38-2347. Prosecution as an adult; extended jurisdiction juvenile prosecution; burden of proof; authorization.
38-2347
38-2347. Prosecution as an adult; extendedjurisdiction juvenile prosecution; burden of proof; authorization.(a) (1) Except as otherwise provided in this section, atany time aftercommencement of proceedings under this code against a juvenile and prior tothe beginning of anevidentiary hearing at which the court may enter a sentence as provided inK.S.A. 2009 Supp.38-2356, andamendments thereto, the county or district attorney or the county or districtattorney's designee mayfile a motion requesting that the court authorize prosecution of the juvenileas an adult under theapplicable criminal statute. The juvenile shall be presumed to be a juvenileunless good cause isshown to prosecute the juvenile as an adult.
(2) The alleged juvenile offender shall be presumed to be an adult if thealleged juvenileoffender was: (A) 14, 15, 16 or 17 years of age at the time of the offense oroffenses alleged in thecomplaint, if any such offense: (i) If committed by an adult, would constitutean off-grid crime, aperson felony, a nondrug severity level 1 through 6 felony or any drug severitylevel 1 , 2 or 3 felony;or (ii) was committed while in possession of a firearm; or (B) charged with afelony or with morethan one offense, one or more of which constitutes a felony, after having beenadjudicated orconvicted in a separate juvenile proceeding as having committed an offensewhich would constitutea felony if committed by an adult and the adjudications or convictions occurredprior to the date ofthe commission of the new act charged and prior to the beginning of anevidentiary hearing at whichthe court may enter a sentence as provided inK.S.A. 2009 Supp.38-2356, andamendments thereto. If the juvenileis presumed to be an adult, the burden is on the juvenile to rebut thepresumption by apreponderance of the evidence.
(3) At any time after commencement of proceedings under this code against ajuvenileoffender and prior to the beginning of an evidentiary hearing at which thecourt may enter a sentenceas provided inK.S.A. 2009 Supp.38-2356, and amendments thereto, the county ordistrict attorney orthe county or district attorney's designee may file a motion requesting thatthe court designate the proceedings as anextended jurisdiction juvenile prosecution.
(4) If the county or district attorney or the county or district attorney'sdesignee files a motionto designate the proceedings as an extended jurisdiction juvenile prosecutionand the juvenile was14, 15, 16 or 17 years of age at the time of the offense or offenses alleged inthe complaint and: (A)charged with an offense: (i) If committed by an adult, would constitute anoff-grid crime, a personfelony, a nondrug severity level 1 through 6 felony or any drug severity level1, 2 or 3 felony; or (ii)was committed while in possession of a firearm; or (B) charged with a felony orwith more than, oneoffense, one or more of which constitutes a felony, after having beenadjudicated or convicted ina separate juvenile proceeding as having committed an act which wouldconstitute a felony ifcommitted by an adult and the adjudications or convictions occurred prior tothe date of thecommission of the new offense charged, the burden is on the juvenile to rebutthe designation ofan extended jurisdiction juvenile prosecution by a preponderance of theevidence. In all othermotions requesting that the court designate the proceedings as an extendedjurisdiction juvenileprosecution, the juvenile is presumed to be a juvenile. The burden of proof ison the prosecutor toprove the juvenile should be designated as an extended jurisdiction juvenile.
(b) The motion also may contain a statement that the prosecuting attorneywill introduceevidence of the offenses alleged in the complaint and request that, on hearingthe motion andauthorizing prosecution as an adult or designating the proceedings as anextended jurisdictionjuvenile prosecution under this code, the court may make the findings requiredin a preliminaryexamination provided for in K.S.A. 22-2902, and amendments thereto, and thefinding that there isno necessity for further preliminary examination.
(c) (1) Upon receiving the motion, the court shall set a time and placefor hearing. Thecourt shall give notice of the hearing to the juvenile, each parent, if serviceis possible, and theattorney representing the juvenile. The motion shall be heard and determinedprior to any furtherproceedings on the complaint.
(2) At the hearing, the court shall inform the juvenile of the following:
(A) The nature of the charges in the complaint;
(B) the right of the juvenile to be presumed innocent of each charge;
(C) the right to trial without unnecessary delay and to confront andcross-examine witnessesappearing in support of the allegations of the complaint;
(D) the right to subpoena witnesses;
(E) the right of the juvenile to testify or to decline to testify; and
(F) the sentencing alternatives the court may select as the result of thejuvenile beingprosecuted under an extended jurisdiction juvenile prosecution.
