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Appellant James Jackson was charged with felony drug trafficking and several misdemeanors, including possession of a handgun by a minor, in the juvenile court. The district court certified him as a youthful offender and transferred him to the circuit court where he entered a guilty plea and was sentenced as an adult. Jackson appealed, seeking to collaterally attack his conviction on the grounds that the transfer was improper and, as a result, the circuit court never acquired jurisdiction over him or his case. The Supreme Court concluded that the transfer was proper and the circuit court had jurisdiction, as the district court's transfer order was legally sufficient on its face and no other jurisdictional defects appeared on the record.Receive FREE Daily Opinion Summaries by Email
RENDERED: MARCH 22, 2012
TO BE PUBLISHED
S5uprtutt (Court of 'Rf ritfurkg
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-000099-MR
MCCRACKEN CIRCUIT COURT NO. 05-CR-00008
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE
The Appellant James Jackson was charged with felony drug trafficking
and several misdemeanors, including possession of a handgun by a minor, in
the juvenile session of the McCracken District Court. The district court certified
him as a youthful offender and transferred him to the circuit court, where he
entered a guilty plea and was sentenced as an adult. He now seeks to
collaterally attack his conviction on the grounds that the transfer was improper
and, as a result, the circuit court never acquired jurisdiction over him or his
case. Because the district court's transfer order was legally sufficient on its
face, and no other jurisdictional defects appear in the record, this Court
concludes that the transfer was proper and the circuit court had jurisdiction.
In 2004, a little more than a month before his sixteenth birthday, the
Appellant was taken into custody after police and his juvenile case worker
found him in possession of cocaine, marijuana, and a handgun. The officer
filed a juvenile petition alleging that Appellant was a public offender and
charging Appellant with first-degree trafficking in a controlled substance,
specifically cocaine, which at the time was a Class C felony; and possession of
marijuana, possession of drug paraphernalia, and possession of a handgun by
a minor, all of which are misdemeanors. Despite the handgun charge, the
trafficking offense was not specifically listed as firearm enhanced on the
At a juvenile detention hearing that followed, the arresting officer
described the events surrounding the arrest. As part of that testimony, he
stated that the juvenile case worker, who was supervising Appellant's probation
on an earlier adjudication, searched Appellant and found a loaded gun in his
Upon hearing this, the district judge interrupted the examination of the
witness to ask "Should these charges be firearm enhanced?" The following
discussion then took place between the judge and the Assistant County
Judge: Should these charges be firearm enhanced? Should these
charges be firearm enhanced?
Attorney: Uh, yes your honor. I think so, and we—
I At the time of the arrest, KRS 218A.1412 made a first offense of first-degree
trafficking a Class C felony. That provision has since been amended. KRS 218A.992
stated (and still states) that if a person is convicted of a violation of a provision of KRS
Chapter 218A and was in possession of a firearm in furtherance of the offense, then
the person shall "be penalized one (1) more class severely than provided in the penalty
provision pertaining to that offense if it is a felony." KRS 218A.992(1)(a). In other
words, the offense is punished as though it were a Class B felony when the firearm
enhancement statute is implicated.
Judge: And I, and I assume then we are talking about a transfer
Attorney: And we will be making a motion your honor, just for the
record, to certify him as an adult.
Judge: Well. Yeah, that is what I was just saying.
No transfer motion, oral or written, was actually made at that time.
Nevertheless, the judge scheduled a transfer hearing to be held abOut a month
later. At that time, she made the following notation on the docket sheet:
CA motions to certify as adult
All charges are firearm enhanced
Despite this notation, no transfer motion was subsequently filed and the
charges were never amended to specifically list them as firearm enhanced. Only
the district court's docket sheets list the charges as "firearm enhanced."
At the transfer hearing, held before a different judge, the court heard
from the arresting officer and the juvenile case worker. After hearing the proof
and giving the attorneys a chance to speak, the judge made the following oral
Okay. I'm going to look at 640.010 again. I do find probable cause
to believe that the felony offenses as charged were committed and
that Mr. Jackson committed those. In examining the factors under
.010(2)(b), I find that it is a very serious offense, especially
trafficking with a handgun. Against persons: these are crimes
against persons, distributing narcotics into neighborhoods. The
maturity of the child as determined by his environment: I do not
find that he is immature. He has a—well, I'll take up the prior
record in a minute. Best interest of the child and the communi
Mr. Jackson needs to be removed from this community for an
extens—and any community—for an extensive period of time if
these charges are true. And the prospect of adequate protection of
the public: I do not believe there will be adequate protection to the
public by remaining in the juvenile system. And the likelihood of
reasonable rehabilitation: I really haven't heard any evidence on.
