Opinion
Nos. 108,876 108,877.
2013-08-2
In the Interest of E.J.D.
Appeal from Leavenworth District Court; Michael D. Gibbens, Judge. Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. Joan Lowdon, assistant county attorney, Todd Thompson, count/attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Michael D. Gibbens, Judge.
Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. Joan Lowdon, assistant county attorney, Todd Thompson, count/attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
E.J.D., while subject to extended jurisdiction juvenile prosecution (EJJP), claims there was insufficient evidence to justify revocation of his juvenile sentence and the stay of his adult sentence. EJ.D. also claim; the district court's denial of his motion for downward durational departure at the time his adult sentence was imposed was improper. We affirm.
Facts
Original Charges
In December 2008, the district court placed E.J.D., then a 15–year–old juvenile, in detention for his alleged criminal conduct after he was charged with aggravated robbery and criminal threat, felony crimes pursuant to K.S.A. 21–3427 and K.S.A. 21–3419(a)(l). He was placed at the Leavenworth Juvenile Detention Center. The State petitioned for him to be certified as an adult based upon E.J.D.'s age and his prior juvenile history.
In January 2009, E.J.D. was charged with two counts of battery against a juvenile detention officer, felony crimes in violation of K.S.A. 21–3413(a)(3)(C).
Extended Jurisdiction Juvenile Prosecution
In September 2009, in separate cases, E.J.D. pled no contest to aggravated robbery, a severity level 3, person felony under K.S.A. 21–3427, and battery against a juvenile detention officer, a severity level 5, person felony under K.S.A. 21–3413(a)(3)(C)(b). The State agreed to withdraw its motion to have E.J.D. prosecuted as an adult and dismissed several counts. The parties jointly moved for E.J.D. to be subject to Extended Jurisdiction Juvenile Prosecution (EJJP). The district court agreed.
After determining there was an adequate factual basis for the aggravated robbery charge and making determinations pursuant to K.S.A.2008 Supp. 38–2347(e), the district court found E.J.D. to be a Violent Offender II. At sentencing, E.J.D. was given both a juvenile and adult sentence, with his adult sentence being 94 months.
The court accepted E.J.D.'s plea to battery against a juvenile detention officer and imposed both a juvenile and adult sentence, with the adult sentence being 32 months to run concurrent with the aggravated robbery conviction. The adult sentences were stayed under K.S.A.2008 Supp. 38–2364(a)(2) so long as E.J.D. did not “violate the provisions of the juvenile sentence and on the further condition the juvenile not commit a new offense.”
E.J.D. did not move for a downward durational depart are sentence pursuant to K.S.A.2009 Supp. 21–4718 at the time the adult sentences were announced.
Alleged New Offense
In August 2011, the State moved to revoke the stay of the adult sentence as E.J.D. had committed new offenses involving battery of two residents of the juvenile correction facility in April and June 2011. At the revocation hearing several witnesses testified about the batteries. Video surveillance showing the events was presented to the court. E.J.D. testified and during his cross-examination conceded he escalated both situations from verbal to physical altercations.
E.J.D. denied he violated the conditions of his juvenile sentence. He argued no new offenses had been committed and he had not been convicted of a new offense. The State responded K.S.A.2011 Supp. 38–2364 only requires a new offense to be demonstrated by a preponderance of the evidence, rather than requiring proof of a conviction. The district court proceeded under a preponderance of the evidence standard pursuant to K.S.A.2011 Supp. 38–2364(b).
The district court took the motion for revocation of the stay and imposition of the adult sentences under advisement.
Motion for Downward Durational Departure
Prior to the court's ruling on the motion for revocation, E.J.D. filed a motion for a downward durational departure of his adult sentences. He presented the following mitigating factors:
• He was 15 years old at the time of the 2008 aggravated robbery;
• The value of the items taken was relatively minor;
• A paintball gun was used instead of a real gun;
• E.J.D. played a minor or passive role; and
• E.J.D.'s IEP showed he lacked substantial capacity for judgment at the time of the crime.
