One Violation Is Enough: Mandatory EJJP Revocation and Nonmodifiable Adult Sentences in Kansas

Commentary on In re D.J., No. 127,414 (Kan. Aug. 1, 2025)

Introduction

In re D.J. is a significant Kansas Supreme Court decision clarifying the mechanics and consequences of violations in Extended Jurisdiction Juvenile Prosecutions (EJJP). At age 15, D.J. pleaded no contest to felony murder, attempted aggravated robbery, and marijuana possession. The district court imposed both a juvenile and a stayed adult sentence under the EJJP framework. After D.J. was placed on conditional release, two law enforcement encounters led the State to seek revocation of his juvenile sentence and imposition of the adult sentence. The district court granted the State’s motion; D.J. appealed.

On appeal, D.J. (through counsel and pro se) raised five principal issues:

• Whether substantial competent evidence supported the finding that he violated his EJJP conditions (including commission of new offenses).
• Whether the district court retained discretion under K.S.A. 38-2364 to continue the stay or otherwise avoid imposing the adult sentence after a proven violation.
• Whether the court could modify or continue conditions under K.S.A. 22-3716 instead of imposing the adult sentence.
• Whether the adult “hard 25” sentence was unconstitutional as cruel and unusual (case-specific and categorical proportionality challenges).
• Whether counsel was ineffective at the revocation hearing for not presenting a case-specific proportionality challenge.

The Kansas Supreme Court affirmed, issuing clear guidance on the mandatory nature of EJJP revocations after a single proven violation, the non-applicability of adult probation statutes to EJJP violations, and strict preservation expectations for appellate review.

Summary of the Opinion

• Mandatory revocation and adult sentence: If the State proves by a preponderance of the evidence that an EJJP juvenile committed a new offense or violated any condition of the juvenile sentence, the court must revoke the juvenile sentence and impose the original adult sentence. The adult sentence can be modified only if the parties have agreed to a modification. K.S.A. 38-2364(b).
• One violation suffices: The State need prove only a single violation to trigger revocation under K.S.A. 38-2364(b).
• Evidence sufficiency: Officer testimony regarding firearms, marijuana odor and observation, rolling papers, and the juvenile’s admission supported findings of marijuana possession and eluding, even without field testing. Circumstantial evidence can establish drug identity.
• No recourse to K.S.A. 22-3716: The adult probation violation statute does not apply to EJJP revocation proceedings; K.S.A. 38-2364 governs exclusively as the more specific statute.
• Proportionality claims: Case-specific proportionality challenges are inherently factual and generally cannot be raised for the first time on appeal. The categorical proportionality claim was not considered because appellant failed to comply with Supreme Court Rule 6.02(a)(5) by addressing preservation only in a reply brief.
• Ineffective assistance: A litigant claiming ineffective assistance based on an omission must show the omitted issue was meritorious. Without a Van Cleave hearing and record development, and because the omitted proportionality claim could not be assessed on the record, the ineffective assistance claim failed.
• Disposition: Affirmed.

