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Senate Bill 329 Amends the Statute of Limitations For Certain Offenses committed by Juveniles
Creates an alternative means of adjudication for Juvenile Offenders. No Child in Need of Care can be held in a detention facility unless necessary to protect their safety or if they are also a Juvenile Offender. Requires the Secretary of Corrections to conduct a study of all youth residential centers in Kansas. Mandatory Risk Assessment Tool for all Juvenile Offenders. Clarifies that the Department of Children and Families cannot be appointed the permanent custodian of a child. No MAPs for Juveniles under 12 years old. Juvenile Sentencing Matrix Amended Good time credit allowed below mandatory minimum term of commitment
K.S.A. 2013 Supp. 38-2303 amended to extend the statute of limitations on filing charges against Juveniles. Extends the time limit for filing charges for the offenses of Murder, Rape, Aggravated Criminal Sodomy, Terrorism, and Illegal Use of Weapons of Mass Destruction to no limitation from the date of the commission of the offense.
Extends the time limit for filing charges for the offenses of Lewd and Lascivious Behavior, Unlawful Voluntary Sexual Relations and Aggravated Incest to five years from date of the commission of the offense if the victim is less than sixteen years old.
Extends the time for the filing of charges for sexually violent offenses as defined by K.S.A. 22-3717; indecent and aggravated indecent liberties with a child,, criminal sodomy, indecent and aggravated indecent solicitation of a child, sexual exploitation of a child, aggravated sexual battery, aggravated human trafficking, commercial sexual exploitation of a child, and any attempt, conspiracy or criminal solicitation of these offenses. When the victim is 18 years old or older to 10 years from the date of the commission of the offense or 1 year from the date on which the identity of the suspect is established by DNA testing, whichever is later. When the victim is less than 18 years old; within 10 years of the date the victim turns 18 years of age or one year from the date on which the identity of the suspect is established by DNA testing, whichever is later.
K.S.A. Supp. 38-2303 also amended to define when an offense occurs and when a proceeding is commenced under the Revised Juvenile Justice Code. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the alleged juvenile offender’s complicity therein is terminated. Time starts to run on the day after the offense is committed. A proceeding under this code is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such proceeding shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.
Creates an Alternative means of adjudication for Juvenile Offenders by amending K.S.A. 2013 Supp. 38-2347, 38-2360, 38-2369, 38-2370 and 38-2372 and repealing the existing sections.. Applies to Misdemeanors only A county or district attorney with jurisdiction over the offense may designate an alleged juvenile offender for adjudication under the statute and not seek application of a placement within the placement matrix pursuant to K.S.A. 2013 Supp. 38-2369, if the alleged juvenile offender’s act, if committed by an adult, would constitute a misdemeanor. The county or district attorney must make the designation in the original complaint or by written notice within 14 days after the filing of the complaint.
All trials under the statute are bench trials. The trial of offenses under this section shall be to the court and the right to a trial by jury under K.S.A. 2013 Supp. 38-2357, and amendments thereto, shall not apply. Juveniles cannot be committed to a correctional facility if offense designated under the statute. The juvenile cannot be directly committed to a juvenile correctional facility for an offense or for the violation of a term or condition of the disposition for an offense designated under the alternative means of adjudication.
Offenses designated under the statute have no effect on a juvenile’s criminal history. No adjudication under the alternative means of adjudication or violation of the terms and conditions of the disposition of the offense, including a placement failure, can be used against the juvenile in a proceeding on a subsequent offense committed as a juvenile or as an adult. ‘’used against the juvenile’’ includes, but is not limited to, establishing an element of a subsequent offense, raising the severity level of a subsequent offense or enhancing the sentence for a subsequent offense.
Other features of Alternative Means of Adjudication: Automatic Total Expungement: Upon completion of the case and the termination of the court’s jurisdiction, the court shall order the adjudication expunged. Ordinarily, expungements are subject to certain disclosure requirements, but under this statute, the record is completely wiped clean. The juvenile cannot be required to register as an offender under the Kansas Offender Registration Act as a result as a result of adjudication under the statute. Normal records disclosure requirements do not apply. The provisions of K.S.A. 2013 Supp. 38-2309 and 38-2310, and amendments thereto, shall not apply to proceedings under this section. Motions for Adult Prosecution, K.S.A. 2013 Supp. 38-2347, do not apply to proceedings under the statute.
