                                              No. 117,957

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                    ALLEN DEANDRE ROBINSON,
                                           Appellant.

                                  SYLLABUS BY THE COURT

1.
        The right to a speedy trial guaranteed under the Sixth Amendment to the United
States Constitution and Section 10 of the Kansas Constitution's Bill of Rights applies in
juvenile-offender proceedings under the Kansas Juvenile Offender Code.


2.
        Criminal charges against a juvenile offender may be refiled in an adult proceeding
after a hearing is held to determine whether it's appropriate to do so. Once the charges are
refiled in an adult proceeding, those charges may be amended as otherwise provided by
law and are not limited only to the charges initially brought in the juvenile-offender
proceeding.


3.
        A statute-of-limitations defense to a criminal charge is waived if not timely raised
by the defendant in the district court.


        Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed December 14, 2018.
Affirmed in part, reversed in part, and remanded with directions.


        Ashlyn Buck Lewis, of Topeka, for appellant.
        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before MCANANY, P.J., PIERRON and LEBEN, JJ.


        LEBEN, J.: The Sixth Amendment to the United States Constitution and Section 10
of the Kansas Constitution's Bill of Rights both guarantee the right to a speedy and public
jury trial in all criminal prosecutions. A decade ago, in In re L.M., 286 Kan. 460, Syl. ¶ 1,
186 P.3d 164 (2008), the Kansas Supreme Court held that juveniles had a right to a jury
trial under these provisions because juvenile-offender proceedings had "become more
akin to an adult criminal prosecution" than to the benevolent rehabilitative system that
had once existed.


        Allen Robinson appeals his convictions for aggravated robbery and kidnapping on
the basis that his constitutional right to a speedy trial was violated. But his case was
initially filed as a juvenile-offender proceeding, and the State argues that no speedy-trial
right exists there. We disagree: if the jury-trial provisions in the Kansas and United States
Constitution apply, so do the speedy-trial provisions. Because the district court in
Robinson's case did not decide his speedy-trial claim on the merits—and several factors
that must be considered need to be factually developed—we return the case to the district
court to consider the speedy-trial claim.


        Robinson also argues that the State couldn't add charges once the case moved from
juvenile to adult court and that the State's service of the arrest warrant was so late that the
statute of limitations had expired. But a past decision of our court and our analysis of the
applicable statutory provisions supports the conclusion that the State can amend the
charges once the case is in an adult proceeding just as it can in other cases. And Robinson



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didn't raise a statute-of-limitations defense in the district court; failing to do so waived
that potential defense.


                          FACTUAL AND PROCEDURAL BACKGROUND


         On a Sunday night in September 2012, Robinson and three others entered a home
in Olathe and held the four men who resided there at gunpoint. Robinson and his
accomplices moved the men into a bathroom, used profane language deriding the
residents' sexual identity, and ordered them to strip and touch each other's genitals.
Robinson then stole property from the home and drove away.


         Because the issues on appeal involve speedy-trial rights and the movement of
charges from juvenile to adult proceedings, we will focus on the timing of the
proceedings in both juvenile and adult proceedings. Less than two weeks after the events
occurred, the State brought four charges of aggravated robbery against Robinson, then
17, in juvenile proceedings in the Johnson County District Court. Along with those
charges, the State moved for court authorization to prosecute Robinson as an adult. A
warrant for Robinson's arrest was issued September 27, the same day the charges were
filed.


         About six weeks later, the court held a status conference in the case. Robinson
wasn't there, but an appointed attorney was. There's no indication in our record that
Robinson knew about the charges or the hearing.


         About two days after that hearing, Robinson was arrested on unrelated charges in
another county. There's no indication that the prosecutor in Johnson County, where the
aggravated-robbery charges were pending, knew about the arrest.




