White, In Interest of

• Court: Kansas Supreme Court
• Writing for the Court: HOLMES; Morrison
• Citation: White, In Interest of, 610 P.2d 1114, 227 Kan. 881 (Kan. 1980)
• Decision Date: 10 May 1980
• Docket Number: No. 51111,51111
• Parties: In the Interest of Charlotte Ann WHITE, a Female Minor, Appellant.

Page 1114

610 P.2d 1114

227 Kan. 881

In the Interest of Charlotte Ann WHITE, a Female Minor, Appellant.

No. 51111.

Supreme Court of Kansas.

May 10, 1980.

Syllabus by the Court

1. When a decision to waive juvenile jurisdiction and refer a juvenile for trial as an adult pursuant to K.S.A.1979 Supp. 38-808 is set aside by an appellate court and remanded for a new hearing, the trial court must consider the evidence as it would apply to conditions as they existed at the time of the original hearing and as of the time of the later hearing.

2. If the trial court determines in the later hearing that the evidence, when applied to conditions as they existed at the time of the original hearing, justifies the original referral for trial as an adult that determination controls.

3. If the trial court at the later hearing determines that the juvenile was originally a fit and proper subject to be dealt with under the juvenile code, the trial court must then determine whether such fitness still exists based upon conditions at the time of the later hearing. If the person is no longer a fit and proper person to be dealt with in juvenile proceedings, the existing circumstances at the time of the later hearing must control.

4. A court's decision to waive juvenile jurisdiction and refer a juvenile for trial as an adult pursuant to K.S.A.1979 Supp. 38-808 must be supported by substantial evidence.

5. The term 'substantial evidence' is evidence possessing something of substance and relevant consequence and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved. Following In re Ferris, 222 Kan. 104, 563 P.2d 1046 (1977).

6. In an appeal by an indigent juvenile from a determination under K.S.A.1979 Supp. 38-808, expenses and a reasonable attorney fee for appointed counsel may be allowed as costs on appeal and ordered paid by the county general fund pursuant to K.S.A.1979 Supp. 38-834b.

Michael H. Morgan of Poe, Madden, Green & Morgan, Wichita, argued the cause and was on the brief for appellant.

R. Michael Jennings, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and James D. Turner, Asst. Dist. Atty., were with him on the brief for appellee.

HOLMES, Justice:

This is an appeal by Charlotte Ann White from an order of the juvenile department of the Sedgwick County District Court (juvenile court or trial court) waiving its jurisdiction and referring her to stand trial as an adult pursuant to K.S.A.1979 Supp. 38-808. This is the second appearance of this case before this court. See In re White, 224 Kan. 717, 585 P.2d 1046 (1978), (White I).

The State in a petition filed with the juvenile court alleged that on August 27, 1977, Charlotte Ann White shot and killed one James Wofford. Appellant was seventeen years old at the time and was charged with an act of delinquency which, if committed by an adult, would have been a felony (first-degree murder). On September 8, 1977, a referral hearing was held to determine whether Charlotte was a fit and proper person to be dealt with under the Kansas juvenile code. The juvenile court determined she was not and directed she be prosecuted as an adult. That decision was reversed in White I due to a failure of the State to produce any evidence in support of its position that she was not a fit and proper person for juvenile proceedings. Following our decision in White I, a second hearing was held by the juvenile court wherein the State did produce evidence in support of its position. On March 20, 1979, the court once again found that Charlotte was not a fit and proper person to be dealt with under the juvenile code and directed that she be prosecuted as an adult. It is this second referral determination which is now before this court.

