In re S.L.

No. 124,105
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of S.L.
SYLLABUS BY THE COURT
1.
An appellate court has jurisdiction to review a presumptive sentence under K.S.A.
2019 Supp. 38-2380(b)(5), when a trial judge imposes a sentence under K.S.A. 2019
Supp. 38-2369(a)(1)(B), that lacks a specific finding in a written order stating that the
juvenile offender poses a significant risk of harm to another or damage to property.
2.
Before a trial judge under K.S.A. 2019 Supp. 38-2369(a)(1)(B) directly commits a
juvenile offender to a juvenile correctional facility, the trial judge must make a specific
finding in a written order stating that the juvenile offender poses a significant risk of
harm to another or damage to property.
Appeal from Sedgwick District Court; GREGORY D. KEITH, judge. Opinion filed February 11,
2022. Sentence vacated and case remanded for resentencing.
Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
GREEN, J.: S.L., an adjudicated juvenile offender, pleaded no contest to
aggravated robbery and aggravated battery. The trial court accepted S.L.'s plea and found
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her guilty. The trial court ruled that S.L. was a violent offender II based on the severity
level of the crimes committed and sentenced her within the statutory minimum and
maximum under the revised Juvenile Justice Code. S.L. appeals, arguing that the trial
court failed to make a specific written finding on the record that S.L. "pose[d] a
significant risk of harm to another or damage to property" under the juvenile sentencing
statute. The State, however, argues that we lack jurisdiction to review this appeal.
Because the statute in question requires the trial court to make a specific written finding
before it can apply the presumptive sentence, we have jurisdiction to review this issue.
And because the trial court failed to make this specific written finding, we vacate S.L.'s
sentence and remand with directions that the trial court resentence her as required by
K.S.A. 2019 Supp. 38-2369(a).
FACTS
The State charged S.L. in November 2019 with aggravated robbery, aggravated
battery, and robbery. S.L. was born in 2004 and was 15 years old when the alleged
offenses occurred. In November 2019, the trial court found probable cause existed to
believe S.L. had committed the alleged offenses, and the court ordered S.L. to be
detained until December 2019 for a detention review hearing. In April 2021, S.L. pleaded
no contest to aggravated robbery and aggravated battery. The trial court accepted S.L.'s
plea, found her guilty, and continued the case to a later date for sentencing.
The parties agreed S.L. was direct commitment eligible as a violent offender II
with a minimum and maximum sentence of direct commitment of 24 months to the age of
22 years and 6 months with a minimum and maximum of aftercare of 6 months to the age
of 23 years. The plea specified that the State would recommend the trial court directly
commit S.L. to a juvenile correctional facility for 66 months with 6 months of aftercare.
According to the plea agreement, S.L. was free to argue for an alternative disposition.
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At the sentencing hearing in May 2021, S.L.'s lawyer argued that probation was a
viable sentencing option because S.L.'s behavior improved while in detainment. S.L.
argued that the trial court should not sentence her to a direct commitment because she did
not pose a significant risk of harm to others. She also showed remorse for her actions and
that she had improved her behavior once she was on the proper medication for her
intellectual development disability.
The State argued that S.L. had a criminal history of thefts and batteries and that it
seemed her behavior was escalating. The State recommended the trial court sentence S.L.
to 66 months in the juvenile correctional facility with 6 months of aftercare.
The trial court noted S.L.'s criminal history, which began when she was 12 years
old for theft. The trial court then stated that S.L.'s criminal history went from theft to
batteries, and aggravated robbery to aggravated battery. The trial court noted that the
escalation in amounts stolen, in addition to the aggression shown during some of these
offenses, was concerning. The trial court then adopted the State's recommendation and
ordered S.L. to be committed for 66 months in a juvenile correctional facility with 6
months of aftercare. The trial court further ordered that S.L. receive credit for any time
served.
The trial court's journal entry noted that the court reviewed the results of the risk
and needs assessment and found that there was no "overall case length limit." The trial
court then found that S.L. was a violent offender II as defined in K.S.A. 2019 Supp. 38-
2369(a)(1)(B). The trial court ordered S.L. to be placed in the custody of Kansas
Department of Corrections—Juvenile Services for commitment to a juvenile correctional
facility for 66 months with 6 months of aftercare. The trial court then ordered S.L. to pay
restitution, joint and several with her co-respondents, to the victims in the amount of
$4,481.59. The trial court also noted that it advised S.L. of her inability to possess a
weapon as an adjudicated felon under K.S.A. 2019 Supp. 21-6304.
