State v. Lamunyon

• Decision Date: 30 June 1995
• Docket Number: No. 71985,71985
• Parties: STATE of Kansas, Appellee, v. Steven W. LAMUNYON, Appellant.
• Court: Kansas Court of Appeals

Page 1182

898 P.2d 1182

21 Kan.App.2d 281

STATE of Kansas, Appellee, v. Steven W. LAMUNYON, Appellant.

No. 71985.

Court of Appeals of Kansas.

June 30, 1995.

Syllabus by the Court

1. A defendant's prior juvenile adjudications may be considered in determining criminal history for purposes of retroactive sentence conversion under the Kansas Sentencing Guidelines Act.

2. To the extent that the Kansas Sentencing Guidelines Act conflicts with the Kansas Juvenile Offenders Code, which provides that a juvenile adjudication does not import a criminal act, the legislature intended for the Kansas Sentencing Guidelines Act to be the controlling statute.

3. The use of juvenile adjudications in determining criminal history under the Kansas Sentencing Guidelines Act does not violate the constitutional prohibition against ex post facto laws.

4. A trial court should determine through examination of the record whether a defendant's prior juvenile adjudication constitutes a person or nonperson felony.

Rick Kittel, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Timothy J. Chambers, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before GERNON, P.J., PIERRON, J., and MICHAEL J. MALONE, District Judge, Assigned.

MICHAEL J. MALONE, District Judge, Assigned:

Steven W. Lamunyon, Jr., appeals the district court's determination of his criminal history category for purposes of retroactive sentence conversion under the sentencing guidelines.

On April 9, 1993, Lamunyon pled no contest to possession of marijuana with intent to sell. The district court sentenced Lamunyon[21 Kan.App.2d 282] to 3 to 10 years' imprisonment and denied his motion for sentence modification.

On November 30, 1993, the Department of Corrections (DOC) issued a sentencing guidelines report which stated that Lamunyon was eligible for retroactive conversion of his sentence. The report showed that Lamunyon had a criminal history which included three juvenile adjudications for nonperson misdemeanors. The State filed a motion challenging the DOC report. The presentence investigation report prepared after Lamunyon's conviction for possession of marijuana with intent to sell noted an additional juvenile adjudication for burglary which was not included in the DOC report.

The district court held a hearing and found that Lamunyon's criminal history included a juvenile adjudication for burglary, a person felony; thus, Lamunyon's criminal history category was "D," which made him ineligible for retroactive sentence conversion. Lamunyon appeals the district court's determination of his criminal history category.

The Kansas Sentencing Guidelines Act (KSGA) provides that juvenile adjudications should be considered in determining a defendant's criminal history category. See K.S.A.1994 Supp. 21-4710 et. seq. However, Lamunyon makes three arguments as to why juvenile adjudications should not be considered.

First, Lamunyon argues that the KSGA is in direct conflict with the Kansas Juvenile Offenders Code. K.S.A. 38-1601, the preamble to the code, provides:

"In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state."

Lamunyon argues that because the code prohibits a juvenile adjudication from being construed as a criminal act, a juvenile adjudication cannot give rise to any criminal implication and cannot be used to calculate criminal history.

Lamunyon cites the rule that where a general statute and a specific statute are in conflict, the specific statute should control unless the legislature intended otherwise. See Carmichael v. State, 255 Kan. 10, 15, 872 P.2d 240 (1994). He argues that the juvenile code is the more specific statute and should control over the provisions of the KSGA. The State argues that even if the juvenile code is the more specific statute, the legislature intended the KSGA to control over the juvenile code in this instance.

This court recently commented on the legislature's intent regarding the use of juvenile adjudications in determining criminal history.

