TASIA HOOTEN v. COMMONWEALTH OF KENTUCKYAnnotate this Case
SEPTEMBER 8, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 04-CR-00034
COMMONWEALTH OF KENTUCKY
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BEFORE: SCHRODER, JUDGE; KNOPF AND ROSENBLUM, SENIOR JUDGES.1
This appeal is before us upon a conditional
guilty plea pursuant to Kentucky Rules of Civil Procedure (RCr)
Reserved for our review is whether the trial court
properly transferred appellant Tasia Hooten’s first-degree
robbery case from juvenile court to circuit court pursuant to
Senior Judges William L. Knopf and Paul W. Rosenblum sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580
Kentucky Revised Statutes (KRS) 640.010 and KRS 635.020.
the reasons stated below, we affirm.
Hooten was born on January 8, 1988.
On April 8, 2004,
when Hooten was sixteen-years old, she and her two cousins took
part in the robbery of a Best Western Hotel in Clark County,
Evidence presented at the youthful offender hearing
established that Hooten went into the hotel asking for room
rates just before it was robbed.
Hooten matched the physical
description given to the police and was implicated by her
cousins in the robbery.
One of Hooten’s cousins/co-defendants
allegedly raped the hotel clerk in the course of the incident;
however, Hooten was not implicated in that crime.
On April 21, 2004, the Clark District Court conducted
a youthful offender hearing pursuant to KRS 635.020(2) and KRS
The district court ruled that its jurisdiction
should be waived and that Hooten should be proceeded against as
an adult in circuit court.
Following the transfer, Hooten was indicted for firstdegree robbery2 on May 13, 2004.
Thereafter, on August 10, 2004,
Hooten moved to dismiss the indictment for lack of jurisdiction.
The Clark Circuit Court denied the motion on August 26, 2004.
From that denial, on September 1, 2004, Hooten filed an original
action for a writ of prohibition in this Court pursuant to
See KRS 515.020.
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Kentucky Rules of Civil Procedure (CR) 76.36 seeking to block
On September 24, 2004, this Court entered an
order denying the writ.
See Hooten v. Jennings, Case No. 2004-
Hooten subsequently appealed the denial of the
writ to the Supreme Court.
On November 23, 2004, Hooten entered a conditional
guilty plea pursuant to RCr 8.09 to an amended charge of
facilitation3 to commit first-degree robbery, a Class D felony,
and was sentenced to a five-year prison term.
The plea was
conditioned on her being able to appeal the district court’s
waiver of jurisdiction.
Hooten then filed the present appeal
from her guilty plea on February 15, 2005, challenging the
district court’s waiver of jurisdiction to circuit court.
June 16, 2005, the Supreme Court rendered an unpublished opinion
affirming this Court’s denial of Hooten’s writ of prohibition.
See Hooten v. Jennings, Case No. 2004-SC-000871-MR, WL 1412486
Turning now to the merits of her appeal, Hooten first
contends that the district court erroneously construed KRS
640.010 when it waived jurisdiction to circuit court.
Specifically, Hooten contends that the district court
erroneously “held that the legislature authorized it to waive
jurisdiction based on the alleged charge alone, ‘despite what
See KRS 506.080.
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may be true for [the juvenile] personally.’”; erred by
transferring the case “despite the fact that [Hooten] is
amenable to rehabilitation and not a danger to the
community[.]”; erred by failing to consider the requisite
contained in KRS 600.010(d) that “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 or her condition.”; and failed to consider that KRS
600.010(f) requires that Chapter 640 should be specifically
interpreted “in an effort to rehabilitate delinquent youth.”
KRS 640.010(2) requires that, upon motion by the
Commonwealth to transfer a juvenile case from district court to
circuit court, a preliminary hearing be held to determine
whether probable cause exists.
KRS 640.010(2)(b) provides as
If the District Court determines
probable cause exists, the court shall
consider the following factors before
determining whether the child's case
shall be transferred to the Circuit
1. The seriousness of the alleged
2. Whether the offense was against
persons or property, with greater
weight being given to offenses
3. The maturity of the child as
determined by his environment;
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4. The child's prior record;
5. The best interest of the child and
6. The prospects of adequate protection
of the public;
7. The likelihood of reasonable
rehabilitation of the child by the
use of procedures, services, and
facilities currently available to
the juvenile justice system; and
8. Evidence of a child's participation
in a gang.
In its transfer hearing order of April 21, 2004, the
district court concluded that factors one, two, and five favored
The district court also, in a hand-written notation,
stated “[t]he seriousness of the offense, committed against a
person, outweighs the factors in the juvenile’s favors [sic].
In addition, the best interest of the community demands that
offenses of this seriousness are addressed by the justice system
as a whole.”
