2006 Kansas Code - 38-1636

      38-1636.   Prosecution as an adult; extended jurisdiction juvenile prosecution; burden of proof; authorization. (a) (1) Except as provided further, at any time after commencement of proceedings under this code against a respondent and prior to the beginning of an evidentiary hearing at which the court may enter a sentence as provided in K.S.A. 38-1655, and amendments thereto, the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute. The respondent shall be presumed to be a juvenile unless good cause is shown to prosecute the respondent as an adult.

      (2)   At any time after commencement of proceedings under this code against a respondent who was: (A) 14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint, if any such offense (i) if committed by an adult, would constitute an offgrid offense, a person felony, a nondrug severity level 1 through 6 felony or any drug severity level 1 or 2 felony; or (ii) was committed while in possession of a firearm; or (B) charged with a felony or with more than one offense of which one or more constitutes a felony after having been adjudicated or convicted in a separate prior juvenile proceeding as having committed an offense which would constitute a felony if committed by an adult and the adjudications or convictions occurred prior to the date of the commission of the new act charged and prior to the beginning of an evidentiary hearing at which the court may enter a sentence as provided in K.S.A. 38-1655, and amendments thereto, the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute. The respondent shall be presumed to be an adult. The burden of proof is on the respondent to rebut the presumption.

      (3)   At any time after commencement of proceedings under this code against a respondent and prior to the beginning of an evidentiary hearing at which the court may enter a sentence as provided in K.S.A. 38-1655, and amendments thereto, the county or district attorney may file a motion requesting that the court designate the proceedings as an extended jurisdiction juvenile prosecution as provided further. If the county or district attorney files a motion to designate the proceedings as an extended jurisdiction juvenile prosecution and the respondent was 14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint and: (A) charged with an offense (i) if committed by an adult, would constitute an offgrid felony, a person felony, a nondrug severity level 1 through 6 felony or any drug severity level 1 or 2 felony; or (ii) was committed while in possession of a firearm; or (B) charged with a felony or with more than one offense of which one or more constitutes a felony after having been adjudicated or convicted in a separate prior juvenile proceeding as having committed an act which would constitute a felony if committed by an adult and the adjudications or convictions occurred prior to the date of the commission of the new offense charged, the burden of proof is on the respondent to rebut the designation of an extended jurisdiction juvenile prosecution. In all other motions requesting that the court designate the proceedings as an extended jurisdiction juvenile prosecution, the respondent is presumed to be a juvenile. The burden of proof is on the prosecutor to prove the respondent should be designated as an extended jurisdiction juvenile.

      (b)   The motion also may contain a statement that the prosecuting attorney will introduce evidence of the offenses alleged in the complaint and request that, on hearing the motion and authorizing prosecution as an adult or designating the proceedings as an extended jurisdiction juvenile prosecution under this code, the court may make the findings required in a preliminary examination provided for in K.S.A. 22-2902, and amendments thereto, and the finding that there is no necessity for further preliminary examination.

      (c) (1)   Upon receiving a motion as established in subsection (a), the court shall set a time and place for hearing on the motion. The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent. The motion shall be heard and determined prior to any further proceedings on the complaint.

      (2)   At the hearing, the court shall inform the respondent of the following:

      (A)   The nature of the charges in the complaint;

      (B)   the right of the respondent to be presumed innocent of each charge;

      (C)   the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;

      (D)   the right to subpoena witnesses;

      (E)   the right of the respondent to testify or to decline to testify; and

      (F)   the sentencing alternatives the court may select as the result of the juvenile being prosecuted under an extended jurisdiction juvenile prosecution.

      (d)   If the respondent fails to appear for hearing on a motion as established in subsection (a) after having been served with notice of the hearing, the court may hear and determine the motion in the absence of the respondent. If the court is unable to obtain service of process and give notice of the hearing, the court may hear and determine the motion in the absence of the respondent after having given notice of the hearing at least once a week for two consecutive weeks in the official county newspaper of the county where the hearing will be held.

      (e)   In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue. Subject to the provisions of K.S.A. 38-1653, and amendments thereto, written reports and other materials relating to the respondent's mental, physical, educational and social history may be considered by the court.

      (f) (1)   The court may authorize prosecution as an adult upon completion of the hearing if the court finds that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged. In that case, the court shall direct the respondent be prosecuted under the applicable criminal statute and that the proceedings filed under this code be dismissed.

      (2)   The court may designate the proceeding as an extended jurisdiction juvenile prosecution upon completion of the hearing if the respondent has failed to rebut the presumption or the court finds that there is substantial evidence that the respondent should be prosecuted under an extended jurisdiction juvenile prosecution. A juvenile who is the subject of an extended jurisdiction juvenile prosecution shall have the right to a trial by jury, to the effective assistance of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal procedure. Each court shall adopt local rules to establish the basic procedures for extended juvenile jurisdiction prosecution in their jurisdictions.

      (3)   After a proceeding in which prosecution as an adult is requested pursuant to subsection (a)(2), and prosecution as an adult is not authorized, the court may designate the proceedings to be an extended juvenile jurisdiction prosecution. A juvenile who is the subject of an extended juvenile jurisdiction prosecution shall have the right to a trial by jury, to the effective assistance of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal procedure. Each court shall adopt local rules to establish the basic procedures for extended juvenile jurisdiction prosecution in their jurisdictions.

      (g)   If the respondent is present in court and the court also finds from the evidence that it appears a felony has been committed and that there is probable cause to believe the felony has been committed by the respondent, the court may direct that there is no necessity for further preliminary examination on the charges as provided for in K.S.A. 22-2902, and amendments thereto. In that case, the court shall order the respondent bound over to the district judge having jurisdiction to try the case.

      (h)   If the respondent is convicted, the authorization for prosecution as an adult shall attach and apply to any future acts by the respondent which are or would be cognizable under this code.

      (i)   If the respondent is prosecuted as an adult under subsection (a)(2) and is not convicted in adult court of an offense listed in subsection (a)(2) but is convicted or adjudicated of a lesser included offense, the respondent shall be a juvenile offender and receive a sentence pursuant to K.S.A. 38-1663, and amendments thereto.

      History:   L. 1982, ch. 182, § 90; L. 1986, ch. 115, § 82; L. 1990, ch. 149, § 3; L. 1991, ch. 89, § 2; L. 1992, ch. 239, § 298; L. 1993, ch. 291, § 222; L. 1996, ch. 229, § 67; L. 1997, ch. 156, § 57; L. 1997, ch. 156, § 58; L. 1998, ch. 187, § 5; L. 1999, ch. 156, § 14; May 27.