That's certainly more than two factors. And discussing his record,
beginning April of '03, leaving the scene of an accident,
intimidating a witness. August '03, assault fourth degree, which
was, I'm sorry, that was dismissed. Two contempts in September of
'03. CD time, beyond control. January of '04, seven days detention.
Starts picking up drug charges in March of '04; possession of
controlled substance first degree, possession of drug
paraphernalia, CD time revoked. Assault fourth degree, was guilty
of March '04. April '04, an assault third degree times two. And then
he was actually operating a vehicle in August of '04. That would
tend to show some level of maturity. And then he has these current
charges. I'm going to order that Mr. Jackson be bound up to the
grand jury, so they can take a look and see whether or not the
grand jury thinks it merits keeping it up there.
At the conclusion of the hearing, the judge made the following notation on his
docket sheet, which was signed:
Found probable cause
Certified as youthful offender
Bound to Grand Jury
The grand jury indicted Appellant on first-degree trafficking in a
controlled substance with a firearm enhancement and the same three
misdemeanors he had been charged with in the district court. The indictment
described the trafficking charge as a Class B felony, presumably based on the
firearm enhancement statute, KRS 218A.992. In the circuit court, Appellant
entered into a plea bargain in which the Commonwealth recommended a tenyear sentence (the minimum for a class B felony) in exchange for Appellant's
plea of guilty to all four charges. The circuit court accepted Appellant's guilty
plea and sentenced him in accordance with the plea agreement.
Appellant was scheduled for "adult resentencing" under KRS 640.030(2)
to take place soon after he turned eighteen (in 2006). Shortly before the
hearing, Appellant's counsel moved under RCr 11.42 and CR 60.02 to vacate
his conviction on the ground that he was improperly certified as a youthful
offender and transferred from the district court to circuit court, which, he
claimed, lacked jurisdiction. The circuit court denied the motion to vacate and
ordered that Appellant serve the remainder of his sentence in the custody of
the Department of Corrections.
On appeal, the Court of Appeals held that the circuit court properly had
jurisdiction over Appellant's case, noting that the circuit court had general
subject-matter jurisdiction over youthful offender cases and that the only real
question was whether the court had jurisdiction over this particular case based
on the district court's findings at the transfer hearing. The court concluded
that issue was really a question of due process, based on one of its own prior
decisions, since the case was at the collateral attack stage, and required "an
error of such magnitude to render the judgment of conviction so fundamentally
unfair that the defendant can be said to have been denied due process of law."
Schooley v. Commonwealth, 556 S.W.2d 912, 917 (Ky. App. 1977). The court
held that any complaints about the district court's findings should have been
raised on direct appeal, that the guilty plea waived "evidentiary defenses and
subsequent claims of error," and that any evidentiary issues could only be
raised in the context of a claim of ineffective assistance of counsel. Because a
guilty plea limits even the types of issues that can be alleged as ineffective
assistances of counsel to those going to the voluntariness of the plea, see
Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky. 1970), the court could not
get into the substance of the combined due process and ineffective assistance
claim. Nonetheless, the court concluded that the voluntariness of Appellant's
guilty plea was still in question and that the circuit court had erred in failing to
address it. As a result, the court remanded the case to the circuit court to
determine whether the guilty plea itself had been voluntary.
Despite a partial victory at the Court of Appeals, Appellant sought
discretionary review by this Court of the issue of the circuit court's jurisdiction
over his case, which was granted. The Commonwealth has not sought
discretionary review of the Court of Appeals' decision to remand for a
determination of voluntariness of the guilty plea.
Appellant argues that his conviction must be vacated because his
transfer to circuit court violated his due process rights. Specifically, he claims
that the district court never made the findings required under KRS 635.020
and KRS 640.010(2)(a), and that no such finding could have been made in light
of the record or the law. In essence, he asserts that the circuit court did not
have jurisdiction. He also claims that his trial counsel was ineffective by failing
to object to the transfer both at the district and circuit courts. The
Commonwealth responds by claiming that Appellant's unconditional guilty plea
waived all his claims.
The Commonwealth is correct that the general rule in this state is that
an unconditional guilty plea waives all defenses except that the indictment
does not charge a public offense. See, e.g., Thompson v. Commonwealth,
S.W.3d 22, 39 (Ky. 2004) ("[T]he entry of a valid guilty plea effectively waives all
defenses other than that the indictment charged no offense."). This waiver
covers most claims of ineffective assistance of counsel, including those
Appellant has raised in his brief. See, e.g., Tollett v. Henderson, 411 U.S. 258,
267 (1973) ("We thus reaffirm the principle recognized in the Brady trilogy: a
guilty plea represents a break in the chain of events which has preceded it in
the criminal process. When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea."
