Sunday, July 14, 2013

Juvenile misdemeanors decay and cannot convert

Janine Cox won in State v. Smith, 108,475 (Kan. App. June 21, 2013)(unpublished) affirming Judge Sundby's sentencing classification in a Leavenworth County criminal threat prosecution.  Judge Sundby found that two juvenile misdemeanor adjudications had decayed and therefore could not convert to a person felony.  The COA agreed that the conversion statute did not change the nature of the predicate offenses and, therefore, they still decayed:
After examining the statutory language used, we are guided by two important and common words in both of the statutes. The first is the word “offense” in K.S.A.2011 Supp. 21–6810(d)(3)(B) and (d)(4). In both of these subsections, the term “offense” is used when discussing whether a juvenile adjudication decays or not. Black's Law Dictionary defines “offense” as a violation of the law. Black's Law Dictionary 1186 (9th ed.2009). “The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be synonymous, and ordinarily used interchangeably.” 22 C.J.S., Criminal Law § 3. This suggests that the legislature was referring to the crime itself and not what the crime was later classified as for criminal history purposes.
The second important word is “rated” in K.S.A.2011 Supp. 21–6811(a). To rate an item is to give it a proportional or relative value. See Black's Law Dictionary 1375 (9th ed.2009). This term suggests that three juvenile adjudications are merely given the proportional value of one person felony adjudication for sentencing purposes. This statute does not change the underlying nature of the original offenses and their subsequent adjudications. In essence, K.S.A.2011 Supp. 21–6811 creates a formula the courts use to calculate a defendant's criminal history score and does not change the nature of any prior offenses. Thus, because the nature of the prior offense never changes, and because K .S.A.2011 Supp. 21–6810 looks to the prior offense to determine whether an adjudication decays, when Smith committed this crime after he turned 25, his prior misdemeanor juvenile adjudications decayed under K.S.A.2011 Supp. 21–6810(d)(4)(C) and cannot be used in the calculation of his criminal history score. It is irrelevant that the misdemeanor juvenile adjudications have, at some prior time, been converted to person felony adjudications for sentencing purposes under K.S.A.2011 Supp. 21–6811(a).
This may have some application with determining whether pre-1993 adjudications decay, since there were no person felonies before 1993.

[Update: the state did not file a PR and the mandate issued on July 25, 2013.]

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