State v. Hartpence

• Decision Date: 22 March 2002
• Docket Number: No. 86,394.,86,394.
• Citation: 30 Kan. App.2d 486,42 P.3d 1197
• Parties: STATE OF KANSAS, Appellee, v. DANIEL LYNN HARTPENCE, Appellant.
• Court: Kansas Court of Appeals

30 Kan. App.2d 486

42 P.3d 1197

STATE OF KANSAS, Appellee, v.DANIEL LYNN HARTPENCE, Appellant.

No. 86,394.

Court of Appeals of Kansas.

Opinion filed March 22, 2002.

Korey A. Kaul, assistant appellate defender, and Steven R. Zinn,deputy appellate defender, for the appellee.

Heather R. London, assistant county attorney, John R. Dowell, county attorney, and Carla J. Stovall,attorney general, for the appellant.

Before PIERRON, P.J., JOHNSON, J., and BUCHELE, S.J.

PIERRON, J.:

Daniel L. Hartpence, a juvenile, was prosecuted as an adult on charges of rape and aggravated criminal sodomy.Hartpence entered Alford pleas to two counts of aggravated indecent liberties with a child, severity level 3 person felonies, in violation of K.S.A. 21-3504(a)(3)(A).SeeNorth Carolina v. Alford,400 U.S. 25, 27 L. Ed.2d 162, 91 S. Ct. 160(1970).Hartpence argues on appeal that the magistrate judge erred in ruling he should be prosecuted as an adult, that the district court had jurisdiction to consider an appeal of the magistrate's decision, that prosecuting him as an adult substantially increased the penalty in violation of his constitutional rights, and that presuming he should be prosecuted as an adult under K.S.A. 38-1636(a)(2) violated his due process rights.

In April 1998, H.A.O., a 7-year-old girl, lived with her mother, two brothers, and three of her mother's friends, including a friend named Tyler. Hartpence was a friend of Tyler.On April 14, 1998, H.A.O. was sleeping against the wall in two beds pushed together.She said her two brothers and Tyler were sleeping with her.H.A.O. testified that she woke up to find Hartpence "licking [her] where [she] goes to the bathroom."H.A.O. tried to stop Hartpence by rolling over, but he held her shirt and would not let her roll over.H.A.O. stated that after Hartpence stopped licking her, he put his finger inside her vagina.H.A.O. said that Hartpence eventually stopped, but stayed in the bedroom.H.A.O. left the bedroom and went downstairs.H.A.O. said she did not tell her mother immediately because she was afraid Hartpence would hurt her.However, H.A.O. revealed the incident the next day.

On April 16, 1998, Hartpence was charged in juvenile court with one count of rape and one count of aggravated criminal sodomy.At the time of the offense, Hartpence was approximately 17 years and 5 months old.The State filed a motion to prosecute Hartpence as an adult.After hearing evidence, the magistrate judge granted the State's motion.The magistrate judge granted a hearing on Hartpence's motion for reconsideration.After hearing a large amount of expert testimony, the magistrate judge affirmed his ruling to allow the State to prosecute Hartpence as an adult.

On July 8, 1998, Hartpence was formally charged as an adult with one count of rape and one count of aggravated criminal sodomy, both severity level 2 person felonies.On March 8, 1999, Hartpence entered an Alford plea to two counts of aggravated indecent liberties with a child, severity level 3 person felonies, in violation of K.S.A. 21-3504(a)(3)(A).The district court sentenced Hartpence to a controlling term of 74 months' incarceration.

Hartpence first argues the magistrate judge erred in certifying him as an adult.The standard for reviewing the decision to authorize prosecution of a juvenile as an adult is whether the decision is supported by substantial evidence.In re J.D.J.,266 Kan. 211, 216, 967 P.2d 751(1998);State v. Claiborne,262 Kan. 416, 420, 940 P.2d 27(1997).Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.State v. Garcia,250 Kan. 310, Syl.¶ 3,827 P.2d 727 (1992).

Under K.S.A. 38-1636(a), Hartpence was presumed to be an adult and he had the burden to rebut the presumption.K.S.A. 38-1636(e) sets forth the factors to be considered when determining whether to treat a defendant as an adult or a juvenile.These factors must be considered by the court even where there is a presumption that the defendant is an adult under K.S.A. 38-1636(a)(2). K.S.A. 38-1636(e) states in pertinent part:

"In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property.Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution."

After analyzing the K.S.A. 38-1636(e) factors, the magistrate judge ruled there was substantial evidence to support Hartpence's prosecution as an adult.The only evidence presented at the initial hearing was the testimony of Hartpence's mother, who testified Hartpence was a learning disabled child, that he was less mature than other kids in the special education classes, and that his maturity level was that of a 12-year-old.At the hearing on the motion for reconsideration, Hartpence presented additional testimony from several experts who had examined him, including a speech pathologist, a neuropsychologist, and an forensic psychiatrist.The factors in K.S.A. 38-1636(e), as applied to Hartpence, are as follows:

(1) The seriousness of the alleged offense and whether protection of the community requires prosecution as an adult.

Hartpence argues there was no evidence to suggest he posed a risk to society and that society would be better protected if he was adjudicated as a juvenile and allowed the supervision and therapy recommended by Dr. Peterson.Hartpence argues the two halves of factor (1) cancel each other out and should have had no effect on the magistrate judge's decision.

The magistrate judge found both charges of rape and aggravated criminal sodomy were severity level 2 person felonies and were among the most severe criminal charges available for prosecution under the Kansas Criminal Code.He found the charges were certainly appropriate for prosecution as an adult.He also found that if the allegations were proven, the victim was 7 years old and the protection of the community would be a significant factor for consideration.These findings are supported by the record.

(2) Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.

Hartpence argues that although his crimes were morally repugnant, there is nothing to suggest his crimes were committed in an aggressive, violent, premeditated, or willful manner.

The magistrate judge stated that Hartpence did not present any evidence to counter this factor.The judge indicated the victim was a 7-year-old female nearly 10 years younger than Hartpence.He found Hartpence had violated the victim in two "particularly odious forms" and held that, given this fact in conjunction with the tender age of the victim, the crime was a violent offense.

At the reconsideration hearing, the magistrate judge again emphasized the young age of the victim:

"[T]he violence of this to that individual and from that individual's perception cannot be disregarded by the Court and is a substantial contributor to the Court's determination today's date that this individual should be prosecuted as an adult.

Obviously this was done in an aggressive manner and it was done in a willful manner.Quite possibly it was done in a premeditated manner."

Again, the findings are supported by the record.

(3) Whether the offense was against a person or against property.

The magistrate judge found the facts clearly indicated the crime was against a person and that K.S.A. 38-1636(e)(3) required the court to give greater weight to offenses against persons, especially in the event of personal injury.The court stated that the nature of the offenses, if proven, could cause severe psychological injury to the victim.

Hartpence argues there was no evidence presented that the victim suffered severe psychological injury and this factor should not count against him.The factor does not require severe injury and was properly analyzed by the court.

(4) The number of alleged offenses unadjudicated and pending against the respondent.

There were no unadjudicated or pending charges against Hartpence.

(5) The previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant.

The magistrate judge found Hartpence had previously been found to be a juvenile offender in a prior adjudication of aggravated battery.Hartpence's previous adjudication for aggravated battery occurred when he stabbed a peer in shop class with a cold chisel.The court noted the previous offense again involved a person as opposed to property, that the previous...