In its opinion of June 16, 2005, in Case No. 2004-SC000871-MR affirming this Court’s denial of a writ of prohibition
to prevent the transfer to circuit court, the Supreme Court
stated as follows:
[T]he question of whether the District
Court could properly transfer the case to
Circuit Court and whether that Court could
properly exercise jurisdiction over the
Appellant must be based on consideration of
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the eight factors set out in KRS
640.010(2)(b): the seriousness of the
alleged offense; whether the offense was
against persons or property, with greater
weight being given to offenses against the
persons; the maturity of the child as
determined by her environment; the child's
prior record; the best interest of the child
and community; the prospects of adequate
protection of the public; the likelihood of
reasonable rehabilitation of the child by
the use of procedures, services, and
facilities currently available to the
juvenile justice system; and evidence of a
child's participation in a gang. If two or
more of the factors favor transfer, the
child may be transferred to Circuit Court.
Here, the District Court relied on
three of the eight factors favoring
transfer. The court found that the
seriousness of the offense, the offense
being committed against the person rather
than property, and the fact that the best
interest of the community outweighed the
best interest of the child were sufficient
reasons to transfer the case to Circuit
Court. Thus, the fact that the District
Court complied with the requirements of KRS
635.020 and KRS 640.010 would justify the
transfer to Circuit Court and would support
a decision of this Court to affirm the Court
of Appeal's denial of the writ of
Further, this Court has reviewed the
trial court's reasoning behind the use of
these factors to transfer the case to
Circuit Court as these factors are essential
to the question of whether or not the
Circuit Court properly exercised
With regards to the District Court's
application of 640.010, this Court finds
that it completed a full investigation.
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After considering each of the eight factors,
the District Court stated with adequate
specificity the reasons for transferring the
case to Circuit Court. The lower court also
provided sufficient reasons in both the
record and the order to provide for
meaningful review. Harden v. Commonwealth,
885 S.W.2d 323, 324 (Ky.App. 1994).
The Appellant contends that two of the
three factors the District Court gave do not
warrant transfer. There is no dispute over
the seriousness of the offense, and this
clearly justifies the use of one of the
three factors considered for transfer. With
regards to the second factor of giving more
weight to an offense against the person than
to one against property, the appellant would
propose that the Court of Appeals did not
properly consider the specific evidence in
deciding if she was committing a crime
against the person. This Court agrees with
the decision of the lower Court that the
offense of first-degree robbery and the
particular circumstances of the case
justified utilizing such a factor to support
transfer to Circuit Court.
Also, the Appellant's argument that the
third factor utilized by the District Court
was not adequately explained in order to
allow for proper review is without merit.
The third factor was that the interest of
the community outweighed the interest of the
child. The District Court could properly
decide this issue by taking the individual
facts of the case into consideration, and
the evidence presented supports the
contention that the court proceeded with a
thorough investigation by considering each
of the eight factors in order to determine
which ones supported transfer. Id. at 325.
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A final decision by an appellate court, right or
wrong, is the law of the case and is conclusive of the questions
therein resolved and is binding upon the parties and lower
Hogan v. Long, 922 S.W.2d 368, 370 (Ky. 1995).
upon the thrust of the Supreme Court’s discussion of the
district court’s transfer decision in its June 16, 2005,
opinion, we believe it to be a settled issue that the district
court acted appropriately and in accordance with its statutory
duties in transferring the cause to circuit court.
As such, the
issues of whether the district court erroneously construed KRS
640.010 and abused its discretion when it waived jurisdiction to
circuit court are likewise settled adversely to Hooten’s
Hooten also contends that KRS 640.010 violates
procedural due process.
Hooten states her due process argument
Tasia takes issue with the following portion
of KRS 640.010(2)(c):
If, following the completion
of the preliminary hearing, the
District Court finds, after
considering the factors enumerated
in paragraph (b) of this
subsection, that two (2) or more
of the factors specified in
paragraph (b) of this subsection
are determined to favor transfer,
the child may be transferred to
Circuit Court . . .
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. . . .
Tasia argues that this procedure
creates a risk of erroneous deprivation of
her statutory interests as a juvenile. More
specifically, the fact that a district court
need only find two of the factors before
being authorized to transfer creates a risk
of waiving jurisdiction without proper
attention to the rehabilitative purpose of
the juvenile system. Based on this
procedural framework, a court has too much
room to make arbitrary decisions based on
whether it likes the color of the
defendant’s shirt or, more insidious, the
color of the defendant’s skin. Moreover, a
district court can waive its jurisdiction
for the sole purpose of punishment.
. . . .
