State v. Sherk
| Decision Date | 17 July 1975 |
| Docket Number | No. 47785,47785 |
| Citation | 538 P.2d 1399,217 Kan. 726 |
| Parties | STATE of Kansas, Appellee, v. Joseph Lee SHERK, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
K.S.A. 21-3611(f) (1974 Weeks) which provides for the crime of aggravated juvenile delinquency is not unconstitutional as a denial of equal protection of the laws or due process of law, nor does it provide for cruel or unusual punishment.
J. R. Russell, Kansas City, argued the cause, and was on the brief for appellant.
Albert D. Keil, Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.
John J. Ambrosio, Asst. Dist. Defender, and Craig M. Cornish, Legal Intern, were on the brief amicus curiae for the Third Judicial District Public Defender.
This is a direct appeal in a criminal action in which the defendant was convicted of aggravated juvenile delinquency under K.S.A.1973 Supp. 21-3611(f). The facts are not in dispute and were stipulated at the trial before the district court sitting without a jury. Joseph Lee Sherk, the defendant-appellant, was born in 1958. In 1973 at the age of 15 he was found to be a miscreant child by the juvenile court of Wyandotte county. He had previously been adjudicated a wayward child in 1971 and placed on probation without disposition. In 1972 he was again before the juvenile court and placed on one year's probation subject to conditions that he attend school regularly, be in after the evening meal, and be in one-half hour after any evening event that he might attend. Following the adjudication of miscreancy in March of 1973 the defendant was sentenced to commitment to the Boys Industrial School, but sentence was suspended for 60 days at the end of which period the case was to be reviewed. In May of 1973 the defendant was found to be in violation of the court's order while subject to the suspended sentence. At that time the juvenile court ordered the sentence executed and defendant was committed to the Boys Industrial School where he was admitted on June 12, 1973. On July 11, 1973, Sherk escaped from the Boys Industrial School and was returned on July 26, 1973. He escaped a second time on December 22, 1973. He was then charged with aggravated juvenile delinquency under K.S.A.1973 Supp. 21-3611(f) which provides as follows:
'(1) Aggravated juvenile delinquency is any of the following acts committed by any person confined in the state industrial school for boys or in the state industrial school for girls or by any delinquent child or miscreant child, as such terms are defined by K.S.A.1971 Supp. 38-802, who is confined in any training or rehabilitation facility under the jurisdiction and control of the state department of social welfare:
'(a) Willfully burning or attempting to burn any building of any of such institutions or facilities, or setting fire to any combustible material for the purpose of burning such buildings;
'(b) Willfully burning or otherwise destroying property of the value or more than one hundred dollars ($100) belonging to the state of Kansas;
'(c) Willfully and forcibly resisting the lawful authority of any officer of any of such institutions or facilities;
'(d) Committing an aggravated assault or aggravated battery upon any officer, attendant, employee or inmate of any of such institutions or facilities;
'(e) Exerting a dangerous and pernicious influence over other persons confined in any of such institutions or facilities by gross or habitual misconduct;
'(f) Running away or escaping from any of such institutions or facilities after having previously run away or escaped therefrom one or more times.
'(2) Aggravated juvenile delinquency is a class E felony.
'(3) The juvenile court shall not have jurisdiction to try persons charged with aggravated juvenile delinquency, as defined by this section, but such persons shall be proscribed under the general criminal laws of the state.'
The defendant did not dispute the fact that he violated section (f) of 21-3611 by running away or escaping from the Boys Industrial School. By way of defense he challenged the constitutionality of 21-3611(f) on a number of grounds. Counsel for defendant first raised the issue of the constitutionality of the statute in district court by a motion to dismiss. The trial court overruled the motion, holding the statute to be constitutional. At the trial of the case the district court found the defendant guilty as charged and sentenced defendant to the custody of the secretary of corrections for a term of not less than one nor more than five years for a Class E felony. The defendant has brought a timely appeal to this court.
In his statement of points the defendant claims that the statute is unconstitutional for six specific reasons. The first two reasons are somewhat overlapping. In point one the defendant declares that K.S.A. 21-3611(f) is vague and uncertain in interpretation and application. Point two states that K.S.A. 21-3611(f) is vague and uncertain in that it does not apprise defendant Sherk of the prohibited conduct with sufficient specificity. In State v. Conley, 216 Kan. 66, 531 P.2d 36, we held that the test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. When we apply this test to 21-3611(f) we have no hesitancy in holding that the statute is not unconstitutional by reason of being vague and indefinite. The statute in clear and express language provides in substance that running away or escaping more than once from the Boys Industrial School constitutes aggravated juvenile delinquency. Any person of common intelligence should know that the crime is committed on each occasion that an inmate of the Boys Industrial School runs away after the first time.
