VICTOR LAMONT HUMPHREY v. COMMONWEALTH OF KENTUCKYAnnotate this Case
MAY 21, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
VICTOR LAMONT HUMPHREY
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 00-CR-002296
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING IN PART, AFFIRMING IN PART
** ** ** ** **
GUIDUGLI, McANULTY, AND TAYLOR, JUDGES.
Victor Lamont Humphrey (Humphrey) appeals from
an order of the Jefferson Circuit Court denying his motion under
RCr 11.42 seeking to vacate an earlier judgment of the Jefferson
Circuit Court sentencing him to a total of 10 years in prison
for two counts of complicity to commit second-degree arson.
Humphrey was a juvenile at the time the offenses were committed.
Humphrey’s primary contention is that his waiver of
his right to a preliminary hearing in the juvenile court prior
to the transfer of his case to the circuit court was not
knowingly and intelligently given.
Humphrey seeks to vacate the
final judgment of the Jefferson Circuit Court and remand his
case to juvenile court.
At a minimum, Humphrey requests an
evidentiary hearing on his claims.
For the reasons explained
below, this Court concludes that there are material issues of
fact that cannot be conclusively resolved by an examination of
the record, necessitating an evidentiary hearing.
further conclude that Humphrey failed to establish any factual
basis which should have caused the district court to experience
reasonable doubt as to his competence to stand trial.
Consequently, the trial court’s order is vacated and remanded in
part and affirmed in part.
Humphrey was originally charged with two counts of
second-degree arson and nine counts of third-degree arson for
his alleged involvement in setting two garage fires, the first
fire occurring on November 2, 1999, and the second on June 4,
At the time of the June 2000, fire, Humphrey had just
turned fifteen years old.
For clarity’s sake, we note here that
Humphrey was represented by three different attorneys during the
proceedings against him.
The first represented him in district
The second, whose representation is at issue in this
appeal, represented Humphrey when his case was transferred from
district court to circuit court.
The third attorney represented
Humphrey during probation revocation proceedings.
In October of 2000, Humphrey signed a Waiver of Rights
form in the district court.
As a result, the district court did
not conduct the preliminary hearing mandated by Kentucky Revised
Statutes (KRS) 640.010(2) “to determine if the child should be
transferred to Circuit Court as a youthful offender.”
the district court issued an order transferring the case to the
On October 20, 2000, prosecutor Brian Good filed
an information charging Humphrey with two counts of complicity
to commit second-degree arson.
Humphrey entered a guilty plea
to both charges, and the circuit court sentenced him on December
1, 2000, to ten years on each count to run concurrently for a
total of ten years, probated for five years.
February 1, 2002, the circuit court revoked Humphrey’s probation
for violations of conditions of his probation.
Humphrey did not file a direct appeal of the judgment
After the circuit court revoked his probation,
he filed a motion under RCr 11.42 to vacate the final judgment
and remand his case to juvenile court.
After the Commonwealth
failed to file a response to Humphrey’s RCr 11.42 motion within
the time prescribed by RCr 11.42(4), Humphrey filed a motion to
grant his RCr 11.42, or alternatively, to schedule an
Eventually, the Commonwealth did file a
response, and the trial court summarily denied Humphrey’s RCr
11.42 motion, precipitating this appeal.
Humphrey presents a number of claims for our review.
First, Humphrey argues that he could not waive his right to a
In the alternative, Humphrey argues that if
he could waive his right to a transfer hearing, he did not do so
knowingly and intelligently.
Second, Humphrey asserts that he
was denied effective assistance of counsel by the action and
inaction of the attorney that represented him during the waiver
to circuit court and the subsequent entry of the guilty plea.
Third, Humphrey contends that the district court deprived him of
due process by failing to conduct a competency hearing.
Finally, Humphrey argues that, at a minimum, the trial court
should have conducted an evidentiary hearing on his motion.
WAIVER OF PRELIMINARY HEARING IN DISTRICT COURT
For the purposes of the following discussion, the
preliminary hearing established in KRS 640.010(2) may be
referred to as a “preliminary hearing” or a “transfer hearing”
or a “waiver hearing.”
Humphrey argues that KRS 635.020(2) and
KRS 640.010(2) mandate a preliminary hearing prior to a transfer
to circuit court.
