In re K.C.H.

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NOT DESIGNATED FOR PUBLICATION

No. 112,385

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of K.C.H., DOB: 1993


MEMORANDUM OPINION

Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed October 23, 2015.
Reversed and remanded with directions.

Michael X. Llamas, of Llamas Law, LLC, of Newton, for appellant.

Jason R. Lane, assistant county attorney, for appellee.

Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.

Per Curiam: K.C.H. pled no contest to one count of rape in an extended
jurisdiction juvenile proceeding. He received both a juvenile adjudication—which
included time in a juvenile correctional facility and aftercare—and an adult sentence—
which was stayed on the condition that he not violate the provisions of his juvenile
adjudication or commit a new offense. Following his release from a juvenile detention
facility, K.C.H. was placed on conditional release. A few months later, the State filed a
motion to revoke his conditional release. K.C.H. admitted to the allegations in the motion
to revoke. As a result, the district court revoked his conditional release and ordered him
to serve his adult sentence. Because it appears from the record that the district court
believed that it was required to order that K.C.H. serve his entire underlying sentence, we
vacate the sentence and remand for further consideration consistent with In re A.M.M.-H.,
300 Kan. 532, 539-40, 331 P.3d 775 (2014), which was decided after the disposition
hearing held by the district court in this case.
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FACTS

On June 28, 2011, the State charged 17-year-old K.C.H with three counts of rape,
one count of aggravated criminal sodomy, and one count of furnishing alcoholic
beverages to a minor for illicit purposes. The district court denied the State's motion to
prosecute as an adult and determined that it would proceed as an extended jurisdiction
juvenile prosecution. On October 21, 2011, pursuant to a plea agreement, K.C.H. pled no
contest to one count of rape, and the district court dismissed the remaining counts.

On November 3, 2011, the district court sentenced K.C.H. to the Juvenile
Correctional Facility until the age of 21 and aftercare until the age of 23. Because it was
an extended juvenile jurisdiction case, the district court also imposed a sentence of 120
months in the custody of the Secretary of Corrections. The adult sentence was only to "be
served in the event of violation of conditions of placement or aftercare."

K.C.H. was released from detention on August 10, 2013, and placed on
conditional release until his twenty-third birthday. The conditions of his release included
that he would actively seek and maintain employment as well as comply with all program
guidelines set by community corrections. He was assigned to Pathways Transitional
Living Program. On January 30, 2014, K.C.H. agreed to serve a 3-day sanction at the
Harvey County Detention Center for failing to comply with his sex offender safety plan.
Then, on June 13, 2014, K.C.H. agreed to serve a 2-day jail sanction for testing positive
to and admitting to smoking marijuana.

K.C.H.'s Intensive Supervision Officer moved to revoke K.C.H.'s conditional
release on June 26, 2014. In the attached affidavit, K.C.H.'s Intensive Supervision Officer
asserted that K.C.H. had again violated the terms of his conditional release. Specifically,
it was alleged that he left Pathways without approval on June 25, 2014. It was further
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alleged that he had failed to gain employment; had used marijuana and alcohol; and had
violated Pathways' rules.

On July 23, 2014, the district court held a hearing on the motion to revoke. At the
hearing, K.C.H. admitted to the allegations made by his Intensive Supervision Officer.
Accordingly, the district court revoked his conditional release and remanded him to the
custody of the Harvey County Sheriff pending a disposition hearing.

At the disposition hearing held on July 31, 2014, defense counsel submitted a
letter suggesting that—based on K.S.A. 2014 Supp. 38-2364(b)—the district court had no
discretion to modify K.C.H.'s adult sentence unless there was an agreement between his
attorney and the State's attorney. Although defense counsel had requested that the
prosecutor agree to a modified sentence, the State declined the request. Nevertheless,
defense counsel argued that the district court should have the right to modify the adult
sentence imposed and that it should do so in this case.

Ultimately, the district court determined that "[t]he law is that I'm to sentence
[K.C.H.] to prison for 120 months." As such, a journal entry was entered that revoked
K.C.H.'s conditional release and remanded him to the custody of the Secretary of
Corrections to serve his 120-month adult sentence with credit given for good time and
time served. Thereafter, on August 12, 2014, K.C.H. timely filed a notice of appeal.

ANALYSIS

On appeal, K.C.H. contends that the district court erred in revoking the stay on his
adult sentence. Specifically, he argues that the district court mistakenly believed that it
was required to impose the 120-month adult sentence. Accordingly, K.C.H. requests that
we remand this case to the district court for reconsideration of his sentence.

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Unfortunately, the district court did not have the benefit of the Kansas Supreme
Court's holding in In re A.M.M.-H., 300 Kan. at 539-40, at the time of the disposition
hearing because it was not filed until August 8, 2014. In A.M.M.-H., our Supreme Court
found that K.S.A. 2014 Supp. 38-2364 applies in cases alleging violations of a
conditional release contract in an extended jurisdiction juvenile prosecution. Moreover, it
was held that "K.S.A. [2014] Supp. 38-2364(b) requires a mandatory execution of the
adult sentence only if the juvenile has requested a hearing and the court has found a
violation by a preponderance of the evidence." 300 Kan. at 540. In cases in which a
district court schedules a hearing without a request by the juvenile, "the district judge
retains discretion to determine whether a particular violation warrants revocation of the
stay of the adult sentence just as he or she does if no notice has been provided to the
juvenile at all." 300 Kan. at 540.

In A.M.M.-H., our Supreme Court further found that "[i]t is an abuse of discretion
for a district judge to fail to appreciate that he or she has discretion and then to exercise
it." 300 Kan. at 540. Because the record was unclear on whether the district judge "knew
he had discretion not to execute the adult sentence upon a finding of violation of the
terms of A.M.M.-H.'s conditional release," the case was remanded for reconsideration by
the district court. 300 Kan. at 540-41. In the present case, the record is also unclear
whether the district judge realized he had discretion not to execute the
120-month adult sentence after finding that K.C.H. had violated the terms of his
conditional release.

We note that the issue presented to the district court by K.C.H. was not identical to
the issue presented in this appeal. The State, therefore, argues that K.C.H. waived his
appellate argument by failing to present it to the district court. See State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014). Moreover, Supreme Court Rule 6.02(a)(5) (2014
Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised
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below should be considered for the first time on appeal. See State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 (2014).

In the A.M.M.-H. case, the issue was also not raised before the district court. In
fact, the issue was not even presented in A.M.M.-H.'s appeal to this court. See In re
A.M.M.-H., 49 Kan. App. 2d 647, 312 P.3d 393 (2013). Nevertheless, the Kansas
Supreme Court evidently thought that the issue was significant enough to be considered
anyway. Specifically, our Supreme Court found the argument that mandatory lifting of
the stay upon finding a violation of conditional release was "[i]mplicit in A.M.M.-H.'s
argument." In re A.M.M.-H., 300 Kan. at 539. Thus, we believe the issue is appropriately
before us in this appeal.

Similar to A.M.M.-H., there is a significant question in this case regarding whether
the district court believed it had the discretion not to revoke the stay of K.C.H.'s adult
sentence in the first place. Although the district court seemed to indicate during the first
hearing that it might not revoke K.C.H.'s conditional release, it is unclear from the record
if the district judge knew that he had discretion to determine whether the admitted
violation of the terms of the conditional release was sufficient to warrant revocation of
the stay of the 120-month adult sentence. Thus, just as the Kansas Supreme Court did in
A.M.M.-H., we conclude that justice requires that we vacate the order of revocation and
remand this matter to the district court for reconsideration—exercising its sound
discretion—of the State's motion to revoke.

Vacated and remanded.