COMMONWEALTH OF KENTUCKY v. ON REMAND OF KENTUCKY JONATHAN DECKARD
Annotate this Case
Download PDF
RENDERED: JUNE 7, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000438-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 1999-SC-000804-DG
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 96-CR-00204
JONATHAN DECKARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
The Commonwealth of Kentucky has appealed from
an order of the Barren Circuit Court entered on February 11,
1997, which remanded the action against Jonathan Deckard to the
Juvenile Division of the Barren District Court.
Having concluded
that the circuit court’s ruling was correct, we affirm.
This case comes before us on remand from the Supreme
Court of Kentucky.
The somewhat lengthy procedural history of
the case is as follows:
On December 18, 1996, Jonathan Deckard
was indicted by the Barren County grand jury and charged with (1)
unlawful possession of a weapon on school property,1 and (2)
receiving stolen property,2 both of which are Class D felonies,
and (3) possession of a handgun by a minor,3 a Class A
misdemeanor.
The weapon involved in the crimes for which Deckard
was charged was a .38 caliber pistol.
Deckard was 15 years of
age at the time these crimes were allegedly committed on November
7, 1996.
Pursuant to KRS 635.020(4),4 Deckard's case was
transferred from district court to circuit court.
On January 7,
1997, following his arraignment, Deckard filed a motion to
dismiss for lack of jurisdiction, claiming that his case had been
improperly transferred to circuit court, and that it should
therefore be remanded to district court.
According to Deckard,
KRS 635.020(4), which allows for the transfer of cases involving
"a child charged with a felony in which a firearm was used in the
commission of the offense," was inapplicable to the facts of his
case since he was charged with mere "possession of" and
"receiving" the firearm, and it was not argued that he had "used"
the firearm to commit an offense.
The Barren Circuit Court
1
Kentucky Revised Statutes (KRS) 527.070(1).
2
KRS 514.110(3).
3
KRS 527.100.
4
At the time, the statute read as follows:
Any other provision of KRS Chapters 610 to
645 to the contrary notwithstanding, if a
child charged with a felony in which a
firearm was used in the commission of the
offense had attained the age of fourteen (14)
years at the time of the commission of the
alleged offense, he shall be tried in the
Circuit Court as an adult offender. . . .
-2-
agreed and on February 11, 1997, entered an order remanding
Deckard's case back to the Barren District Court.
The Commonwealth of Kentucky appealed the order of the
Barren Circuit Court to this Court.
In an Opinion rendered on
February 26, 1999, this Court affirmed the order of the Barren
Circuit Court, holding that mere possession was not enough to
trigger the transfer provision under KRS 635.020(4).5
Just one
week later however, on March 5, 1999, in Darden v. Commonwealth,6
a different three-judge panel of this Court took a contrary
position, holding that possession alone was sufficient to warrant
a transfer.
On August 13, 1999, the conflicting opinions were
withdrawn and this Court, sitting en banc, rendered new opinions
in both Darden and the case at bar.
In the second Darden
opinion, a majority of this Court sitting en banc adhered to the
position taken by the previous panel in that case, and held that
possession of the firearm alone could trigger the transfer
provision.
In the instant case, this Court’s same en banc
majority reversed the Barren Circuit Court, holding again that
possession of the firearm alone could warrant a transfer.
The Supreme Court of Kentucky then granted
discretionary review in both Darden and the case sub judice.
On
August 17, 2000, the Supreme Court entered an order holding the
case before us in abeyance, pending a final ruling in Darden.
On October 17, 2001, the Supreme Court granted review of the
instant case.
This Court's previous en banc opinion was vacated,
5
Case No. 1997-CA-000438-MR.
6
Case No. 1997-CA-000196-MR.
-3-
and the case was remanded to this Court for reconsideration in
light of the Supreme Court's final opinion in Darden v.
Commonwealth.7
Having found Darden to be controlling in the case
at bar, we now affirm the order of the Barren Circuit Court
entered on February 11, 1997.
The Commonwealth's principal argument in this appeal is
that the facts of Darden are sufficiently distinguishable to
warrant a different result.
Specifically, the Commonwealth
argues:
[Deckard] did not constructively possess the
firearm in a car or truck parked on school
property. Rather, the record indicates that
he was seen on school property with a stolen
"Smith & Wesson .38 gun," and had previously
sent a threatening letter to one Ashley
Foster. . . . While this evidence was not
fully developed due to the circuit court's
decision to remand the matter to district
court, what is unquestionable is that this
case does not involve the kind of
constructive possession which concerned the
majority [of the Supreme Court] in Darden,
and to which that opinion and its legal
analysis were addressed. Consequently, the
holding in the recent case of Darden v.
Commonwealth should not be regarded as
dispositive of the transfer issue here. . . .
We find the Commonwealth's attempt to distinguish the case at bar
from Darden on grounds of actual versus constructive possession
to be unpersuasive.
A reading of the Supreme Court's final
opinion in Darden reveals two primary rationales which mandate
the same result in the case sub judice.
First, the Supreme Court looked to Haymon v.
