Opinion
NO. 2012-CA-001473-MR
06-27-2014
HERBERT EUGENE LEE, III APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Elizabeth B. McMahon Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 09-CR-001095
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE, CAPERTON AND VANMETER, JUDGES. CAPERTON, JUDGE: Herbert Eugene Lee appeals from the revocation of his probation by the circuit court and his remand into the custody of the Department of Corrections to serve the remainder of his sentence ordered per Kentucky Revised Statutes (KRS) 635.060. After a thorough review of the parties' arguments, the record, and the applicable law, we affirm.
The underlying facts regarding Lee's conviction were addressed by this Court in affirming Lee's conviction and sentence:
On December 18, 2008, Lee provided a ride home for four boys who had been attending a "Youth Alive" community event. Lee and the four boys were acquainted only through the Youth Alive program. Three of the boys were brothers—sixteen-year-old twins Demar and Jemar Claybrooks and fourteen-year-old Marc Claybrooks. The fourth was their close friend Aaron Shields, who also has a twin brother. On the way home, a police officer attempted to pull Lee over. Lee stopped at first, but then he proceeded to drive at a high rate of speed. The roads were wet, and Lee drove so fast that the police officer fell back due to safety concerns.Lee v. Commonwealth, 2011-CA-000176-MR, 2012 WL 2052076 (Ky. App. June 8, 2012), review denied (Feb. 13, 2013).
As Lee's car rounded a dangerous curve, he lost control; it slammed into a tree. The car was ripped in half by the impact, and all four of the passengers died. Officers saw Lee crawl out of the car. He had minor injuries. Lee was sixteen years of age. He did not have a driver's license, and he had stolen the car.
Lee was charged with four counts of murder, fleeing or evading police in the first degree, receiving stolen property over $300, operating a motor vehicle without a license, and reckless driving. His case was transferred from juvenile court to circuit court where he was tried as an adult. In October 2010, a jury found him guilty of four counts of manslaughter in the second degree, of fleeing or evading police in the first degree, of receiving stolen property over $300, and of operating a motor vehicle without a license.
As will be discussed in greater detail later in our analysis, the jury's findings required Lee to be sentenced under juvenile guidelines. Therefore, his sentencing disposition was held on December 3, 2010. The court imposed a sentence of one year of commitment, followed by one year of probation. On December 21, 2010, the court entered a judgment of conviction and sentence order. On February 23, 2011, the court entered an amended opinion and order reflecting that the jury had found Lee guilty but that the sentence was imposed by the court. On February 28, 2011, the court entered an
amended judgment of conviction and sentence which reflected the changes in its order and opinion of February 23. We note that Lee had attained eighteen years of age prior to the time of trial. Lee appeals from both the first and second judgments of conviction and sentence. The appeals have been consolidated by this court.
Lee alleges that the court committed error by imposing a sentence of commitment followed by a sentence of probation, arguing that by law he should have received one punishment or the other—but not both. Because the sentence is an issue of law, our review is de novo. Fugett v. Commonwealth, 250 S.W.3d 604, 616 (Ky. 2008).
Lee's case was initially transferred to circuit court from juvenile court as a youthful offender pursuant to Kentucky Revised Statute[s] (KRS) 635.020(2). That statute authorizes transfer when "a child [is] charged with a capital offense, Class A felony, or Class B felony, [and] had attained age fourteen (14) at the time of the alleged commission of the offense." Murder is a Class A felony; however, second-degree manslaughter is a Class C felony, and Lee's other convictions are Class D felonies —crimes which would have exempted him from transfer pursuant to KRS 635.020(2). Therefore, the sentencing was required to be conducted pursuant to KRS 640.040(4), which instructs that if a youthful offender's conviction is for exempt crimes, he must be sentenced pursuant to KRS 635.060.
KRS 635.060(2) provides that the court may place a child under probation. If the child has reached the age of seventeen years and six months, the maximum time of probation is one year. KRS 635.060(3) permits the court to commit the child to the Department of Juvenile Justice to be placed in a detention facility. It also limits the sentence to one year for a child who has attained seventeen and one-half years of age. KRS 635.060(6) authorizes the combination of any dispositions listed within the statute.
In this case, the court relied on KRS 635.060(6) to sentence Lee under both subsections (2) and (3). Lee argues that it erred in so doing because each statutory provision sets a limit of one year if a child had reached seventeen and one-half years of age. He alleges that the
outcome is inequitable because he was eighteen years old at the time of sentencing. We disagree.
