State v. J.D.H., 107,916.

• Decision Date: 11 January 2013
• Docket Number: No. 107,916.,107,916.
• Citation: 294 P.3d 343,48 Kan.App.2d 454
• Parties: STATE Of Kansas, Appellee, v. J.D.H., Appellant.
• Court: Kansas Court of Appeals

48 Kan.App.2d 454

294 P.3d 343

STATE Of Kansas, Appellee,

v.J.D.H., Appellant.

No. 107,916.

Court of Appeals of Kansas.

Jan. 11, 2013.

Review Denied Aug. 15, 2013.

Laura B. Shaneyfelt, of Shaneyfelt Law, of Wichita, for appellant.

Matthew J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.

STANDRIDGE, J.

J.D.H. appeals from the district court's revocation of his juvenile sentence and the order to serve his underlying adult prison sentence in a case designated as an extended juvenile jurisdiction prosecution (EJJP). For the reasons stated below, we affirm.

FACTS

In 2011, the State charged J.D.H. with aggravated robbery, aggravated burglary, and aggravated assault. In conjunction with these charges, the State filed a motion for adult prosecution. Thereafter, J.D.H. entered guilty pleas to all three counts, pursuant to a plea agreement in which the parties agreed to designate the proceedings as an EJJP under K.S.A. 2010 Supp. 38–2347. The State agreed to recommend a controlling juvenile sentence of 36 months of intensive supervised probation and an underlying adult sentence of the middle number of the appropriate sentencing grid box for each count, with Count 1 running consecutive to Counts 2 and 3, which would run concurrently with each other.

The State never filed a written motion seeking to withdraw its motion for adult prosecution and requesting the court designate the proceedings as an EJJP. Nevertheless, the plea agreement stated that the "State agrees to modify its motion requesting Adult Prosecution in these matters; State and Respondent agree that the proceedings be designated an Extended Juvenile Jurisdiction Prosecution." At the plea hearing, the judge explained J.D.H.'s rights under the EJJP statute, designated the proceedings as an EJJP, and found the plea was knowingly, intelligently, and voluntarily entered.

At the sentencing hearing on August 4, 2011, the court told J.D.H. it was going to impose an adult sentence that would be stayed as long as J.D.H. complied with the terms of his juvenile sentence but advised him that if he violated the terms of his juvenile sentence, the court would "have to give" him the adult sentence. J.D.H. indicated to the court that he understood. After the parties agreed that J.D.H.'s criminal history score was a D, the court followed the plea agreement and imposed a controlling juvenile sentence of 36 months of intensive supervised probation and stayed an underlying 126–month adult sentence.

Two months after sentencing, J.D.H.'s intensive supervision officer filed a report stating that J.D.H. had violated his juvenile sentence. The State subsequently filed a motion to revoke J.D.H.'s juvenile sentence. At the hearing on the motion to revoke, J.D.H. acknowledged that he had violated the terms and conditions of his juvenile sentence. The State requested that the underlying adult sentence of 126 months in prison be imposed as required by K.S.A. 2010 Supp. 38–2364(b), which states in pertinent part:

"After the hearing, if the court finds by a preponderance of the evidence that the juvenile committed a new offense or violated one or more conditions of the juvenile's sentence, the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered pursuant to subsection (a)(2) or, upon agreement of the county or district attorney and the juvenile offender's attorney of record, the court may modify the adult sentence previously ordered pursuant to subsection (a)(2)." (Emphasis added.)

J.D.H.'s counsel acknowledged that the parties did not agree to modify the underlying adult sentence and, as a result, the district court did not have the discretion to modify J.D.H.'s adult sentence under this statute. Nevertheless, J.D.H.'s counsel argued that the automatic application of K.S.A. 2010 Supp. 38–2364 "abrogates [the district court's] duties as a Judge and I don't think that it's Constitutional." The district court found that J.D.H. had violated the terms of his juvenile probation but continued the sentencing hearing so both parties could provide authority on how to interpret the statute.