Charlotte was born June 30, 1960, and at the time of the alleged crime and the first hearing to determine fitness to be dealt with under the juvenile code was seventeen years of age. She was eighteen when White I was decided and is now nearly twenty years old. To further complicate matters, following the first certification to try Charlotte as an adult the criminal department of the district court proceeded with criminal charges while the appeal on the initial referral determination was pending in this court. Charlotte was tried before a jury for first-degree murder. During the trial she entered into plea negotiations with the district attorney and on June 2, 1978, entered a plea of guilty to second-degree murder. At that time she lacked 28 days of being eighteen years of age. Sentencing on the plea was apparently deferred pending the decision in White I and thereafter the outcome of the second hearing before the juvenile court. Following the March 20, 1979, juvenile court decision, Charlotte was sentenced on April 27, 1979, to the custody of the Secretary of Corrections for a period of not less than five years nor more than life pursuant to K.S.A. 21-4501(b ) and 75-5229. As a firearm had been used in the homicide the provisions of K.S.A.1978 Supp. 21-4618 were invoked. We note at the outset that neither party has raised any question on this appeal as to the propriety or validity of the criminal proceedings in district court and such issues are not now before this court. In addition, no question has been raised whether Charlotte's plea of guilty and failure to seek a stay of the criminal proceedings constitute a waiver of her objection to the juvenile court proceedings. For an excellent discussion of the problems raised by subsequent criminal proceedings following an erroneous referral by the juvenile court see Six and Reeves, Waiver of Juvenile Court Jurisdiction in Kansas, 22 Kan.L.Rev. 193 (1974).

Two points are raised by Charlotte in this appeal. She contends (1) the trial court erred by applying the wrong test or standard thus denying her due process of law, and (2) the determination to waive juvenile jurisdiction and refer Charlotte for trial as an adult was not supported by substantial evidence.

K.S.A.1979 Supp. 38-808(b) provides:

"(b) Notwithstanding any provisions of the Kansas juvenile code or any other law of this state to the contrary, whenever a petition has been filed pursuant to the Kansas juvenile code alleging that a child is, by reason of violation of any criminal statute, a delinquent or miscreant child described in K.S.A.1976 Supp. 38-802, and that the child was sixteen (16) years of age or older at the time of the alleged commission of such offense and the petitioner, or the county or district attorney upon motion made prior to the hearing on the petition, alleges that such child is not a fit and proper subject to be dealt with under the Kansas juvenile code, the court shall immediately set a time and place for a hearing to determine if such child is a fit and proper person to be dealt with under the Kansas juvenile code. Such hearing shall be held prior to the hearing on the petition and shall conform to the requirements for notice and appointment of a guardian ad litem as provided by K.S.A.1976 Supp. 38-815b, for detention hearings. Upon the completion of the hearing and a finding that the child was sixteen (16) years of age or older at the time of the alleged commission of the offense, the court may make a finding, noted in the minutes of the court, that the child is not a fit and proper subject to be dealt with under the Kansas juvenile code. In determining whether or not such finding should be made, the court shall consider each of the following factors: (1) Whether the seriousness of the alleged offense is so great that the protection of the community requires criminal prosecution of the child; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) the maturity of the child as determined by consideration of the child's home, environment, emotional attitude and pattern of living; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the record and previous history of the child; (6) whether the child would be amenable to the care, treatment and training program for juveniles available through the facilities of the court; and (7) whether the interests of the child or of the community would be better served by criminal prosecution of the child. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue. Written reports and other materials relating to the child's mental, physical, educational and social history may be considered by the court, but the court, if so requested by the child, the child's parent or guardian or other interested party, shall require the person, persons or agency preparing the report and other material to appear and be subject to both direct and cross-examinations."

The seven factors to be considered by the court were included in an amendment of the statute as a result of the decision in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

In support of her first point, appellant contends that the juvenile court at the second referral hearing applied the wrong time standard in determining her fitness to be dealt with under the juvenile code. Appellant argues that when this court in White I reversed the original decision of the juvenile court to waive jurisdiction the court at the second hearing was obligated to consider de novo her fitness as of the time of the original hearing. Appellant bases her argument largely upon the holding in White I that "the order of the district court must be reversed and the case remanded for a new hearing on the issue of whether she was a fit and proper person to be dealt with under the Kansas Juvenile Code." 224 Kan. at 719, 585 P.2d at 1048. (Emphasis added.) We do not interpret this...