COMMONWEALTH OF KENTUCKY v. KEITH RAY STRICKER
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RENDERED: February 4, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003040-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
ACTION NO. 98-XX-00072
v.
KEITH RAY STRICKER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
The Commonwealth of Kentucky appeals from an
opinion of the Fayette Circuit Court which reversed and remanded
a sentence imposed by the Fayette District Court, Juvenile
Division.
We affirm.
The facts are uncontroverted.
On June 1, 1998, Keith
Ray Stricker (Stricker) was charged with stalking in the first
degree, harassing communications and unlawful transaction with a
minor in the third degree.
Pursuant to an order of the Fayette
District Court, Juvenile Division, Stricker was placed on home
detention pending further proceedings of the Court and was
ordered to have no contact with the victim.
Shortly thereafter,
on June 5, 1998, Stricker was charged with contempt for violating
the June 1, 1998 order.
Approximately three weeks later,
Stricker was again charged with contempt for a separate violation
of the June 1, 1998 order.
On July 10, 1998, Stricker stipulated to both the
original charges and the subsequent contempt charges.
The Court
sentenced Stricker to 210 days on the original charges and 180
days on the contempt charges to run consecutively for a total of
470 days.
The sentence was suspended and Stricker was placed on
probation.
On July 13, 1998, Stricker was again charged with
unlawful transaction with a minor in the third degree.
Upon
stipulating to the charge, the Court found Stricker to be in
contempt for violating his probation and re-imposed the sentences
for the prior contempt charges which totaled 360 days.
Stricker appealed the sentence to the Fayette Circuit
Court.
He argued that the District Court committed reversible
error by ordering confinement for a period in excess of 90 days
because Kentucky Revised Statute (KRS) 635.060(5) limits the
duration of such confinement to 90 days.
The Circuit Court found
Stricker’s argument persuasive, and on or about November 10,
1998, entered an opinion reversing the sentencing order and
remanding the matter to District Court.
In so doing, the Circuit
Court opined that KRS 635.060(5) bars the District Court from
imposing a juvenile sentence of confinement in excess of 90 days
for either the original charges or contempt orders arising
therefrom, and that the statute does not so interfere with
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judicial power as to defeat or materially impair the court’s
ability to enforce its orders.
Thereafter, the Commonwealth moved for discretionary
review with this Court.
ordered
The motion was granted and the matter
prosecuted as an appeal taken as a matter of right.
The Commonwealth now offers the same argument presented
to the Circuit Court, i.e., that KRS 635.060(5) should not be
interpreted as a legislative constraint on the sentencing court’s
authority to hold a party in contempt or to fix a sentence for
said contempt.
Alternatively, it maintains that if KRS
635.060(5) is such a constraint, it is unconstitutional.
Stricker has not filed a responsive brief.
Having closely
studied the facts, the law and the Commonwealth’s arguments, we
cannot conclude that Circuit Court erred in reversing the
sentence at issue, and accordingly must affirm.
KRS 635.060(5) states in relevant part that
If in its decree the juvenile court finds
that the child comes within the purview of
this chapter, the court, at the dispositional
hearing, may:
. . . .
(5) If the child is sixteen (16) years of age
or older, order that the child be confined in
an approved secure juvenile detention
facility, juvenile holding facility, or
approved detention program as authorized by
the Department of Juvenile Justice in
accordance with KRS Chapter 15A for a period
of time not to exceed ninety (90) days . . .
KRS 635.060.
KRS 635.055 addresses juvenile contempt.
that
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Its states
No child who is found to be in contempt of
court shall be committed as a public offender
as a result of such finding, nor detained
because of such finding in a facility other
than a secure juvenile detention facility or
juvenile holding facility.
KRS 635.060(5) clearly and unambiguously provides that
a juvenile offender of age 16 years or older may be confined for
a period not to exceed 90 days.
The burden is on the
Commonwealth to show that the Circuit Court erred in ruling that
contempt sentences are governed by the 90-day limitation.
We
cannot conclude that it has met this burden for at least two
reasons.