Based on the way the statute is written
and as it was applied in this case, a court
can simply find the existence of an
allegation of Robbery 1st and waive
The only way to save this statute from
being constitutionally infirm is for courts
to read into it a standard of placing the
child before the charge . . . .
We first note that Hooten has failed to cite us to her
preservation of her challenge to the constitutional infirmities
of KRS 640.010(2)(c) pursuant to CR 24.03 (when the
constitutionality of an act of the General Assembly affecting
the public interest is drawn into question in any action, the
movant shall serve a copy of the pleading, motion or other paper
first raising the challenge upon the Attorney General).
Further, our review of the circuit court record reflects that
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such notification was not given.
Hence, it appears that this
issue was not properly preserved for our review.
we will address the issue on the merits.
In Stout v. Commonwealth, 44 S.W.3d 781 (Ky.App.
2000), the defendant argued that KRS 640.010 was
unconstitutional because it did not provide a standard of proof.
This Court determined that the statutory scheme established for
the discretionary transfer of juvenile offenders to circuit
court was not constitutionally infirm or violative of a
juvenile's due process rights because it neglected to provide a
standard of proof.
If anything, the constitutional challenge brought by
Hooten is less compelling than the challenge brought in Stout.
Formerly, KRS 640.010(2)(c), did not contain a two-factor
The statute was amended effective July 15, 1998, to
provide for discretionary transfer only if the district court
finds "two (2) or more of the factors . . . are determined to
The version of the statute under review in
Stout did not contain this limitation.
Hence, the version of
the statute found constitutional in Stout was less restrictive
of the district court’s discretion than the present version.
“It is axiomatic that a juvenile offender has no
constitutional right to be tried in juvenile court.”
S.W.3d at 785.
"[T]reatment as a juvenile is not an inherent
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right but one granted by the state legislature, therefore the
legislature may restrict or qualify that right as it sees fit,
as long as no arbitrary or discriminatory classification is
Id. at 785, n.9 (citing Woodard v. Wainwright, 556
F.2d 781, 785 (5th Cir. 1977), cert. denied, 434 U.S. 1088, 98
S. Ct. 1285, 55 L. Ed. 2d 794 (1978)).
Kent v. United States,
383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966) is
recognized as the seminal case concerning the transfer of
jurisdiction in juvenile cases.
“[I]n Breed v. Jones, [421 U.S.
519, 537, 95 S. Ct. 1779, 1790, 44 L. Ed. 2d 346, 360 (1975),]
the United States Supreme Court specifically discussed its
holding in Kent, and remarked that it had ‘never attempted to
prescribe criteria for, or the nature and quantum of evidence
that must support, a decision to transfer a juvenile for trial
in adult court.’”
Stout, 44 S.W.3d at 787 (footnote omitted).
Under Kentucky law no less than under
federal law, the concept of procedural due
process is flexible. [Smith v. O'Dea, 939
S.W.2d 353, 357 (Ky.App. 1997).] In
determining which standard of proof is
appropriate in any particular context, our
Courts, and the United States Supreme Court,
have utilized the due process analysis set
forth in Mathews v. Eldridge, [424 U.S. 319,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See
Commonwealth v. Raines, 847 S.W.2d 724 (Ky.
1993) and Shaw v. Seward, 689 S.W.2d 37, 39
(Ky.App 1985)]. Mathews articulates three
factors whose consideration is required by
“the specific dictates of due process”: (1)
“the private interest that will be affected
by the official action”; (2) “the risk of an
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erroneous deprivation of such interest
through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards”; and (3)
“the Government's interest, including the
function involved and the fiscal and
administrative burdens that the additional
or substitute procedural requirement would
entail.” [Mathews v. Eldridge, supra, 424
U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d
Stout, 44 S.W.3d at 787-788 (footnotes omitted).
Stout discussed the Mathews factors in detail.
We are persuaded that the same analysis which led the Stout
Court to determine KRS 640.010 constitutional, though lacking a
standard of review, applies with equal force to the challenge
raised by Hooten, and we need not repeat the analysis herein.
“[T]he transfer scheme evinces the Legislature's intent that the
district court judge have considerable discretion in balancing
the needs of the juvenile with those of society.”
S.W.3d at 788.
The “two of eight” format contained in KRS
640.010(2)(c) provides this flexibility.
Accordingly, we hold
that the statutory scheme established for the discretionary
transfer of juvenile offenders to circuit court is not
constitutionally infirm or violative of a juvenile's due process
rights because it requires a district court to find only two of
the eight factors contained in KRS 640.010(2)(c) in order to
waive jurisdiction to circuit court.
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For the foregoing reasons the judgment of the Clark
Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey C. Rager
Gregory D. Stumbo
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
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