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S.L. timely appeals.
ANALYSIS
Did the trial court err in sentencing S.L.?
S.L. argues that the trial court improperly sentenced her to a direct commitment
without first finding that she posed a significant risk of harm to others or damage to
property. The State argues that we should dismiss this issue for lack of jurisdiction. In the
alternative, the State argues that the trial court did not abuse its discretion and made the
appropriate findings when it noted on the record that S.L.'s behavior had escalated from
her previous crimes.
Standard of Review
Whether this court has jurisdiction is a question of law over which this court
exercises unlimited review. In re T.T., 59 Kan. App. 2d 267, 269, 480 P.3d 790 (2020),
rev. denied 313 Kan. 1041 (2021). Similarly, statutory interpretation presents a question
of law over which appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203,
205, 432 P.3d 1015 (2019).
The Revised Kansas Juvenile Justice Code and Jurisdiction
Once a court has adjudicated a person a juvenile offender, K.S.A. 2019 Supp. 38-
2361(a) controls the authorized sentencing dispositions. The Code sets minimum and
maximum terms of commitment based on the various types of offender. K.S.A. 2019
Supp. 38-2361(a)(1)-(13). The trial court may classify the juvenile as either (1) a violent
offender I or II, (2) a serious offender I, II, or III, or (3) a chronic offender I, based on the
severity level of the underlying crime. K.S.A. 2019 Supp. 38-2369(a)(1)-(3). A "violent
offender II is defined as an offender adjudicated as a juvenile offender for an offense
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which, if committed by an adult, would constitute a nondrug severity level 1, 2 or 3
felony." K.S.A. 2019 Supp. 38-2369(a)(1)(B). The trial court may sentence a violent
offender II to a "minimum of 24 months and up to a maximum term of the offender
reaching the age of 22 years, six months." K.S.A. 2019 Supp. 38-2369(a)(1)(B).
S.L. does not contest the trial court's legal finding that she is a violent offender II
under the Juvenile Justice Code. This is likely because the trial court properly ruled that
she had committed a nondrug severity level 3 felony. See K.S.A. 2019 Supp. 38-
2369(a)(1)(B); K.S.A. 2019 Supp. 21-5420(b)(2), (c)(2).
S.L. challenges the trial court's failure to make a written "significant risk of harm"
finding before committing her to a facility. But the first issue we must consider is if we
have jurisdiction to review the trial court's failure to make the specific written "significant
risk" finding, even though the trial court here imposed a presumptive sentence.
An appellate court has a duty to question jurisdiction on its own initiative. When
the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. In
re C.D.A.-C., 51 Kan. App. 2d 1007, 1008, 360 P.3d 443 (2015). A juvenile has a
statutory right to appeal "from an order of adjudication or sentencing, or both." K.S.A.
2019 Supp. 38-2380(b). But an appellate court lacks jurisdiction to review a sentence for
an offense committed after July 1, 1999, that was within the presumptive sentence or was
agreed to by the juvenile and the State and approved by the trial court. K.S.A. 2019 Supp.
38-2380(b)(2)(A), (B).
In In re J.A., No. 122,883, 2021 WL 401284 (Kan. App. 2021) (unpublished
opinion), this court reviewed a juvenile's presumptive sentence and whether this court
had jurisdiction to review the trial court's decision. In In re J.A., the trial court accepted
J.A.'s no-contest plea to one charge of committing acts that, if he were an adult, would
constitute aggravated burglary, a severity level 4 person felony. At sentencing, the trial
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court found that J.A. was a "serious offender I" and posed a "'significant risk of harm to
others.'" 2021 WL 401284, at *1. The trial court also reflected this finding in its written
sentencing order. 2021 WL 401284, at *1. J.A. appealed.