Children in need of care cannot be placed in a detention facility under ordinary circumstances. The Revised Kansas Code for Care of Children is amended as follows; notwithstanding any other provision of law, no child alleged or found to be a child in need of care may be placed in a juvenile detention facility unless: (1) Such placement is necessary to protect the safety of the child and is authorized by subsection (b) of K.S.A. 2013 Supp. 38-2232, and amendments thereto, or K.S.A. 2013 Supp. 38- 2242, 38-2243 or 38-2260, and amendments thereto; or (2) the child is also alleged to be a juvenile offender and such placement is authorized by K.S.A. 2013 Supp. 38-2330 or 38- 2343, and amendments thereto.
K.S.A. 2013 Supp. 38-2268 amended to clarify that the secretary of DCF cannot be appointed the permanent custodian of a child in need of care. Under prior law DCF could be appointed as a permanent custodian.
The statute requires that by January 15, 2015 that the Secretary of Corrections : conduct a cost study analysis of all youth residential centers. Evaluate the program needs of youth in the residential centers and compare the needs with program availability. Develop a fee schedule for base service at the centers and rates for additional program components. Develop performance evaluations to measure the performance and effectiveness of juvenile offender service providers and a plan for performance-based incentives for the providers.
K.S.A. 2013 Supp. 38-2369 amended. For the purpose of committing juvenile offenders to a juvenile correctional facility the statute is amended by: amending the Serious Offender II category to include only juvenile offenders adjudicated for a severity level 7 person felony adjudication with one prior felony adjudication. Creates the Serious Offender III category which includes juvenile offenders adjudicated for severity level 8, 9, and 10 person felonies with one prior felony adjudication and requires that the judge conduct a departure hearing and finds substantial and compelling reasons to impose a departure sentence as provided in K.S.A. 2013 Supp. 38- 2371.
K.S.A. 2013 Supp. 38-2369 amended. For the purpose of committing juvenile offenders to a juvenile correctional facility the statute is amended by: Chronic Offender I, II, and III categories amended by requiring the court to conduct a departure hearing and find substantial and compelling reasons to impose a departure sentence as provided in K.S.A. 2013 Supp. 38-2371.
Offender TypeOffense Level of Adjudication/History Term of Commitment Aftercare Term Violent Offenders Violent Off. IOff-grid felony60 mo. to 22 ½ yrs old 6 mo. to 23 yrs old Violent Off. IILevel 1 - 3 pers. felony 24 mo. to 22 ½ yrs old 6 mo. to 23 yrs old Serious Offenders Serious Off. ILevel 4 - 6 pers. Felony or Level 1-3 drug felony 18 to 36 months 6 to 24 months Serious Off. IILevel 7 pers. Felony and 1 prior felony adjudication 9 to 18 months 6 to 24 months Serious Off. IIILevel 8-10 pers. Felony and 1 prior felony adjudication and departure hearing 9 to 18 months 6 to 24 months
Offender TypeOffense Level of Adjudication/History Term of Commit ment Aftercare Term Chronic Offenders Chronic Off. IPresent non-pers. felony and 2 prior felony adjudications and departure hearing 6 to 18 months 6 to 12 months Chronic Off. IIPresent felony or level 3-4 drug adjudication and 2 prior misd. adj. or 1 prior pers. or non-pers. felony adj. Or 2 prior level 4-5 drug adj. and departure hearing 6 to 18 months 6 to 12 months Chronic Off. IIIPresent misdemeanor adj. or level 4 - 5 drug felony adj. and 2 prior misd. adj. or 1 prior pers. or non-pers. felony adj. or 2 prior level 4-5 drug felony adj. and 2 placement failures and departure hearing 3 to 6 months Conditional Release Violators Conditional Release Violator All * See 38-2369(a)(4)(B) for more options on disposition of violators 3 to 6 months 2 to 6 months or length of original release whichever is longer.
K.S.A. 2013 Supp. 38-2370 amended to allow juveniles directly committed to a correctional facility to earn good time credit below the mandatory minimum sentence set forth in the Juvenile Sentencing Matrix. Previously no good time credit could be earned to reduce a sentence below the mandatory minimum sentence.
Riley v. California and United States v. Wurie, 573 U.S. ___, decided June 25, 2014. Cellular phones seized incident to arrest of a suspect generally may not be searched without a warrant. “[The Court’s] answer to the question of what police must do before search a cell phone seized incident to an arrest is accordingly simple – get a warrant.”
What about exigent circumstances/possible destruction of data? any effort by law enforcement must be limited to preserve the data and not exceed that objective. Must be able to answer the following questions: Are there “exigent circumstances”: a good faith claim of urgent law enforcement need, some reason to believe that data destruction is a realistic possibility? Is the preservation practice at issue narrowly tailored to the objective of preserving evidence without intruding into the data on the phone? Is the case a serious offense, generally defined as a “jailable offense”?