Analysis

Precedents Cited and Their Influence

• In re E.J.D., 301 Kan. 790 (2015) and In re A.D.T., 306 Kan. 545 (2017): These decisions frame the standard of review—substantial competent evidence—for EJJP revocation findings. The court reiterated that substantial competent evidence is evidence a reasonable person could accept as adequate to support a conclusion (drawing also on State v. Talkington, 301 Kan. 453).
• In re J.P., 311 Kan. 685 (2020): Critical authority that post-2016 K.S.A. 38-2364(b) “requires the court” to revoke the juvenile sentence and impose the adult sentence upon finding a violation. This case confirms the mandatory structure the court applied in D.J.
• In re A.M.M.-H., 300 Kan. 532 (2014): Interpreted a prior version of K.S.A. 38-2364 that gave courts discretion to revoke without notice and to impose adult sentences upon an “apparent” violation unless the juvenile requested a hearing. The Legislature removed that discretionary framework in 2016. D.J. explains A.M.M.-H. is no longer controlling after the amendment.
• State v. Brazzle, 311 Kan. 754 (2020): Approved reliance on circumstantial evidence to establish the identity of controlled substances even without scientific testing. This supported the district court’s reliance on odor, observation of a green botanical substance, rolling papers, and admissions to find marijuana possession by a preponderance.
• State v. Turner, 293 Kan. 1085 (2012): Articulates the “specific governs the general” canon. Used to hold that K.S.A. 38-2364 (specific EJJP revocation statute) controls over the general adult probation violation statute, K.S.A. 22-3716.
• Proportionality cases: State v. Dull, 302 Kan. 32 (2015); State v. Patterson, 311 Kan. 59 (2020); State v. Cervantes-Puentes, 297 Kan. 560 (2013); State v. Riffe, 308 Kan. 103 (2018); State v. Funk, 301 Kan. 925 (2015); and Miller v. Alabama, 567 U.S. 460 (2012). These cases delineate case-specific versus categorical proportionality analyses, the need for factual development for case-specific claims, and caution in framing categorical challenges (too narrow classes or challenges to procedures rather than punishments). D.J. leans on these to deny review of unpreserved case-specific claims and to question the viability and preservation of the categorical claim.
• Preservation and briefing: State v. Harris, 311 Kan. 371 (2020) (preservation exceptions); State v. Gulley, 315 Kan. 86 (2022) (pure question of law review). Schutt v. Foster, 321 Kan. __ (No. 126,555, July 25, 2025) makes clear that failure to discuss preservation in the opening brief violates Rule 6.02(a)(5) and cannot be cured in a reply brief—dispositive in rejecting D.J.’s categorical proportionality claim.
• Ineffective assistance and procedure: State v. Zongker, 319 Kan. 411 (2024); State v. Hilyard, 316 Kan. 326 (2022) (Van Cleave hearing procedure); State v. Guebara, 318 Kan. 458 (2024) and Khalil-Alsalaami v. State, 313 Kan. 472 (2021) (omitted-issue claims require showing the omitted issue was meritorious to establish deficient performance and prejudice). These authorities justified declining to reach the IAC claim without a developed record and because the omitted proportionality argument could not be shown meritorious on the existing record.

Legal Reasoning

The court’s analysis unfolds in coherent steps reflecting statutory text, standards of review, and preservation doctrine:

• Substantial competent evidence supported revocation. Officers testified that during the December 2021 stop, three firearms and suspected marijuana were found in a car with D.J.; during the July 2022 stop, D.J. fled on foot, marijuana odor and residue were observed in his vehicle, and he admitted marijuana was in the car and was his. The court emphasized that field testing is not the exclusive method to prove drug identity and that circumstantial evidence (odor, appearance, paraphernalia, admissions) suffices—especially under a preponderance standard at a revocation hearing.
• One violation triggers mandatory revocation and adult sentencing. The court’s reading of K.S.A. 38-2364(b) is plain: upon finding “by a preponderance of the evidence that the juvenile committed a new offense or violated one or more conditions,” the court “shall revoke” the juvenile sentence and impose the original adult sentence. Any discretion recognized in In re A.M.M.-H. rested on pre-2016 statutory language that has since been removed. Post-2016, courts must hold a hearing and, upon a violation, must revoke and impose. The court declined to parse additional alleged violations because one violation is enough.
• No authority to modify under K.S.A. 22-3716. The defense argued the court could continue or modify release conditions under the adult probation statute. Applying the “specific over general” canon (Turner), the court held K.S.A. 38-2364 exclusively governs EJJP revocations and expressly dictates the outcome: revocation, imposition of the original adult sentence, and transfer to adult criminal court. The statute permits modification of the adult sentence only if the parties agree to it. K.S.A. 22-3716—which pertains to adult probationary or nonprison sanctions—does not apply once the adult prison sentence is triggered under EJJP.
• Proportionality challenges were not reviewable. The case-specific Eighth Amendment and section 9 claims could not be raised for the first time on appeal because they require factual development and findings (Patterson; Cervantes-Puentes). The categorical challenge—attacking the lack of discretion in K.S.A. 38-2364(b) for certain juveniles—was not considered because the appellant failed to comply with Supreme Court Rule 6.02(a)(5) by omitting preservation discussion in the opening brief and attempting to cure in a reply brief (Schutt).
• Ineffective assistance claim failed without a record and meritorious underlying issue. No Van Cleave hearing was requested, and the record did not allow assessment of whether a case-specific proportionality claim would have succeeded. Under Khalil-Alsalaami and Guebara, an omission-based IAC claim fails if the omitted issue cannot be shown meritorious on the record. The court therefore declined review.