(referring to Brady v. United States, 397 U.S. 742 (1970); McMann v.
Richardson, 397 U.S. 759 (1970); and Parker v. North Carolina, 397 U.S. 790
(1970)). Instead, after a guilty plea, a defendant "may only attack the voluntary
and intelligent character of the guilty plea by showing that the advice he
received from counsel was not within the standards set forth in McMann." Id.
(citing McMann v. Richardson, 397 U.S. 759, 770 (1970)); see also Quarles, 456
S.W.2d at 694. While this may require some analysis of whether trial counsel
was ineffective, it is nevertheless a somewhat different and narrower inquiry,
since it ultimately focuses on the voluntariness of the guilty plea and not
general prejudice or the performance of counsel. Cf. Bronk v. Commonwealth,
58 S.W.3d 482, 486 (Ky. 2001) (measuring voluntariness by looking at the
effectiveness of counsel).
In fact, it was this law on which the Court of Appeals relied in remanding
the case to the trial court to determine the voluntariness of Appellant's guilty
plea. It is worth noting again that the Commonwealth did not seek review of
that decision, despite its suggestion in response to Appellant's present
ineffective-assistance-of-counsel claim that there is ample evidence to suggest
that the guilty plea was, in fact, voluntary, while also conceding that the Court
of Appeals' remedy was appropriate. Regardless, the issue of voluntariness is
not before this Court, and the waivers stemming from Appellant's guilty plea
bar this Court from reaching the other claims of ineffective assistance of
counsel that he raises until such time as his guilty plea could be found to be
Still, the Commonwealth's suggested approach to the waiver's effect is an
oversimplification. It hinges on an incomplete statement of the rule that was
crafted to address the most common scenario, not to outline the whole blackletter law on the subject While there is no question that "a guilty plea reduces
the scope of potentially appealable issues," Windsor v. Commonwealth, 250
S.W.3d 306, 307 (Ky. 2008) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000)), it does not narrow the field to the single issue claimed by the
Commonwealth. As the U.S. Supreme Court has noted, "A guilty plea ... simply
renders irrelevant those constitutional violations not logically inconsistent with
the valid establishment of factual guilt and which do not stand in the way of
conviction if factual guilt is validly established." Menna v. New York, 423 U.S.
61, 62-63 n.2 (1975) (per curiam). The situation is markedly different when
"the claim is that the State may not convict petitioner no matter how validly his
factual guilt is established," where, for example, the charge would violate
double jeopardy. Id. "IA] plea of guilty to a charge does not waive a claim that
judged on its face the charge is one which the State may not constitutionally
Though the Supreme Court was speaking specifically of alleged
constitutional errors, the same reasoning extends to other errors that are not
implicated by the establishment of a defendant's guilt. Thus, in addition to
failure of the indictment to charge a public offense, issues that survive a guilty
plea include competency to plead guilty, certain types of sentencing issues, and
whether the trial court had general subject-matter jurisdiction. Windsor, 250
S.W.3d at 307. In fact, this Court's Rules of Criminal Procedure, which the
Commonwealth fails to cite, specifically state: "Lack of jurisdiction or the
failure of the indictment or information to charge an offense shall be noticed by
the court at any time during the proceedings." RCr 8.18 (emphasis added).
Despite his characterization of it as a due-process claim, the Appellant's
fundamental claim is that the district court's transfer order was invalid and
thus the circuit court never acquired jurisdiction over his case. If he is correct,
then his guilty plea did not waive the issue, as noted above. This conclusion is
further supported by the rule that subject-matter jurisdiction cannot be born of
agreement, waiver, or estoppel. Duncan v. O'Nan, 451 S.W.2d 626, 631
(Ky.1970). This is because jurisdiction goes to the very "power of the court to
decide an issue in controversy." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky.
2007). Unfortunately, the questions whether Appellant has raised a true
subject-matter-jurisdiction claim and, assuming he has, whether the circuit
court had subject-matter jurisdiction are complicated.
Ordinarily, the circuit court has no subject matter jurisdiction over
juvenile cases. The circuit court has "general jurisdiction," which means
"original jurisdiction of all justiciable causes not exclusively vested in some
other court." KRS 23A.010. But the district court, which is admittedly "a court
of limited jurisdiction," has been given "original jurisdiction in all matters
specified in KRS 24A.110 to 24A.130." KRS 24A.010. And KRS 24A.130 states:
"The juvenile jurisdiction of District Court shall be exclusive in all cases
relating to minors in which jurisdiction is not vested by law in some other
court." KRS 24A.130 (emphasis added); see also KRS 610.010(1) ("Unless
otherwise exempted by KRS Chapters 600 to 645, the juvenile session of the
District Court of each county shall have exclusive jurisdiction in proceedings
concerning any child living or found within the county who has not reached his
or her eighteenth birthday or of any person who at the time of committing a
public offense was under the age of eighteen (18) years, who allegedly has
committed a public offense prior to his or her eighteenth birthday, except a
motor vehicle offense involving a child sixteen (16) years of age or older.").