Commonwealth.8
In Haymon, our Supreme Court previously stated:
7
Ky., 52 S.W.3d 574 (2001).
8
Ky., 657 S.W.2d 239, 240 (1983).
-4-
The Commonwealth contends that
possession of a weapon involves its use;
that the intent of the General Assembly was
to deter the involvement or presence of
weapons in the commission of crimes.
Admittedly, the word "use" is subject to such
a construction.
On the other hand, the General Assembly
took pains to distinguish between being
"armed" with a weapon and the "use of a
weapon" in the burglary statute. The offense
can be committed by one who is only "armed"
with a deadly weapon but when dangerous
instruments are involved there must be a
showing of their use or threatened use.
[Haymon] contends, therefore, that mere
possession of a weapon constitutes being
"armed" with a weapon but "use" of a weapon
contemplates that it be employed in some
manner in the commission of an offense. This
too is a plausible explanation of the meaning
of the word "use."
We conclude that the phrase "use of a
weapon" as it is used in K.R.S. 533.060(1) is
ambiguous in that it is subject to two
entirely different but nevertheless logical
interpretations. It is not possible to
determine which meaning the General Assembly
intended to be given to the phrase "use of a
weapon" and for that reason [Haymon] is
entitled to the benefit of the ambiguity.
In the instant case, while KRS 635.020(4) is
susceptible to an interpretation whereby Deckard's "possession
of" or "receiving" the firearm could trigger the transfer
provision, an equally plausible construction is that to
constitute "use," the firearm must "be employed in some manner in
the commission of an offense."
As Haymon makes clear, Deckard is
"entitled to the benefit of the ambiguity."
In Darden, the
Supreme Court stated that the terms "possession of a weapon" and
"use of a weapon" are "two entirely different concepts."9
9
Darden, supra at 577.
-5-
Therefore, in order for the transfer provision in KRS 635.020(4)
to apply, it had to be shown that the firearm was actually used
in the commission of the felony.
Accordingly, since the
Commonwealth cannot show that Deckard "used" the firearm in the
commission of an offense and because "possession" or "receiving"
do not constitute "use" under Darden, the transfer provision at
KRS 635.020(4) is inapplicable to Deckard.
Second, the Supreme Court in Darden saw the possibility
of an absurd result arising if possession alone were held to
mandate a transfer from district court to circuit court.
Supreme Court stated:
The
The legislative scheme found in the
Juvenile Code illustrates a connection
between the seriousness of the offense and
the nature of the proceedings faced by a
juvenile. For instance, certain offenses do
not make a juvenile eligible for transfer to
circuit court at all, while some offenses
mandate transfer, such as felonies where a
firearm was used in the commission of the
offense. KRS 635.020. However, even more
cases provide for a discretionary waiver into
circuit court. These cases include those
where the juvenile is older than fourteen
(14) and charged with a capital offense or
Class A or Class B felony, and those children
sixteen (16) or older who have previously
been convicted of a felony. Id. See also,
KRS 640.010. It is inconceivable that the
Legislature would provide that waiver is
discretionary if a child murders someone with
a knife, but provide that waiver is mandatory
for a minor who merely brings his hunting
rifle to school in the gun rack of his pickup
truck.10
This language applies with equal force to the facts of the
instant case.
Deckard was charged with "possession" and
"receiving" only.
10
The record is void of any evidence that
Darden, supra at 577.
-6-
Deckard actively "used" the firearm in any way to commit an
offense; his mere possession of the firearm at the school
constituted the offense.
In Deckard, our Supreme Court
recognized that it was unlikely that our Legislature would
provide for mandatory transfer for a juvenile who merely
possessed a firearm, but allow for discretionary transfer for a
juvenile who used a knife to murder someone.
Like our Supreme Court, we too are acutely aware of the
dangers inherent in a child possessing a firearm at school, and
of the increase in violent acts committed at schools by children
armed with guns.
However, a court’s awareness of such tragic
events does not justify or permit the court to enlarge the
parameters of the automatic waiver statute, KRS 635.020(4), to
include, as the Commonwealth suggests, a juvenile charged with
mere possession of a firearm at school.
Instead, it is the duty
of the courts "to ascertain and give effect to the intent of the
General Assembly.
We are not at liberty to add or subtract from
the legislative enactment nor discover meaning not reasonably
ascertainable from the language used."11
Further, "[i]t is
presumed that the Legislatures have knowledge of existing laws
and the construction placed upon them by courts. . . ."12
As
Justice Vance aptly noted in Haymon, our Legislature is aware of
the difference between the terms "possession" and "use."
If it
had intended for the mere possession of a firearm to result in a
11
Beckham v. Board of Education of Jefferson County, Ky.,
873 S.W.2d 575, 577 (1994).
12
Baker v. White, 251 Ky. 691, 695, 65 S.W.2d 1022, 1024
(1933). See also Butler v. Groce, Ky., 880 S.W.2d 547, 550 (1994)
(Lambert, J., dissenting).
-7-
nondiscretionary transfer of a juvenile to circuit court, it
would have so provided.
Accordingly, the judgment of the Barren Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General
Gregory K. Berry
Glasgow, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
