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In re J.S.P.

Court of Appeals of Kansas

March 15, 2019

In the Matter of J.S.P.

         SYLLABUS BY THE COURT

         1. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited.

         2. The right to appeal is entirely statutory, and an appeal may be entertained only if it is taken in the manner prescribed by statute.

         3. In an extended jurisdiction juvenile prosecution, when an offender violates his or her conditional release, K.S.A. 2018 Supp. 38-2364 authorizes a court to revoke the juvenile sentence and order the imposition of the stayed adult sentence.

         4. Kansas statutes do not provide a juvenile offender with a right to appeal an order revoking the juvenile sentence and ordering imposition of the stayed adult sentence in an extended jurisdiction juvenile prosecution.

         5. Absent an ambiguity in a statute, the plain meaning of the words chosen by the Legislature will control and courts will not add words to the law.

         6. Although juvenile offenders are entitled to similar constitutional protections as adults, they are not guaranteed the same statutory rights as adults unless specifically provided for in the revised Juvenile Justice Code.

         7. When a lack of jurisdiction is shown, the appellate court must dismiss the appeal.

          Appeal from Wyandotte District Court; Delia M. York, judge.

          Michael C. Duma, of Duma Law Offices LLC, of Olathe, for appellant.

          Sheri L. Courtney, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Gardner, P.J., Hill and Schroeder, JJ.

          GARDNER, J.

         J.S.P. appeals the imposition of his adult prison sentence after the district court found he had violated the terms of conditional release on his juvenile sentence. He raises three arguments: (1) He was denied due process because his conditional release contracts failed to advise him a violation could lead to imposition of his stayed adult sentence; (2) insufficient evidence showed he violated the terms of his conditional release; and (3) imposing his adult sentence constitutes cruel and unusual punishment under both the state and federal Constitutions. The State argues that this court lacks jurisdiction to review the merits of J.S.P.'s claims. Agreeing with the State, we dismiss this appeal.

         FACTUAL AND PROCEDURAL BACKGROUND

         J.S.P. pleaded no contest to two counts of criminal discharge of a firearm at an occupied vehicle, two counts of aggravated assault, and one count of aggravated battery. Those crimes occurred in December 2010 when J.S.P was 14 years old. The victim of one of J.S.P.'s crimes was left paralyzed, but the facts of J.S.P.'s underlying crimes are not relevant here.

         J.S.P. was sentenced in an extended juvenile jurisdiction proceeding (EJJP). In such a proceeding, a juvenile is given both a juvenile sentence and an adult sentence. The adult sentence is stayed pending successful completion of the juvenile sentence. If the juvenile either violates the terms of his juvenile sentence or commits a new offense, the adult sentence may be imposed in some circumstances. It was imposed here. J.S.P. agreed to an aggravated sentence of 72 months in the Kansas Juvenile Correctional Facility (JCF) in exchange for the State's promise that it would not seek adult prosecution. The district court sentenced J.S.P. to 72 months in JCF followed by 24 months of conditional release and a stayed adult sentence of 237 months in prison.

         When the district court sentenced J.S.P. in 2011, the court, J.S.P.'s attorney, and the prosecuting attorney advised him repeatedly about the adult sentence he could be facing. Defense counsel stated that she had "explained to [J.S.P.] that if he does not follow the juvenile program in JCF and afterwards that he could serve around 19.75 years as opposed to the six years which we're asking the court to sentence him here today." The prosecutor stated: "If he does comply with all the terms, then he'll never have to serve that EJJP sentence. However, it will be hanging over his head the entire time and could be imposed for something as little as being suspended from school or smoking marijuana."

         The court warned J.S.P., saying:

"[V]ery importantly, the law is very strict. A violation of probation-like-like the attorney said, let's say you get out and you're on probation, conditional release, and you skip school, simple as that, smoke marijuana, simple as that. The law says that this court shall revoke your juvenile case and shall order you to go to the adult Department of Corrections. It doesn't say I may, doesn't say I can, it says if there is a violation that's shown, whether it's simple or not, it says the court shall revoke your juvenile sentence and you shall go to the ...

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