KRS 635.020(2) states as follows:
If a child charged with a capital offense, Class
A felony, or Class B felony, had attained age
fourteen (14) at the time of the alleged
commission of the offense, the court shall, upon
motion of the county attorney made prior to
adjudication, and after the county attorney has
consulted with the Commonwealth's attorney, that
the child be proceeded against as a youthful
offender, proceed in accordance with the
provisions of KRS 640.010.
As Humphrey was charged with two counts of second-degree arson,
class B felonies, and he had reached age fourteen (14) at the
time of the alleged commission of the offenses, KRS 640.010(2)
KRS 640.010(2), in relevant part, provides as
In the case of a child alleged to be a youthful
offender by falling within the purview of KRS
635.020(2), (3), (5), (6), (7), or (8), the
District Court shall, upon motion by the county
attorney to proceed under this chapter, and after
the county attorney has consulted with the
Commonwealth's attorney, conduct a preliminary
hearing to determine if the child should be
transferred to Circuit Court as a youthful
offender. The preliminary hearing shall be
conducted in accordance with the Rules of
As set out in KRS 640.010(2)(a), the purpose of the
preliminary hearing is for the district court to determine “if
there is probable cause to believe that an offense was
committed, that the child committed the offense, and that the
child is of sufficient age and has the requisite number of prior
adjudications, if any, necessary to fall within the purview of
The import of a child being transferred from
district court to circuit court is that the child loses the
greater procedural protections and provisions of the juvenile
justice system and is held for trial under adult procedures.
See Kent v. United States, 383 U.S. 541, 547, 86 S. Ct. 1045, 16
L. Ed. 2d 84 (1966).
Humphrey points out that in utilizing the word “shall”
throughout KRS 635.020(2) and KRS 640.010(2), the legislature
intended there be no waiver of the preliminary hearing by the
minor; thus, Humphrey’s waiver was a nullity.
Voluntary waiver by the minor of the preliminary hearing in KRS
640.010(2) is not an aberration.
In so concluding, we refer to
KRS 600.010(2)(e), which specifies that “[u]nless otherwise
provided, such protections [of KRS Chapters 600 to 645, the
Kentucky Unified Juvenile Code] belong to the child individually
and may not be waived by any other party.”
In other words, in
this provision, the legislature is signaling its intent that a
child may waive any of the rights set out in the Kentucky
Unified Juvenile Code, unless otherwise provided.
See D.R. v.
Commonwealth, Ky. App., 64 S.W.3d 292, 296 (2001) (holding that,
under KRS 610.060, “a child may waive the right to counsel only
if that child has first been appointed, and consulted with,
counsel concerning the waiver.”)
In concluding that a child may voluntarily waive the
preliminary hearing, we further rely on the nature of the
proceeding, which is dispositional rather than adjudicatory.
this point, the preliminary hearing “does not result in any
determination of guilt or innocence or in confinement or
State v. Muhammad, 703 P.2d 835, 839-40 (Kan.,
1985) (holding that, under Kansas state law, a court may conduct
a transfer hearing “without a voluntary waiver of appearance by
the juvenile if counsel is present and allowed to participate on
the juvenile’s behalf.”)
Moreover, applying the reasoning of
Commonwealth v. Townsend, Ky., 87 S.W.3d 12, 15 (2002), if a
defendant can waive his constitutional right to a trial by jury,
which he can, there is no reason why he cannot also waive his
statutory right, under KRS 640.010, to a preliminary hearing to
determine if he should be transferred to circuit court as a
(Townsend held that a defendant could waive
the “finally discharged” provision of KRS 640.030(2)(b).)
Humphrey further supports his argument that the
preliminary hearing cannot be waived by citing Benge v.
Commonwealth, Ky., 346 S.W.2d 311 (1961) for the proposition
that, since a transfer hearing is a jurisdictional requirement,
a juvenile is unable to waive that hearing.
Benge, however, was
a direct appeal case from a judgment entered on a verdict, and
this case is not.
Benge, 346 S.W.2d at 312.
This case is a
collateral attack under RCr 11.42 of a guilty plea, therefore,
we believe Schooley v. Commonwealth, Ky. App., 556 S.W.2d 912
(1977), is applicable on this point.
In Schooley, the appellant, Lonnie Schooley, filed a
motion under RCr 11.42 in which he argued that the circuit court
never acquired jurisdiction over the charges against him because
there was no valid transfer of the case by the juvenile court.
