In re K.C.H., 112,385.
| Decision Date | 23 October 2015 |
| Docket Number | 112,385. |
| Citation | 358 P.3d 877 (Table) |
| Parties | In the Matter of K.C.H., DOB: 1993 |
| Court | Kansas Court of Appeals |
Michael X. Llamas, of Llamas Law, LLC, of Newton, for appellant.
Jason R. Lane, assistant county attorney, for appellee.
Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.
K.C.H. pled no contest to one count of rape in an extended jurisdiction juvenile proceeding. He received both a juvenile adjudication—which included time in a juvenile correctional facility and aftercare—and an adult sentence—which was stayed on the condition that he not violate the provisions of his juvenile adjudication or commit a new offense. Following his release from a juvenile detention facility, K.C.H. was placed on conditional release. A few months later, the State filed a motion to revoke his conditional release. K.C.H. admitted to the allegations in the motion to revoke. As a result, the district court revoked his conditional release and ordered him to serve his adult sentence. Because it appears from the record that the district court believed that it was required to order that K.C.H. serve his entire underlying sentence, we vacate the sentence and remand for further consideration consistent with In re A.M.M.-H., 300 Kan. 532, 539–40, 331 P.3d 775 (2014), which was decided after the disposition hearing held by the district court in this case.
On June 28, 2011, the State charged 17–year–old K.C.H with three counts of rape, one count of aggravated criminal sodomy, and one count of furnishing alcoholic beverages to a minor for illicit purposes. The district court denied the State's motion to prosecute as an adult and determined that it would proceed as an extended jurisdiction juvenile prosecution. On October 21, 2011, pursuant to a plea agreement, K.C.H. pled no contest to one count of rape, and the district court dismissed the remaining counts.
On November 3, 2011, the district court sentenced K.C.H. to the Juvenile Correctional Facility until the age of 21 and aftercare until the age of 23. Because it was an extended juvenile jurisdiction case, the district court also imposed a sentence of 120 months in the custody of the Secretary of Corrections. The adult sentence was only to “be served in the event of violation of conditions of placement or aftercare.”
K.C.H. was released from detention on August 10, 2013, and placed on conditional release until his twenty-third birthday. The conditions of his release included that he would actively seek and maintain employment as well as comply with all program guidelines set by community corrections. He was assigned to Pathways Transitional Living Program. On January 30, 2014, K.C.H. agreed to serve a 3–day sanction at the Harvey County Detention Center for failing to comply with his sex offender safety plan. Then, on June 13, 2014, K.C.H. agreed to serve a 2–day jail sanction for testing positive to and admitting to smoking marijuana.
K.C.H.'s Intensive Supervision Officer moved to revoke K.C.H.'s conditional release on June 26, 2014. In the attached affidavit, K.C.H.'s Intensive Supervision Officer asserted that K.C.H. had again violated the terms of his conditional release. Specifically, it was alleged that he left Pathways without approval on June 25, 2014. It was further alleged that he had failed to gain employment; had used marijuana and alcohol; and had violated Pathways' rules.
On July 23, 2014, the district court held a hearing on the motion to revoke. At the hearing, K.C.H. admitted to the allegations made by his Intensive Supervision Officer. Accordingly, the district court revoked his conditional release and remanded him to the custody of the Harvey County Sheriff pending a disposition hearing.
At the disposition hearing held on July 31, 2014, defense counsel submitted a letter suggesting that—based on K.S.A.2014 Supp. 38–2364(b) —the district court had no discretion to modify K.C.H.'s adult sentence unless there was an agreement between his attorney and the State's attorney. Although defense counsel had requested that the prosecutor agree to a modified sentence, the State declined the request. Nevertheless, defense counsel argued that the district court should have the right to modify the adult sentence imposed and that it should do so in this case.
Ultimately, the district court determined that “[t]he law is that I'm to sentence [K.C.H.] to prison for 120 months.” As such, a journal entry was entered that revoked K.C.H.'s conditional release and remanded him to the custody of the Secretary of Corrections to serve his 120–month adult sentence with credit given for good time and time served. Thereafter, on August 12, 2014, K.C.H. timely filed a notice of appeal.
On appeal, K.C.H. contends that the district court erred in revoking the stay on his adult sentence. Specifically, he argues that the district court mistakenly believed that it was required to impose the 120–month adult sentence. Accordingly, K.C.H. requests that we remand this case to the district court for reconsideration of his sentence.
Unfortunately, the district court did not have the benefit of the Kansas Supreme Court's holding in In re A.M.M.-H., 300 Kan. at 539–40, at the time of the disposition hearing because it was not filed until August 8, 2014. In A.M.M....
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