While Lee contends that we should delve into an interpretation of the General Assembly's intent of setting time limits in two provisions, we are mindful that statutory interpretation is based on plain meaning of the statutes. Commonwealth v. Garnett, 8 S.W.3d 573, 576 (Ky. App. 1999). We do not believe that the trial court misconstrued the statute when it properly combined the two provisions of disposition pursuant to KRS 635.060(6). The legislature expressly authorized courts to combine provisions of the statutes when it directed that a court may impose:
[a]ny combination of the dispositions listed above except that, if a court probates or suspends a commitment in conjunction with any other dispositional alternative, that fact shall be explained to the juvenile and contained in a written order.KRS 635.060(6). There is no mention of any exceptions or restrictions associated with the rule. It is undisputed that the trial court explained the dual disposition, and it is contained in the written record more than once.
We agree with Lee that statutes "should not be interpreted so as to bring about an absurd or unreasonable result." Kentucky Indus. Util. Customers, Inc. v. Kentucky Util. Co., 983 S.W.2d 493, 500 (Ky.1998). However, we also agree with the Commonwealth that it is Lee's interpretation that would produce an absurd result.
First, it is absurd that an older teenager would receive a more lenient sentence because of his age. Under the penal code, sentences are increased for adults. We cannot speculate that the Legislature intended for criminal offenders to receive a window of leniency in their later teen years. Nothing in the statutes suggests this intent. Furthermore, in this case, a young man, by his criminal behavior, caused the death of four boys. Under the law, he has received a very lenient sentence of one-year commitment followed by one year of probation that will provide him with structure and guidance as he returns to life in society. We can find no error in the sentencing imposed by the court.
During the pendency of Lee's direct appeal, his commitment to the Department of Juvenile Justice (DJJ) ended and he was placed on probation. While on probation, Lee was found to be in possession of a stolen car. He was indicted by the Jefferson County Grand Jury and arraigned on July 12, 2012. He eventually pled guilty to felony receiving stolen property and received a three-year sentence with judgment entered on March 14, 2013.
As a result of his arrest in the stolen car, actions were taken to revoke Lee's probation. A probation violation report was filed with the court on July 19, 2012. On July 27, 2012, a probation revocation hearing was held. After hearing evidence, the trial court revoked Lee's probation. At this time Lee was twenty years old. In its final order entered July 30, 2012, the court required Lee to serve the remainder of his one-year sentence pursuant to the court's order of "Judgment of Conviction and Sentence of a Youthful Offender," with credit given for the time he was on probation. Lee had approximately five months left to serve. The court further ordered Lee to be remanded to the custody of the Jefferson County Sheriff to be transported to the Department of Corrections. It is from this order that Lee now appeals.
On appeal Lee argues the trial court had no jurisdiction to remand Lee to the custody of the Department of Corrections to serve the remainder of his sentence because KRS 635.060 does not authorize commitment to the Department of Corrections as a dispositional alternative. In response, the Commonwealth argues that this issue is moot as Lee has served out his sentence. With these arguments in mind we turn to the issues presented.
At issue, KRS 635.060 provides:
If in its decree the juvenile court finds that the child comes within the purview of this chapter, the court, at the dispositional hearing, may:
(1) Order the child or his parents, guardian, or person exercising custodial control to make restitution or reparation to any injured person to the extent, in the sum and upon the conditions as the court determines. However, no parent, guardian, or person exercising custodial control shall be ordered to make restitution or reparation unless the court has provided notice of the hearing, provided opportunity to be heard, and made a finding that the person's failure to exercise reasonable control or supervision was a substantial factor in the child's delinquency; or
(2) Place the child under parental supervision in the child's own home or in a suitable home or boarding home, upon the conditions that the court shall determine, or place the child on probation under conditions that the court shall determine. At the time the child is placed on probation, the court shall explain to the child the sanctions which may be imposed if the court's conditions are violated, and shall include notice of those sanctions as part of its written order of probation. A child placed on probation shall be subject to the visitation and supervision of a probation officer or an employee of the Department of Juvenile Justice. Except as provided in KRS 635.083, a child placed on probation or parental supervision shall remain subject to the jurisdiction of the court until the child becomes eighteen (18) years of age, unless the child is discharged prior thereto by the court, except that if a person is placed on probation after the person reaches the age of seventeen (17) years and six (6)
months, the probation shall be for a period not to exceed one (1) year; or
(3) Commit or recommit the child to the custody of the Department of Juvenile Justice, or grant guardianship to a child-caring facility, a child-placing agency authorized to care for the child, or place the child under the custody and supervision of a suitable person. If the child is detained in an approved secure juvenile detention facility or juvenile holding facility in accordance with KRS 15A.200 to 15A.240 at the time the child is committed or recommitted to the custody of the Department of Juvenile Justice, the Department of Juvenile Justice shall accept physical custody of the child, remove the child from the approved secure juvenile detention facility or juvenile holding facility, and secure appropriate placement as soon as possible but not to exceed thirty-five (35) days of the time of commitment or recommitment. The Department of Juvenile Justice shall pay for the cost of detention from the date of commitment or recommitment, on the current charge, until the child is removed from the detention facility and placed. All orders of commitment may include advisory recommendations the court may deem proper in the best interests of the child and of the public. The commitment or placement shall be until the age of eighteen (18), subject to KRS 635.070 and to the power of the court to terminate the order and discharge the child prior thereto, except that if the commitment or placement is after a person has reached the age of seventeen (17) years and six (6) months, the commitment or placement shall be for an indeterminate period not to exceed one (1) year. The court, in its discretion, upon motion by the child and with the concurrence of the Department of Juvenile Justice, may authorize an extension of commitment up to age twenty-one (21) to permit the Department of Juvenile Justice to assist the child in establishing independent living arrangements; or
(4) If the child is fourteen (14) years of age but less than sixteen (16) years of age, order that the child be confined in an approved secure juvenile detention facility, juvenile holding facility, or approved detention program as authorized by the Department of Juvenile Justice in accordance with KRS Chapter 15A for a period of time not to exceed forty-five (45) days; or
(5) If the child is sixteen (16) years of age or older, order that the child be confined in an approved secure juvenile detention facility, juvenile holding facility, or approved detention program as authorized by the Department of Juvenile Justice in accordance with KRS Chapter 15A for a period of time not to exceed ninety (90) days; or
(6) Any combination of the dispositions listed above except that, if a court probates or suspends a commitment in conjunction with any other dispositional alternative, that fact shall be explained to the juvenile and contained in a written order.
