Opinion
No. 107,398.
2013-01-11
In the Matter of S.R.M.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge. Laura B. Shaneyfelt, of Wichita, for appellant. Julie A, Koon, assistant district attorney, of Wichita, for appellee.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge.
Laura B. Shaneyfelt, of Wichita, for appellant. Julie A, Koon, assistant district attorney, of Wichita, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J. and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
In March 2009, the State charged S.R.M., a juvenile, with numerous counts of burglary and theft. The State filed a motion requesting authorization for adult prosecution. Ultimately, S.R.M. and the State entered into a plea agreement whereby he would enter a plea to 36 counts, the State would drop its motion for adult prosecution, and the parties would agree to extended juvenile jurisdiction prosecution (EJJP) under K.S.A.2009 Supp. 38–2347. At the plea hearing the district court specifically asked S.R.M. if he wanted to enter into the EJJP proceedings. After the court informed him that he would have to give up his right to have a determination as to whether he was to be prosecuted as a juvenile or as an adult, S.R.M. said that he wanted to be sentenced under the EJJP statute.
The court informed S.R.M. of the possible range of adult sentences, and S.R.M. pled no contest to 19 counts of burglary, 5 counts of felony theft, and 12 counts of misdemeanor theft. At sentencing, the State and S.R.M. asked the court to impose the mid-range adult prison sentence, which was 27 months based on S.R.M.'s criminal history category and the severity level of his most serious offense. The court explained to S.R.M. that under the EJJP proceedings it would impose two sentences—one juvenile and one adult. It would stay the adult sentence and impose the juvenile sentence of probation; but if S.R.M. violated the conditions of the juvenile probation, he would be subject to the adult sentence. S.R.M. said that he understood. The court ordered and stayed a 27–month adult prison sentence and imposed 24 months of intensive supervision juvenile probation. Although advised of his right to appeal, the record does not indicate that S.R.M. ever appealed his sentence.
On April 20, 2011, the intensive supervision officer filed a report with the court alleging that S.R.M. had failed to comply with the conditions of his probation. After a hearing, the court found that S.R.M. had violated the conditions of his juvenile probation. The court did not order S.R.M. to serve the 27–month adult prison sentence; rather, it requested further argument on whether it could sentence S.R.M. to adult probation. At a later hearing, the court concluded that its only option was to order S.R.M. to serve the previously imposed 27–month sentence. S.R.M. timely appealed.
Did the District Court Have Jurisdiction over the EJJP Case?
Jurisdictional issues and statutory interpretation are questions of law subject to unlimited review. State v. Ellmaker, 289 Kan. 1132, 1141, 221 P.3d 1105 (2009), cert. denied––– U.S. ––––, 130 S.Ct. 3410, 177 L.Ed.2d 326 (2010); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). S .R.M. argues that the district court did not have jurisdiction because the State never explicitly filed a motion requesting EJJP. His argument on this point is unpersuasive.
Pursuant to K.S.A.2009 Supp 38–2347(f)(3), the district court can designate the proceedings as an EJJP after rejecting the State's motion for adult prosecution. In re D.D.M., 291 Kan. 883, 889, 249 P.3d 5 (2011). Moreover, a defendant can stipulate that EJJP proceedings are appropriate. In re S.M.D., 26 Kan.App.2d 165, 169–70, 280 P.2d 1028,rev. denied 267 Kan. 889 (1999). Here, the State first filed a motion requesting adult prosecution of S.R.M ., but before the court decided the motion, the parties stipulated to EJJP proceedings. K.S.A.2009 Supp. 38–2347(a)(3) did not require the State to file a motion to designate the proceedings as EJJP. Jurisdiction in the district court was proper.
Did the District Court Err in Not Placing S.R.M. on Adult Probation, in the Absence of Dispositional Departure from the Sentencing Guidelines?
S.R.M. next argues that the district court erred in not placing him on adult probation in the absence of any dispositional departure from the sentencing guidelines. He would contend, in essence, that the imposition of the original adult prison sentence was invalid because it completely disregarded the presumptive probation prescribed for S.R.M.'s criminal history category and the severity level of his principal offense.
S.R.M. candidly concedes that this court has found in several cases that under the EJJP statute, upon a finding that the juvenile violated the conditions of juvenile probation, the district court must impose the adult sentence previously ordered and has no discretion to modify that adult sentence. In re E.F., 41 Kan.App.2d 860, Syl. ¶ 3, 205 P.3d 787 (2009); State v. J.H., 40 Kan.App.2d 643, 646, 197 P.3d 467 (2007); State v. I.A., Nos. 104,481, 104,482, 2011 WL 3250584 (Kan.App.2011) (unpublished opinion); In re R.L.R., No. 107,129, 2012 WL 2926163 (Kan.App.2012) (unpublished opinion).
