W. E., A CHILD v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 22, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001015-DG
W. E., A CHILD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST JASMIN, JUDGE
ACTION NO. 98-XX-00013
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Appellant, W. E., a juvenile fourteen years of
age at the time of this incident, was taken into custody by
police and charged with the offense of second-degree burglary on
January 8, 1998.
On January 12, 1998, the appellant entered a
conditional plea of guilty pursuant to RCr 8.09 in the juvenile
session of the Jefferson District Court to the amended charge of
criminal trespass in the first degree, a misdemeanor offense.
Appellant waived his rights to a pre-dispositional investigation
and separate dispositional hearing and was sentenced to thirty
(30) days in detention.
However, the 30 day sentence was
conditionally discharged by the trial judge until the appellant’s
eighteenth birthday.
Appellant was then released to his mother.
At the time of the guilty plea and disposition, appellant advised
the court that he intended to litigate on appeal (pursuant to his
RCr 8.09 plea) the issue of whether a conditionally discharged
sentence for a misdemeanor charge could be suspended for a period
in excess of two years.
Pursuant to his RCr 8.09 plea, appellant perfected his
appeal with the Jefferson Circuit Court.
On April 7, 1998, an
opinion and order was entered by Jefferson Circuit Court Judge
Ernest A. Jasmin, affirming the disposition of the Jefferson
District Court, Juvenile Division, as to W.E.
On August 11,
1998, the Kentucky Court of Appeals granted appellant’s motion
for discretionary review in this matter.
On appeal, appellant argues the juvenile court erred
when it imposed a thirty (30) day conditionally discharged
sentence with respect to a misdemeanor adjudication for a period
in excess of two years.
Appellant argues that KRS 635.060, the
juvenile statute which sets forth options to juvenile courts at
dispositional hearings, provides no guidance with respect to the
length of time such a sentence may be conditionally discharged.
As such, appellant contends one must look at the language
contained in KRS 533.030, the penal code statute dealing with
probation and conditional discharge.
Based upon this argument,
appellant contends that the circuit court’s opinion and order is
clearly erroneous in that the judge based his order on the
erroneous belief that a conflict existed between KRS 533.020(4)
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and KRS 635.060.
Further, appellant argues the circuit court
misinterpreted Jefferson County Dept. for Human Resources v.
Carter, Ky. App., 795 S.W.2d 59 (1990).
The circuit court stated
that based upon Carter and Miller v. Anderson, Ky., 519 S.W.2d
826 (1975), that “...it would seem that as a matter of policy as
expressed in KRS 635.060, a juvenile who becomes embroiled in the
juvenile court system can expect to stay there until the court
orders otherwise or he or she reaches his or her eighteenth
birthday.”
Lastly, W.E. argues that the options of probation and
commitment are treatment options and tools that the juvenile
court can use for the purpose of rehabilitation of young
offenders, while conditional discharge of a detention sentence is
tantamount to serving “jail time” for adult offenders and thus
strictly a punishment option.
Thus, appelant contends there is a
rational basis to permit a juvenile to be on probation or
commitment (receiving treatment) for a longer period than one who
has reveived a conditionally discharged sentence (only the threat
of punishment in detention).
We disagree with appellant’s
arguments; hence, we affirm.
KRS 635.060 in effect on January 8, 1998, reads, in
pertinent part, as follows:
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
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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 on probation, home
incarceration, or under supervision in
the child’s own home or in a suitable
home or boarding home, upon the
conditions that the court shall
determine. A child placed on probation,
home incarceration, or supervision shall
be subject to the visitation and
supervision of a juvenile probation
officer of the Department of Juvenile
Justice. Except as provided in KRS
635.083, a child place on probation,
home incarceration, or 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, home incarceration, or
supervision after the person reaches the
age of seventeen (17) years and six (6)
months, the probation, home
incarceration, or supervision shall be
for a period not to exceed one (1) year;
or
(3)
Commit the child to the custody or
guardianship of the Department of
Juvenile Justice, 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 Foucault,
juvenile holding facility, or
intermittent holding facility in
accordance with KRS 15A.200 to 15A.240
at the time the child is committed to
the custody of the Department of
Juvenile Justice, the Department of
Juvenile Justice shall accept physical
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custody of the child, remove the child
from the approved secure juvenile
detention facility or juvenile holding
facility, and secure appropriate
placement within seven (7) days of the
time of commitment. 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 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)
Effective July 1, 1997, 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 or
juvenile holding facility in accordance
with KRS 15A.200 for a period of time
not to exceed forty-five (45) days; or
(5)
Effective July 1, 1997, if the child is
sixteen (16) years of age or older,
order that the child be confined in an
approved secure juvenile detention
facility or juvenile holding facility in
accordance with KRS 15A.200 for a period
of time not to exceed ninety (90) days;
or
(6)
Any combination of the dispositions
listed above.
