B.J.A., A CHILD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 7, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000526-DG
B.J.A., A CHILD
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 01-XX-00031
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
This case is before this Court on a grant of
discretionary review of a decision of the Kenton Circuit Court
affirming a decision of the Kenton District Court – Juvenile
Division, which interpreted KRS 635.510(1).
The lower court
held the statute refers to the defendant’s age at the time of
adjudication, not his age at the time the offense was committed.
We agree because the statute is one providing for treatment.
Thus, we affirm.
On February 19, 2001, B.J.A., who was twelve years old
at the time, admitted to subjecting several young children to
sexual and anal intercourse.
He was placed in the Children’s
Home of Northern Kentucky as a dependent and was receiving
sexual offender treatment.
On June 20, 2001, charges were filed
against B.J.A., who had since turned thirteen, in the Kenton
District Court – Juvenile Division.
On July 20, 2001, B.J.A.
pled guilty to seven counts of sodomy, first degree,1 and two
counts of rape, first degree,2 in exchange for the Commonwealth
dropping the remaining charges.
The psychologist at the
Children’s Home reported B.J.A.’s treatment was going well and
recommended completing the treatment at the Children’s Home.
The predisposition report prepared by the Department of Juvenile
Justice agreed and requested the court to order B.J.A. to
complete the sexual offender treatment at the Children’s Home.
At the August 13, 2001, disposition hearing, the
Department of Juvenile Justice sought to have thirteen year old
B.J.A. declared a “juvenile sexual offender” under KRS 635.510,
and have him committed to an approved sexual offender treatment
facility.
B.J.A. wanted to continue his placement at the
Children’s Home on the dependency commitment.
If B.J.A. was
under thirteen, the juvenile judge had this option.
If B.J.A.
was thirteen or older, the juvenile judge had no discretion and
1
2
KRS 510.070.
KRS 510.040.
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had to declare B.J.A. a “juvenile sexual offender”, and he would
be taken out of the Children’s Home and sent to an approved
sexual offender treatment facility.
At this point, the
interpretation of KRS 635.510 became crucial.
Did the statute
refer to the juvenile offender’s age at the time of the offense
(twelve) or at the time of adjudication3 (thirteen)?
The
juvenile judge ruled that the statute referred to B.J.A.’s age
at the time of adjudication (thirteen) and the circuit court
affirmed.
We granted discretionary review on this one issue.
KRS 635.510 provides in part:
(1)
A child, thirteen (13) years of age or
older shall be declared a juvenile
sexual offender if the child has been
adjudicated guilty of an offense listed
in KRS 635.505(2)(a), (b), (c), (d),
(e), or (f).
(2)
(a) A child, less than thirteen (13) years of
age, may be declared a juvenile sexual offender
if the child has been adjudicated guilty of an
offense listed in KRS 635.505(2).
(b) Any child, thirteen (13) years of
age or older, may be declared a
juvenile sexual offender if the child
has been adjudicated guilty of an
offense listed in KRS 635.505(2)(g).
(emphasis added.)
Statutory interpretation is a purely legal issue.
our review is de novo.
Therefore,
J.D.K. v. Commonwealth, Ky. App., 54
3
The appellant’s brief points out a third possible interpretation, “at the
time of disposition”. However, that is not the argument here and our
decision in this case will be dispositive of the third possible
interpretation.
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S.W.3d 174, 175 (2001); Floyd County Board of Education v.
Ratliff, Ky., 955 S.W.2d 921, 925 (1997); Keeton v. City of
Ashland, Ky. App., 883 S.W.2d 894, 896 (1994).
Our duty is to
construe the statute “so as to effectuate the plain meaning and
unambiguous intent expressed in the law.”
Bob Hook Chevrolet
Isuzu, Inc. v. Commonwealth of Kentucky, Transportation Cabinet,
Ky., 983 S.W.2d 488, 492 (1998).
A court must construe a
statute so as to carry out the intent of the Legislature.
Hardin County Fiscal Court v. Hardin County Board of Health, Ky.
App., 899 S.W.2d 859, 861 (1995).
When the statute is read by
itself, and given the facts in B.J.A.’s case, the first
impression could be that there is a latent ambiguity in the
statute.
To determine whether or not there is an ambiguity, we
need to review the context or statutory scheme from which the
individual statute was taken.
KRS 635.500 is the enabling legislation for providing
a “program” in the Department of Juvenile Justice for the
“treatment” of juvenile sexual offenders.4
The legislative
intent as to the purpose of the treatment program is clearly
expressed in KRS 635.500(2) as “early intervention and treatment
of the juvenile sexual offender in an effort to affect the
progression to adult criminal activity.”