The State argued the motion was not timely because it was not filed at the time of sentencing, the Court of Appeals had already rejected the application of K.S.A.2011 Supp. 22–3716(b) in extended jurisdiction juvenile proceedings, and K.S.A.2011 Supp. 38–2371 was not applicable because it deals with juvenile sentences, not adult sentences.
At the hearing, E.J.D. argued the district court should retain the authority to modify his adult sentences, and submitted that the legislature would not have intended the statute to affect juveniles in the way it did. If juveniles were to be treated like adults in these situations, E.J.D. argued they should have at least the minimum rights adults have, including the right to move for a downward durational departure. In regard to K.S.A.2008 Supp. 38–2371, E.J.D. argued the legislature failed to account for downward durational departures in the language of the statute, and referred to Judge Leben's dissent in State v. I.A., No. 104,481, 2011 WL 3250584 (Kan.App.2011) (unpublished opinion).
The district court determined the State had proved by a preponderance of the evidence that E.J.D. had committed an act “that would constitute a criminal act if perpetrated by an adult.” The district court held the imposition of the adult sentence is mandatory in EJJP cases when the juvenile violates the conditions of the juvenile sentence. See In re E.F., 41 Kan.App.2d 860, 862–65, 205 P.3d 787 (2009). The district court revoked E.J.D.'s juvenile sentences, denied E.J.D.'s motion for a downward durational departure sentence, and revoked the stay of the adult sentences.
E.J.D. timely appeals.
Analysis
E.J.D. raises three issues: There was insufficient evidence he committed a new offense; K.S.A. 21–4718 should apply and allow a downward durational departure, with the adult criminal court system taking jurisdiction after the juvenile sentence is revoked; and K.S.A.2011 Supp. 38–2371 is unconstitutional because it fails to provide a mechanism for a juvenile to move for a downward durational sentencing departure.
Choice of Law
In 2009, E.J.D. was placed on EJJP. He violated the conditions of his EJJP in 2011. A panel of this court has previously ruled the law in place at the time of an EJJP revocation hearing governs. In re R.L.R., No. 107,129, 2012 WL 2926163, at *3 (Kan.App.2012) (unpublished opinion). The revocation hearing took place in September 2011. The statute (K.S.A.38–2364) was amended on July 1, 2011, and that version governs the revocation of E.J.D.'s EJJP and his motions for downward durational departure.
Sufficient Evidence of New Offense
E.J.D. claims the State failed to present sufficient evidence he committed a new offense to support revoking his juvenile sentences and imposing the adult sentences.
Standard of Review
K.S.A.2011 Supp. 38–3264(b) requires a juvenile's violation of the terms of a juvenile sentence or commission of a new offense be proven by a “preponderance of the evidence.” As this is a factual standard, appellate review is governed by the substantial evidence standard. State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). Substantial evidence refers to legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
The State produced eyewitness accounts of two separate battery incidents, supported by videos of the batteries. E.J.D. testified he struck the other residents and escalated the conflict from verbal to physical. The district court decided by a preponderance of the evidence E.J.D. committed two acts of battery. The district court revoked E.J.D.'s juvenile sentences under his EJJP. There was substantial competent evidence to support the district court's revocation of his juvenile sentences causing the stay of the adult sentences to be revoked.