Although J.A. acknowledged the statutory bar in K.S.A. 2019 Supp. 38-
2380(b)(2)(A) and that he received a presumptive sentence, J.A. argued that the trial
court imposed an overly harsh sentence and that the court's finding that he posed a
significant risk to others violated his "due process rights." 2021 WL 401284, at *2. But
this court ruled that J.A.'s argument was unpersuasive because the juvenile offender
statutes do not provide for an exception to the presumptive sentence jurisdictional bar on
constitutional grounds. And this court further determined that J.A. had failed to point to
other legal authority providing this court with jurisdiction to review constitutional issues,
despite the plain language of K.S.A. 2019 Supp. 38-2380(b)(2)(A). Because the statute
prohibits appellate courts from reviewing a juvenile offender's presumptive sentence, this
court dismissed for a lack of jurisdiction. 2021 WL 401284, at *3.
A review of our caselaw suggests that our appellate courts have not yet decided if
we lack jurisdiction to review a juvenile's presumptive sentence if the trial court has
failed to make a certain factual finding in its written order. Thus, the issue we must
decide is if the statutory bar for reviewing presumptive juvenile sentences prohibits our
review of the trial court's failure to make the appropriate written factual finding in the
record. To decide this issue, we must interpret the statutory construction of parts of the
revised Juvenile Justice Code. We are guided in our interpretation of this Code by the
following cardinal rule:
"The most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. When a statute is plain and unambiguous, an
appellate court should not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into the statute that is not readily
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found in its words. Further, where there is no ambiguity, the court need not resort to
statutory construction. [Citations omitted.]" In re C.M.W., No. 120,621, 2020 WL
1814304, at *2 (Kan. App. 2020) (unpublished opinion), rev. denied 312 Kan. 891(2020).
Under K.S.A. 2019 Supp. 38-2361(a), upon adjudication as a juvenile offender,
the court may impose one or more of the following sentencing alternatives for a fixed
period. K.S.A. 2019 Supp. 38-2361(a)(12) reads in part:
"If the judge finds and enters into the written record that the juvenile poses a
significant risk of harm to another or damage to property, and the juvenile is otherwise
eligible for commitment pursuant to K.S.A. 2019 Supp. 38-2369, and amendments
thereto, commit the juvenile directly to the custody of the secretary of corrections for
placement in a juvenile correctional facility or a youth residential facility."
K.S.A. 2019 Supp. 38-2369(a) reads in part:
"Except as provided in subsection (e) and K.S.A. 2019 Supp. 38-2361(a)(13), for
the purpose of committing juvenile offenders to a juvenile correctional facility, upon a
finding by the judge entered into the written order that the juvenile poses a significant
risk of harm to another or damage to property, the following placements shall be applied
by the judge in cases specified in this subsection."
This subsection requires the trial judge to make this written finding before imposing a
sentence within the guidelines of the sentencing statute if the juvenile falls within the
category of a violent offender. See K.S.A. 2019 Supp. 38-2369(a)(1)(B). A plain reading
of this statutory language requires the trial court to make a specific written finding that
the juvenile posed a significant risk of harm to another or damage to property before the
court can sentence the juvenile to a direct commitment in a correctional facility. See
K.S.A. 2019 Supp. 38-2369(a); see also In re T.T., No. 120,336, 2019 WL 1868498, at *2
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(Kan. App. 2019) (unpublished opinion) (appellate court notes the trial court properly
made significant risk to others written finding, as required by juvenile sentencing statute).
By comparison, when K.S.A. 2019 Supp. 21-6820(c)(1) jurisdictional bar applies,
for presumptive sentences, our Supreme Court has recognized that appellate courts have
jurisdiction to review a claim of an illegal sentence when the complainant argues that it
was not authorized by statute. See State v. Quested, 302 Kan. 262, 264, 352 P.3d 553(2015). This court recently held that this reasoning applies to the Juvenile Code as well
because the prohibition against challenging presumptive sentences in K.S.A. 2019 Supp.
38-2380(b)(2)(A) is nearly identical to K.S.A. 2019 Supp. 21-6820(c)(1). See In re Z.T.,
No. 122,189, 2020 WL 3393793, at *2 (Kan. App. 2020) (unpublished opinion).