First, we find it implausible that the legislature
would establish a sentencing scheme under which a juvenile
offender’s sentence for the original offense would be limited to
90 days but where contempt charges arising therefrom could result
in confinement in excess of 90 days.
Second, and more important,
we are bound to give effect to the literal statutory language
where the language is not ambiguous and its application would not
lead to an absurd result.
Manning v. Kentucky Board of
Dentistry, Ky. App., 657 S.W.2d 584 (1983).
limits confinement to 90 days.
KRS 635.060(5)
It does not exclude contempt
sentencing from this 90 day limitation, and we are not persuaded
by the Commonwealth’s argument that KRS 635.060(5) should be read
to exclude said limitation.
A related issue raised by the Commonwealth and
addressed by the Circuit Court is the degree to which the
legislature may restrict the constitutional functions of the
courts.
With respect to the matter at bar, the question is
whether KRS 635.060(5) represents an overreaching and therefore
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unconstitutional infringement of the courts’ authority to carry
out its necessary functions.
Citing Arnett v. Meade, Ky., 462
S.W.2d 940 (1971), the Circuit Court noted the general rule that
legislative action is unconstitutional where it hampers judicial
action or interferes with the discharge of its official
functions.
It opined that the ability of the juvenile court to
impose 90 days in confinement for contempt carries sufficient
punitive authority to allow the court to maintain and enforce its
orders.
As such, it concluded that KRS 635.060(5) does not
materially hamper the exercise of the court’s proper function.
We find no basis for tampering with this conclusion.
The Commonwealth has offered little upon which we could reach a
different result, and has not gone so far as to refute the strong
presumption that the lower court’s ruling was correct.
City of
Louisville, v. Allen, Ky., 385 S.W.2d 179 (1964).
Lastly, the Commonwealth argues that the punishment
limits on the judiciary’s contempt power are determined only by a
contemnor’s right to due process.
Since Stricker received the
full panoply of rights to which he was entitled, including the
right to counsel and the right to a hearing, the Commonwealth
maintains that the District Court should be availed of the
opportunity to sentence Striker to whatever reasonable period of
confinement it believes is appropriate in the exercise of its
discretion.
Again, this argument ignores the fact that KRS
635.060(5) expressly limits the period of confinement to 90 days.
We do not find this argument compelling, and cannot rely on it as
a basis for reversing the Circuit Court’s opinion.
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For the foregoing reasons, the opinion of Fayette
Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
SCHRODER, JUDGE, DISSENTING.
I reverse the circuit
court because the 90-day limitation in the statute applies to
“public offenses” and does not apply to or limit the court’s
powers as to contemptuous conduct.
judge’s worst nightmare.
Keith typifies every juvenile
Keith started out young with numerous
status offenses1 and graduated to public offenses.2
He was
placed on probation a number of times but continued to violate
his probation.
offenses.
He committed more status, as well as public
He treated home detention as a joke.
Often he failed
to appear at court-ordered appearances which led to numerous
contempt charges.
Keith even had the audacity or immaturity to
inform the judge that he was not going to abide by any court
order.
Short sentences did nothing to abate Keith’s conduct or
attitude.
Eventually, after again finding Keith in contempt, the
court imposed previously suspended contempt sentences for a total
of 360 days.
The majority agrees with the circuit court’s opinion
that the Kentucky Unified Juvenile Code, KRS 635.060(5), limits
the punishment a juvenile may receive to 90 days of
incarceration.
I disagree.
The Unified Juvenile Code (KRS 600,
1
Status offenses are acts which if committed by an adult
would not be a crime. KRS 600.020(52).
2
Public offenses are acts, excluding contempt, which if
committed by an adult would be a crime. KRS 600.020(41).
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et seq.) divides juvenile delinquents into three classes:
status offenders;3 public offenders;4 and youthful offenders.5
Each class has its own rules.
truants, and incorrigibles.6
Status offenders include runaways,
Status offenders cannot be placed
in a secure juvenile detention or holding facility as a means of
punishment, “except following a finding that he is in contempt of
court”.7
Public offenders include juveniles who have committed
violations, misdemeanors, and some felonies.8
The court has
numerous options in dealing with juveniles found to be public
offenders,9 including “confined in an approved secure juvenile
detention facility, juvenile holding facility, or approved
detention program . . . for a period . . . not to exceed ninety
(90) days. . . .”10
Public offenders can be found in contempt of
court, and there are specific statutes11 which make it clear that
the finding of contempt does not in itself elevate the juvenile
to a “public offender”.