Thus, the district court has original, mostly exclusive jurisdiction over
juvenile matters. The circuit court cannot hear juvenile matters unless given
that authority by another statute. Juveniles who violate the law are deemed to
be status or public offenders, depending on the offense or violation charged.
KRS 610.010(1)-(4). They are not punished as criminals, though they may be
placed in custody at times. Instead, the primary aim when dealing with
juveniles is to "promote the best interests of the child through providing
treatment and sanctions to reduce recidivism and assist in making the child a
productive citizen by advancing the principles of personal responsibility,
accountability, and reformation, while maintaining public safety, and seeking
restitution and reparation." KRS 600.010(2)(e).
Under some circumstances, however, a juvenile can be deemed a
youthful offender. See KRS 635.020; 640.010. Youthful offenders are
transferred to the circuit court, KRS 640.010(2), where they may be tried like
adults, KRS 610.015, and "shall be subject to the same type of sentencing
procedures and duration of sentence, including probation and conditional
discharge, as an adult convicted of a felony offense" with some exceptions, KRS
640.030. A circuit court has subject-matter jurisdiction only over youthful
offender cases, not public or status offender cases. Thus, a circuit court
acquires jurisdiction over a case in which a juvenile is accused of violating the
penal law only if the juvenile is alleged to be a youthful offender and the district
court transfers the child to circuit court.
Before a juvenile can be deemed a youthful offender and transferred to
the circuit court, however, the district court must first hold a preliminary
hearing and decide whether the child falls into any of the categories laid out in
KRS 635.020 and whether probable cause to believe certain facts exists. See
KRS 640.010(2). Even after making these findings, in most cases the court
must still consider a list of factors, such as the seriousness of the offense, to
determine whether transfer is appropriate. 2 See KRS 640.010(2)(b)-(d). Only
after the district court satisfies these procedural hurdles does the circuit court
acquire jurisdiction over the juvenile's case. (And even then, "[i]f ... the grand
jury does not find that there is probable cause to indict the child as a youthful
offender ... the child shall not be tried as a youthful offender in Circuit Court
2 The only exception to these additional findings is an offense in which a firearm
is used. If the court finds that a firearm was used in the offense, the additional
findings are bypassed and the case must be transferred. See KRS 635.020(4).
but shall be returned to District Court to be dealt with as provided in KRS
Chapter 635." KRS 640.010(3).)
This Court, however, has held that a defendant's failure to challenge the
factual prerequisites to the circuit court's jurisdiction in a youthful offender
case at the district and circuit courts is ordinarily a waiver. See Commonwealth
v. Davis, 80 S.W.3d 759, 760-61 (Ky. 2002); Commonwealth v. Thompson, 697
S.W.2d 143, 144 (Ky. 1985). As a result, except in certain circumstances, these
"issue[s] cannot be raised on appellate review." Davis, 80 S.W.3d at 760; see
also Thompson, 697 S.W.2d at 144 ("The utter failure to preserve any
inadequacies of the juvenile procedure, if any in fact existed, is fatal to raising
the question on appellate review."). Rather than being jurisdictional matters,
questions about the adequacy of the transfer proceedings were held to be due
process questions, which are largely waived if raised for the first time on
appeal. Thompson, 697 S.W.2d at 144; Davis, 80 S.W.3d at 760. (Logically, that
waiver extends to raising the issues for the first time in a collateral proceeding.)
The Court hinted that the only claims about the adequacy of the proceedings to
survive such a waiver were those going to whether the transfer order was
facially valid. Thompson, 697 S.W.2d at 145 (deciding whether the transfer
order was invalid); Davis, 80 S.W.3d at 760-61 ("While Thompson indicates that
a facially invalid transfer order may be challenged for the first time on appeal,
no such argument is made here." (citations omitted)).
Though they do not expressly state it, these cases maintain a subtle
distinction between a court's true subject-matter jurisdiction and procedural
irregularities or outright failings that only indirectly go to jurisdiction. This
distinction is clearer in other areas of the law. See, e.g., Nordike, 231 S.W.3d at
738. In those other areas, the Court has distinguished between general
subject-matter jurisdiction and jurisdiction over a particular case. Subject
matter jurisdiction is "the court's power to hear and rule on a particular type of
controversy." Id. at 737. Wherever the line between these two types of
jurisdiction falls in juvenile cases, what is clear in Davis and Thompson is that
the waiver rule does not apply when the transfer order is facially insufficient.
