In re C.d.a.-C.

• Decision Date: 09 October 2015
• Docket Number: No. 112,908.,112,908.
• Citation: 360 P.3d 443,51 Kan.App.2d 1007
• Parties: In the Matter of C.D.A.–C., a Child Under Eighteen (18) Years of Age.
• Court: Kansas Court of Appeals

51 Kan.App.2d 1007

360 P.3d 443

In the Matter of C.D.A.–C., a Child Under Eighteen (18) Years of Age.

No. 112,908.

Court of Appeals of Kansas.

Oct. 9, 2015.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

Cheryl M. Pierce, assistant county attorney, for appellee.

Opinion

WALKER, J.

The juvenile, C.D.A.–C., pled guilty to two counts of aggravated indecent liberties with a child in Butler County District Court. The district court granted the juvenile probation for 36 months, emphasizing the juvenile needed to continue and successfully complete a sex offender treatment program. Twenty months into his probation, the State filed a motion alleging a probation violation because the juvenile was unsuccessfully discharged from his sex offender treatment program. After an evidentiary hearing, the district court found the juvenile had violated his probation and imposed a sentence in the juvenile correctional facility. The juvenile now appeals the district court's order revoking his probation.

Jurisdiction

Before reaching the merits of the juvenile's appeal, we must first address the State's contention that an order revoking probation is not an appealable order under K.S.A. 2014 Supp. 38–2380. The question becomes one of statutory interpretation.

Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy,299 Kan. 29, 32, 321 P.3d 12, cert. denied––– U.S. ––––, 135 S.Ct. 91, 190 L.Ed.2d 76 (2014). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Phillips,299 Kan. 479, 495, 325 P.3d 1095 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks,298 Kan. 672, 685, 317 P.3d 54 (2014).

The right to appeal is entirely statutory, and an appeal may only be entertained by Kansas appellate courts if the appeal “ ‘ “is taken within the time limitations and in the manner prescribed by the applicable statutes.” ’ ” Board of Sedgwick County Comm'rs v. City of Park City,293 Kan. 107, 111, 260 P.3d 387 (2011). This court must dismiss the appeal if it finds it does not have jurisdiction. 293 Kan. at 111, 260 P.3d 387.

The statute at issue is K.S.A. 2014 Supp. 38–2380. The relevant portion of the statute states:

“(b) Orders of adjudgment and sentencing.The juvenile offender may appeal from an order of adjudication or sentencing, or both. The appeal shall be pursuant to K.S.A. 2014 Supp. 38–2382, and amendments thereto.” K.S.A. 2014 Supp. 38–2380(b).

The statute also instructs that an appellate court may not review any sentence that is within the presumptive sentence for the crime or any sentence resulting from an agreement between the State and the juvenile which the sentencing court approves on the record. K.S.A. 2014 Supp. 38–2380(b)(2)(A)–(B).

At the probation violation hearing in the present case, the district court imposed a new sentence on the juvenile pursuant to K.S.A. 2014 Supp. 38–2368which provides in part:

“[I]f the court finds by a preponderance of the evidence that the juvenile offender violated a condition of probation or placement, the court may extend or modify the terms of probation or placement or enter another sentence pursuant to K.S.A. 2014 Supp. 38–2361, and amendments thereto.” (Emphasis added.) K.S.A. 2014 Supp. 38–2368(a).

The district court chose to forego modifying the terms of the juvenile's probation in favor of entering another sentence under K.S.A. 2014 Supp. 38–2361(a)(12)which allows a court to “[c]ommit the juvenile directly to the custody of the commissioner for a period of confinement in a juvenile correctional facility and a period of aftercare pursuant to K.S.A. 2014 Supp. 38–2369, and amendments thereto.”