                                               3
       More than two years later, on November 21, 2014, the court in Johnson County
issued an order to transport Robinson there to answer the pending charges. That happened
after the charges in the other county had been resolved; Robinson had been convicted in
an adult proceeding there and sentenced to prison. The order to bring Robinson to
Johnson County and the original Johnson County arrest warrant were executed (or
served) on Robinson, who was in the custody of the Department of Corrections, on
December 11, 2014.


       About two months later, the court held a hearing on the State's request to transfer
Robinson's case to adult proceedings (called a waiver). Robinson objected to the waiver,
but the court granted the State's request. Two days later, the State charged Robinson in an
adult proceeding with the same four counts of aggravated robbery. A month later, the
State amended the complaint to include four counts of kidnapping. The court held a
preliminary hearing in May 2015 and bound Robinson over for trial on two counts of
aggravated robbery and four counts of kidnapping.


       One of the issues we'll discuss later in the opinion involves the timing of
Robinson's motion in the district court to dismiss the case on speedy-trial grounds. His
attorney first told the court of his intention to file the motion at a hearing held June 4. At
that point, trial was set for June 22 with a pretrial conference on June 17.


       When told that Robinson would be moving to dismiss, the judge responded, "If it's
going to take me sitting down with my pencil and my calculator . . . trying to figure out if
[the] speedy trial [deadline has] passed, then I'd like it as soon as possible." The
prosecutor then asked for some clarity about when the motion would be taken up by the
court: "Judge, we'll just take that up apparently [then] at pretrial conference?" The judge
replied that there was no time available before that.




                                               4
         Robinson's attorney filed the motion to dismiss on June 15, and the State filed a
formal response the next day. The court considered the motion at the June 17 pretrial
conference and denied it. At no point in that hearing did the State object that Robinson's
motion to dismiss was untimely.


         When the parties reconvened on June 22 for the jury trial, Robinson's attorney
renewed the motion to dismiss on speedy-trial grounds to preserve that issue for appeal.
At that time, the State told the court that in addition to the arguments it had made
previously, the court should deny the motion because it wasn't made within 21 days of
arraignment as required by K.S.A. 2017 Supp. 22-3208(4). The court affirmed its earlier
ruling and also found that Robinson's motion was untimely.


         Robinson was convicted in a jury trial of two counts of aggravated robbery and
four counts of kidnapping. He has appealed to our court, raising three claims: (1) that the
State violated his constitutional right to a speedy trial; (2) that the State shouldn't have
been allowed to amend the charges in adult court to add kidnapping counts; and (3) that
the district court should have dismissed the charges because the State didn't serve the
warrant on him for more than two years.


                                          ANALYSIS


I. Speedy-Trial Rights Apply to Juvenile-Offender Proceedings, but Whether Robinson's
Speedy-Trial Rights Were Violated Requires Factual Findings to Be Made by the District
Court.


         We begin with Robinson's first claim—that the claims against him should be
dismissed because the State violated his constitutional speedy-trial rights.




                                               5
       The Sixth Amendment to the United States Constitution provides: "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . ." That amendment applies not only in federal prosecutions but also in
prosecutions by a state. State v. Henderson, 284 Kan. 267, 276, 160 P.3d 776 (2007). In
addition, Section 10 of the Kansas Constitution's Bill of Rights provides similar
protections: "In all prosecutions, the accused shall be allowed . . . a speedy public trial by
an impartial jury . . . ."


       The State argues that these constitutional speedy-trial rights do not apply to
juvenile proceedings, citing State v. Breedlove, 295 Kan. 481, 487, 286 P.3d 1123 (2012).
But the juvenile proceedings in Breedlove's case (for crimes committed in 1995) took
place before our Supreme Court's June 20, 2008 decision in L.M. Thus, the court's
comment in Breedlove that juveniles had no constitutional speedy-trial right "in matters
conducted under the Juvenile Justice Code," 295 Kan. at 487, should not be read to apply
to matters conducted under the Revised Juvenile Justice Code. See L.M., 286 Kan. at 465-
66. It's that Revised Juvenile Justice Code that was at issue in L.M. and is applied here.