Likewise, appellate courts have jurisdiction to review a presumptive sentence if the
sentence is imposed under K.S.A. 2019 Supp. 38-2369(a) and K.S.A. 2019 Supp. 38-
2369(a)(1)(B) and it lacks a specific finding in a written order stating that the juvenile
offender poses a significant risk of harm to another or damage to property.
Also, under our Juvenile Code, the trial court may impose a variety of sentencing
alternatives. K.S.A. 2019 Supp. 38-2361. One subsection of that statute references the
trial court's authority to impose a conditional release from custody as well as the
authority to choose between a youth residential facility or a juvenile correctional facility.
But the trial court may do so only after they have "enter[ed] into the written record that
the juvenile poses a significant risk of harm to another or damage to property." K.S.A.
2019 Supp. 38-2361(a)(12).
A review of our juvenile offender caselaw reveals that the trial court must make a
specific written finding to directly commit the juvenile to a correctional facility. The In re
J.A. court stated that the "revised Kansas Juvenile Justice Code includes a placement
matrix for sentencing juvenile offenders whom the trial court has found, in writing, to
'pose[] a significant risk of harm to another or damage to property.'" (Emphasis added.)
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2021 WL 401284, at *2 (quoting K.S.A. 2019 Supp. 38-2369[a]). In In re T.A., 123,813,
2021 WL 4497404, at *2 (Kan. App. 2021) (unpublished opinion), this court stated:
"Once the trial court made findings on the record reflecting T.A. posed a significant risk
of harm to others or damage to property, K.S.A. 2020 Supp. 38-2361(a)(12) authorized
the court to place T.A. in a correctional facility under the custody of the Secretary of
Corrections." (Emphasis added.)
Because K.S.A. 2019 Supp. 38-2369(a) specifically requires a trial judge to "enter
into the written order" a finding on whether a juvenile offender poses a risk of harm
before the trial judge can sentence a juvenile offender to a direct commitment in a
correctional facility, the trial judge must make this specific finding in a written order.
And when a trial court imposes a sentence under K.S.A. 2019 Supp. 38-2369(a)(1)(B)
directly committing a juvenile offender to a juvenile correctional facility, which lacks a
specific finding in a written order stating that the juvenile poses a significant risk of harm
to another or damage to property, this is a mistake of law.
S.L. entered a no-contest plea to aggravated robbery and aggravated battery,
severity level 3 and 7 person felonies, respectively. As a result, the trial court ordered her
to serve 66 months in the juvenile corrections facility followed by 6 months of aftercare.
This sentence was within the sentencing range for a violent offender II as directed by
K.S.A. 2019 Supp. 38-2369(a)(1)(B). Although the trial court imposed a presumptive
sentence, the court did not first make the risk of harm factual finding in its written order.
As a result, the trial court exceeded its statutory authority under K.S.A. 2019 Supp. 38-
2369(a) when it sentenced S.L. to a direct commitment without the written order
containing the risk of harm factual finding.
We note that the State's argument that the trial court made the factual finding when
it alluded to S.L.'s escalated behavior is unpersuasive. The trial court's vague statements
about S.L.'s escalating behavior during the sentencing hearing is not sufficient to
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establish the risk of harm written factual finding. Also, the sentencing statute requires
that the trial court enter the juvenile's risk of harm finding into the written order, which
the trial court failed to do. See K.S.A. 2019 Supp. 38-2369(a).
The Juvenile Justice Code, however, is unclear on the appropriate remedy in this
situation. Under K.S.A. 2019 Supp. 38-2380(b)(5), an appellate court "may reverse or
affirm the sentence." This statute does not provide for a specific remedy when a trial
court fails to make the requisite statutory finding before sentencing the juvenile to a
direct commitment. See K.S.A. 2019 Supp. 38-2380. But it does provide for remand if
the trial court's factual findings are not supported by the evidence or do not establish
substantial and compelling reasons for departure. K.S.A. 2019 Supp. 38-2380(b)(5).
Thus, because the trial court exceeded its statutory authority under K.S.A. 2019 Supp. 38-
2369(a) when it sentenced S.L. to a direct commitment sentence, without the written
order containing the risk of harm factual finding, we vacate S.L.'s sentence and remand to
the trial court with directions to hold a resentencing hearing in this case.
Sentence vacated and case remanded for resentencing consistent with this opinion.
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