In re J.L.B.

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No. 103,933

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF

J.L.B.,

SYLLABUS BY THE COURT

1.
The interpretation of a statute presents a question of law subject to unlimited
review.

2.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. An appellate court's first task is to
ascertain the legislature's intent through the statutory language it employs, giving
ordinary words their ordinary meaning.

3.
Criminal statutes must be construed in favor of the accused. Any reasonable doubt
about the statute's meaning is decided in favor of anyone subjected to the criminal statute.
Nevertheless, the rule of strict construction is subordinate to the rule that judicial
interpretation must be reasonable and sensible to effect legislative design and intent.

4.
When two juvenile adjudications occur at the same time before the same court,
each adjudication cannot be counted as a prior adjudication in categorizing the offender
in adjudication under K.S.A. 2009 Supp. 38-2369(a)(2)(B) and (a)(3)(B)(i).

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Appeal from Mitchell District Court; KIM W. CUDNEY, judge. Opinion filed October 8, 2010.
Sentences vacated and case remanded for resentencing.

Starla Borg Nelson, of Jamestown, for appellant.

Jennifer R. O'Hare, special prosecutor, for appellee.

Before HILL, P.J., GREEN and BUSER, JJ.

GREEN, J.: In this juvenile case, we are presented with the question of whether
two juvenile adjudications occurring in separate cases but at the same hearing before the
same court can each be counted as a prior adjudication in categorizing the offender in the
other adjudication, for the purposes of K.S.A. 2009 Supp. 38-2369 under the juvenile
sentencing matrix. We determine that the answer to this question is no. As a result, the
trial court's decision in this case that J.L.B.'s juvenile adjudication in 09JV25 (formerly
09JV389) could be used as a prior adjudication in 09JV29 (formerly 09JV390) and
likewise the juvenile adjudication in 09JV29 could be used as a prior adjudication in
09JV25, where the two juvenile adjudications occurred simultaneously before the same
court, was in error. As a result, we reverse J.L.B.'s sentences for her juvenile
adjudications and remand to the trial court for resentencing in accordance with this
opinion.

On September 22, 2009, J.L.B. entered into a written tender of plea in case
numbers 09JV389 and 09JV390. In case number 09JV390, J.L.B. pled guilty to felony
theft in violation of K.S.A. 21-3701(a)(1), a severity level 9 nonperson felony if
committed by an adult. The act giving rise to J.L.B.'s adjudication in case number
09JV390 occurred on or about July 15, 2009. In case number 09JV389, J.L.B. pled guilty
to residential burglary in violation of K.S.A. 21-3715(a), a severity level 7 person felony
if committed by an adult. The act giving rise to J.L.B.'s adjudication in case number
09JV389 occurred on or about June 25, 2009.
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On September 23, 2009, the trial court entered a written order accepting J.L.B.'s
plea in both 09JV389 and 09JV390. Upon accepting J.L.B.'s guilty pleas, the trial court
transferred venue in both cases to Mitchell County for sentencing. Saline County case
number 09JV390 became Mitchell County case number 09JV29, and Saline County case
number 09JV389 became Mitchell County case number 09JV25.

When sentencing occurred, J.L.B.'s juvenile offender history included one
previous juvenile adjudication, on August 15, 2008, for theft, a class A misdemeanor.
The magistrate judge followed the recommendations of the State and the presentence
investigation reports and found that J.L.B. was a chronic offender II escalating felon in
case number 09JV29 and a serious offender II in case number 09JV25. In doing so, the
magistrate judge apparently treated J.L.B.'s adjudication in 09JV25 as a prior
adjudication in 09JV29 and likewise treated J.L.B.'s adjudication in 09JV29 as a prior
adjudication in 09JV25. Based on J.L.B.'s offender classifications on the placement
matrix chart, the magistrate judge sentenced J.L.B. to 18 months confinement in a
juvenile correctional facility with an aftercare term of 12 months.

J.L.B. appealed her sentencing by the magistrate judge to the trial court. J.L.B.
filed an appeal brief with the trial court in which she argued that her adjudications in case
numbers 09JV25 and 09JV29 could not constitute prior adjudications and that the
inclusion of each case as a prior adjudication in the other case resulted in erroneous
classification for criminal history purposes. J.L.B. maintained that case numbers 09JV25
and 09JV29 were consolidated in Saline County before being transferred to Mitchell
County for disposition and, therefore, did not constitute prior adjudications in her
criminal history. Alternatively, J.L.B. argued that even without consolidation, it was
erroneous to count each offense as a prior adjudication for sentencing purposes based on
the procedural history of the cases and the plain language of the Revised Kansas Juvenile
Justice Code (Juvenile Code). J.L.B. asserted that she had only one prior misdemeanor
adjudication when she was sentenced in 09JV25 and 09JV29 and that the magistrate
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judge's findings that she was a chronic offender II escalating felon in 09JV29 and a
serious offender II in 09JV25 was erroneous.