If found in contempt, public offenders
can be incarcerated in “a secure juvenile detention facility or
3
KRS 630.000, et seq.
4
KRS 635.000, et seq.
5
KRS 640.000, et seq.
6
KRS 630.020.
7
KRS 630.070.
8
KRS 635.020; KRS 600.020(41).
9
KRS 635.060; KRS 635.090; KRS 635.085.
10
Id., Section 5.
11
KRS 635.055; KRS 600.020(41).
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juvenile holding facility.”12
Youthful offenders include
juveniles charged with more serious felonies and/or have prior
records and/or the community needs to be protected from them,
etc.13
Youthful offenders convicted in circuit court are
initially subject to the same procedures and duration of
sentences as adult offenders,14 with differences in the facility
for incarceration.15
No one is questioning a trial court’s
contempt powers over adults, it is a given.
The legislative scheme in classifying juvenile
delinquents according to the severity of the offense corresponds
to the length of incarceration allowed as punishment for criminal
acts.
Each of the three classifications specifically excludes
limitations on the court’s contempt powers except as to the type
of facility for the incarceration.
If that isn’t enough to show
that the General Assembly did not intend to limit the court’s
contempt powers, then KRS 610.010 should leave no doubt as
section 8 states:
Nothing in this chapter shall prevent the
District Court from holding a child in
contempt of court to enforce valid court
orders previously issued by the court.
The court’s contempt powers are inherent, necessary
powers for a “tribunal, derived from its very constitution,
12
Id.
13
KRS 640.010; KRS 635.025; KRS 635.020; KRS 600.020(56).
14
KRS 640.030.
15
Id.
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without any express statutory aid.”16
The judicial power of
contempt is outside the purview of the legislature17 and is part
of the separation of powers doctrine in Section 28 of our
Kentucky Constitution.18
It is not possible for any judicial tribunal
to fulfill its functions without power to
preserve decorum and to enforce its orders.
Hence, it has been recognized from ancient
days that the process of contempt is an
essential and inherent attribute of the
jurisdiction of every court of record, and
this judicial power may not be confined by
limitations of statute, except in respect of
punishment.19
Juvenile courts are special courts of limited jurisdiction but
are not deprived of any “of the inherent and essential right and
power to consider and dispose of direct contempt.”20
There are two types of contempt, civil and criminal.21
Civil contempt allows incarceration to compel an individual to
obey a court order, and he is entitled to immediate release upon
his obedience.22
Criminal contempt allows incarceration to
punish for disruption of the court or for failure to obey an
16
Melton v. Commonwealth, 160 Ky. 642, 170 S.W. 37, 40
(1914), quoting Bishop’s Criminal Law. See this case for an
excellent review of a court’s contempt powers.
17
Smothers v. Lewis, Ky., 672 S.W.2d 62 (1984).
18
Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986); Arnett
v. Meade, Ky., 462 S.W.2d 940 (1971).
19
Young v. Knight, Ky., 329 S.W.2d 195, 199 (1959).
20
Id. at 200.
21
Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206 (1911).
22
Campbell v. Schroering, Ky. App., 763 S.W.2d 145 (1988).
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order of the court.23
Criminal contempt can be subdivided into
direct, committed in open court, or indirect, committed outside
the courtroom.24
Where the contempt or misbehavior by a person
is in open court, or so near thereto as to obstruct the
administration of justice, the court may summarily punish for the
contempt.25
It requires no fact finding because all elements of
the offense are personally known to the court.26
Indirect
criminal contempt requires a due process hearing before it can be
punished.