As stated in Davis, "Thompson indicates that a facially invalid transfer
order may be challenged for the first time on appeal." Davis, 80 S.W.3d at 76061; see also Schooley, 556 S.W.2d at 915-16 ("Circuit courts also have general
jurisdiction to try juvenile felony offenders if there has been a valid transfer
...."), quoted with approval in Davis, 80 S.W.3d at 761. Davis declined to
address the merits of the issue because "no such argument" was raised in that
case. 80 S.W.3d at 761. Thompson addressed the issue directly, holding that
the transfer order in that case was not facially invalid. hi Thompson, this Court
reversed the Court of Appeals, which had held that "the order merely
`parrot[ed]" the transfer statute. 697 S.W.2d at 144. Instead, the order did
"much more," including "address[ing] each of the criteria set out in the statute
and stat[ing] by what witnesses the elements were proved." Id.
The question in this case, then, is whether the district court's order in
this case was facially deficient. In making this inquiry, we consider both the
judge's order, which was handwritten on the docket sheet, and his oral findings
made on the record. Cf. Harden v. Commonwealth, 885 S.W.2d 323, 324 (Ky.
App. 1994) (considering both oral and written findings); KRS 640.010(2)(c)
(requiring court to "state on the record the reasons for the transfer").
Under the present statutory scheme, 3 the district court must make a
series of mandatory findings and then consider a series of factors to decide
whether transfer is appropriate. KRS 640.010(2)(a) lays out the mandatory
At the preliminary hearing, the court shall 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 KRS 635.020.
In essence, this provision requires that the court find whether the juvenile
satisfies any of the criteria for transfer laid out in KRS 635.020. And
KRS 635.020 allows transfer proceedings against offenders who fall into several
categories that reflect combination of three different factors: type of offense, age
of the offender, and prior offenses. For example, if the child is sixteen or older,
has been charged with a class C or D felony, and has previOusly been
adjudicated a public offender, transfer proceedings can be initiated.
KRS 635.020(3). 4 KRS 640.010(2)(a) requires a finding of probable cause of
each factor listed under one of the criteria in KRS 635.020. The court must
then consider a series of eight factors and find that at least two of them favor
3 Thompson was decided before the adoption of the Unified Juvenile Code, so its
statutory references are out of date.
4 One of the criteria—that the child is charged with a felony in which a firearm
was used, and the child was at least fourteen at the time—bypasses the procedures in
KRS 640.010, which includes the discretionary considerations and thus gives the
district court some discretion whether to transfer. See KRS 635.020(4). Instead, if the
court finds probable cause, then the juvenile "shall be transferred." Id. (emphasis
transfer before a juvenile "may" be transferred to circuit court.
KRS 640.020(2)(b) 8s (c). The court must make the statutorily required findings
before it can turn to the discretionary considerations in subpart (b).
The Appellant argues that the district judge opined only on the
discretionary considerations listed in KRS 640.010(2)(b), but this
characterization shortchanges what the judge did. The very first thing the judge
found was "probable cause ... that the felony offenses as charged were
committed and that Mr. Jackson committed those." This tracks, in part, the
language in KRS 640.020(2)(a) about mandatory findings. The judge then
turned explicitly to the factors listed in subpart (b) of the statute, discussing
the proof as to each factor in turn. Thus, it is apparent that the court actually
made two sets of findings, one concerning mandatory findings, and one about
the discretionary factors under subpart (b). The Appellant's contention that the
judge simply ignored the mandatory findings is incorrect.
The next question, then, is whether the district judge's findings were
sufficient on their face to justify transfer. This Court concludes that they were,
and that the circuit court therefore properly obtained jurisdiction.
As Appellant notes, it is not entirely clear under which KRS 635.020
criterion the court was proceeding. The court never explicitly identified a
criterion, which by itself makes appellate review difficult. But the issue was
first framed as whether the trafficking charge was "firearm enhanced," which
narrows the possibilities to only two of the criteria: the one about use of a
firearm, KRS 635.020(4), and the one about class A and B felonies,
KRS 635.020(2). 5
That the court was proceeding under the firearm provision in subsection
(4) is unlikely, since that provision bypasses KRS 640.010 and mandates
transfer upon the mandatory finding. That the judge's first set of findings track
KRS 640.010(2)(a) and that he made findings under the discretionary factors in
KRS 640.010(2)(b) suggest that he was proceeding under the KRS 635.020(2)
criterion instead. Regardless, this Court need not resolve whether the district
court properly transferred Appellant under subsection (4) because the transfer
was proper under subsection (2).