At the subsequent sentencing hearing, a different judge presided. J.D.H.'s counsel stated that he realized that the caselaw did not favor the argument he was making, but he wanted to preserve the issue for appeal. The district judge then found the court had no authority to modify the underlying adult sentence, noting:

"The case law says that there is no—once there's a finding that it's a violation, there is no discretion given to the Judge. And that matter is up on appeal right now, as far as I know, because I wanted some clarification from the Court of Appeals under those conditions. There are several cases where they have clearly said that once the violation is found that we have to proceed to Sentencing and there is no discretion.

"And, I think you're right, in the adult court there is some discretion, but they don't give us that under EJJP. So I guess I will affirm what, apparently, the earlier ruling was."

Consequently, the district court ordered J.D.H. to serve the underlying 126–month adult prison sentence.

ANALYSIS

In challenging the revocation of his juvenile sentence and imposition of the adult sentence, J.D.H. argues on appeal (1) that the district court did not have jurisdiction to impose the EJJP sentence against him under K.S.A. 2010 Supp. 38–2347(a)(3) because the State did not file a motion to request the court to designate the proceeding as an EJJP, (2) that K.S.A. 2010 Supp. 38–2364(b) can be read with K.S.A. 2010 Supp. 22–3716(b) to allow the sentencing judge the option to modify the adult sentence upon a finding that a juvenile has violated his juvenile sentence in an EJJP, and (3) that K.S.A. 2010 Supp. 38–2364 violates the separation of powers doctrine by prohibiting the sentencing judge from exercising discretion to modify the adult sentence. We address each of these arguments in order.

1. Jurisdiction

J.D.H. claims the district court did not have jurisdiction to impose the extended juvenile jurisdiction sentence in the first place because the State did not file a motion requesting the district court to designate the proceeding as an EJJP, which J.D.H. contends is required by K.S.A. 2010 Supp. 38–2347(a)(3). Before we consider the merits of J.D.H.'s argument, however, we first must consider whether this court has jurisdiction to address it.

The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. As such, this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).

A defendant must file a notice of appeal within 14 days of sentencing under K.S.A.2011 Supp. 22–3608(c). See State v. Phinney, 280 Kan. 394, 401–02, 122 P.3d 356 (2005). J.D.H. received both his adult and juvenile sentences on August 4, 2011. He did not file his notice of appeal until February 27, 2012, which was over 6 months after the 14–day window. As such, this court does not have jurisdiction to consider J.D.H.'s first claim of error.

2. Modification of a Previously Imposed Underlying Adult Sentence under K.S.A. 2010 Supp. 38–2364(b)

J.D.H. contends that K.S.A. 2010 Supp. 38–2364(b) must be construed in conjunction with K.S.A. 2010 Supp. 22–3716(b), which necessarily means that a sentencing judge has discretion to modify an EJJP adult sentence after finding that a juvenile has violated the terms of an EJJP juvenile sentence. Although conceding that several panels of this court have issued opinions to the contrary, J.D.H. requests this panel consider the issue in order to preserve the issue for further appellate review.

Again, we first must determine whether we have jurisdiction to address the issue raised. Generally, issues not raised before the district court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). However, an appellate court may consider an issue raised for the first time on appeal if it falls within three recognized exceptions: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200 (2012). Supreme Court Rule 6.02(e) (2011 Kan. Ct. R. Annot. 39) requires the appellant to identify which of these exceptions apply and why it is applicable. 294 Kan. at 465, 276 P.3d 200.

In this case, J.D.H. claims K.S.A. 2010 Supp. 22–3716 should be read in conjunction with K.S.A. 2010 Supp. 38–2347 to allow a defendant to seek modification of a previously imposed underlying adult sentence. As the State notes, however, J.D.H. did not make this argument to the district court; instead, J.D.H. conceded that the district court did not have discretion to change the original adult sentence upon a finding that J.D.H. has violated his juvenile sentence. Moreover, J.D.H. failed to acknowledge in his appellate brief that he was raising the argument for the first time on appeal; thus, J.D.H. failed to identify which, if any, exception would allow him to raise the issue for the first time on appeal and to explain why the exception applies.

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