The court charging the person with contempt must
conduct a hearing to show the defendant had knowledge of a valid
court order and that he intentionally violated it.27
Currently there are no statutory limitations on a
court’s contempt powers.28
Nevertheless, the United States
Supreme Court has held that the Sixth Amendment right to a jury
trial applies to criminal contempt proceedings in the cases of
“serious” crimes.29
Our Kentucky Supreme Court defined “serious”
contempt crimes in Kentucky to be where the fine for contempt
23
Commonwealth v. Burge, Ky., 947 S.W.2d 805, 808 (1997),
cert. denied, _____U.S._____, 118 S. Ct. 422, 139 L. Ed. 2d 323
(1997).
24
Id.
25
Melton, 170 S.W. at 40.
26
Burge, 947 S.W.2d at 808, citing In re Terry, 128 U.S.
289, 9 S. Ct. 77, 32 L. Ed. 405 (1888).
27
Butts v. Commonwealth, Ky., 953 S.W.2d 943, 944 (1997);
Burge, 947 S.W.2d at 808, citing Cooke v. United States, 267 U.S.
517, 45 S. Ct. 390, 69 L. Ed. 767 (1925).
28
Miller v. Vettiner, Ky., 481 S.W.2d 32, 34 (1972); Arnett
v. Meade, Ky., 462 S.W.2d 940 (1971).
29
Bloom v. State of Illinois, 391 U.S. 194, 88 S. Ct. 1477,
20 L. Ed. 2d 522 (1968).
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exceeds $500.00 or the incarceration for contempt exceeds six
months.30
The Court went on to say that whenever a civil or
criminal contempt “requires the resolution of a factual issue the
trial court may itself resolve that issue upon the basis of a
hearing in which the alleged offender is afforded a fair
opportunity to present a defense, but may not in such a case
inflict a fine greater than $500.00 and incarceration for more
than six months except upon the unanimous verdict of a jury
finding the offender guilty beyond a reasonable doubt.”31
The
Court did not require a jury trial for “direct criminal
contempt”, that is, committed in open court where the facts are
personally known to the court.
The Court did caution, however,
that such a court should be sure the facts are shown by a proper
record.32
In 1977, the Kentucky Supreme Court modified the Miller
test as to “serious” punishment for contempt.
It retained the
six-month incarceration limitation but dropped the $500.00 fine
guide.
Instead of anything over a $500.00 fine being considered
serious, the court must now decide “whether the fine is ‘petty’
or ‘serious’ and that will be determined within the context of
the risk and possible deprivation faced by a particular
contemnor.”33
The case being considered upheld a $10,000.00 fine
30
Miller, 481 S.W.2d at 35.
31
Id.
32
Id.
33
International Association Of Firefighters, Local 526, AFLCIO v. Lexington-Fayette Urban County Government, Ky., 555 S.W.2d
258, 260 (1977).
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to a union with over 300 members to be considered petty and
therefore there was no right to a jury trial.34
The International Association Of Firefighters, Local
526, AFL-CIO case also pointed out a significant procedural step
where a jury is used.
“[W]here a jury is required to resolve the
factual issue of contempt, the jury only finds guilt or
innocence.
Upon a finding of guilt, the penalty is imposed by
the court.”35
Thus, a court needs to assess the allegation prior
to the hearing on indirect criminal contempt, to see whether or
not the contemptuous conduct is serious enough to merit a jury
trial.
Applying these principles to the case before us, Keith
was held in contempt in two previous cases and received a 180-day
sentence on each contempt charge which the court probated.
At
this later hearing for a possible probation revocation, the court
was dealing with sentences of less than six months each so no
jury was required.
The judge had the discretion to run the
sentences consecutively or concurrently.
The only limitation was
that the total sentence could not exceed one year because
contempts are considered misdemeanors36 and a sentencing on
multiple misdemeanors cannot exceed one year.37
34
Id.
35
Id.
36
Melton, 160 Ky. 642, 170 S.W. at 37 and Gordon v.
Commonwealth, 141 Ky. 461, 133 S.W. 206 (1911).
37
KRS 532.110(1)(b).
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The judgment of the Fayette Circuit Court should be
reversed and the sentence of the district court should be
reinstated.
BRIEF FOR APPELLANT:
Albert B. Chandler III
Attorney General
Denotra Spruill Gunther
Special Assistant Attorney
General
Frankfort, Kentucky
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