STEVEN JUSTIN HUFF V. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002684-MR
AND
NO. 1997-CA-00929-MR
STEVEN JUSTIN HUFF
APPELLANT
APPEALS FROM JEFFERSON CIRCUIT COURT
HONORABLE DANIEL A. SCHNEIDER,JUDGE
ACTION NO. 96-CR-1220
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; ABRAMSON and COMBS, Judges.
COMBS, JUDGE:
Steven J.
Huff (Huff) appeals from an Amended
Judgment entered September 17, 1996, and from an Order overruling
his motion for shock probation entered on April 4, 1997.
After a
thorough and detailed review of the record, arguments of counsel,
and the applicable law, we reverse and remand in part and affirm
in part.
In March 1996, Huff was arrested on charges of Assault
in the First Degree, Wanton Endangerment in the First Degree, and
Criminal Mischief in the Second Degree.
He was fifteen years old
at the time of his arrest and at the time the alleged crimes were
committed.
At his arraignment, the district court found that
there was probable cause that Huff had committed the crimes for
which he was charged, that he had used a firearm, and that he was
more than fifteen years of age at the time.
Based upon this
finding, Huff's case was transferred to the circuit court
pursuant to KRS 635.020(4).
Subsequently, on July 10, 1996, Huff
entered a conditional guilty plea to one count of assault under
extreme emotional disturbance and to two counts of first-degree
wanton endangerment, reserving the right to challenge on appeal
the constitutionality of KRS 635.020 (4).
On September 11, 1996, the Jefferson Circuit Court
entered its final judgment, accepting Huff's guilty plea and
sentencing him to a total of five years' imprisonment.
appealed the court's judgment.
he
Huff
Thereafter, on February 24, 1997,
filed a motion for shock probation pursuant to KRS 439.265.
The Jefferson Circuit Court overruled this motion on April 4,
1997; Huff filed an appeal from the court's order.
We shall
address and dispose of both of his appeals in this opinion.
We first examine the issue raised by Huff on appeal
from the judgment entered September 11, 1996, in which the court
ordered that Huff be delivered to "the Department of Corrections
after he reaches the age of 18, at such location within this
state as the Department shall designate for the purpose of
[Huff's] serving the sentence imposed upon him . . ."
However,
Huff contends that pursuant to KRS 640.030 (4), he is entitled to
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a resentencing hearing when he attains that age of 18.
The
Commonwealth, however, argues that KRS 635.020(4) supersedes KRS
640.030(2) and that, therefore, Huff cannot receive the privilege
of a resentencing hearing and possibly a mitigation of his
sentence as he no longer qualifies as a youth offender.
This issue has recently been resolved by the Kentucky
Supreme Court in Britt v. Commonwealth, Ky., 965 S.W.2d 147
(1998).
The Supreme Court stated:
[W]e simply hold that KRS 635.020 (4) does
not create a new category of adult offender
that precludes children transferred to
circuit court pursuant to it from eligibility
for the ameliorative provisions of KRS
640.040.
Id.
at 149.
The Court further explained:
[T]he purpose of KRS 635.020 and KRS 640.010
(2) was to permit the court to impose the
same term of years upon a juvenile for which
an adult would be liable, but to otherwise
leave the circuit judge discretion to probate
or conditionally discharge the juvenile, send
the child for treatment, or send the child to
the adult correctional system upon majority.
Id.
at 150.
Pursuant to KRS 635.020(4), a juvenile over the age
of 14 who commits a crime using a firearm is to be tried and
sentenced as an adult.
However, that juvenile remains a
"youthful offender" for purposes of KRS Chapter 640.
Thus, Huff
is entitled to a resentencing hearing upon attaining the age of
18.
Accordingly, we reverse the portion of the circuit court's
opinion that orders Huff to be delivered to the Department of
Corrections upon his attainment of the age of 18 and direct the
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court at that time to follow the procedure set out in KRS Chapter
640 and elaborated upon in Britt, supra.
We now turn our attention to Huff's appeal from the
order of the Jefferson Circuit Court denying his motion for shock
probation.
Huff alleges that the Circuit Court Judge abused his
discretion by not stating specific reasons for denying Huff shock
probation.
The Commonwealth argues first that the grant or
denial of shock probation is not reviewable
and in the
alternative that Huff's previous conduct supports the judge's
denial of shock probation.
The Commonwealth argues that shock probation is not
reviewable according to KRS 439.265 (2) (Shock probation in
felony conviction - Procedure - Exercise of authority), which
provides in part: "Any court order granting or denying a motion
to suspend further execution of sentence is not reviewable."
Huff argues that Section 115 of the Kentucky Constitution
provides the right of at least one appeal.
We agree.
In
Schroering v. McKinney, Ky., 906 S.W.2d 349 (1995), the Kentucky
Supreme Court quotes the Court of Appeals concerning the "not
reviewable" provision of the shock probation statute:
We think it is obvious that this provision of
the statute refers to a review on the merits
of an order granting or denying a motion for
probation. It does not, and could not
constitutionally, deprive this court of its
power to determine whether an order was
within the jurisdiction of the circuit court
as being within the authority granted by the
statute.
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Commonwealth, ex. rel. Hancock v. Melton, Ky., 510 S.W.2d 250
(1974).
Therefore, we hold that Huff's appeal of the court's
denial of shock probation is reviewable by this court.
Nevertheless, we disagree with Huff's contention that
the trial court judge abused his discretion by denying him shock
probation.
KRS 439.265 (3) provides: "The authority granted in
this section shall be exercised by the judge who imposed sentence
on the defendant...".
Huff argues that the trial judge did not
support his decision to deny shock probation with specific
reasons.
The order of the Jefferson Circuit Court, of April 4,
1997, denying shock probation provides in part:
Having given due consideration to the written
report of the presentence investigation
prepared by the Division of Probation and
Parole, and to the nature and circumstances
of the crime, and to the history, character
and condition of the Defendant, it is hereby
ADJUDGED by the Court that:
Defendant's motion IS HEREBY OVERRULED.
The judge carefully considered and weighed numerous factors in
determining Huff's eligibility for shock probation - constituting sufficiently specific reasons to support a denial of
Huff's motion.
After a review of the record, we find it clear
that the trial judge did not abuse his discretion or commit error
in denying Huff shock probation.
Huff was on house arrest after
entering a guilty plea and pending sentencing.
During this time,
he broke the home incarceration rules, was charged with Third
Degree Burglary, and was arrested.
Additionally, Huff was due
before the parole board in a few months.
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In summary, we vacate in part the judgment of the
Jefferson Circuit Court with regard to the application of KRS
640.030 (2) to Huff and hold that he is entitled to a
resentencing hearing upon attainment of the age of eighteen (18)
years.
We affirm in part the decision of the Jefferson Circuit
Court overruling Huff's motion for shock probation, holding the
issue itself to be reviewable but finding no abuse of discretion
in the circumstances of this case.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
J. David Niehaus
Louisville, KY
A.B. Chandler III
Attorney General
Daniel T. Goyette
Louisville, KY
Matthew D. Nelson
Assistant Attorney General
Frankfort, KY
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