To transfer under KRS 635.020(2), the court must find by probable cause
that the juvenile committed "a capital offense, Class A felony, or Class B felony"
and "had attained age fourteen (14) at the time of the alleged commission of the
offense." But transfer proceedings may only begin "[i]l' a child [is] charged with
a capital offense, Class A felony, or Class B felony, [and] had attained age
fourteen (14) at the time of the alleged commission of the offense." Id.
(emphasis added). The Appellant objects to application of this criterion because
he claims he was not charged with a Class B or higher felony. 6 Specifically, he
5 The court could not have been proceeding under the other criteria because
even the allegations, construed in a light most favorable to the Commonwealth, could
not possibly have satisfied them. For example, KRS 635.020(3) requires the child to be
at least sixteen years old, but there is no allegation that Appellant was that age. In
fact, the record clearly establishes that he was only fifteen.
Though the district court also made no explicit finding as to Appellant's age,
there is no question that he was within the age range established by KRS 635.020(2).
As Appellant's own brief admits, "he was only fifteen . at the time the ... felony charge
was alleged to have occurred and was still fifteen ... when brought before the district
court on the charge." He also states, "Moreover, his age at the time of the alleged
claims that the firearm enhancement for trafficking under KRS 218A.992 is
only a sentencing enhancement, since it only comes into play upon conviction,
and is not a chargeable offense, which means that he was only charged with a
Class C felony.?
As noted above, the district court's order simply said, "found probable
cause," and the court orally found "probable cause to believe that the felony
offenses as charged were committed." (Emphasis added.) Thus, the court's
finding incorporated the charging document, the juvenile petition filed after
Appellant was taken into custody. That document lists Appellant's charge as
first-degree trafficking in a controlled substance, with no reference to the class
offense was a fact of record, which was never challenged by the Commonwealth."
Presumably, he did not challenge the fact of his age either.
In his statement of the case, Appellant also notes repeatedly that the county
attorney never actually moved to transfer Appellant to the circuit court. The transfer
proceeding only happened upon the district judge's suggestion. Yet KRS 640.010(2)
requires a "motion by the county attorney to proceed under this chapter, ... after the
county attorney has consulted with the Commonwealth's attorney" to set the transfer
proceedings in motion. While these facts do not undermine the validity of the transfer,
as a motion by the Commonwealth is not a jurisdictional prerequisite and is only a
procedural requirement, they are troubling in that they present a potential separation
of powers issue, were the Commonwealth to oppose transfer. Arguably, the first
district judge in this case could have overstepped her bounds by initiating the transfer
proceedings if they had been opposed by the Commonwealth. Ultimately, however, the
prosecutor showed an intent to file a transfer motion and acted as though he had done
so at the transfer hearing. Nevertheless, the bench of this state should tread
cautiously and leave charging decisions, including whether to seek transfer of youthful
offenders, to the executive branch of government. See Prater v. Commonwealth, 82
S.W.3d 898, 907 (Ky. 2002) ("No section of the Kentucky Constitution authorizes the
judicial branch to exercise executive power if the executive is 'along for the ride."'); cf.
Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 580 (1948) ("It is essential that the
sharp separation of the powers of government be preserved carefully by the courts.
Those which are judicial must not be permitted to encroach upon those which are
legislative."). It must be clear from the record that the charge on which transfer might
be based is the Commonwealth's choice. In light of the record in this case, it is clear
that the district court's suggestion that transfer might be appropriate was not
improper. Still, it is worth clarifying that the Commonwealth's charging decisions
control. Had the county attorney in this case indicated that the Commonwealth was
not seeking transfer, any transfer proceedings would have been improper.
of the offense. 8 Since it did not designate the charge as falling within a certain
classification, meaning the district court's order likewise did not designate the
charge, this Court can look at the classification of the charge as a question of
law and stay within the facial-invalidity exception in Thompson and Davis.
Thus, this Court must determine whether Appellant was actually charged with
a Class B felony, as a matter of law.
