In re J.P. ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,790
In the Matter of J.P.
SYLLABUS BY THE COURT
In an extended-jurisdiction juvenile proceeding, the district court gives a juvenile
offender both a juvenile sentence and an adult sentence. The adult sentence is stayed on
the condition that the juvenile substantially comply with the terms of the juvenile
sentence and not commit a new offense. But if one of those conditions is violated, the
district court must impose the adult sentence. When it does so, the court's order imposing
the adult sentence is a final judgment appealable under K.S.A. 2019 Supp. 38-2347(e)(4)
and K.S.A. 2019 Supp. 22-3602(a).
Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 837, 439 P.3d 344 (2019).
Appeal from Wyandotte District Court; DELIA M. YORK, judge. Opinion filed June 26, 2020. Judgment of
the Court of Appeals dismissing the appeal is reversed, and the case is remanded to the Court of Appeals
with directions.
Michael C. Duma, of Duma Law Offices, LLC, of Olathe, argued the cause and was on the briefs
for appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Sheri L. Courtney,
assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general,
were with him on the briefs for appellee.
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The opinion of the court was delivered by
LEBEN, J.: When John P. was 14, the State filed charges against him for
aggravated assault, aggravated battery, and criminal discharge of a firearm at an occupied
vehicle. In a plea agreement, John agreed to plead no contest to the charges and to have
an extended-jurisdiction juvenile prosecution. That allowed the district court to enter both
a juvenile sentence (which can't run past age 23) and an adult sentence. The adult
sentence would be stayed—and not served—on the condition that John substantially
comply with the terms of the juvenile sentence and not commit a new offense.
John agreed to a longer juvenile sentence than would have been standard; under
that agreement, the court sentenced him to 72 months in a juvenile-detention facility plus
24 months of conditional release. For the conditional-release part of his juvenile sentence,
John would no longer be in the detention facility but would have to follow a variety of
restrictions that would be set out for him. The parties had no agreement on the length of
the adult sentence that would be entered; the court made it 237 months (or nearly 20
years) in prison.
When John was 18, he completed the 72-month sentence and began to serve the
24-month conditional-release period. As it started, the local area officials who would
supervise him gave him a contract to sign. Called the Unified Government's Department
of Community Corrections Supervision Conditions, that contract required that he obey all
laws, promptly report all contacts with law-enforcement officers, refrain from having or
using various drugs (including some that might be legal but were specifically listed), not
participate in gang-related activity, and get a substance-abuse evaluation. That contract
told John that if he violated the contract's terms, the court could resentence him to a new
disposition (specifically listing going back to the juvenile correctional facility) or impose
sanctions like house arrest, community service work, or extending the time on conditional
release.
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John also signed two other documents related to his release from detention—a
conditional-release contract with the Kansas Department of Corrections and a Juvenile
Intensive Supervision Contract with the Johnson County Department of Corrections.
Both of those agreements also had terms John would need to follow while on conditional
release, and both agreements said that violations of these contracts might result in
extending the time for conditional release or sending him back to the juvenile
correctional facility.
None of these conditional-release contracts mentioned that John's 237-month adult
sentence might be imposed if he failed to comply with their terms. But John was told this
orally by the court back when he was sentenced at age 14. The court then had told John:
"[V]ery importantly, the law is very strict. A violation of probation—like—like the
attorney said, let's say you get out and you're on probation, conditional release, and you
skip school, simple as that, [or] smoke marijuana, simple as that. The law says that this
court shall revoke your juvenile case and shall order you to go to the adult Department of
Corrections. It doesn't say I may, doesn't say I can, it says if there is a violation that's
shown, whether it's simple or not, it says the court shall revoke your juvenile sentence
and you shall go to the correctional facility. I just want you to know how important it is
that this is hanging over your head, and it's a heck of a hammer, okay."
Whether John remembered that when he went on conditional release we can't say.