(d) If the juvenile fails to appear for hearing on the motion after havingbeen served withnotice of the hearing, the court may hear and determine the motion in theabsence of the juvenile.If the court is unable to obtain service of process and give notice of thehearing, the court may hearand determine the motion in the absence of the alleged juvenile offender afterhaving given noticeof the hearing at least once a week for two consecutive weeks in the officialcounty newspaper ofthe county where the hearing will be held.
(e) In determining whether or not prosecution as an adult should beauthorized or designatingthe proceeding as an extended jurisdiction juvenile prosecution, the courtshall consider each of thefollowing factors:
(1) The seriousness of the alleged offense and whether the protection of thecommunity requires prosecution as an adult or designating the proceeding as anextended jurisdictionjuvenile prosecution;
(2) whether the alleged offense was committed in anaggressive, violent,premeditated or willful manner;
(3) whether the offense was against a person oragainst property.Greater weight shall be given to offenses against persons, especially ifpersonal injury resulted;
(4) the number of alleged offenses unadjudicated and pending against thejuvenile;
(5) the previoushistory of the juvenile, including whether the juvenile had been adjudicateda juvenile offenderunder this code or the Kansas juvenile justice code and, if so, whether theoffenses were against persons orproperty, and any otherprevious history of antisocial behavior or patterns of physical violence;
(6) the sophistication ormaturity of the juvenile as determined by consideration of the juvenile'shome, environment,emotional attitude, pattern of living or desire to be treated as an adult;
(7) whether there are facilitiesor programs available to the court which are likely to rehabilitate thejuvenile prior to the expirationof the court's jurisdiction under this code; and
(8) whether the interests ofthe juvenile or of thecommunity would be better served by criminal prosecution or extendedjurisdiction juvenileprosecution.
The insufficiency of evidence pertaining to any one or more ofthefactors listed in thissubsection, in and of itself, shall not be determinative of the issue. Subjectto the provisions ofK.S.A. 2009 Supp.38-2354, and amendments thereto, written reports and othermaterials relating to the juvenile's mental, physical, educational and socialhistory may be considered by the court.
(f) (1) The court may authorize prosecution as an adult upon completion ofthe hearing if thecourt finds from a preponderance of the evidence that the alleged juvenileoffender should beprosecuted as an adult for the offense charged. In that case, the court shalldirect the allegedjuvenile offender be prosecuted under the applicable criminal statute and thatthe proceedings filedunder this code be dismissed.
(2) The court may designate the proceeding as an extended jurisdictionjuvenile prosecutionupon completion of the hearing if the juvenile has failed to rebut thepresumption or the court findsfrom a preponderance of the evidence that the juvenile should be prosecutedunder an extendedjurisdiction juvenile prosecution.
(3) After a proceeding in which prosecution as an adult is requested pursuantto subsection(a)(2), and prosecution as an adult is not authorized, the court may designatethe proceedings to bean extended jurisdiction juvenile prosecution.
(4) A juvenile who is the subject of an extendedjurisdiction juvenile prosecution shall have the right to a trial by jury, totheeffective assistance of counseland to all other rights of a defendant pursuant to the Kansas code of criminalprocedure. Each courtshall adopt local rules to establish the basic procedures for extendedjurisdiction juvenile prosecutionin such court's jurisdiction.
(g) If the juvenile is present in court and the court also finds from theevidence that itappears a felony has been committed and that there is probable cause to believethe felony has beencommitted by the juvenile, the court may direct that there is no necessity forfurther preliminaryexamination on the charges as provided for in K.S.A. 22-2902, and amendmentsthereto. In that case,the court shall order the juvenile bound over to the district judge havingjurisdiction to try the case.
(h) If the juvenile is convicted, the authorization for prosecution as anadult shall attach andapply to any future prosecutions of the juvenile which are or would becognizable under this code. If the juvenile is not convicted, the authorizationfor prosecution as an adult shall not attachand shallnot apply to future prosecutions of the juvenile which are or would becognizable under this code.
(i) If the juvenile is prosecuted as an adult under subsection (a)(2) and isnot convicted inadult court of an offense listed in subsection (a)(2) but is convicted oradjudicated of a lesserincluded offense, the juvenile shall be a juvenile offender and receive asentence pursuant toK.S.A. 2009 Supp.38-2361, and amendments thereto.
History: L. 2006, ch. 169, § 47; Jan. 1, 2007.