The Jefferson District Court’s calendar reflects that
at the detention hearing W.E. entered a guilty plea to the
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amended charge of criminal trespass, first degree.
He was
sentenced to 30 days in detention pursuant to KRS 635.060(4).
That sentence was conditionally discharged until the juvenile
turned eighteen.
He was then released to his mother.
Appellant’s position would require the district court to review
KRS 635.060(4) in a vacuum.
We believe that KRS 635.060 must be
viewed in its entirety, as well as, in conjunction with the
unified juvenile code.
KRS 635.060(2) permits a child to be placed “on
probation, home incarceration, or under supervision in the
child’s own home...upon conditions that the court shall
determine.”
It further states that the child “shall remain
subject to the jurisdiction of the court until the child becomes
eighteen (18) years of age... .”
KRS 635.060(3) permits
placement or commitment to the Department of Juvenile Justice
until the age of eighteen.
KRS 635.060(6) permits any
combination of the dispositions listed in subsections one through
five of KRS 635.060.
In effect, a juvenile who receives a
conditionally discharge detention disposition and is then
released to his parent is under the supervision of that parent
not to commit any additional criminal offense or face imposition
of the conditionally discharged sentence.
Thus, under KRS
635.060(6) the combination of subsections 2 and 4 continue to
give the juvenile court authority to impose a conditionally
discharged sentence until age 18.
Further, under KRS 610.010(1) the juvenile session of
district court has exclusive jurisdiction of a child who has
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committed a public offense.
Pursuant to KRS 610.010(11) the
court shall have continuing jurisdiction over a child pursuant to
subsection (1) of this section, to review dispositional
orders...until the child...reaches the age of eighteen (18)
years.
Pursuant to KRS 600.010(1), KRS Chapters 600 to 645
shall be known as the Kentucky Unified Juvenile Code.
It is to
be read in its entirety to effectuate its intended purposes.
KRS
600.010(2) sets forth, in part, the following express legislative
purposes:
(a)
The Commonwealth shall direct its
efforts to promoting protection of
children; to the strengthening and
encouragement of family life for
the protection and care of
children; to strengthen and
maintain the biological family
unit; and to offer all available
resources to any family in need of
them;
(b)
It also shall be declared to be the
policy of this Commonwealth that
all efforts shall be directed
toward providing each child a safe
and nurturing home;
(c)
The court shall show that other
less restrictive alternatives have
been attempted or are not feasible
in order to insure that children
are not removed from families
except when absolutely necessary;
(d)
Any child brought before the court
under KRS Chapters 600 to 645 shall
have a right to treatment
reasonably calculated to bring
about an improvement of his
condition.
The unified juvenile code read as a whole gives the
juvenile court authority over a child until he reaches the age of
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eighteen (18) years old.
Once a child is before the court, the
court is mandated to provide the least restrictive but most
effective services available to keep the child safe and the
family together.
In the case sub judice, the child entered an
admission to a delinquency act.
In order to follow the mandates
of KRS Chapters 600 through 645 the court sought the least
restrictive dispositional alternative while seeking to ensure the
child would not find himself before the juvenile court again.
To
accomplish this goal, the trial judge entered a 30 day detention
sentence yet conditionally discharged the thirty days, released
the child to his parent and, in essence, stated “go home, obey
your parent, do not violate any rules or laws and do not appear
before this court again or you will face a harsh punishment.”
This is exactly what the juvenile code envisioned to deter
juveniles from committing new crimes and rehabilitate young
offenders.
To read the statute in question as not giving the
juvenile court this authority and control over a child until age
eighteen (18) is contrary to the express intent of the juvenile
code and a disservice to the children, parents, and general
public of the Commonwealth.
The order of the Jefferson County Circuit Court
affirming the orders of the District Court which conditionally
discharged a 30 day sentence until the child reaches the age of
eighteen is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Peter L. Schuler
Daniel T. Goyette
James Miller
Jefferson County Attorney
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Chief Juvenile Defender
Louisville, KY
Jefferson District Public
Defender
Louisville, KY
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