But the court had accurately told John what could happen. There was a "heck of a
hammer" hanging over his head—one that the State could choose to use or choose to
leave in reserve.
The conditional-release contracts let the State use lesser sanctions to try to gain
John's compliance and improve his behavior if it chose to. But if the State chose instead
to use any substantial violation of the conditional-release terms as the basis for revoking
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the juvenile sentence and imposing the adult sentence, K.S.A. 2019 Supp. 38-2364(b)
requires the court to do it. If the State alleges a violation and the court finds that the
offender has "committed a new offense or violated one or more conditions . . . the court
shall revoke the juvenile sentence and order the imposition of the adult sentence . . . ."
K.S.A. 2019 Supp. 38-2364(b); see K.S.A. 2019 Supp. 38-2364(a)(2) (staying adult
sentence on condition that "offender substantially comply" with juvenile sentence and
"not commit a new offense"); In re A.D.T., 306 Kan. 545, Syl. ¶ 5, 394 P.3d 1170 (2017).
John began serving the 24-month conditional release in July 2015. A week before
the supervision would have ended, the State moved to revoke his juvenile sentence and
impose the adult one. The State cited several alleged violations of conditional-release
rules: testing positive for marijuana in November 2015; failing to get a substance-abuse
evaluation within two to four weeks of a failed drug test; being in a car in January 2016
with known gang members, firearms, and marijuana; and failing to notify his probation
officer of contact with law-enforcement personnel.
The district court found that John had violated the terms of conditional release and
imposed the adult sentence. John then appealed to the Court of Appeals. He raised three
claims: (1) that his due-process rights had been violated because the conditional release
contracts mentioned only noncompliance penalties that were far short of imposition of his
237-month adult sentence; (2) that the State didn't present enough evidence to show he
had violated the conditional release conditions; and (3) that the imposition of the lengthy
adult sentence was unconstitutional as cruel and unusual punishment.
The State responded in two ways. Although its brief addressed the merits of those
claims, the State first argued that no appellate court had jurisdiction over an appeal of the
order imposing the adult sentence.
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The State argued that K.S.A. 2019 Supp. 38-2380(b) allows a juvenile offender to
appeal only two things—"an order of adjudication," which is the juvenile-offender
equivalent of a finding of guilt in an adult proceeding, and "sentencing." Since both of
those took place in 2011 (when John was 14) and an appeal must be filed with 30 days,
appeal of the sentence imposed in 2011 would be untimely. See K.S.A. 2019 Supp. 38-
2382(c); K.S.A. 2019 Supp. 60-2103(a). But this is not an appeal of the sentence,
anyway: it's an appeal of the 2014 order imposing the sentence. Since K.S.A. 2019 Supp.
38-2380(b) doesn't authorize the appeal of a later order imposing the adult sentence in an
extended-jurisdiction juvenile proceeding, the Court of Appeals held that it lacked
jurisdiction and dismissed the appeal.
John then sought our review of the jurisdictional issue. In his petition for review,
he cited a statutory basis for jurisdiction that he had not cited to the Court of Appeals,
K.S.A. 2019 Supp. 38-2347(e)(4). It gives a juvenile "who is the subject of an extended
jurisdiction juvenile prosecution . . . the right to a trial by jury, to the effective assistance
of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal
procedure." John argued that this gave him the right to appeal the order imposing the
adult sentence. We granted the petition for review to consider the issue.
Ordinarily, of course, we decline to review legal arguments not made to the Court
of Appeals and first mentioned in a petition for review. Here the issue is jurisdiction,
something we can review even if no party brings it up. Williams v. Lawton, 288 Kan. 768,
779, 207 P.3d 1027 (2009). And appellate jurisdiction is determined by statute.
Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). Even if the parties
don't cite to all the potentially applicable statutes, they are still there, and we either
have—or don't have—jurisdiction based on them. We will therefore consider the merits
of John's argument.
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The focus of our jurisdictional inquiry is K.S.A. 2019 Supp. 38-2347(e)(4).