Appellant's claim that he was not charged with a Class B felony turns on
the specific language used in the various controlled-substance statutes under
which he was charged. The basic statute defining and classifying first-degree
trafficking in effect when Appellant was first charged stated that "[a]ny person
who violates the provisions of subsection (1) of this section shall ... [f]or the
first offense be guilty of a Class C felony." KRS 218A.1412(2). 9 Thus, there is no
question he was charged with at least a Class C felony. But such a charge
would not make him eligible for transfer, given his age (fifteen). He could only
be eligible for transfer if his offense was at least a Class B felony based on some
8 Other documents in the district court record indicate that at least someone
involved in the case, specifically the Court Designated Work on the case, thought that
he had been charged with a Class B felony and would be proceeded against as a
youthful offender. For example, the record includes an AOC form titled "Preliminary
Inquiry Formal/Informal Processing Criteria and Recommendations," signed by the
CDW. The CDW checked the boxes indicating that the child was a youthful offender
because he was at least 14 years old at the time of the offense and had been charged
with at least a Class B felony. However, another document titled "Pre-Adjudicative
Detention Criteria," also an AOC form and also signed by the CDW, has. the part
checked stating both "[t]he child is charged with a ... Class B felony" and "[t]he child is
charged with a Class C or Class D felony," despite the fact that none of the other
charges were felonies.
9 The statute stated that a person violating the statute shall "[f]or a second or
subsequent offense be guilty of a Class B felony." KRS 218A.1412(2)(b) (2002).
The provision has since been amended to distinguish between two different
versions of first offense first-degree trafficking, one of which is a Class D felony and
one of which is a Class C felony. See 2011 Ky. Acts ch. 2, § 9 (effective June 8, 2011).
other enhancement statute. Given all the talk at the district court about
whether the charge was "firearm enhanced," the obvious option is
KRS 218A.992(1)(a), which stated (and still states):
[A]ny person who is convicted of any violation of [Chapter 218A]
who, at the time of the commission of the offense and in
furtherance of the offense, was in possession of a firearm, shall
be penalized one (1) more class severely than provided in the
penalty provision pertaining to that offense if it is a felony.
Appellant argues that because the firearm enhancement statute does not
have any effect until the person "is convicted," he could not have been charged
with an enhanced version of trafficking. He also notes that the statute only
elevates the penalty, implying that it has nothing to do with the classification of
the offense at the charging stage. In support of his claim, he cites language
noting that "KRS 218A.992 is nothing more than a sentencing statute reflecting
the dangerous nature of the crime perpetrated by an armed criminal." Kotila v.
Commonwealth, 114 S.W.3d 226, 248 (Ky. 2003), abrogated on other grounds
by Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006) (quoting Adams v.
Commonwealth, 931 S.W.2d 465, 468 (Ky. App. 1996)).
At first glance, this argument is appealing. Unlike other sentencing
enhancements, the firearm enhancement specifically requires that the
defendant be convicted before the penalty is enhanced. This language differs
substantially from that used in some other sentencing enhancements, such as
having committed the same offense previously. That enhancement, for
example, requires only that the defendant have violated the substantive portion
of the statute. See, e.g., KRS 218A.1412(2). In such cases, the mere allegation
in the charge clearly controls the classification of the offense.
Appellant's argument, however, breaks down under close examination.
First, it ignores the fact that the various provisions classifying offenses were
drafted primarily with sentencing in mind, not charging. Thus, it is unlikely
that the language was chosen to have a certain effect when the concern is with
what class of felony was charged. From the perspective of sentencing—that is,
after guilt has been admitted or proved and a conviction thus obtained—it does
not matter whether an offense was charged as a certain class of felony or
another. Indeed, there are very few instances where the classification of an
offense from the perspective of charging matters. One of these, obviously, is a
• juvenile transfer proceeding. The only other that quickly springs to mind is
whether an adult charge will be kept in district court (i.e., a misdemeanor
charge) or bound over to the grand jury and circuit court resolution (i.e., a
An example involving the firearm enhancement statute in this latter
circumstance illustrates the more serious flaw in Appellant's argument: it will
lead to absurd results. Take the example of an adult charged with first-offense
trafficking in less than eight ounces of marijuana. That offense is a Class A
misdemeanor. See KRS 218A.1421(2)(a). If an adult defendant charged with
such an offense also possessed a firearm in furtherance of the offense, the
defendant would "[b]e penalized as a Class D felon." KRS 218A.992(1)(b). Again,
that enhancement only occurs if the defendant "is convicted." Id. Under
Appellant's approach to charging under the firearm enhancement statute, the
adult would only be charged with a misdemeanor, with the enhancement only
coming into play after conviction.
But where would such a defendant be tried? District court or circuit
court? The offense as charged controls which court has jurisdiction. KRS
24A.110(2) states that the "District Court has exclusive jurisdiction to make a
final disposition of any charge or a public offense denominated as a
misdemeanor or violation, except where the charge is joined with an indictment
for a felony ...." (Emphasis added.) Since the charge in the example is a
misdemeanor, under Appellant's interpretation, only the district court could
resolve the case. The "district court has exclusive jurisdiction over
misdemeanor charges, KRS 24A.110(1), unless a misdemeanor offense is joined
in a felony indictment," and the circuit court is "without jurisdiction to try"
such charges. Dickerson v. Commonwealth, 174 S.W.3d 451, 460 (Ky. 2005).
