D.R., A MINOR CHILD v. COMMONWEALTH OF KENTUCKY
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RENDERED: October 5, 2001; 2:00 p.m.
ORDERED PUBLISHED AND MODIFIED: December 28, 2001; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002466-DG
D.R., A MINOR CHILD
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM LINCOLN CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 00-XX-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE:
D.R., a minor child, brings this appeal from a
September 22, 2000 judgment of the Lincoln Circuit Court.
We
reverse and remand.
Appellant's mother filed a beyond control petition in
juvenile court against appellant.
(KRS) 630.020.
Kentucky Revised Statutes
Appellant initially appeared pro se before the
Lincoln District Court on January 14, 1999.
entered an admission of guilt.
On that day, he
In response to his guilty plea,
he was placed on probation for a period of one year, until
January 14, 2000.
On January 13, 2000, the district court
determined appellant violated terms of his probation and ordered
extension of probation through January 14, 2001.
The court also
ordered fourteen days' detention with four to serve, and the
balance probated.
Subsequently, appellant was accused of again
violating terms of probation.
On March 9, 2000, the court
ordered thirty days' detention, probated upon the condition
appellant follow terms of the existing probation order.
appeal ensued to the Lincoln Circuit Court.
An
The circuit court
set aside the thirty days of detention but affirmed the district
court upon all other grounds.
The Court of Appeals granted
discretionary review on December 27, 2000.1
76.20.
Ky. R. Civ. P.
We now turn to appellant's arguments upon review.
Appellant contends that his January 14, 1999 admission
of guilt was not made knowingly and intelligently.
Specifically,
he claims that the requirements of Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) were not met,2 and that
he was not afforded counsel.
We shall address these issues
separately.
In Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 54
(1990) the Court held:
In determining the validity of guilty
pleas in criminal cases, the plea must
represent a voluntary and intelligent choice
1
Discretionary review was granted upon the issues of
“whether movant's [pro se] admission [of guilt] was made in a
knowing and intelligent manner” and “whether the order extending
probation for an additional year was void.”
2
We think it beyond controversy that Boykin v. Alabama, 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) applies to
juvenile adjudications. In this respect, we observe that the
Commonwealth did not argue otherwise.
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among the alternative course[s] of action
open to the defendant. North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970); Sparks v. Commonwealth, Ky. App.,
721 S.W.2d 726 (1986). The United States
Supreme Court has held that both federal and
state courts must satisfy themselves that
guilty pleas are voluntarily and
intelligently made by competent defendants.
Brady v. United States, 397 U.S. 742, 90
S.Ct. 1463, 25 L.Ed.2d 747 (1970). Since
pleading guilty involves the waiver of
several constitutional rights, including the
privilege against compulsory selfincrimination, the right to trial by jury,
and the right to confront one's accusers, a
waiver of these rights cannot be presumed
from a silent record. The court must
question the accused to determine that he has
a full understanding of what the plea
connotes and of its consequences, and this
determination should become part of the
record. Boykin v. Alabama, 395 U.S. 238, 89
S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969);
Sparks, supra.
The validity of a guilty plea must be
determined not from specific key words
uttered at the time the plea was taken, but
from considering the totality of
circumstances surrounding the plea. Kotas v.
Commonwealth, Ky., 565 S.W.2d 445, 447
(1978); Lynch v. Commonwealth, Ky. App., 610
S.W.2d 902 (1980); Sparks, supra. These
circumstances include the accused's demeanor,
background and experience, and whether the
record reveals that the plea was voluntarily
made. Sparks, supra, Littlefield v.
Commonwealth, Ky. App., 554 S.W.2d 872
(1977).
To determine the validity of appellant's admission of
guilt, we shall initially review the dialogue between appellant
and the district court:
THE COURT:
[D.R.], before we start, let
me advise you of your rights.
First of all, you have the right
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to remain silent. If you give up
that right, anything you say can
be used against you. You also
have the right to have an attorney
at these proceedings. So, similar
to adult rights to have an
attorney, it's your right, not - it doesn't belong to your parents,
they can't waive it for you. If
you can't afford an attorney or
they can't afford an attorney for
you, I will appoint a public
defender to represent you, but I
may require some of it to be paid
back to the public defender
program. So, I need to know
whether you want an attorney to
represent you in this matter?
[D.R.]:
No, sir.
THE COURT:
You don't?
[D.R.]:
No, sir.
THE COURT:
Okay. The charge laid against you
is that you are beyond control of your
parents. The complaint talks about not
obeying household rules, asking
permission before you leave home, doing
your school work. Apparently, you've
been expelled?
[D.R.]:
Yeah.
THE COURT:
Is that for the rest of the year?
[D.R.]:
Yes, sir.
THE COURT:
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Says you were caught with marijuana.
Did you have charges filed against you for
that?
[D.R.]:
No. They just expelled me free [sic]
for the school year.
THE COURT:
Okay. Also some violence and
stuff at home apparently between
you and INAUDIBLE, some problems.