Because context is important, we will set it out in full; the key point is that a juvenile
subject to extended-jurisdiction proceedings gets "all [the] rights of a defendant" under
the Kansas Code of Criminal Procedure:
"A juvenile who is the subject of an extended jurisdiction juvenile prosecution
shall have the right to a trial by jury, to the effective assistance of counsel and to all other
rights of a defendant pursuant to the Kansas code of criminal procedure. Each court shall
adopt local rules to establish the basic procedures for extended jurisdiction juvenile
prosecution in such court's jurisdiction." K.S.A. 2019 Supp. 38-2347(e)(4).
Assuming for the moment that K.S.A. 2019 Supp. 38-2347(e)(4) applies here (we'll
discuss a bit later some arguments the State makes about that), we must determine
whether the Kansas Code of Criminal Procedure would provide the right to appeal this
order.
The Code of Criminal Procedure gives a defendant the right to appeal from any
adverse judgment: "Except as otherwise provided, an appeal to the appellate court having
jurisdiction of the appeal may be taken by the defendant as a matter of right from any
judgment against the defendant in the district court." K.S.A. 2019 Supp. 22-3602(a). An
appeal from a "final judgment" is usually taken to the Court of Appeals, as John did. See
K.S.A. 2019 Supp. 22-3601(a). The Code of Criminal Procedure doesn't define
"judgment" or "final judgment," but it incorporates the statutes and rules governing civil
appeals whenever nothing more specific is in the Code of Criminal Procedure. A civil
provision, K.S.A. 2019 Supp. 60-254(a), tells us that a judgment is "the final
determination of the parties' rights in an action."
Here, the district court order imposing John's 237-month adult sentence was a final
judgment—no further order of the district court was needed; this order sent John off to
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serve his adult prison sentence. So if John has "all [the] rights" an adult defendant would
have, he would have the right to appeal this order.
The State makes several arguments, though, that K.S.A. 2019 Supp. 38-2347(e)(4)
does not apply at all.
First, the State argues that interpreting K.S.A. 2019 Supp. 38-2347(e)(4) to
provide jurisdiction here would make another provision in the Revised Juvenile Justice
Code superfluous. That provision, K.S.A. 2019 Supp. 38-2380(a), lets a juvenile offender
appeal "from the order authorizing prosecution pursuant to K.S.A. 38-2347," which is the
provision setting up the extended-jurisdiction juvenile-prosecution process. If K.S.A.
2019 Supp. 38-2347(e)(4) would already provide that right to appeal, the State argues,
K.S.A. 2019 Supp. 38-2380(a) would be redundant.
We do not find this argument persuasive. The Legislature sometimes does enact
redundant provisions, and this might be a case in which that would make sense. The
provision giving the juvenile offender in an extended-jurisdiction proceeding all the
rights an adult defendant would have is a broad, general-purpose statement. The
provision giving a specific right to appeal the order authorizing extended-jurisdiction
proceedings is more narrowly tailored. That could be especially important to do if there is
any possible reading in which the general-purpose statement might not cover the situation
separately provided for in specific terms.
Here, we can think of two reasons that might be the case. One could argue that the
order for extended-jurisdiction proceedings is just a nonfinal (or interlocutory) order.
After all, it won't have any real impact on the juvenile offender unless the juvenile
sentence is revoked and the adult sentence imposed, as happened to John. Normally,
appellate courts don't hear appeals of interlocutory or nonfinal orders. See State v.