Impact

The decision will shape Kansas EJJP practice and appellate litigation in several concrete ways:

• EJJP zero-discretion rule after a violation. Post-2016, once the State proves a violation by a preponderance, district courts have no discretion to continue the stay or craft alternative dispositions. They must revoke the juvenile sentence and impose the original adult sentence. The only path to an adult-sentence modification is mutual agreement by the parties. This gives the State powerful leverage at the revocation stage and heightens the stakes of compliance.
• One is enough. Practitioners should focus revocation hearings on contesting every alleged violation, because a single proven violation compels revocation. Defense efforts should prioritize the most contestable allegations; the State needs only one.
• Evidentiary thresholds at revocation. The court’s reliance on circumstantial drug evidence and admissions underscores that the preponderance standard is practical and proof-flexible. Field tests or lab results are helpful but not required to sustain revocation.
• No detour through K.S.A. 22-3716. Counsel should not rely on adult probation-modification tools when an EJJP revocation is at issue. K.S.A. 38-2364(b) is a closed-loop procedure: find a violation, revoke, impose the original adult sentence—unless the parties have negotiated a modification.
• Preservation discipline. The court reiterates strict compliance with Supreme Court Rule 6.02(a)(5). Preservation must be addressed in the opening brief; reply-brief cures are ineffective. This opinion will be cited to enforce that discipline, especially for constitutional challenges.
• Building the record for proportionality. Because case-specific proportionality challenges are inherently factual, counsel must develop the record in the district court—e.g., mitigation evidence regarding youth, culpability, compliance, rehabilitation—to preserve and position such arguments for appellate review. Absent that, appellate courts will not reach the merits.
• IAC strategy. If ineffective assistance is to be argued on direct appeal based on omissions at the revocation hearing, counsel should seek a Van Cleave remand to build a record. Without it, claims typically fail because the omitted issue’s merit cannot be shown.

Complex Concepts Simplified

• Extended Jurisdiction Juvenile Prosecution (EJJP): A hybrid sentencing scheme under which a juvenile receives both a juvenile disposition and a stayed adult sentence. The adult sentence remains dormant unless the juvenile commits a new offense or violates conditions of the juvenile sentence; then the stay is lifted.
• Preponderance of the evidence: The standard at EJJP revocation hearings—more likely than not. It is much lower than “beyond a reasonable doubt.”
• Substantial competent evidence: Evidence that a reasonable person would accept as adequate to support a conclusion. Appellate courts do not reweigh credibility under this standard.
• “Hard 25”: A life sentence with parole eligibility only after 25 years. In Kansas, a felony murder conviction customarily carries this sentence.
• Case-specific vs. categorical proportionality:
  • Case-specific: Challenges a sentence as disproportionate based on the defendant’s individual circumstances and offense facts; requires factual findings and must be preserved in the district court.
  • Categorical: Asserts that a punishment is always disproportionate for a class of offenders or offenses; more purely legal but still must comply with preservation rules.
• Rule 6.02(a)(5) preservation: Appellants must identify where an issue was raised and ruled upon below or explain why an exception permits review. This must be done in the opening brief.
• Van Cleave hearing: A remand procedure to develop a record for ineffective assistance claims raised for the first time on appeal.
• Specific governs the general: A canon of statutory interpretation. When a specific statute (EJJP revocation) and a general statute (adult probation) both touch a subject, the specific statute controls.

Conclusion

In re D.J. cements the post-2016 EJJP landscape in Kansas: one proven violation, and revocation with imposition of the original adult sentence is mandatory; judicial discretion to continue the stay or unilaterally modify the adult sentence is foreclosed, absent a party agreement. The court’s evidentiary analysis confirms that circumstantial proof and admissions can meet the preponderance threshold at revocation. On appeal, the decision reinforces strict preservation norms—especially under Rule 6.02(a)(5)—and the necessity of district court record-building for case-specific proportionality challenges. It also sharpens the standard for ineffective-assistance claims premised on omissions: without a developed record showing the omitted issue was meritorious, such claims will not succeed.

Going forward, defense counsel in EJJP matters must treat revocation hearings as decisive events—because they are. All potential mitigation, proportionality, and factual disputes must be preserved and developed then, not later. For prosecutors, the opinion underscores that the path to adult sentencing under EJJP is clear: prove one violation by a preponderance. For courts, the ruling simplifies the decisional framework while highlighting the Legislature’s policy choice in 2016 to make EJJP revocation outcomes mandatory rather than discretionary.