Downward Durational Departure Motion Under K.S.A.2011 Supp. 38–2371 and K.S.A.2011 Supp. 21–6817
EJ.D.'s argument for a downward durational departure after violating the terms of his EJJP fails as his motion for a downward durational departure sentence was untimely. E.J.D. claims he had a statutory right under both K.S.A.2011 Supp. 38–2371 and K.S.A. 21–4718 (K.S.A.2011 Supp. 21–6817 at the time of his motion) to proceed with a downward durational departure motion when his EJJP was revoked. His argument fails. We will first consider K.S.A.2011 Supp. 38–2371's application and then proceed to discuss K.S.A.2011 Supp. 21–6817's application.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The intent of the legislature governs if it can be ascertained. However, when a statute is plain and unambiguous, an appellate court will not “speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction.” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
K.S.A.2011 Supp. 38–2304(a) clearly states the revised Kansas Juvenile Justice Code governs juvenile proceedings, except as specifically provided in K.S.A.2011 Supp. 38–2347 for juveniles to be prosecuted as adults and by EJJP In re D.E.R., 290 Kan. 306, 310, 225 P.3d 1187 (2010). EJ.D. agreed to EJJP, pursuant to K.S.A.2008 Supp. 38–2347(a)(3). At sentencing, the district court announced both a juvenile and an adult sentence, but stayed the adult sentence on the condition E.J.D. did not violate the conditions of his juvenile sentence. When E.J.D.'s juvenile sentences were revoked pursuant to K.S.A.2011 Supp. 38–2364(b), the stay of his adult sentence was revoked. His argument, challenging the imposition and duration of his adult sentence under K.S.A.2011 Supp. 38–2371, is inapposite. That statute governs only juvenile sentences, not adult ones, so it simply doesn't apply here. The statute refers to sentences imposed consistent with the placement matrix for juvenile offenses rather than the sentencing guidelines for adult crimes.
A sentence is effective when pronounced from the bench. State v. Jackson, 291 Kan. 34, 35–36, 238 P.3d 246 (2010). This effectiveness includes instances where the sentence is stayed. See State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993). E.J.D. did not exercise his statutory right to file a motion for a downward durational departure of his adult sentences prior to the sentencing hearing. Under K.S.A 2008 Supp. 38–2364(a)(2), the juvenile court is to impose and stay the adult sentence. In exercising that authority, the juvenile court must adhere to the statutory framework for adult sentences. The court has to look to the sentencing guidelines to determine a presumptive adult punishment. It can't fashion any sentence it wishes without regard to those requirements. And the court, therefore, may entertain departure motions from either side before pronouncing the adult sentence, as provided in K.S.A. 21–4718. See also K.S.A.2008 Supp. 38–2347(f)(4) (giving juvenile in EJJP cases all rights of defendants pursuant to the Kansas Code of Criminal Procedure).
E.J.D. next argues that after the stay of the adult sentences was lifted, the adult criminal court system would have jurisdiction under K.S.A. 21–4718 (now K.S.A.2011 Supp. 21–6817) to allow him to move for a downward durational departure.
Applicable Law
E.J.D. cites to K.S.A. 21–4718 as the appropriate law. However, as discussed above, the 2011 amendments to the statutes apply. In re R.L.R., 2012 WL 2926163, at *3. In 2011, K.S.A. 21–4718 was recodified at K.S.A.2011 Supp. 21–6817. This statute allows adults convicted of a felony to move for a downward durational departure sentence. Generally, this motion is heard on the day set for sentencing or at a hearing specifically set before the sentencing hearing.
E.J.D. fails to recognize his adult sentences were announced as part of his EJJP in 2009. He filed his downward durational departure motion in October 2011, long after he had been sentenced. Filing a motion for departure of his adult sentences when revocation of his juvenile sentence is pending is untimely. See In re J.T.P., No. 101,162, 2009 WL 1499367, at *5 (Kan.App.2009) (unpublished opinion). E.J.D.'s motion for downward durational departure at the time of his original sentencing would have been timely and subject to consideration pursuant to K.S.A.2009 Supp. 21–4718.
Once a juvenile sentenced under EJJP violates the conditions of the juvenile sentence, the district court, with or without a hearing, may revoke the juvenile sentence, which terminates juvenile jurisdiction. If a hearing is requested and the court finds by a preponderance of the evidence a violation has occurred, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence.” K.S.A.2011 Supp. 38–2364(b). The court held a hearing for E.J.D.'s benefit, found a violation of the conditions of his juvenile sentences by a preponderance of the evidence, revoked his juvenile sentences and imposed his adult sentences as required by K.S.A.2011 Supp. 38–2364(b).
