In re J.E.M.

890 P.2d 364, 20 Kan. App. 2d 596, 1995 Kan. App. LEXIS 30
CourtCourt of Appeals of Kansas
DecidedFebruary 24, 1995
DocketNo. 72,308
StatusPublished
Cited by11 cases

This text of 890 P.2d 364 (In re J.E.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re J.E.M., 890 P.2d 364, 20 Kan. App. 2d 596, 1995 Kan. App. LEXIS 30 (kanctapp 1995).

Opinion

RüLON, J.:

JEM appeals the district court’s determination that his prior juvenile adjudications should be counted as convictions for purposes of enhancing a misdemeanor to a felony conviction. We reverse and remand the cause for further proceedings.

The facts of this case are not in dispute:

[597]*597In March of 1994, the State filed a complaint against JEM for theft of property (cigarettes) valued at less than $500 in violation of K.S.A. 1993 Supp. 21-3701. The complaint alleged that, because JEM had been convicted of theft on two or more occasions within 5 years immediately prior to the instant offense, the crime should be ranked as a severity level 9 nonperson felony pursuant to K.S.A. 1993 Supp. 21-3701. The district court agreed and based on stipulated facts, JEM was adjudicated a juvenile offender for theft of property valued at less than $500 in violation of K.S.A. 1993 Supp. 21-3701, which the court determined to be a severity level 9 nonperson felony based on the two prior theft adjudications.

The parties stipulated that JEM had, within the 5 years immediately preceding the instant offense, been adjudicated a juvenile offender in case No. 92JV0581 for theft of cigarettes in violation of K.S.A. 21-3701. He was also adjudicated a juvenile offender in August of 1992 for theft of a bicycle in violation of K.S.A. 21-3701 in case No. 92JV1210. Theft of property worth less than $500 is a class A nonperson misdemeanor unless there exist prior convictions. K.S.A. 1993 Supp. 21-3701.

This issue is a matter of first impression in this state and involves a question of statutory interpretation and, thus, a question of law. A trial court’s interpretation of a statute is a question of law, and this court’s scope of review is unlimited. State v. Williams, 18 Kan. App. 2d 424, 425, 856 P.2d 158 (1993). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).

It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).

“ ‘In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]).
[598]*598“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).

JEM argues that pursuant to the Kansas Juvenile Offenders Code, the clear intent of the legislature is to treat juveniles differently from adults. He argues that pursuant to K.S.A. 38-1601, no order of the district court in any proceeding under the provisions of the juvenile code shall be deemed to import a criminal act on the part of any juvenile. JEM claims that the terms “adjudicated” and “convicted” are mutually exclusive.

The State agrees that juveniles are to be treated differently from adults. However, it claims that the legislature drafted the statute in such a way as to make sure repeat misdemeanor juvenile offenders received the appropriate rehabilitation services, which are only available to felons. Therefore, solely for the purpose of enhancing sentences for repeat offenders, the legislature meant for the term “adjudication” to be synonymous with the term “conviction.”

K.S.A. 1993 Supp. 21-3701, in part, provides:

“Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
“. . . Theft of property of the value of less than $500 is a class A nonperson misdemeanor, except that theft of property of the value of less than $500 is a severity level 9, nonperson felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times.”

K.S.A. 38-1601 reads, in relevant part:

"In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile, but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.”

Kansas case law has previously recognized that juvenile adjudications are not equated with criminal convictions. “Under Kan[599]*599sas statutes a juvenile proceeding is considered a civil proceeding of a protective nature totally divorced from any criminal implication.” State v. Muhammad, 237 Kan. 850, Syl. ¶ 2, 703 P.2d 835 (1985). “[T]he adjudication of delinquency against [a] defendant under the Federal Juvenile Delinquency Act does not amount to a prior conviction of a felony as intended by the Habitual Criminal Act of this state and ... it cannot be used to enhance the penalty which may be imposed against the defendant.” State v. Fountaine, 196 Kan. 638, 645, 414 P.2d 75 (1966).

However, the State correctly notes that pursuant to the Kansas Sentencing Guidelines Act, K.S.A.

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Bluebook (online)
890 P.2d 364, 20 Kan. App. 2d 596, 1995 Kan. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jem-kanctapp-1995.