KRS 635.515 provides
that a child declared a “juvenile sexual offender” be committed
4
This assumes the juvenile is already to be committed so he is now receiving
treatment, not punishment.
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to the Department of Juvenile Justice and receive treatment for
a minimum of two but not more than three years.
KRS 635.505(2) states:
A “juvenile sexual offender” as used in this
chapter means an individual who was at the
time of commission of the offense under the
age of eighteen (18) years who is not
actively psychotic or mentally retarded and
who has been adjudicated guilty of or has
been convicted of or pled guilty to:
(a)
A felony under KRS Chapter 510;
(b) Any other felony committed in
conjunction with a misdemeanor described in
KRS Chapter 510;
(c) Any felony under KRS 506.010 when the
crime attempted is a felony or misdemeanor
described in KRS Chapter 510;
(d)
An offense under KRS 530.020;
(e)
An offense under KRS 530.064;
(f)
An offense under KRS 531.310; or
(g)
A misdemeanor offense under KRS Chapter 510.
(emphasis added.)
As defined in KRS 635.505, a “juvenile sexual
offender” includes any juvenile who has been adjudicated guilty
of an offense specified therein.
the age of eighteen”.
The only age factor is “under
Thus, a 10, or 12, or 13 year old can be
declared a “juvenile sexual offender”.
However, KRS 635.510
clarifies that not all juveniles who are adjudicated guilty of
the specified crimes must be declared “juvenile sexual
-5-
offender”, and provides that the court with discretion to not
designate as such certain juveniles based on age or crime.
In
review, KRS 635.510 states, in pertinent part:
(1) A child, thirteen (13) years of age or
older, shall be declared a juvenile sexual
offender if the child has been adjudicated
guilty of an offense listed in KRS
635.505(2)(a), (b), (c), (d), (e), or (f).
(2) (a) A child, less than thirteen (13)
years of age, may be declared a juvenile
sexual offender if the child has been
adjudicated guilty of an offense listed in
KRS 635.505(2).
(b) Any child thirteen (13) years of
age or older, may be declared a juvenile
sexual offender if the child has been
adjudicated guilty of an offense listed in
KRS 635.505(2)(g).
KRS 635.510 appears to be a statute pertaining to evaluation and
treatment.
Its language presumes and even requires a prior
adjudication, without any reference to the juvenile’s age at the
time of the offense.
Assuming a prior adjudication shortly
before a treatment plan is proposed, we believe KRS 635.510(1)
and (2) speak in terms of the juvenile’s age at the time he is
adjudicated and evaluated for disposition.
In this case,
B.J.A.’s adjudication and post-adjudication evaluation occurred
after his thirteenth birthday, which, under the statute,
mandates his designation as a “juvenile sexual offender”.
Having concluded the statute is speaking about treatment after
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an adjudication, the age at the time of the offense was
committed becomes irrelevant.
B.J.A.’s argument that age at the time of
adjudication, and not at the time of offense, would constitute
an ex post facto punishment in violation of both the United
States and the Kentucky Constitutions, must fail.
An ex post
facto law is one “‘which imposes a punishment for an act which
was not punishable at the time it was committed’”.
Weaver v.
Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17
(1981), (citation omitted).
In B.J.A.’s case, the statute does
not become “retroactive” but prescribes different dispositions
depending on age.
This is not ex post facto legislation.
See
generally, Canter v. Commonwealth, Ky., 843 S.W.2d 330 (1992);
Ex parte Garland, 71 U.S. 333, 32 How. Pr. 241, 18 L. Ed. 366, 4
Wall. 333 (1866); Gourley v. Comm., Ky. App., 37 S.W.3d 792
(2001).
Additionally, KRS 635.510(1) does not punish, but
treats the juvenile offender.
A similar “sexual offender
treatment program” for adults was discussed by this Court in
Garland v. Commonwealth, Ky. App., 997 S.W.2d 487 (1999),
wherein we dismissed the ex post facto argument as to statutes
requiring sex offenders to complete a sex offender treatment
program as a condition precedent to parole.
Although this
requirement delayed the appellant’s eligibility for parole, it
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did not increase his underlying sentence, nor make the
punishment more onerous.
Id. at 489-490.
commitment is not increased.
Similarly, B.J.A.’s
The fact that one commitment has a
more strenuous treatment plan than another is justified by the
type of crime.
We conclude the rationale as applied to adult
sexual offenders can be applied to juvenile sexual offenders.
See Commonwealth v. Jeffries, Ky., 95 S.W.3d 60 (2002);
Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997).
For the foregoing reasons, the judgment of the Kenton
Circuit Court is affirmed.
BUCKINGHAM, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy G. Arnold
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Albert B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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