Id. at 914.
In analyzing the issue, the court considered the
fact that circuit courts had general jurisdiction to try felony
Id. at 915.
Moreover, the circuit court also had
general jurisdiction “to try juvenile felony offenders if there
has been a valid transfer order pursuant to KRS 208.170(1) [the
predecessor to KRS 635.020].”
Id. at 915-16.
The court ultimately concluded that the circuit court
has general subject-matter jurisdiction, and whether the circuit
court had jurisdiction over Schooley's particular case was a
question of policy rather than power.
See id. at 916.
policy consideration was one of due process.
See id. at 916.
Specifically, the question the court set out to answer was:
Were the errors in transferring jurisdiction from the district
court to the circuit court of “such magnitude as to render the
judgment of conviction so fundamentally unfair that the
defendant can be said to have been denied due process of law.”
Id. at 917.
The court considered a number of factors such as
(1) Schooley’s guilty plea; (2) Schooley’s failure to bring a
direct appeal; and (3) procedural defects and timeliness issues
with Schooley’s RCr 11.42 motions.
See id. at 918.
the court concluded that there was no denial of due process in
Schooley’s case and affirmed the circuit court’s order denying
his final RCr 11.42 motion.
Turning to the facts of this case and applying the
Schooley guidelines discussed above, preliminarily we state that
the Jefferson Circuit Court had general subject-matter
jurisdiction over Humphrey’s case.
Humphrey was initially
charged with two class B felonies and nine class D felonies.
The question now becomes whether there were any errors in
transferring jurisdiction from the district court to the circuit
After reviewing the record, we believe that there were.
As we previously concluded above that Humphrey could
waive the preliminary hearing, the error did not lie in the
actual transfer based upon Humphrey’s purported waiver, but in
the waiver itself.
In other words, based on the record, we are
not convinced that the waiver was valid.
See Townsend, 87
S.W.3d at 15 (“[T]he ‘finally discharged’ provision of [KRS
640.030(2)] subsection (b) inures to the benefit of a defendant
and, like any other constitutional or statutory right, can be
the subject of a valid waiver.”) (Emphasis supplied.)
A waiver is the voluntary relinquishment of a known
See Herndon v. Wingo, Ky., 404 S.W.2d 453, 455 (1966).
Thus, in order for there to be a valid waiver of Humphrey’s
right to a preliminary hearing to determine if his case should
be transferred to circuit court, there must be proof that
Humphrey voluntarily gave up a right that he knew he had.
Although there is no authority in Kentucky that addresses the
requisites of a valid waiver, case law from other jurisdictions
is instructive on the issue of waiver of the transfer hearing.
See State v. Berry, 647 So.2d 830 (Fla., 1994); State v.
Mayfield, 738 P.2d 861 (Kan., 1987); State v. N.G., 701 A.2d 976
Moreover, the state of Texas provides for
a waiver of rights by statute.
See V.T.C.A. Family Code, Sec.
The consensus among those jurisdictions is that the
court must inform the child of the right to the preliminary
hearing and ensure that the waiver of this right is voluntarily,
knowingly and intelligently made.
Considering the facts that
children require special considerations due to their
intelligence and experience, and the United States Supreme Court
has stated that whether a child should be deprived of the
special protections of the juvenile justice system is a
critically important question, we believe these assurances are
necessary to ensure due process and fair treatment of the child.
See Kent, 383 U.S. 541, 86 S.Ct. 1045, 1053-54.
Returning to the facts of this case, Humphrey argues
on appeal that, if this Court finds that he could waive the
preliminary hearing, then he did not properly waive this right
because his waiver was not made knowingly and intelligently.
response, the Commonwealth relies on the document entitled
“Waiver of Rights” [Waiver] that both Humphrey and his attorney
signed on October 11, 2000, in support of its contention that
Humphrey’s waiver was voluntary.
The Waiver at issue is a form that is filled in with
Humphrey’s name and case number.
In pertinent part, it reads as
I, Victor Humphrey, have consulted with my
attorney concerning this waiver and have had
the following rights explained to me:
a) the right to have a preliminary hearing
before a judge of the Jefferson District
Court to determine if there is probable
cause to believe that a felony offense has
been committed and that I committed such
offense before my case is referred to the
Jefferson County Grand Jury . . . .