       The L.M. case carefully considered whether a juvenile had the right to a jury trial
in a juvenile-offender proceeding. As in our case, the right would be analyzed under the
Sixth Amendment to the United States Constitution and Section 10 of the Kansas
Constitution's Bill of Rights. The L.M. court held that because juvenile proceedings had
"become more akin to an adult criminal prosecution" than the rehabilitative process
previously in place, the jury-trial right now applied under these constitutional provisions.
286 Kan. 460, Syl. ¶¶ 1, 2.


       We see no reason the speedy-trial rights under the same constitutional provisions
would be any less applicable. Nor has the State provided any reasoned argument for that
result. We therefore conclude that the same constitutional speedy-trial rights apply in
both juvenile and adult proceedings.

                                              6
       The State next argues that even if speedy-trial rights apply, Robinson waited too
long to raise the issue. Robinson raised the issue in a motion to dismiss, and K.S.A. 2017
Supp. 22-3208(4) provides that a motion to dismiss must be made "within 21 days after
the plea is entered." Robinson was arraigned and pleaded not guilty on May 15, 2015, so
the 21-day deadline was June 5. The motion wasn't filed until June 15.


       But Robinson's attorney told the court on June 4 that he planned to file a written
motion to dismiss. The gist of the parties' discussion with the court was that the motion
couldn't be taken up until the June 17 pretrial conference—and the State didn't object to
consideration of the motion based on its timeliness when it was heard at that pretrial
conference. Nor did the State reference K.S.A. 2017 Supp. 22-3208(4) on June 4, the day
before the statutory deadline, when the parties discussed the defendant's plan to move to
dismiss.


       At least on the facts of our case, we conclude that Robinson didn't lose his
constitutional right to a speedy trial by filing his motion to dismiss on June 15. The State
concedes that it suffered no prejudice from the 10-day delay; indeed, the State still
managed to file its written opposition to the motion before the pretrial conference.
There's also a plausible argument that the district court impliedly granted a continuance
to the defendant to file the motion any time before the pretrial conference: K.S.A. 2017
Supp. 22-3208(4) allows the court to extend that deadline when the grounds for the
motion weren't known and couldn't have reasonably been determined within the deadline.
While that may not have been true here (we can't be completely sure because the issue
wasn't developed in the absence of an objection about the motion's timeliness), the State
made no objection to hearing the motion on June 17 and the 21-day deadline is not a
jurisdictional requirement. With no timeliness objection by the State at or before the
pretrial conference and given the June 4 colloquy with the court, we conclude that the
motion to dismiss may be considered on its merits.

                                             7
         We should briefly note the State's timeliness objection when the defendant
reasserted the speedy-trial issue at trial; raising the claim at that point does not change
our conclusion. Robinson merely reasserted the speedy-trial claim to preserve it for
appeal. The time for the State to object would have been on June 4, when the parties
discussed scheduling the motion, or at the latest June 17, when the motion was initially
heard.


         Having decided that Robinson had a constitutional speedy-trial right throughout
the proceedings, we have gone as far as we can with that issue. As the parties recognize, a
four-factor balancing test first announced by the United States Supreme Court in
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), must be
applied to determine whether the defendant's speedy-trial right has been violated.
See State v. Otero, 210 Kan. 530, 532–33, 502 P.2d 763 (1972) (adopting the Barker test
in Kansas). These factors are (1) the length of the delay; (2) the reason for the delay; (3)
the defendant's assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S.
at 530. No single factor is controlling—we must consider them together along with other
circumstances that may be relevant. 407 U.S. at 533.


         The constitutional right to a speedy trial attaches—and thus begins to protect the
defendant from undue delay—at formal charging or at arrest, whichever happens
first. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). So the delay from the time
the State brought formal charges in the juvenile court until Robinson's ultimate trial in an
adult proceeding must be analyzed under the Barker factors. Because doing so will
require that factual determinations be made—and it's the district court's role, not ours, to
make factual findings—we will send that issue back to the district court for further
consideration.