The trial court upheld the magistrate's decision. Relying on language by our
Supreme Court in In re D.M., 277 Kan. 881, 89 P.3d 639 (2004), and In re J.M., 273
Kan. 550, 44 P.3d 429 (2002), the trial court determined that because J.L.B.'s two
offenses were committed on separate dates and were originally charged in separate
complaints, the adjudication in 09JV25 could be scored as a prior adjudication for
sentencing in 09JV29 and likewise the adjudication in 09JV29 could be scored as a prior
adjudication for sentencing in 09JV25.

Standard of Review

On appeal, J.L.B. argues that the trial court erred in classifying her as a chronic
offender II escalating felon in case number 09JV29 and a serious offender II in case
number 09JV25 when both cases were present offenses rather than prior adjudications
under the Juvenile Code sentencing matrix provisions of K.S.A. 2009 Supp. 38-2369.

J.L.B.'s argument on this issue requires the interpretation of a statute, which
presents a question of law subject to unlimited review. See State v. Jefferson, 287 Kan.
28, 33, 194 P.3d 557 (2008). The most fundamental rule of statutory construction is that
the intent of the legislature governs if that intent can be ascertained. Hall v. Dillon
Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). An appellate court's first task
is to "'ascertain the legislature's intent through the statutory language it employs, giving
ordinary words their ordinary meaning.' [Citation omitted.]" State v. Gracey, 288 Kan.
252, 257, 200 P.3d 1275 (2009).

Moreover, in interpreting sentencing statutes under the Juvenile Code, our
Supreme Court has set forth the general rule that criminal statutes must be construed in
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favor of the accused. Any reasonable doubt about the statute's meaning is decided in
favor of anyone subjected to the criminal statute. Nevertheless, the rule of strict
construction is subordinate to the rule that judicial interpretation must be reasonable and
sensible to effect legislative design and intent. See In re D.M., 277 Kan. at 883; In re
J.M., 273 Kan. at 553.

With these standards firmly in mind, we turn now to interpreting K.S.A. 2009
Supp. 38-2369, the Juvenile Code statute at issue in the present case.

K.S.A. 2009 Supp. 38-2369

In order for a juvenile offender to be sentenced as a serious offender II, K.S.A.
2009 Supp. 38-2369(a)(2)(B) requires the following:

"The serious offender II is defined as an offender adjudicated as a juvenile
offender for an offense which, if committed by an adult, would constitute a nondrug
severity level 7, 8, 9 or 10 person felony with one prior felony adjudication. Offenders in
this category may be committed to a juvenile correctional facility for a minimum term of
nine months and up to a maximum term of 18 months. The aftercare term for this
offender is set at a minimum term of six months and up to a maximum term of 24
months." (Emphasis added.)

Under K.S.A. 2009 Supp. 38-2369(a)(2)(B), in order for J.L.B. to be sentenced as a
serious offender II in case number 09JV25, which constituted a severity level 7 person
felony if committed by an adult, J.L.B. needed to have one prior felony adjudication.
Thus, based on J.L.B.'s criminal history, the only way that she could be sentenced as a
serious offender II in case number 09JV25 was if her felony adjudication in 09JV29
could be considered a "prior felony adjudication" under K.S.A. 2009 Supp. 38-
2369(a)(2)(B).

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Similarly, in order for J.L.B. to be sentenced as a chronic offender II escalating
felon under K.S.A. 2009 Supp. 38-2369(a)(3)(B) in case number 09JV29, it was
necessary that she have one prior felony adjudication. Specifically, K.S.A. 2009 Supp.
38-2369(a)(3)(B) provides as follows:

"The chronic offender II, escalating felon is defined as an offender adjudicated as
a juvenile offender for an offense which, if committed by an adult, would constitute:

(i) One present felony adjudication and either two prior misdemeanor
adjudications or one prior person or nonperson felony adjudication;

(ii) one present felony adjudication and two prior severity level 4 drug
adjudications;

(iii) one present severity level 3 drug felony adjudication and either two prior
misdemeanor adjudications or one prior person or nonperson felony adjudication; or

(iv) one present severity level 3 drug felony adjudication and two prior severity
level 4 drug adjudications.

"Offenders in this category may be committed to a juvenile correctional facility
for a minimum term of six months and up to a maximum term of 18 months. The
aftercare term for this offender is set at a minimum term of six months and up to a
maximum term of 12 months."