We further reject the defendant's contention that the statute is invalid because the superintendent of the school or the county attorney may exercise his discretion in deciding whether or not to file a prosecution under the statute. We have held on a number of occasions that the exercise of reasonable discretion in the application of a law to those of the same class does not necessarily or generally render the law unconstitutional as depriving one of equal protection of the laws. (State v. Troy, 215 Kan. 369, 524 P.2d 1121; Gladen v. State, 196 Kan. 586, 413 P.2d 124; In re Skinner, 136 Kan. 879, 18 P.2d 154.) In State v. Pruett, 213 Kan. 41, 515 P.2d 1051, we discussed in some depth the broad discretion of a prosecutor in determining whether criminal charges should be filed.
As his third point counsel for the defendant maintains that 21-3611(f) has no counterpart for inmates of adult correctional institutions and therefore the equal protection clause of the constitution is violated. K.S.A. 21-3809 and 21-3810 make it a criminal offense for persons charged or committed under the criminal code to escape while in lawful custody. We find no denial of equal protection of the laws in this respect.
The defendant next complains that 21-3611(f) is utilized by the state of Kansas as 'parental punishment' for conduct of children who are made 'wards' of the state by the Kansas juvenile judges. He argues that the state cannot use criminal prosecution to enforce its parental duties toward such a ward. As we understand it, defendant's position is in substance that the conviction of a 15-year-old boy for a felony violates the spirit of our juvenile laws and erodes the concept of parens patriae. The same argument was made and rejected in Le Vier v. State, 214 Kan. 287, 291, 520 P.2d 1325.
The defendant's fifth point raises again a claim that 21-3611(f) is unconstitutional as a denial of equal protection of the laws. This point is vigorously urged by the Third Judicial District Public Defender who filed an amicus curiae brief with the permission of the court. In support of its position the public defender combines a due process argument with an equal protection argument and reasons as follows: The law draws the line of criminal responsibility in the first instance at the age of 18. Young people under the age of 18 are classified as juveniles and ordinarily are not to be treated as criminals but rather as delinquents. The philosophy of the juvenile code is to protect and rehabilitate juveniles rather than to punish them criminally. Under K.S.A. 38-808(b) juveniles who are 16 years of age or older at the time of the commission of the offense may be prosecuted as criminals provided the juvenile court waives its jurisdiction by finding on the basis of substantial evidence that the child would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, and that the child is not a fit and proper subject to be dealt with under the Kansas juvenile code. If such a finding is made the juvenile court shall direct the prosecuting attorney to prosecute the person under the applicable criminal statute or ordinance. Before the juvenile court can waive its jurisdiction, the juvenile must be afforded an amenability hearing which complies with the minimum requirements of due process of law. (Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; In re Templeton, 202 Kan. 89, 447 P.2d 158; State ex rel. v. Owens, 197 Kan. 212, 416 P.2d 259; In re Patterson, Payne and Dyer, 210 Kan. 245, 499 P.2d 1131; and In re Stephenson and Hudson v. State, 204 Kan. 80, 460 P.2d 442.)
It is...
To continue reading
Request your trial
-
State v. Young
...This court has recently construed this statute to be constitutional against due process and equal protection attacks. (State v. Sherk, 217 Kan. 726, 538 P.2d 1399.) (See also, Le Vier v. State, 214 Kan. 287, 520 P.2d 1325; Seibert v. Ferguson, 167 Kan. 128, 205 P.2d 484; and Burris v. Board......
-
Woodard v. Wainwright
...P.2d 836 (1974); Johnson v. State, 314 So.2d 573 (Fla.1975); People v. Sprinkle, 56 Ill.2d 257, 307 N.E.2d 161 (1974); State v. Sherk, 217 Kan. 726, 538 P.2d 1399 (1975); Jackson v. State, 311 So.2d 658 (Miss.1975); State v. Grayer, 191 Neb. 523, 215 N.W.2d 859 (1974); People v. Drayton, 39......
-
State v. Freeman
...and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment. See State v. Sherk, 217 Kan. 726, 730, 538 P.2d 1399. Courts generally have upheld statutes imposing mandatory sentences upon convicted narcotics offenders while prohibiting probation......
-
State v. Anderson
...cert. denied 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794; United States v. Bland, 472 F.2d 1329 (D.C.Cir.1972); State v. Sherk, 217 Kan. 726, 538 P.2d 1399 (1975); State ex rel. Coats v. Rakestraw, 610 P.2d 256 (Okla.App.1980); State v. Doe, 91 N.M. 506, 576 P.2d 1137 (N.M.App.1978). Ander......