It notes that you are improving,
but your mother believes you still
need a little help. The family
needs a little help. What can you
tell me about this?
[D.R.]:
Well, I was violent and I was
a little bit out of control, but I
don't think I was that much out of
control. Enough to get it filed.
THE COURT:
What about this thing about
attacking your mother, laying your
hands on her, whatever all that
means? Did you do that INAUDIBLE
[sic]
[D.R.]:
I didn't attack her. She was
hitting me and stuff and I grabbed
her arms so she would quit.
THE COURT:
Had you been anywhere being
treated for these crimes? In a
hospital or anything for treatment?
[D.R.]:
Yeah.
Danville.
They put me in INAUDIBLE in
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THE COURT:
How long ago was that?
[D.R.]:
It was in October.
THE COURT:
Of last year?
[D.R.]:
Yeah.
THE COURT:
How long were you there?
[D.R.]:
A week and three days.
THE COURT:
Okay. I need to know whether you
want to plead guilty or not guilty to
being out of control with your parents?
[D.R.]:
Guilty.
From the above, it is clear that appellant was not informed of
the consequences of an admission of guilt.
Specifically, he was
not informed of constitutional rights waived by admitting guilt
or of the range of possible punishments.
In short, appellant was
not informed of a single consequence of his decision to enter an
admission of guilt.
Appellant was a fifteen-year-old child who
had no previous experience with the court system.
Upon the
totality of circumstances, we are convinced that appellant's
admission of guilt was not made knowingly and intelligently.
Boykin, 395 U.S. 238.
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See
Next, appellant asserts that KRS 610.060(1)(a) mandates
appointment of counsel.
KRS 610.060 states, in relevant part, as
follows:
(1)
If the Circuit or District Court
determines that a formal proceeding is
required in the interest of the child
or to determine the truth or falsity of
the allegations against the child, a
petition shall be required pursuant to
KRS 610.020, and the court shall, when
the child is brought before the court:
(a)
Explain to the child and his
parents, guardian, or person
exercising custodial control
their respective rights to
counsel and, if the child and
his parents, guardian, or
person exercising custodial
control are unable to obtain
counsel, shall appoint
counsel for the child and,
unless specified to the
contrary by other provisions
of KRS Chapters 600 to 645,
may appoint counsel for the
parents, guardian, or person
exercising custodial control;
. . .
(e)
Advise the child that these
rights belong to him and may
not be waived by his parents,
guardian, or person
exercising custodial control.
(Emphases added).
Appellant points out that in utilizing the word
“shall” in subsection (a), the legislature intended there be no
waiver of counsel for a minor; thus, appellant's “waiver” of
counsel was a nullity.
Conversely, the Commonwealth argues that
subsection (e) permits a child to waive his right to counsel
afforded under subsection (a).
As appellant “waived” his right
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to counsel, the Commonwealth maintains that subsection (a) was
not violated.
We view subsections (a) and (e) to be ambiguous and to
be in apparent conflict with each other.
In subsection (a), the
legislature explicitly signaled its intent that a child “shall”
be appointed counsel; however, in subsection (e), the legislature
implicitly signaled its intent that a child may waive any of the
rights set out in subsections (a) through (d).
It is well established that the interpretation and
construction of a statute is a matter of law for the court.
Commonwealth v. Garnett, Ky. App., 8 S.W.3d 573 (1999);
Commonwealth, Cabinet for Human Resources v. Jewish Hospital
Healthcare Services, Inc., Ky. App., 932 S.W.2d 388 (1996).
When
there is an apparent conflict between sections of a statute, the
court is bound to try to harmonize the inconsistency so as to
give effect to the statute as a whole. Commonwealth v. Halsell,
Ky., 934 S.W.2d 552 (1996).
In construing or interpreting a
statute, it is paramount that we ascertain and give effect to the
intent of the legislature.
Department of Corrections v. Courier-
Journal and Louisville Times, Ky. App., 914 S.W.2d 349 (1996).
In conformity with the above authorities, we construe
subsection (a) as mandating the district court to initially
appoint the child counsel; after appointment and consultation
with counsel, the child then may waive the right to counsel under
subsection (e).
Simply stated, we think a child may waive the
right to counsel only if that child has first been appointed, and
consulted with, counsel concerning the waiver.
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We perceive such
construction as consistent with the intent of the legislature as
expressly provided in subsection (a), and as implicitly provided
in subsection (e).
We also perceive such construction as
harmonizing subsections (a) and (e), and as giving effect to the
statute as a whole.
In the case sub judice, the record indicates that
appellant waived counsel without first being appointed counsel.
We believe such waiver ineffectual and contrary to KRS
610.060(1).
We view appellant's remaining contention relating to
the extension of his probation as moot.
For the foregoing reasons, the judgment of the Lincoln
Circuit Court is reversed, and this cause is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Suzanne Hopf
Frankfort, Kentucky
John E. Hackley
Stanford, Kentucky
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