Here, K.S.A. 2009 Supp. 38-2369(a)(3)(B)(ii) through (iv) were inapplicable to
J.L.B. because her present adjudication in case number 09JV29, her adjudication in case
number 09JV25, and her 2008 prior adjudication were not drug adjudications. Moreover,
because J.L.B. did not have two prior misdemeanor adjudications, she could be sentenced
as a chronic offender II under K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i) only if she had one
prior person or nonperson felony adjudication. Thus, based on J.L.B.'s criminal history,
the only way she could be sentenced as a chronic offender II escalating felon in case
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number 09JV29 was if the felony adjudication in 09JV25 could be considered as a prior
felony adjudication under K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i).

Prior Felony Adjudication

The question in this case appears to be one of first impression: Can juvenile
adjudications that occur at the same hearing in two cases each be counted as a "prior
adjudication" in the other case under K.S.A. 2009 Supp. 38-2369?

The legislature has not specifically defined "prior adjudication" within the
Juvenile Code. Although the Kansas Sentencing Guidelines Act specifically defines
"prior conviction" for adult criminal history purposes, that definition does not provide
guidance in the instant matter as the Juvenile Code is separate and distinct from the adult
criminal code.

K.S.A. 2009 Supp. 38-2304(a) states that "[e]xcept as provided in K.S.A. 2009
Supp. 38-2347, and amendments thereto, proceedings concerning a juvenile shall be
governed by the provisions of this code." In interpreting this statute, our Supreme Court
in In re D.E.R., 290 Kan. 306, 310, 225 P.3d 1187 (2010), stated: "K.S.A. 2009 Supp. 38-
2304(a) clearly provides that proceedings concerning a juvenile are to be governed by the
provisions of the Juvenile Code, not the Code of Criminal Procedure, except where
specifically applied by K.S.A. 2009 Supp. 38-2347 to adult prosecutions and extended
jurisdiction juvenile prosecutions."

Our legislature has provided, in painstaking detail, a comprehensive sentencing
scheme under the Juvenile Code that is essentially complete as written. See In re W.H.,
274 Kan. 813, 822, 57 P.3d 1 (2002). The Juvenile Code incorporates a detailed
placement matrix based on the history of a juvenile's prior offenses and his or her present
offense, providing guidance and alternatives to the sentencing judge for confinement, as
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set forth in K.S.A. 2009 Supp. 38-2369. See In re W.H., 274 Kan. at 819 (discussing
K.S.A. 38-16,129, the predecessor statute to K.S.A. 2009 Supp. 38-2369). If the
legislature wished to include a definition for "prior adjudication" similar to that set forth
for "prior conviction" under K.S.A. 21-4710, it could have easily done so under the
Juvenile Code. In the absence of a specific definition for "prior adjudication" under the
Juvenile Code, this court looks to the plain meaning of K.S.A. 2009 Supp. 38-2369 and
how the term "prior adjudication" is used within that statute.

Our Supreme Court in In re D.M., 277 Kan. 881, was called upon to interpret the
terms present adjudication and prior adjudication as contained in K.S.A. 38-
16,129(a)(3)(B)(i), the predecessor statute to K.S.A. 2009 Supp. 38-2369. Under K.S.A.
38-16,129(a)(3)(B)(i), a chronic offender II, escalating felon was defined as an offender
adjudicated as a juvenile offender for an offense which, if committed by an adult, would
constitute one present felony adjudication and two prior misdemeanor adjudications. Our
Supreme Court held that the juvenile offender, who had a prior adjudication as a felon
and three prior misdemeanor adjudications with a present misdemeanor adjudication,
may not, upon revocation of his probation involving both prior and present adjudications
be placed in a juvenile correctional facility as a chronic offender II, escalating felon
under K.S.A. 38-16,129(a)(3)(B)(i).

In so holding, our Supreme Court determined that the intent of the legislature, by
including the terms prior and present in K.S.A. 38-16,129(a)(3)(B), was to categorize the
offenses by the date of adjudication:

"Under K.S.A. 38-16,129(a)(3), four ways are listed in which a juvenile offender
may be classified as a chronic offender II, escalating felon. All four definitions, including
K.S.A. 38-16,129(a)(3)(B)(i), involve prior less serious adjudication(s) followed by a
more serious present felony adjudication. This differentiation in the time that the offenses
were committed is necessary to establish that the juvenile offender is indeed a chronic,
escalating felon, i.e., that his offenses were frequently occurring and increasing in
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severity. If the legislature were simply concerned with the number and type of
adjudications without reference to when they occurred, the juvenile offender in this case
would have met those requirements in his first case, and the term 'chronic offender II,
escalating felon' would have no meaning.