Freestanding misdemeanor charges that somehow find their way into circuit
court should be remanded to the district court. Id. So strong is the
jurisdictional divide, that this Court has granted the extraordinary writ of
prohibition to bar a circuit court from proceeding in such a case. See Peterson
v. Shake, 120 S.W.3d 707 (Ky. 2003).
Yet, upon conviction, the hypothetical offense becomes a Class D felony.
See KRS 218A.992. And the district courts of this Commonwealth do not have
jurisdiction to make final dispositions of felonies. See KRS 24A.110(1);
Commonwealth v. Stephenson, 82 S.W.3d 876, 887-88 (Ky. 2002) ("[D]istrict
courts cannot make final dispositions as to felony offenses."); Waugh v.
Commonwealth, 605 S.W.2d 43, 45 (Ky. App. 1980) ("KRS 24A.110 gives no
jurisdiction for final disposition of felony cases to the district courts. Such is
reserved to the circuit courts."). Instead, lals far as ... felony offenses [a]re
concerned, the district court c[an] act only as an examining court." Keller v.
Commonwealth, 594 S.W.2d 589, 592 (Ky. 1980); see also KRS 24A.110(3)
(giving the district court, "concurrent with Circuit court, jurisdiction to
examine any charge of a public offense denominated as a felony"). In other
words, district courts can only address preliminary matters, such as making a
probable cause finding and then "hold[ing] the defendant to answer in the
circuit court," RCr 3.14(1), when the charged offense is a felony. Thus, if a
district court tries such a firearm enhanced trafficking charge, it has exceeded
Appellant's interpretation of the firearm enhancement statute, which
only alters the classification of an offense upon conviction, thus has a perverse,
absurd effect. In essence, it means that such a charge cannot properly be
resolved in any court, unless one considers the entire district court trial of the
claimed misdemeanor—complete with a jury, the beyond-a-reasonable-doubt
burden of proof, and a finding as to guilt—to be an "examining" proceeding
after which the charge would be bound over to the grand jury. But such an
examining-trial approach would be barred by double jeopardy, since it would
result in a decision as to the defendant's guilt, which would bar a second trial
at the circuit court. See United States v. Wilson, 420 U.S. 332 (1975) (noting
the double jeopardy clause incorporates the idea of autrefois convict, or
previous conviction, to bar retrial). Thus, this Court cannot see the sense in
such a reading of the statute.
Nor can this Court apply a different reading to different circumstances in
which the classification of the charged offense matters. Thus, we are forced to
conclude that a firearm enhanced drug offense is actually charged at the higher
level regardless of the procedural circumstances. This reading comports with
the common understanding among the bench and bar that such a trafficking
offense is charged as an "enhanced" offense and is classified as a higher level
offense at the time of charging. In fact, this Court has in the past equated the
firearm enhancement with other statutory enhancements that elevate the
classification of an offense, even at the charging level. See Kotila, 114 S.W.3d at
248 ("KRS 218A.992 merely increases the classification of the underlying
offense, just as proof of a prior conviction can serve to enhance the penalty for
a subsequent offense."). Thus, Appellant's trafficking offense was actually
charged as a Class B felony, 10 which made him eligible for transfer to the
circuit court as a youthful offender. Because the district court's order found
probable cause that Appellant committed this offense, it was valid on its face.
Appellant also implies that because the charge at the district court itself did
not list the trafficking offense as firearm enhanced, it was insufficient to set the
transfer wheels in motion. At least in this case, the charging document at the district
court also included the additional charge of possession of a handgun by a minor.
Thus, it is clear that the Commonwealth was pursuing firearm-related charges against
Appellant. Had the county attorney chosen only to charge a trafficking offense,
without calling it firearm enhanced, and the fact of the juvenile's possession of a
firearm was only revealed in testimony, this might be a more difficult case. To avoid
problems in such cases in the future, this Court can again only warn the bench of the
Commonwealth to leave such charging decisions to the Commonwealth. If the county
attorney chooses not to charge the juvenile in such a way as to allow transfer, that is
an appropriate choice that the district court ought not to disturb. County attorneys,
like prosecutors across the United States, have discretion as to what charges to
pursue. See Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky. App. 1979) ("In
our system, so long as the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to prosecute, and
, generally rests entirely in his discretion." (quoting
what charge to file
Bordenkircher v. Hayes, 434 U.S. 357 (1978)).
Because the district court's order was valid on its face, and this Court
sees no other reason to doubt that the circuit court properly acquired
jurisdiction in this case, the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
La Mer Kyle-Griffiths
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204