The Department of Juvenile Justice shall pay for the confinement of children confined pursuant to subsection (4) or (5) of this section in accordance with the statewide detention plan and administrative regulations implementing the plan.
First, we note that this Court in the direct appeal has previously found Lee was properly sentenced per KRS 635.060, which included probation.,
Interestingly, the court below could have utilized its contempt powers to enforce its prior orders:
The Juvenile Code simply does not allow a court to give up on the rehabilitation of a juvenile who refuses to perform the terms of probation. Thus, the contempt power exists for the purpose of compelling the juvenile to comply with the court's orders and to enable the court to help the juvenile become a productive citizen. "KRS Chapter 635 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen...." KRS 600.010(2)(e). Nor can it be said that the imposition of contempt sanctions for violations of specific conditions of probation, violates the Appellant's due process rights of fair treatment and/or double jeopardy. See, Butts v. Commonwealth, 953 S.W.2d 943 (Ky.1997), and Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1997)....KRS 635.060 does not act as a limitation on the length of sentence a juvenile court may impose in the appropriate exercise of its inherent contempt powers for violation of its orders.
In Commonwealth v. S.K., 253 S.W.3d 486, 488-89 (Ky. 2008), the Kentucky Supreme Court addressed the jurisdiction of a juvenile court:
There is no doubt that under the juvenile code, the juvenile court may enforce its dispositional orders on persons under eighteen through its contempt powers. KRS 610.010(10); KRS 600.060; A.W. v. Commonwealth, 163 S.W.3d 4 (Ky.2005). In cases like S.K.'s, where the public offender turns eighteen before disposition, the court's disposition options are limited in that the court can no longer sentence an adult public offender to confinement in a juvenile detention facility. Carter, 795 S.W.2d at 61. However, the juvenile court still retains jurisdiction over the person and the offense. There is no prohibition on adjudication, disposition, or even in ordering restitution or reparation in juvenile court on public offenders who have turned eighteen years of age before disposition. KRS 600.010(2)(f). Even "youthful offenders" face restitution and reparation. KRS 640.030. Also, "[a] contempt sanction in a contempt hearing for the violation of the court's order is certainly distinguishable from a sentence set at a dispositional hearing for a public offense." A.W., 163 S.W.3d at 7. It stands to logic that if a court can order restitution by either the public offender regardless of age, or his parents, custodian, etc. (KRS 600.010(2)(e), (g)), the juvenile court can still use its contempt powers on a public offender after he turns eighteen years of age to enforce said order. Indeed, KRS 600.060 specifically recognizes that the juvenile code does not restrict or diminish the court's inherent contempt powers. A.W., 163 S.W.3d at 6, recognized the use of contempt powers to enforce valid orders of the court. Restitution is an order of the court. Id. at 7; KRS 635.060(1). Even if the juvenile code tried to restrict the juvenile court's power to enforce its order through contempt, it would be an unconstitutional attempt to hamper judicial action or interfere with the discharge of judicial functions. A.W., 163 S.W.3d at 7.
Accordingly, the juvenile session of the district court retains jurisdiction over a person (accused of committing a public offense before he turned eighteen years of age) after that person turns eighteen in order to conduct adjudication and disposition hearings, and to order and enforce orders of restitution.
