A domestic violence offense is defined as " any crime committed whereby the underlying factual basis includes an act of domestic violence." K.S.A. 2013 Supp. 21-5111(j). If the offense is determined to be one of domestic violence, the case receives a special domestic violence designation. K.S.A. 2013 Supp. 22-4616(a)(1). Application of this domestic violence designation to a particular case results in a court order that the defendant complete a domestic violence offender assessment and follow its recommendations as part of his or her sentence. K.S.A. 2013 Supp. 21-6604(p). However, the statute provides an exception to this rule if the court finds on the record that the defendant " has not previously committed a domestic ...


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