S.R.M. would distinguish those cases by pointing out that in each of them, the juvenile's adult sentences fell within the presumptive prison portion of the sentencing guidelines and none of the prior published decisions addressed the issue of whether a presumption of probation could apply to an adult sentence under EJJP. In State v. I.A., this court left open the possibility that the adult sentence imposed could include probation or another nonprison sanction upon a dispositional departure, although in that case LA. was subject to presumptive prison and had negotiated away any possibility of adult probation in his EJJP plea agreement. State v. I.A., 2011 WL 3250584, at *6.
We have not been directed to, nor do we find, any provision of the EJJP procedure or any special rule under the sentencing guidelines which would mandate that a presumption of probation would be inapplicable to the adult sentence imposed and stayed under EJJP. In the instant case, for S.R.M. to have been sentenced to an adult prison sentence without the guidelines presumption of probation would have required either a motion for dispositional departure or a finding that S.R.M. had specifically negotiated away any possibility of probation by his EJJP plea agreement. K.S.A. 21–4716(a)—now codified at K.S.A.2011 Supp. 21–6815(a)—requires that if atrial court departs from the presumptive sentence or disposition set forth in the sentencing guidelines, there must be a finding, stated by the judge on the record at the time of sentencing, of substantial and compelling reasons for the departure. (Emphasis added.) See State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008).
The record of proceedings in this case is silent regarding the presumption of probation. There is nothing in the written plea agreement, nor anything mentioned in the plea colloquy or in the sentencing colloquy, which indicates that either S.R.M., the State, or the trial court addressed the issue. The written plea agreement and the discussion among counsel and the trial court are ambiguous. They simply do not clearly and unequivocally address whether the parties negotiated a recommendation for an adult sentence that included or excluded probation. There is no specific waiver or any motion for dispositional departure, and the trial court provides no statement on the record of any substantial or compelling reasons why the presumption of probation was not applied in imposing the contingent adult sentence. (The standard form “Journal Entry of Judgment” does indicate that there is a presumption of probation applicable to the adult sentence, but it also refers to a “Special Rule” as applicable; however, the “Special Rule” cited merely sets forth the EJJP procedure for imposing both a juvenile and an adult sentence and staying the adult sentence during juvenile probation. The cited “Special Rule” does not address the issue of applicability of presumptive probation.)
Although the trial court has no discretion to modify an appropriate adult sentence previously imposed and stayed, the trial court would have authority to correct an illegal or invalid sentence. Accordingly, we reverse the judgment of the district court imposing the adult sentence on S.R.M. without adult probation, and remand for consideration of the presumption of probation as to S.R.M .'s originally imposed adult sentence. In making that determination, the trial court can and should consider what agreement, if any, the parties negotiated regarding probation for S.R.M. as part of the adult sentence. The trial court should then impose the appropriate adult sentence, including any findings necessary for that disposition.
Does K.S.A.2009 Supp. 38–2364(b) Violate the Constitutional Separation of Powers Doctrine?
S.R.M. also argues that the EJJP statute, particularly K.S.A.2009 Supp. 38–2364(b), violates the separation of powers doctrine by prohibiting the sentencing court from exercising discretion to modify and/or to impose the adult sentence upon a finding that the juvenile has violated probation.
The constitutionality of a statute is a question of law over which this court has unlimited review. This court presumes statutes to be constitutional, resolving all doubts in favor of validity. State v. Beard, 274 Kan. 181, Syl. ¶ 2, 49 P.3d 492 (2002). While the doctrine of separation of powers is inherent to our form of government composed of three distinct branches—legislative, executive, and judicial—absolute separation of powers is impossible and powers sometimes overlap.
The legislative branch has the power to describe crimes and prescribe punishments. The judicial branch has the power to determine whether an offense has been committed and to assess punishment. Under EJJP, the sentencing court had discretion when it initially imposed and stayed the adult sentence. The legislature exercised its power by prescribing the originally imposed sentence as punishment for violation of EJJP probation. Although there is some overlap in this case between powers of the legislature and powers of the judiciary, the legislature does not usurp the discretionary assessment powers of the judiciary, and K.S.A.2009 Supp. 38–2364(b) does not violate the constitutional separation of powers doctrine.
Reversed and remanded with directions.