"[T]he legislature is clearly aware that juvenile adjudications do not count as criminal convictions. In writing the KSGA, the legislature made special provisions in K.S.A.1993 Supp. 21-4710 to include juvenile adjudications, in some instances, as part of an offender's criminal history showing its awareness that without the special provisions juvenile adjudications could not be counted as prior convictions." State v. Ward, 20 Kan.App.2d 238, 244, 886 P.2d 890 (1994)

The juvenile code was adopted in 1982. Since the legislature specifically provided that juvenile adjudications were to be considered in determining criminal history under the KSGA, it logically follows that the legislature intended the KSGA to be the controlling statute.

Lamunyon's second argument is that because a juvenile does not have the right to a jury trial, a juvenile adjudication should not be used to enhance punishment in a later adult criminal proceeding. He argues this is analogous to the rule that a prior, uncounseled conviction cannot be used to enhance the sentence imposed for a subsequent crime. See State v. Priest, 239 Kan. 681, 685, 722 P.2d 576 (1986). Furthermore, allowing a juvenile adjudication to have a criminal implication runs contrary to long-standing Kansas case law, particularly State, ex rel., v. Owens, 197 Kan. 212, 416 P.2d 259 (1966).

This issue is a matter of first impression in this state. The Oregon Court of Appeals considered a similar argument in State v. Stewart, 123 Or.App. 147, 859 P.2d 545 (1993). The Stewart court explained that even though a juvenile adjudication does not include the right to a jury trial, due process does require other protections such as the right to counsel, confrontation, and cross-examination. The court found that these due process protections were sufficient to allow a juvenile adjudication to be used later in enhancing an adult sentence. Stewart, 123 Or.App. at 150-51, 859 P.2d 545.

The State argues that this court should follow Stewart, while Lamunyon urges this court to adopt the reasoning of the dissent. The dissent relied on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a Supreme Court case holding that a prior uncounseled conviction which was valid for imposing a nonprison sentence could not be used to enhance a defendant's prison sentence in a later proceeding.

The Supreme Court overruled Baldasar in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). In Nichols, the Court held that an uncounseled misdemeanor conviction, valid under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction. 511 U.S. at ----, 114 S.Ct. at 1928, 128 L.Ed.2d at 755. Even if the Kansas Supreme Court continues to hold that uncounseled convictions may not be used to enhance later sentences, the analogy to juvenile adjudications with no right to a jury trial is not persuasive.

Even before the Nichols Court overruled Baldasar, those federal circuit courts which considered the issue refused to extend the Baldasar holding to cases involving juvenile adjudications and the federal sentencing guidelines. See McCullough v. Singletary, 967 F.2d 530, 533 (11th Cir.1992); U.S. v. Williams, 891 F.2d 212, 215 (9th Cir.1989).

The Williams court explained the distinction between the uncounseled conviction at issue in Baldasar and a juvenile adjudication. In Baldasar, the uncounseled conviction was valid for purposes of imposing a nonprison sentence but would have been invalid for purposes of imposing a prison sentence. The Baldasar Court held that the conviction was, therefore, also invalid for purposes of enhancing a prison sentence. By contrast, a juvenile may be deprived of liberty without a jury trial. In other words, the adjudication is valid for purposes of depriving the juvenile of his or her liberty. The Williams court stated: "If it does not violate due process for a juvenile to be deprived of his or her liberty without a jury trial, we fail to find a violation of due process when a later deprivation of liberty is enhanced due to this juvenile adjudication." Williams, 891 F.2d at 215. The court further distinguished Baldasar as a case involving the right to counsel, a more fundamental right than the right to a jury trial. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

Because Nichols overruled Baldasar, and because the reasoning of the Williams and Stewart courts is persuasive, Lamunyon's second argument regarding the use of juvenile adjudications in determining criminal history under the KSGA fails.

Lamunyon's third and final argument that juvenile adjudications should not be considered in determining a defendant's criminal history category is that by giving criminal effect to a juvenile adjudication, the KSGA violates the constitutional prohibition against ex post facto laws.

"The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S. Const., art. I, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed,...