                                               8
II. When a Criminal Charge First Made in Juvenile Proceedings Is Refiled as an Adult
Proceeding, the State Is Not Precluded from Amending the Charge.


       Robinson's next claim is that the State couldn't add kidnapping charges after the
case was transferred to an adult proceeding. Robinson bases this claim on K.S.A. 2017
Supp. 38-2347, which lists eight factors the district court must consider when
determining whether to allow the State to charge a juvenile as an adult. Among those
factors are ones that refer to the offense alleged in the juvenile proceeding: "[t]he
seriousness of the alleged offense," how "the alleged offense was committed," and
whether "the offense" was against a person or against property. K.S.A. 2017 Supp. 38-
2347(d)(1), (d)(2), (d)(3). According to Robinson, since the district court must determine
whether to allow the case to be transferred to an adult proceeding based in part on
consideration of the specific charge, the State can't later amend the complaint and add
new charges once the case is transferred to an adult proceeding.


       Robinson recognizes that a case our court decided many years ago, State v.
Randolph, 19 Kan. App. 2d 730, 876 P.2d 177 (1994), is contrary to his position. In
Randolph, we noted that the charge was only one of the factors to be considered and
concluded that the charges could be amended when the case moved to adult court. 19
Kan. App. 2d at 733-34.


       The only change of note since Randolph has been the recognition in L.M. that the
character of juvenile proceedings had changed into something more like traditional
criminal proceedings. We see nothing about that change that would suggest the Randolph
rule should no longer apply.


       Robinson's argument also has another flaw: it considers only one of two statutory
provisions that apply here. His argument is based on his interpretation of K.S.A. 2017
Supp. 38-2347, which includes consideration of "the alleged offense" when considering

                                              9
whether to allow the case to move to adult proceedings. But there's another statute to
consider, K.S.A. 22-3201(e), a provision of the Kansas Code of Criminal Procedure,
which applies generally in criminal cases.


       K.S.A. 22-3201(e) allows a charge to be amended: "The court may permit a
complaint or information to be amended at any time before verdict or finding if no
additional or different crime is charged and if substantial rights of the defendant are not
prejudiced." While this statute literally says that amendments are allowed if there's not a
different crime charged and the defendant won't be substantially prejudiced, Kansas
courts have long interpreted it to allow adding new charges before trial as long as no
substantial prejudice will accrue to the defendant. E.g., State v. Bischoff, 281 Kan. 195,
Syl. ¶ 7, 131 P.3d 531 (2006); State v. Woods, 250 Kan. 109, Syl. ¶ 1, 825 P.2d 514
(1992); State v. Niblock, 230 Kan. 156, 163, 631 P.2d 661 (1981).


       Once prosecution of the juvenile as an adult is approved, the case is refiled as an
adult proceeding, where the Kansas Code of Criminal Procedure applies. No provision of
that Code suggests that its provisions only partly apply when the charges were first filed
in a juvenile proceeding. We see no statutory indication that the charges, when refiled in
an adult proceeding, are treated any differently than those in other cases.


       So we have two statutes to consider—K.S.A. 2017 Supp. 38-2347 and K.S.A. 22-
3201. The first was interpreted in Randolph to allow new charges in the adult proceeding.
The second has been interpreted to allow new charges generally in adult proceedings as
long as the defendant won't be substantially prejudiced. Had the Legislature wanted to
change the long-standing interpretation of either statute, it has had ample time to do so.
"The doctrine of stare decisis [that we follow precedent] is particularly compelling in
cases where, as here, the legislature is free to alter a statute in response to court precedent
with which it disagrees but declines to do so." State v. Quested, 302 Kan. 262, 278, 352
P.3d 553 (2015). We conclude, therefore, that the State could properly add the

                                              10
kidnapping charges. Robinson did not show, either in the district court or on appeal, that
adding these charges substantially prejudiced his ability to defend himself at trial.