"Although both cases were technically open at the probation violation hearing,
the intent of the legislature was to categorize the offenses by the date of adjudication by
including the terms prior and present in the statute. Without using dates, it is difficult to
categorize an adjudication as prior or present, and it could result in much confusion as to
which cases were prior and which cases were present if all open cases were considered
present. The legislature could have omitted the terms prior and present but that would
defeat its intent to provide for more severe punishment options as the severity of a
juvenile offender's offenses increases. As this court has recognized, '[o]ur legislature has
established in painstaking detail, a comprehensive sentencing scheme [in the KJJC],
essentially complete as written.' 274 Kan. at 822.

"In this case, the January 2001 (00JV332) case involving the felony adjudication,
was clearly 'earlier in time or order' to the December 2001(01JV265) case involving the
misdemeanor adjudication. Thus, the district court's conclusion that the defendant was
not eligible for placement in a juvenile correctional facility under K.S.A. 38-
16,129(a)(3)(B)(i) must be affirmed." 277 Kan. at 886-87.

As explained in In re D.M., the legislature's decision to include the terms "present"
and "prior" in the statute addressing the sentencing of juvenile offenders is highly
significant. Our Supreme Court in In re D.M. noted that "prior" is defined as "earlier in
time or order" and that "present" may be defined as "now existing or in progress,"
"existing in something mentioned or under consideration," or "constituting the one
actually involved, at hand, or being considered." Webster's New Collegiate Dictionary
910, 915 (1973). Thus, under the plain language of K.S.A. 2009 Supp. 38-2369(a)(2)(B)
and (a)(3)(B)(i), the prior adjudication must have occurred "earlier in time or order" than
the present adjudication.

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Moreover, as interpreted by our Supreme Court, the legislature, by including the
terms "prior" and "present" in K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i) intended to
categorize the offenses by the date of adjudication. The legislature used similar language
in K.S.A. 2009 Supp. 38-2369(a)(2)(B). In the present case, the adjudications in 09JV389
(later 09JV25) and 09JV390 (later 09JV29) occurred before the same court on the same
date under a single written Tender of Plea. Within the written Tender of Plea, J.L.B.
stated as follows: "In 09JV390 I will plea[d] guilty to Felony Theft a level 9 Nonperson
Felony. In 09JV389 I will plea[d] guilty to Count 1 Residential Burglary a Level 7 person
felony." The court entered an Order Accepting Plea in which it accepted the Tender of
Plea in both 09JV389 (later 09JV25) and 09JV390 (later 09JV29) and included both case
numbers in the caption. As a result, the record demonstrates that the adjudications in
09JV389 (later 09JV25) and 09JV390 (later 09JV29) occurred at the same time before
the same court and therefore, neither adjudication constituted a prior adjudication for
purposes of the sentencing matrix under K.S.A. 2009 Supp. 38-2369(a)(2)(B) and
(a)(3)(B)(i).

The State argues, however, that In re J.M., 273 Kan. 550, in which our Supreme
Court upheld the decision of the sentencing court to score two separate adjudications in a
previous juvenile case against the juvenile offender to classify him as a chronic offender
II escalating felon, provides support for the trial court's decision in this case.
Nevertheless, the State's attempted comparison of the analysis In re J.M. to the present
case is strained. That is because unlike the present case, the juvenile offender in In re
J.M. had two prior adjudications that had occurred nearly 2 1/2 years before his present
adjudication. Thus, the juvenile offender's previous adjudications were properly
categorized as prior adjudications because they occurred on a date before the offender's
present offense. Here, however, J.L.B.'s adjudications in 09JV25 and 09JV29 should not
be categorized as prior adjudications because they occurred simultaneously on the same
date before the same court.

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Based on the plain language of K.S.A. 2009 Supp. 38-2369 and our Supreme
Court's decision in In re D.M., this court should find that the trial court erroneously
counted J.L.B.'s adjudication in 09JV25 (formerly 09JV389) as a prior adjudication in
09JV29 (formerly 09JV390) and likewise erroneously counted her adjudication in
09JV29 as a prior adjudication in 09JV25. As set forth previously from the In re D.M.
opinion; our Supreme Court stated:

"[T]he intent of the legislature was to categorize the offenses by the date of adjudication
by including the terms prior and present in the statute. Without using dates, it is difficult
to categorize an adjudication as prior or present, and it could result in much confusion as
to which cases were prior and which cases were present if all open cases were considered
present." 277 Kan. at 886.

Under the circumstances present here, where the record demonstrates that the
adjudications in 09JV25 and 09JV29 occurred at the same time before the same court,
neither adjudication was a prior adjudication for purposes of the sentencing matrix under
K.S.A. 2009 Supp. 38-2369(a)(2)(B) and (a)(3)(B)(i). As a result, J.L.B.'s sentences for
her juvenile adjudications are vacated and her case remanded for resentencing in
accordance with this opinion.

Sentences vacated and case remanded for resentencing.