Standing alone, we do not believe this is sufficient to
demonstrate that Humphrey’s waiver of the transfer hearing was
It says nothing of the consequences of waiving
the KRS 640.010 hearing, nor does it address the additional
considerations set out in KRS 640.010(2)(b) that the district
court must find prior to transferring the child’s case.
Unfortunately, the infirm Waiver is not cured by any
meaningful colloquy between the district court and Humphrey.
The dialogue between the district court and Humphrey prior to
the transfer is as follows:
Judge: Now, we should probably say it one
more time now that Mr. Humphrey has joined
us here. Mr. Humphrey, by agreement your
two counts of arson 2nd complicity are being
waived to circuit court. We are going to
dismiss/merge all your other charges. You
are going to continue being held on a
$50,000 bond. Okay?
Humphrey: Yes ma’am.
Judge: Okay. That’s it.
As to what Humphrey understood about his transfer from
district court to circuit court, in his original RCr 11.42
motion, Humphrey asserted that his attorney just told Humphrey
that he was taking his case to circuit court.
In other words,
Humphrey alleged that he was not advised of the consequences of
waiving the required preliminary hearing in district court.
do not believe that the Waiver and the recorded discussion
between the district court and Humphrey conclusively resolve the
fact of a valid waiver.
“[I]f there is a material issue of fact
that cannot be conclusively resolved, i.e., conclusively proved
or disproved, by an examination of the record,” an evidentiary
hearing is required.
448, 452 (2001).
Fraser v. Commonwealth, Ky., 59 S.W.3d
Accordingly, we vacate the order of the
Jefferson Circuit Court summarily denying Humphrey’s RCr 11.42
motion and remand for an evidentiary hearing on the issue of
whether Humphrey’s waiver was voluntarily, knowingly and
INEFFECTIVE ASSISTANCE OF COUNSEL
Humphrey asserts that he was denied constitutionally
effective assistance of counsel.
The test for proving
ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
The Strickland test requires Appellant to show trial
counsel’s performance was deficient, and this deficient
performance prejudiced his defense.
Strickland, 466 U.S. at
687, accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985).
The two-prong Strickland test also applies to
challenges to guilty pleas based on ineffective assistance of
See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 , 88
L. Ed. 2d 203, 210 (1985).
Appellant must show the attorney’s
performance was deficient and the attorney’s ineffective
performance affected the outcome of the plea process.
Further, in any case, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.”
Strickland, 466 U.S.
In support of his ineffective assistance of counsel
claim, Humphrey argues that his attorney’s advice to waive the
transfer hearing and agree to have the case sent to circuit
court fell below an objective standard of reasonableness.
Consistent with the previous section, Humphrey contends that a
child cannot voluntarily waive a transfer hearing.
assuming that such a hearing could be waived, Humphrey argues
that this is not a case where waiver was advisable.
issue of how such advice prejudiced Humphrey, he asserts that he
did not receive anything in the way of sentence that he likely
would not have received over his objection while giving up the
strong possibility of remaining in juvenile court.
To bolster his claim of ineffective assistance,
Humphrey cites State v. N.G., 701 A.2d 976 (N.J.Super.L. 1997),
a New Jersey Superior Court case which held that the failure of
a child’s attorney to advise the child and/or his mother of both
the benefits of voluntary waiver to adult court and the
consequences of such a waiver constituted a prima facie showing
of ineffective assistance of counsel.
Id. at 979.
To put this
holding in context, the child, N.G., had not entered a guilty
plea to the charges he faced, and the case had not yet gone to
The remedy he sought was the return of his case to the
Family Part, or the juvenile court.
The court ultimately
granted his request after considering a number of factors
including the failure on the part of the State to show that the
waiver was made knowingly, willingly and voluntarily; the
attorney’s ineffective assistance; the State’s failure to show
that the waiver hearing satisfied the basic requirements of due
process and fairness; the prejudice to the child if the case
remained in adult court; and the lack of prejudice to the State
if the matter was returned to juvenile court, where it would
proceed pursuant to the requirements of the New Jersey juvenile
See id. at 979.
Despite the procedural differences in
State v. N.G. and this case, we find the court’s reasoning
persuasive, especially as it pertains to counsel’s failure to
advise the child as to the consequences of a voluntary waiver to
Consistent with our decision above, we believe an
evidentiary hearing is required on the issue of ineffective
assistance of counsel.