E.J.D. also challenges the district court's ruling alleging K.S.A.2011 Supp. 22–3716 should allow him to seek modification of his adult sentences and cites to Judge Leben's dissent in State v. I.A ., 2011 WL 3250584, at *8–9, to support his position. The majority in State v. I.A. said:
“Ultimately, K.S.A. 22–3716 and K.S.A.2010 Supp. 38–2364 establish parallel processes, not dovetailed ones. They are not meant to operate in tandem but independently with two different groups of transgressors. K.S.A. 22–3716 deals with those already in the adult criminal justice system who have violated the terms of probation granted as part of a sentence previously imposed in that system. K.S.A.2010 Supp. 38–2364 deals with juvenile offenders who have violated the terms of a juvenile adjudication and, therefore, receive an adult sentence; but they have not violated the adult sentence—the event that triggers the application of K.S.A. 22–3716.” 2011 WL 3250584, at *6.
E.J.D., in his brief, fails to recognize the majority position in State v. I.A. has been followed by other panels of this court. See State v. J.D.H., 48 Kan.App.2d 454, 464, 294 P.3d 343 (2013) (holding the plain language of K.S.A.2010 Supp. 38–2364(b) does not give the district court “discretion to modify an adult sentence after finding that a juvenile has violated the terms and conditions of his or her juvenile sentence in an EJJP”); In re R.L.R., 2012 WL 2926163, at *3 (holding “[t]he district court in this case correctly held it had no option to consider R.L.R.'s motion for dispositional or durational departure,” noting “We look to the I.A. court's resolution of its case for guidance”); In re F.P.C., No. 104,497, 2011 WL 4716724, at *3 (Kan.App.2011) (unpublished opinion) (holding legislative silence does not impart judicial discretion that would “function in a way contrary to the otherwise clear purpose and intent of [K.S.A.2010 Supp. 38–2364(b) ]”). It should be noted the legislature amended 38–2364(b) in July 2010 and it now provides: “[U]pon agreement of the county or district attorney and the juvenile offender's attorney of record, the court may modify the adult sentence previously ordered pursuant to subsection (a)(2).” The State objected at the revocation hearing to the district court modifying E.J.D.'s adult sentences; therefore, there was no agreement with the county attorney pursuant to K.S.A.2011 Supp. 38–2364(a)(2) to modify the adult sentences previously ordered.
Constitutionality of Statutes
We recognize E.J.D. challenges the application of K.S.A.2011 Supp. 38–2371 as unconstitutional on the grounds it does not allow a juvenile offender to seek a departure sentence. When a statute's constitutionality is attacked, the statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe the statute as constitutionally valid, this court has the authority and duty to do so. Miller v. Johnson, 295 Kan. 636, 646–47, 289 P.3d 1098 (2012) (citing Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 [2009] ). We deem it unnecessary to address his complaint. E.J.D. had the right to move for a downward durational departure of his adult sentence at the time he was sentenced under his EJJP and failed to do so. See K.S.A, 2009 Supp. 21–4718. As we have noted, K.S.A.2011 Supp. 38–2371 deals only with juvenile sentences and, therefore, has nothing to do with E.J.D .'s attack on his adult sentence—the only issue before us.
Conclusion
We find there was substantial competent evidence of two batteries to support the district court's decision that E.J.D. violated the conditions of his juvenile sentences resulting in the stay of his adult sentences being revoked. We see no need to address E.J.D.'s constitutional challenge to K.S.A.2011 Supp. 38–2371 and decline to do so. E.J.D.'s motion for a downward durational departure was considered and denied by the district court. We affirm.
Affirmed.