K.S.A. 2014 Supp. 38–2369provides the sentencing matrix for juveniles. The district court sentenced the juvenile as a violent offender II as prescribed under K.S.A. 2014 Supp. 38–2369(a)(1)(B). Pursuant to the violent offender II provision, the court sentenced the juvenile to a term in the juvenile correctional facility until he reached 22 ½ years old with 6 months of aftercare. According to the statute, this sentence is presumptive. See K.S.A. 2014 Supp. 38–2369(a)(“the following placements shall be applied by the judge in felony or misdemeanor cases ... unless the judge conducts a departure hearing and finds substantial and compelling reasons to impose a departure sentence as provided in K.S.A. 2014 Supp. 38–2371, and amendments thereto”).

The State argues under K.S.A. 2014 Supp. 38–2380, a juvenile offender may only appeal from an order of adjudication or sentencing. The State contends this statute does not authorize appeals from probation revocations and therefore this court does not have jurisdiction to hear the appeal. The State also argues C.D.A.–C. is barred from appealing the new sentence imposed by the district court because it is a presumptive sentence under K.S.A. 2014 Supp. 38–2369(a)(1)(B).

In support of its argument, the State offers In re D.M.–T.,No. 102,241, ––– Kan.App.2d ––––, 2010 WL 2545666 (Kan.App.2010)(unpublished opinion), as authority. In D.M.–T.,a juvenile offender appealed the district court's denial of his “Post Trial Motion to Set Aside Judgment and Sentencing.” 2010 WL 2545666, at *1. A panel of this court examined the statutory language in K.S.A. 2009 Supp. 38–2380and found the plain language authorizes a juvenile offender to appeal only from an adjudication or sentence and does not cover adverse rulings in a postadjudication motion. 2010 WL 2545666, at *2. The Kansas Supreme Court affirmed the Court of Appeals' decision in In re D.M.–T.,292 Kan. 31, 249 P.3d 418 (2011). It found “the juvenile justice code made no provision for the appeal of the district court's order denying D.M.–T.'s post–appeal motion to set aside adjudication and sentence.” 292 Kan. at 35, 249 P.3d 418. The court rejected the juvenile's argument he should be entitled to the same statutory procedures that are afforded adult criminal defendants. 292 Kan. at 35, 249 P.3d 418.

In response, C.D.A.–C. argues he may appeal from the revocation of his probation because the probation revocation resulted in him receiving a new sentence, which is covered under K.S.A. 2014 Supp. 38–2380.

Various panels of this court have addressed juvenile offenders' appeals from probation revocations. See generally State v. J.H.,40 Kan.App.2d 643, 197 P.3d 467 (2007)(juvenile offender appealed court's revocation of probation for sufficiency of evidence after court revoked juvenile's probation and imposed adult sentence under extended juvenile jurisdiction); In re A.N.L.–D.,No. 107,345, ––– Kan.App.2d ––––, 2012 WL 3966695 (Kan.App.2012)(unpublished opinion) (juvenile offender appealed district court's order revoking probation, Court of Appeals found the decision to revoke probation was entirely discretionary). In both of these cases, panels of this court reviewed and affirmed the district court's decision to revoke the juvenile offenders' probations; however, neither case discussed or confirmed whether the court had the statutory jurisdiction to review the probation revocation.

Consequently, this issue seems to be one of first impression. In resolving this issue, it is important to mention that although juvenile offenders are entitled to similar constitutional protections as adults, they are not guaranteed the same statutory rights unless specifically provided for in the Juvenile Justice Code. In re P.R.G.,45 Kan.App.2d 73, 81, 244 P.3d 279 (2010); see also In re D.M.–T.,292 Kan. at 35, 249 P.3d 418(“we clarified that In re L.M.was not intended to grant juveniles the same statutory rights as adults and that juvenile procedures are not required to parallel adult criminal procedures”). In adult offender appeals, K.S.A. 2014 Supp. 22–3601(a)grants jurisdiction to the appellate courts for any appeal taken from a district court's final judgment in a criminal case. This broad definition covers more than just adjudications and sentences as provided by the Juvenile Justice Code, and an adult offender may therefore appeal from a probation revocation as it is a final judgment. See State v. Legero,278 Kan. 109, 117, 91 P.3d 1216 (2004).

The question then becomes...