Although counseled waiver may have
constituted legitimate trial strategy, the record does not
conclusively prove or disprove whether Humphrey’s waiver was
We vacate and remand for an evidentiary
hearing on the allegations that Humphrey’s attorney (1) gave him
no choice about waiver of the transfer hearing, nor (2) did he
advise him of the benefits and consequences of agreeing to waive
the preliminary hearing.
We further believe the trial court
should conduct an evidentiary hearing and make determinations
concerning whether counsel rendered ineffective assistance in
connection with his advice to waive the transfer hearing and
plead guilty to two counts of second-degree arson.
Humphrey will bear the burden of proof in the evidentiary
hearing to show that he was not adequately represented.
Osborne v. Commonwealth, Ky. App., 992 S.W.2d 860, 863 (1998).
III. DISTRICT COURT’S FAILURE TO CONDUCT A COMPETENCY HEARING
Humphrey’s competency has been an issue during the
course of the proceedings against him.
In the district court,
his first attorney advised the court that she had questions
about her client’s competency and wanted him evaluated.
psychologist evaluated Humphrey and, in a report dated August 9,
2000, found him competent.
After learning of this report and
still having doubts about her client’s competency, Humphrey’s
first attorney requested and was subsequently granted funds for
a second evaluation.
This evaluation never occurred, and the
trial court never conducted a competency hearing under KRS
In this appeal, Humphrey argues that the district
court deprived Humphrey of due process by failing to conduct a
It is well accepted that “[c]riminal
prosecution of a defendant who is incompetent to stand trial is
a violation of due process of law under the Fourteenth
Mills v. Commonwealth, Ky., 996 S.W.2d 473, 486
Moreover, as further stated in Mills:
The competency hearing of KRS 504.100(3) is
mandatory and cannot be waived by a
defendant. The standard of review in such a
case is, “Whether a reasonable judge,
situated as was the trial court judge whose
failure to conduct an evidentiary hearing is
being reviewed, should have experienced
doubt with respect to competency to stand
trial.” Williams v. Bordenkircher, 696 F.2d
464, 467 (6th Cir. 1983), cert. denied, 461
U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 287
Id. at 486.
In this case, we conclude that Humphrey failed to
establish any factual basis, which should have caused the
district court to experience reasonable doubt as to Humphrey’s
competence to stand trial.
Humphrey does not point to anything,
other that his first attorney’s hesitance as to Humphrey’s
competency, that should have alerted the district court that
Humphrey was incompetent.
Moreover, a psychologist did evaluate
Humphrey during the district court proceedings and found him
competent at that time.
That it was later determined in May of
2001 that Humphrey’s competency fluctuated from time to time
does not indicate that the district court should have questioned
Humphrey’s competency in August, September and October of 2000.
Accordingly, we believe the district court’s failure to conduct
a competency hearing was harmless error.
The order of the Jefferson Circuit Court denying
Humphrey's RCr 11.42 motion is vacated in part, affirmed in
part, and the case is remanded for an evidentiary hearing on the
issues discussed above.
TAYLOR, JUDGE, CONCURS.
GUIDUGLI, JUDGE, CONCURS IN PART, DISSENTS IN PART AND
FILES SEPARATE OPINION.
GUIDUGLI, JUDGE, CONCURRING IN PART AND DISSENTING IN
I concur in part and respectfully dissent in part.
believe that Humphrey was entitled to a transfer hearing
pursuant to KRS 640.010(2).
It should not be waived.
statute provides essential protections for juveniles consistent
with the legislative intent set forth in KRS 600.010.
juvenile, his attorney, the Commonwealth or even the District
Court Judge wishes to expedite the matter by waiving the hearing
is not the important factor in this consideration.
Rather it is
the protection of rights given to juveniles by the legislature.
The use of the term “shall” denotes that the transfer hearing
must take place and that certain factors must be presented prior
to transferring a juvenile to circuit court.
of a juvenile being treated as an adult in circuit court are
significant and have life-long effects.
To mandate the
Commonwealth present evidence sufficient under KRS 640.010(2)(b)
to justify removing a juvenile from these many protections is
not an unreasonable burden.
The statute mandates it and the
juvenile courts should adhere to it.
aspects of the majority opinion.
I concur in all other
BRIEF AND ORAL ARGUMENT FOR
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
ORAL ARGUMENT FOR APPELLEE:
Ian G. Sonego