Moreover, this Court has previously concluded that a court has the authority to revoke probation per KRS 635.060:
We do not agree that the juvenile court lacked authority to revoke Q.C.'s probation. While the juvenile code neither mentions probation violation nor probation revocation, when the General Assembly granted juvenile courts the authority to impose probation in KRS 635.060(2), it also imbued them with the inherent power to revoke probation. Without the power to revoke, a juvenile court would be unable to enforce probation. In addition, without the power to revoke, KRS 635.060(2) would be rendered meaningless.Q.C. v. Commonwealth, 164 S.W.3d 515, 517 (Ky. App. 2005). The question would then become whether the court had the authority to remand Lee to the Department of Corrections when the underlying sentence and subsequent probation revocation stemmed from KRS 635.060.
Moreover, in KRS 533.050, the General Assembly granted both district and circuit courts the authority to revoke an adult criminal's probation. Juvenile probation is sufficiently similar to adult probation so that KRS 533.050 applies to probation in juvenile courts. We
conclude, therefore, that the juvenile court had the authority to revoke Q.C.'s probation.
In Jefferson County Dept. for Human Services v. Carter 795 S.W.2d 59 (Ky. 1990), the Kentucky Supreme Court held that the lower court was without the authority to confine an adult in a juvenile detention facility:
The only options the juvenile court has in disposing of the case of an adult who is properly before the juvenile court are found in §§ (2) and (3) of K.R.S. 635.060. These two subsections contain specific language permitting the juvenile court to continue past the age of 18 the probation, supervision or commitment to CHR of a "person" who is placed on probation or supervision or is committed to CHR after reaching the age of 17 years 6 months. Such language is not contained in § (4) under which an adult was confined in a secured juvenile facility. The current legislation limits the juvenile court to only two options when disposing of a case involving an individual who is beyond 18 years of age. K.R.S. 635.060(2), (3).Jefferson County Dept. for Human Services v. Carter, 795 S.W.2d 59, 60-61 (Ky. 1990)(emphasis supplied).
Moreover, the legislature has expressed a clear policy requiring the separation of juveniles and adults in secure confinement. K.R.S. 67.0831 requires fiscal courts to maintain suitable facilities in which to hold juveniles pending disposition of their cases. K.R.S. 610.010(1)(a) also mandates that any child sentenced to a term of confinement on a moving motor vehicle offense shall be sentenced to a secured juvenile facility rather than a jail. K.R.S. 640.020 directs that a youthful offender who has not met bond or other pretrial release be housed according to his age, that is, if the youthful offender is under 18, he is to be housed in a secured juvenile
detention facility. If over 18, he shall be lodged as an adult. These statutes clearly establish a statutory system providing that secure confinement facilities for juveniles are separate and apart from adult facilities.
The district court acting in its juvenile session is limited to the powers provided to it by the legislature. K.R.S. 610.010. The legislature did not grant the juvenile court the dispositional options of placing an individual beyond the age of 18 in a secure juvenile facility. Only a child 16 years of age but not over 18 may be confined in a secured juvenile detention facility as the disposition of his case.
The Supreme Court in Carter addressed whether it is proper to house an adult in a juvenile facility. While Lee was convicted as a juvenile, his incarceration is dependent on his age. Once Lee reached the age of majority and became an adult for purposes of our laws, there is no reason that he cannot be housed in an adult facility. The emphasized portion of Carter is clear that, at least for those juveniles that have not met bond or are pretrial-detained, housing is appropriate based on age. We see little or no difference between the lower court's decision to remand Lee into the custody of an adult detention center once he attained the age of adulthood and the decision of the Court in Carter.
Given Carter and Q.C., revocation and incarceration appears to have been appropriately handled by the trial court. Otherwise, the court would have been in an untenable position of possessing the power to revoke Lee's probation but would not have the power to remand him into custody. Even if we were to conclude otherwise, we believe this issue has become moot. Thus, we can no longer grant him any relief. See Q.C. at 517 ("Despite this, we conclude that twenty-year-old Q.C.'s appeal has become moot since his commitment to DJJ terminated some two years ago when he became an adult. Thus, we can no longer grant him any relief.")
In light of the aforementioned, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Elizabeth B. McMahon
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
A.W. v. Commonwealth, 163 S.W.3d 4, 6-7 (Ky. 2005). This is especially relevant given Lee's argument that KRS 635.060 does not allow him to be remanded to the Department of Corrections. Compare Commonwealth v. Nicely, 326 S.W.3d 441, 448 (Ky. 2010):
However, when a statutory provision governs, a court must apply that law rather than its inherent power of contempt. Arguably, any time a defendant violates a court order, he is subject to contempt proceedings. But when the legislature has prescribed standard provisions meant to apply to all defendants, it is not sound policy to resort instead to the individualized view of the court exercising its contempt power, which necessarily excludes the operation of the statute that governs.
Id.
Commonwealth v. S.K., 253 S.W.3d 486, 488-89 (Ky. 2008)(footnotes omitted).