In re S.L.
| Docket Number | 125,667 |
| Decision Date | 01 September 2023 |
| Parties | In the Matter of S.L. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; GREGORY D. KEITH, judge.
Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant.
Julie A. Koon, assistant district attorney, and Marc Bennett district attorney, for appellee.
Before WARNER, P.J., GARDNER and HURST, JJ.
S.L appeals her sentence, arguing the district court exceeded its statutory authority by sentencing her to a term of direct commitment without first finding that she poses a risk of harm to another or damage to property. Finding no error, we affirm.
In November 2019, the State charged 15-year-old S.L. with robbery, aggravated robbery, and aggravated battery. S.L entered no contest pleas to aggravated robbery and aggravated battery in April 2021. The district court accepted S.L.'s plea and found her guilty of both crimes.
Before sentencing, the parties agreed that S.L. was a violent offender II, making her eligible for a term of at least two years of direct commitment in a juvenile facility and six months of aftercare. The State agreed to recommend that S.L be directly committed for 66 months and attend aftercare for 6 months. S.L. could, however, request an alternative disposition.
At sentencing, S.L. argued that she had improved during her presentencing detainment and did not pose a risk to another. She thus asked that the district court sentence her to a term of supervised probation. But the district court denied this request, noting her extensive criminal history, which began when she committed theft at 12 years old. The district court also found that S.L.'s crimes escalated from misdemeanors to batteries and to aggravated battery and robbery. The district court found the amount stolen also escalated and S.L. exhibited significantly aggressive behavior during the commission of some of her crimes. Based on this, the district court imposed the State's recommended sentence of 66 months in a juvenile facility, with 6 months of aftercare.
On appeal from that sentence, this court found that the district court exceeded its statutory authority under K.S.A. 38-2369(a) because it failed to make a written finding that S.L. "poses a significant risk of harm to another or damage to property." The panel thus vacated S.L.'s sentence and remanded to the district court for a resentencing hearing. In re S.L., 62 Kan.App.2d 1, 7-9, 505 P.3d 382 (2022).
On remand, the State made the same sentencing recommendation. As support for its claim that S.L. should be directly committed, the State argued that S.L. showed that she was "a danger to others" because she had committed "very violent" crimes.
S.L., however, argued that K.S.A. 38-2361(a)(12) and K.S.A. 38-2369(a) use the present tense in requiring the district court to find that she "poses" a risk of harm. She argued that the statutes thus limit the time frame that a court may consider when determining a juvenile's risk of harm and preclude consideration of the circumstances that existed when the offender committed their crime. S.L. thus asked the district court to consider only the circumstances presented at the time of her resentencing hearing. At that time, she was 18 years old and had recently graduated from high school. She also noted that when first sentenced, she had a low risk of recidivism as measured by her Youth Level of Service (YLS) score, and that by the time of her resentencing that score had dropped even more. Finally, S.L. contended that it was not legally appropriate to keep her in the juvenile correctional facility.
The district court rejected S.L.'s argument and again imposed the sentence recommended by the State. The court found:
"Given . . . [S.L.]'s escalating felony behavior . . . from misdemeanor to felonies to violent felonies with violence and . . . not adhering to the court orders, the Court is making the specific finding for that reason that she does pose a significant risk of harm to another or damage to property."
S.L. timely appeals.
As in her previous appeal, S.L. argues that the district court exceeded its statutory authority when sentencing her to direct commitment because it failed to make a proper "risk of harm" finding under K.S.A. 38-2369(a). She acknowledges the "risk of harm" verbiage in the district court's resentencing decision, but she claims that by incorporating its findings from the previous sentencing hearing, the district court failed to find that she "poses," rather than "posed" a risk of harm. S.L. thus asserts that the district court ignored K.S.A. 38-2369(a)'s plain and present tense requirement and imposed an illegal sentence. She also suggests that the district court ignored more pertinent evidence shown by her improved YLS score.
Before addressing S.L.'s argument, we must first resolve the State's challenge to our court's jurisdiction to review S.L.'s appeal of her presumptive sentence.
This court exercises unlimited review of both jurisdiction and statutory interpretation issues. See In re T.T., 59 Kan.App.2d 267, 269, 480 P.3d 790 (2020) (jurisdiction), rev. denied 313 Kan. 1041 (2021); State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021) (statutory interpretation).
A juvenile has a statutory right to appeal "from an order of adjudication or sentencing, or both." K.S.A. 38-2380(b). But appellate courts have no jurisdiction to review a sentence imposed in a juvenile adjudication for an offense committed after July 1, 1999, that was within the presumptive sentence or was agreed to by the juvenile and the State and approved by the district court. K.S.A. 38-2380(b)(2). When the record discloses such a lack of jurisdiction, this court must dismiss the appeal. See In re T.T., 59 Kan.App.2d at 272; In re C.D.A.-C., 51 Kan.App.2d 1007, 1012, 360 P.3d 443 (2015) (). The State contends the record here shows such a lack of jurisdiction.
The Kansas Juvenile Justice Code, K.S.A. 38-2301 et seq., does not define "presumptive sentence," but K.S.A. 38-2369(a) mandates that the district court follow the placements authorized within the statute when the court finds "that the juvenile poses a significant risk of harm to another or damage to property." This court has thus held that when, as here, the district court imposes the relevant disposition outlined in K.S.A. 38-2369(a), it imposes a presumptive sentence. See In re T.A., No. 123,813, 2021 WL 4497404, at *2 (Kan. App. 2021) (unpublished opinion).
In S.L.'s previous appeal, this court found that although S.L. received a presumptive sentence, appellate review was still proper because S.L. claimed that her sentence was not authorized by statute. See In re S.L., 62 Kan.App.2d at 7-8; see also State v. Quested, 302 Kan. 262, 264, 352 P.3d 553 (2015) (); In re Z.T., No. 122,189, 2020 WL 3393793, at *2 (Kan. App. 2020) (unpublished opinion) (applying Quested rule in juvenile offender sentencing context based on identical nature of language used in K.S.A. 2019 Supp. 38-2380[b][2][A] and K.S.A. 2019 Supp. 21-6820[c][1]). S.L. similarly asserts that the district court disregarded the applicable sentencing statutes when imposing her sentence here, so we find appellate review of this claim to be proper.
But S.L. also impliedly claims that her sentence is overly harsh or that the district court's decision is factually unsupported. But S.L. does not challenge the district court's finding that she is a violent offender II. And the district court properly found that she committed a nondrug, severity level 3 felony, placing her in that category. The district court also imposed a sentence within the applicable range for a violent offender II. See K.S.A. 2019 Supp. 21-5420(b)(2), (c)(2); K.S.A. 2019 Supp. 38-2369(a)(1)(B). S.L. thus received a presumptive sentence, which we cannot review for factual or constitutional error. See In re J.A., No. 122,883, 2021 WL 401284, at *3 (Kan. App. 2021) (unpublished opinion) (). We thus confine our review to whether the district court complied with the applicable sentencing statutes when imposing S.L.'s sentence.
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