B. (A.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 24, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002192-ME
A.B., A CHILD UNDER EIGHTEEN
v.
APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 07-J-01030
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; WINE, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE: The issue in this appeal is whether A.B.’s
stipulation to the status offense of habitual truancy without the advice of counsel
and without any dialogue required for an admission pursuant to Boykin v.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was valid. We
hold that it was not and, therefore, vacate and remand.
Facts and Procedural History
On January 24, 2007, a juvenile petition was filed in the Fayette
Family Court against A.B. for habitual truancy. On April 23, 2007, A.B., who was
13 years old at the time, appeared before the court regarding the petition. She was
accompanied to court by her mother, who did not speak English and required an
interpreter.
At the hearing, A.B. declined counsel and stipulated to habitual
truancy without consulting with an attorney. The judge proceeded to verbally enter
an order requiring A.B. to: go to school everyday with no unexcused absences or
tardies; obey the rules of her home including a 9:00 p.m. curfew; not consume, use,
or possess alcohol, tobacco, or illegal drugs; and submit to a drug test that day.
The written order added an additional requirement that A.B. submit to random
drug testing.
The following exchange between the court and A.B. occurred
regarding her admission or stipulation to habitual truancy:
Judge: I will appoint legal aid. I will appoint legal aid.
She’s qualified for legal aid.
Mother (via translator): What is that?
Judge: It’s an attorney to represent her in this process.
Your next court appearance is in a little while [A.B.]
when you’re ready I will call you back and ask how you
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respond to this charge. I’ll ask if you admit it or if you
deny it.
A.B.: So I can’t say right now that I agree?
Judge: Yeah, well you can if you would like. But I’ll
also give you the opportunity to talk to your lawyer and
look at your school records if you’d like. Do you want
that opportunity?
A.B.: I don’t think it is necessary.
Judge: And you know that by stipulation to the truancy I
have jurisdiction to enter court orders over you and your
family?
A.B.: Yes.
Judge: And you would like to do that?
A.B.: Yes.
Judge: I will take the stipulation to habitual truancy.
No disposition hearing was set nor was the Cabinet for Health and
Family Services ordered to provide a predisposition investigation report. Rather,
over the next two and one-half years, A.B. and her mother made numerous court
appearances for reviews of the case. A.B. had the assistance of counsel for some
of the appearances, but she was never informed she was entitled to counsel. In
addressing the truancy, the following events occurred: the court regularly
reviewed A.B.’s school attendance; A.B. was given 24 hours of detention on May
21, 2007; A.B. was given five days of detention on November 10, 2008; a second
juvenile complaint and Juvenile Status Offender Order were entered in January
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2009; and A.B. was placed under Cabinet for Health and Family Services
supervision in February 2009.
In September 2009, the Family Court decided it had exhausted its
resources and asked the Cabinet to prepare a disposition report. At the disposition
hearing in October 2009, the judge committed A.B. to the Cabinet. A.B.’s attorney
submitted a Motion to Reconsider and a Supplemental Motion to Reconsider, but
the court denied both motions.
On appeal, A.B. argues that her admission or stipulation of guilt was
invalid and that she did not knowingly waive her right to counsel. The
Commonwealth concedes both that the stipulation of guilt was invalid and that
A.B. did not effectively waive her right to counsel.
Standard of Review
The United States Supreme Court stated in Boykin v. Alabama,:
In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884,
890, 8 L.Ed.2d 70, we dealt with a problem of waiver of
the right to counsel, a Sixth Amendment right. We held:
“Presuming waiver from a silent record is impermissible.
The record must show, or there must be an allegation
and evidence which show, that an accused was offered
counsel but intelligently and understandingly rejected
the offer. Anything less is not waiver.”
We think that the same standard must be applied
to determining whether a guilty plea is voluntarily
made. For, as we have said, a plea of guilty is more than
an admission of conduct; it is a conviction. Ignorance,
incomprehension, coercion, terror, inducements, subtle or
blatant threats might be a perfect cover-up of
unconstitutionality. The question of an effective waiver
of a federal constitutional right in a proceeding is of
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course governed by federal standards. Douglas v.
Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13
L.Ed.2d 934. (Emphasis added.)
395 U.S. at 242-43, 89 S.Ct. at 1712
Analysis
We conclude that A.B. did not knowingly, intelligently, and
voluntarily enter into a stipulation of guilt or waive her right to assistance of
counsel.
I - Stipulation of Guilt
A.B.’s stipulation of guilt was invalid. In D.R. v. Commonwealth, 64
S.W.3d 292 (Ky. App. 2001), and J.D. v. Commonwealth, 211 S.W.3d 60 (Ky.
App. 2006), this Court decided that in order for a juvenile stipulation or plea of
guilty to be valid, it must meet the requirements of Boykin v. Alabama.
Consequently, to be valid, the record must reflect the defendant’s plea was made
knowingly, intelligently, and voluntarily. The Supreme Court stated in Boykin that
“[w]e cannot presume a waiver of these important federal rights from a silent
record.” Id., 395 U.S. at 243, 89 S.Ct. at 1712. Therefore, the validity of a guilty
plea is determined by considering the totality of the circumstances surrounding the
plea, including the accused’s demeanor, background, and experience, and whether
the record reveals that the plea was voluntarily made. D.R., 64 S.W.3d at 294;
J.D., 211 S.W.3d at 62.
The record does not reflect that A.B. was advised of or had knowledge
of the constitutional rights she was waiving by entering her stipulation of guilt.
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She did not receive any assistance from counsel and was not informed of the
consequences of her stipulation. At the time of the stipulation, A.B. was 13 years
old and had never made a court appearance. Further, the court did not explain to
A.B. or her mother their respective rights or the potential benefits of representation
by counsel. Consequently, considering the totality of the circumstances, A.B. did
not enter into the stipulation of truancy knowingly or intelligently. The
requirements of Boykin were not met.
II – Waiver of Counsel
A.B.’s waiver of counsel was also invalid. In D.R. v. Commonwealth,
this Court held that under KRS 610.060(1)(a) and (e), “a child may waive the right
to counsel only if that child has first been appointed, and consulted with, counsel
concerning the waiver.” D.R., 64 S.W.3d at 296-97. Furthermore, KRS
610.060(2)(b) requires that before a court allows a child to proceed without
counsel, it must conduct a hearing concerning the waiver of counsel and must
make specific findings of fact that the waiver of counsel was made knowingly,
intelligently, and voluntarily. Here, A.B.’s waiver of counsel was invalid because
she was not appointed counsel and did not have an opportunity to consult with
counsel before she waived her constitutional right to counsel. Further, the court
did not conduct a hearing or make specific findings of fact.
Conclusion
As acknowledged by the Commonwealth in its brief, A.B.’s
stipulation of truancy and her waiver of counsel were invalid. Therefore, A.B.’s
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admission or stipulation to the status offense of habitual truancy and the
disposition of commitment are vacated, and this matter is remanded to the Fayette
Family Court for further proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rebecca Hobbs
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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