III. Statute-of-Limitations Defenses Are Waived if Not Timely Raised, and Robinson Did
Not Timely Raise This Defense.


       Robinson's final argument is that because there was unreasonable delay in
executing (or serving) the arrest warrant on him, the court should find that the State didn't
begin the prosecution against him within the two-year statute of limitations set out for
juvenile proceedings in K.S.A. 2017 Supp. 38-2303(d). While the initial charges against
Robinson were filed only a few days after the crimes—and well within the two-year
limitation period—Robinson argues that there was unreasonable delay in serving the
warrant on him. When there's unreasonable delay in serving the warrant, the case
generally isn't considered to have begun until service of the warrant. See K.S.A. 2017
Supp. 38-2303(g). So Robinson argues that the State brought the charges too late: It
didn't serve the warrant on him until December 12, 2014, more than two years after the
crimes.


       But the State argues that Robinson didn't raise this claim in the district court, and a
statute-of-limitations defense is waived if not raised there. See State v. Sitlington, 291
Kan. 458, Syl. ¶¶ 2-3, 241 P.3d 1003 (2010). Although our reasoning differs somewhat
from the State's argument, we agree with its conclusion that Robinson waived this
defense because he didn't raise it in the district court.


       Robinson's motion to dismiss in the district court was based on his constitutional
speedy-trial rights, not the statute of limitations. The only mention of the statute of
limitations in the district court came after the court brought up the topic at the June 17
pretrial conference. As we've already noted, Robinson had moved to dismiss two days
earlier, and that motion was based only on his speedy-trial rights.

                                               11
       The district court raised the statute-of-limitations issue after the prosecutor, in
arguing the motion to dismiss, suggested that the State could put on evidence that
Robinson had known about the Johnson County charges while he was still being held in
Wyandotte County. After mentioning that evidence, the prosecutor said that "this is not a
speedy trial determination." The court replied, "No, it's a statute of limitations
determination." The court later concluded that the defendant had waived a statute-of-
limitations defense by not raising it before the case was waived to adult court.


       We're not sure the district court was right on that point (one the State adopted on
appeal), but it doesn't change the overall result. There's a good argument that Robinson
didn't have a chance to get a speedy-trial defense in front of the court before transfer to
adult status. The State filed both juvenile charges and a motion to prosecute Robinson as
an adult on the same day, and another statute, K.S.A. 2017 Supp. 38-2347(b)(1), provides
that "[t]he motion [to prosecute as an adult] shall be heard and determined prior to any
further proceedings on the complaint." That would seem to leave no effective opportunity
for Robinson to have raised the statute-of-limitations issue before transfer to adult status.
Presumably, then, he had not waived the defense by failing to raise it at that point.


       But even after adult proceedings began, Robinson's motion to dismiss wasn't based
on the statute of limitations. Though he did tell the district court that the State had failed
to serve his arrest warrant promptly, he did so only over the speedy-trial issue: Robinson
argued to consider that the delay under the Barker factors.


       We agree, then, with the district court's overall conclusion that Robinson waived
the statute-of-limitations defense by not raising it in the district court. Even if we assume
that Robinson could have raised the statute-of-limitations defense after the case had
moved to adult proceedings, he didn't, and that failure waived the defense. See Sitlington,
291 Kan. 458, Syl. ¶¶ 2-3.

                                              12
       We should add that the State's delay in serving the warrant still can be considered
on remand regarding the issue about which Robinson raised it in the district court—the
speedy-trial issue. The district court may consider the delay in serving the warrant, its
cause, and any resulting prejudice when it weighs the Barker factors.


       We affirm the district court's judgment in part, reverse it in part, and remand the
case for further proceedings.




                                             13