McGaugh III, 56 Kan. App. 2d 286, Syl. ¶ 3, 427 P.3d 978 (2018). So the specific
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provision in K.S.A. 2019 Supp. 38-2380(a) makes sure that a juvenile offender can
challenge the order that puts what John's judge called the "heck of a hammer" of an adult
sentence hanging over the juvenile offender's head. In addition, the general provision in
K.S.A. 2019 Supp. 38-2347(e)(4) has an interesting ambiguity in it with regard to the
special situation covered by K.S.A. 2019 Supp. 38-2380(a). That's because the juvenile
offender only gets these extra rights of adult criminal defendants once he or she "is the
subject of an extended jurisdiction juvenile prosecution." K.S.A. 2019 Supp. 38-
2347(e)(4). After entry of the order for extended-jurisdiction proceedings, K.S.A. 2019
Supp. 38-2347(e)(4) clearly applies—the juvenile is by that time "the subject" of the
extended-jurisdiction proceeding. But is the juvenile also "the subject" of it at the
moment this order is entered? Maybe. Perhaps even probably so. But there's enough
ambiguity to make it reasonable to make the point explicitly in K.S.A. 2019 Supp. 38-
2347(e)(4).
Second, the State notes that K.S.A. 2019 Supp. 38-2347(e)(4) is in the part of the
Revised Juvenile Justice Code that deals with trial rights, while K.S.A. 2019 Supp. 38-
2380 specifically focuses on appellate rights. Based on its location in the Code, the State
argues that K.S.A. 2019 Supp. 38-2347(e)(4) should not be applied to appellate rights at
all. The State also argues that the rights specifically mentioned in K.S.A. 2019 Supp. 38-
2347(e)(4)—"the right to a trial by jury [and] to the effective assistance of counsel"—are
trial rights.
But location within the Code is at best a weak clue to the section's meaning. See
State v. Schuster, 273 Kan. 989, 994, 46 P.3d 1140 (2002). If the Legislature wanted to
generally provide the trial and appellate rights of an adult defendant to the juvenile
offender subject to extended-jurisdiction proceedings, it had to put that provision
somewhere. And while jury-trial rights are limited to the trial-court setting, the right to
counsel in serious cases applies on appeal too. See K.S.A. 22-4503(a); Kargus v. State,
284 Kan. 908, Syl. ¶ 1, 169 P.3d 307 (2007).
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Third, the State argues that K.S.A. 2019 Supp. 38-2380(a) is a specific statute
targeted at appellate proceedings, while K.S.A. 2019 Supp. 38-2347 is a general statute
setting out the overall process from start to finish for extended-jurisdiction juvenile
proceedings. The State argues that the more specific statute should control over the more
general one. See State v. Toothman, 310 Kan. 542, 547, 448 P.3d 1039 (2019). But that
argument can be reversed: John argues that K.S.A. 2019 Supp. 38-2347(e)(4) is more
specific because it directly addresses the rights of juvenile offenders in extended-
jurisdiction proceedings. Neither argument is particularly persuasive here.
We conclude that the plain language of K.S.A. 2019 Supp. 38-2347(e)(4) gives a
juvenile offender "who is the subject of an extended jurisdiction juvenile prosecution . . .
all [the] rights" an adult defendant would have under the Code of Criminal Procedure.
That includes the right to appeal an adverse judgment, and this order was an adverse
judgment. So we have jurisdiction to consider the appeal.
Normally, the merits of an appeal like this would first be considered by the Court
of Appeals. See K.S.A. 2019 Supp. 22-3601(a); K.S.A. 2019 Supp. 38-2382(b). It didn't
do so after it found it lacked jurisdiction. Since we have determined that jurisdiction was
proper and that court has not yet addressed the merits of the appeal, we return the case to
the Court of Appeals for that purpose.
The judgment of the Court of Appeals dismissing the appeal is reversed, and the
appeal is remanded to the Court of Appeals to consider its merits.
NUSS, C.J., not participating.
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HENRY GREEN, JR., J., assigned.1
STEVE LEBEN, J., assigned. 2
1
REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed
to hear case No. 118,790 under the authority vested in the Supreme Court by K.S.A. 2019
Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A.
Johnson.
2
REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed
to hear case No. 118,790 vice Chief Justice Nuss under the authority vested in the
Supreme Court by K.S.A. 2019 Supp. 20-3002(c).
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