Opinion
No. 106,713.
2012-10-5
STATE of Kansas, Appellee, v. James ROWELL, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Gerald E. Wells, of Lawrence, for appellant. Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Gerald E. Wells, of Lawrence, for appellant. Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Rowell appeals the denial of his pro se motion to correct illegal sentence. In particular, Rowell contends that because he was improperly prosecuted as an adult, the sentencing court lacked jurisdiction to sentence him. We affirm the denial of the motion.
Factual and Procedural History
In 2002, the State filed an amended complaint under the Juvenile Justice Code, alleging Rowell was a juvenile offender. The State charged Rowell with seven counts ranging from attempted murder in the first degree to conspiracy to commit aggravated kidnapping. The crimes were all alleged to have occurred on or about April 11, 2002, when Rowell was 17 years old.
The State moved for authorization to prosecute Rowell as an adult. The State pointed out that by statute Rowell was presumed an adult for several reasons, including the severity of the crimes charged and his alleged use of a firearm. The district court appointed counsel for Rowell and set the matter for a certification hearing.
The State later amended the complaint to add the charge of possession of marijuana. Additionally, the State filed an amended motion for authorization to prosecute Roswell as an adult. The State now added allegations based on the eight factors listed in K.S .A. 38–1636(e) for “determining whether or not prosecution as an adult should be authorized.”
Rowell appeared with counsel at the certification hearing. At the hearing, Rowell's counsel conceded that his client was presumed an adult under K.S.A. 38–1636(a)(2). Rowell then testified on his own behalf, and the State followed with testimony from Sergeant Samuel Niemczyk of the Geary County Sheriff's Department. Sergeant Niemczyk identified for admission into evidence the affidavit he had prepared about the facts of Rowell's crimes, and several photographs of the victim.
The district court took the matter under advisement and issued its ruling at a later hearing. In ruling on the motion, the district court listed the eight factors found at K.S.A. 38–1636(e) and said it had considered them. The district court concluded that since Rowell had been unable to rebut the presumption, the State could prosecute Rowell as an adult.
The prosecutor asked the district court to make specific findings on each of the eight factors. The district court complied with the State's request, specifically citing each subsection and offering comment. For example, with regard to the “seriousness of the alleged offense,” K.S.A. 38–1636(e)(1), the district court noted “These are Severity Level 1 felonies. That in and of itself meets that criteria.” On “whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner,” K.S.A. 38–1636(e)(2), the district court stated the allegations in the amended complaint together with “the affidavit, and the pictures that were admitted,” were “sufficient.” Regarding whether the offense was against a person, K.S.A. 38–1636(e)(3), the district court found that the injured victim was a person. In all, the district court found that six of the eight factors favored adult prosecution.
The State then charged Rowell as an adult. Rowell pled no contest to three of the charges—attempted murder in the first degree, aggravated kidnapping, and aggravated robbery. On April 4, 2003, he was sentenced to a controlling term of 310 months' imprisonment.
Rowell appealed his sentence, but he conceded before this court that “he was sentenced in accordance with the current Kansas sentencing guidelines.” State v. Rowell, No. 92,560, unpublished opinion filed April 8, 2005. Our court dismissed the appeal for lack of jurisdiction. Slip op. at 3.
On January 24, 2011—almost 8 years after sentencing—Rowell filed a pro se motion to correct illegal sentence which is the subject of this appeal. Rowell argued, “Due to errors before, during, and after the [certification] hearing and the Due Process violations involved in those procedural errors,” his “adult convictions and sentencing are illegal for lack of jurisdiction over him by the District Court.” Rowell identified the errors as a failure to determine his competency, failure to reconvene the hearing to hear the rest of his evidence, and failure to follow the eight factors listed in K.S.A. 38–1636(e).
The district court summarily denied Rowell's motion. It found the district court that had conducted the certification hearing “made careful findings which did include his review of the eight statutory factors.” The district court concluded, “Nothing in the record convinces this court that the hearing was not convened properly or that it violated any statutory or constitutional requirements.” Rowell appeals.
Analysis
“An appellate court applies a de novo standard of review to a district court's summary denial of a motion to conect an illegal sentence under K.S.A. 22–3504.” State v. Jones, 292 Kan. 910, Syl. ¶ 2, 257 P.3d 268 (2011).
At the outset, Rowell does not argue, as he did in the district court, for a violation of due process. Nor does he renew on appeal the arguments that the district court failed to determine his competency or reconvene the certification hearing. All these issues are, therefore, deemed waived or abandoned on appeal. See State v.. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
For the first time on appeal, however, Rowell contends “there was no substantial competent evidence” supporting the district court's decision to authorize his prosecution as an adult. Because Rowell did not challenge the evidence supporting his prosecution as an adult in the district court, however, the district court had no opportunity to consider the argument. We therefore have nothing to review and conclude this issue is not properly before us. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008).
Even if we were to consider this point, Rowell omitted Sergeant Niemczyk's affidavit and the photographs of the victim from the record on appeal. Importantly, the district court specifically referred to these exhibits as evidence in support of its ruling on the motion. We are unable to fully evaluate the evidentiary basis for the district court's ruling without considering these exhibits. Because Rowell did not designate an adequate record, his claim of error also fails on this basis. See State v, Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). Rowell also asks us to consider his own testimony at the certification hearing, but we cannot reweigh the evidence or substitute our evaluation of it for the district court's assessment. See State v. Jones, 273 Kan. 756, 768, 47 P.3d 783,cert. denied537 U.S. 980 (2002).
Apart from the procedural hurdles Rowell has failed to navigate, we have carefully reviewed the evidence in the record. That review convinces us that there was sufficient evidence before the district court to support its findings and legal conclusions.
Finally, apart from the evidence itself, Rowell argues the district court made “no statutorily mandated findings” at the certification hearing and that this alleged failure was jurisdictional. We are not persuaded by Rowell's claim that the district court did not have jurisdiction to sentence him as an adult because the court failed to make statutorily-mandated findings during the certification hearing.
The judge at the certification hearing was required to consider the eight factors at K.S.A. 38–1636(e) because the presumption of adult prosecution under K.S.A. 38–1636(a)(2) applied to this case. See Jones, 273 Kan. at 769. As detailed earlier, the record shows the district court separately considered the eight factors and the evidence in support of each factor in arriving at its decision to allow adult prosecution of Rowell. The district court also discussed the question of an extended jurisdiction juvenile prosecution under K.S.A. 38–1636(a)(3), another issue Rowell mentions on appeal. We conclude the record does not support Rowell's contention that the district court made “no statutorily mandated findings.”
Affirmed.