Opinion
NO. 2015-CA-000709-DG
02-24-2017
COMMONWEALTH OF KENTUCKY APPELLANT v. B.H. APPELLEES
BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Michael J. O'Connell Jefferson County Attorney David A. Sexton Christopher M. Brown Special Assistant Attorneys General Assistant Jefferson County Attorneys Louisville, Kentucky BRIEF FOR APPELLEE: Bruce P. Hackett Elizabeth Hope Zilberberg Louisville Metro Public Defender's Office Louisville, Kentucky
NOT TO BE PUBLISHED ON DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 14-XX-000013 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: This matter is on discretionary review from the order of the Jefferson Circuit Court affirming the Juvenile Session of the Jefferson District Court's ruling finding B.H. incompetent to stand trial and dismissing a petition charging him with the offenses of murder, robbery, and criminal trespass. On appeal, the Commonwealth of Kentucky contends that the juvenile court went beyond its subject matter jurisdiction when it decided the issue of competency in contravention of Kentucky Revised Statutes (KRS) 635.020(4). Because we agree with B.H. that the Commonwealth waived its ability to raise this defense by failing to make this argument before either the juvenile court or the circuit court on its appeal, we affirm.
B.H., a juvenile at the time of the incidents at issue in this case, has a date of birth of December 21, 1997. He was being raised by his grandmother, who had custody of him. Despite his young age, B.H. has a long history of criminal offenses in the Commonwealth, which we shall attempt to summarize. The record reflects that B.H.'s earliest offenses date back to November 2007, when he was nine years old. A petition was filed in juvenile court charging him with first-degree sexual abuse (criminal attempt) and fourth-degree assault of another student. A public defender was appointed to represent him, and a motion for a competency evaluation pursuant to KRS 504.080(6) was granted. Licensed psychologist Dr. David Finke was appointed to perform the competency evaluation. Dr. Finke performed this evaluation in early February of 2008, when B.H. was ten years old. His intellectual functioning was measured within the extremely low or impaired range, and he had a poor understanding of his legal issues. Dr. Finke determined that B.H. lacked a factual or rational understanding of the trial process and his ability to assist his counsel in his own defense was impaired. Therefore, Dr. Finke determined that B.H. was not competent to stand trial based upon his impaired cognitive functioning and his emotional difficulties and that he would not be likely to gain competency within a year. Based upon this report, the juvenile court found that B.H. was not competent and dismissed the charges without prejudice.
In 2010, when he was twelve years old, B.H. was charged with two counts of theft by unlawful taking, fourth-degree assault, and second-degree robbery when he and other juveniles shoplifted at two different stores and attempted to rob another child in one of the stores. Dr. Finke was again appointed to perform a competency evaluation on B.H.'s motion. He completed his evaluation in November 2010, and he again found B.H. was not competent to stand trial due to deficits in his cognitive abilities and his emotional and behavioral functioning. The charges were dismissed without prejudice in December 2010.
In 2011, when he was thirteen years old, B.H. was charged with theft by unlawful taking when he stole a motorbike from a backyard. This charge was later dismissed without prejudice based upon the prior finding that he was not competent. Later in 2011, B.H. was charged with trespassing and with first-degree wanton endangerment. B.H. was detained for the wanton endangerment offense because it included the use of a gun. Dr. Finke performed another competency evaluation in November 2011 and again found B.H. incompetent to stand trial based on his lack of a factual and rational understanding of the court process and his impaired ability to assist his counsel. However, Dr. Finke recognized that B.H. had improved in his understanding of the court process based upon his earlier evaluations, and he anticipated that B.H. might experience leaps in maturity that year. Therefore, Dr. Finke stated that B.H. might be competent within the foreseeable future, statutorily defined as one year.
In March 2012, when B.H. was fourteen years old, he was charged with criminal trespass, disorderly conduct, and an unlawful act by a minor (purchase of tobacco). In April of that year, B.H. was charged with fleeing or evading police and criminal trespass after leaving school property without permission. Dr. Finke performed another competency evaluation in July. This time, Dr. Finke found that he was competent to stand trial, and the court scheduled a competency hearing. Before the hearing was held, in August, B.H. was again charged with trespassing on two occasions. In September, B.H. was arrested and charged with carrying a concealed deadly weapon (a handgun), failure to signal, no operators/moped license, possession of a handgun by a minor, and receiving stolen property (namely, the moped he was on and a cell phone found in his possession). A competency hearing was scheduled for October, and the court ordered B.H. to remain detained until that time. Following the competency hearing, at which Dr. Finke testified, the court found B.H. to be competent. The court also released B.H. on the home incarceration program (HIP).
In October 2012, B.H. was arrested for abuse of a teacher and terroristic threatening after he was suspended from school. The court found probable cause on both charges, and B.H. was released to his grandmother on HIP. In early November 2012, B.H. admitted guilt to several of the pending charges, including wanton endangerment, criminal trespass, and receiving stolen property. In late November, B.H. was charged with terroristic threatening based on what he said to a police officer investigating a shooting. The court held a disposition hearing in December on the remaining pending charges, noting that commitment would be in B.H.'s best interest.
In December 2012, B.H. was involved in a serious automobile accident in which he suffered serious injuries. He was admitted to the hospital with no brain activity. Community Based Services requested that he be released from HIP, which the court granted. On January 4, 2013, the Court held disposition of his pending charges in abeyance due to B.H.'s medical condition. B.H. awoke from a coma in April 2013 and was later released from the rehabilitation facility in June.
In January 2013, when B.H. was fifteen years old, he was charged with receiving stolen property of $10,000.00 or more. This charge stemmed from his involvement with stealing a car in mid-December. He was a passenger in the stolen car. This matter and the other pending charges were scheduled for review later that year.
On September 17, 2013, B.H. was arrested for first-degree robbery and murder that had occurred the previous October. He and his co-defendants approached the victims and demanded their property, and during the course of the robbery, one of the victims was shot and killed. At the time of the murder, B.H. was fourteen years old. The Commonwealth moved to detain B.H. and to transfer his case to Jefferson Circuit Court pursuant to both KRS 635.020(2), which provides for discretionary transfer, and KRS 635.020(4), which provides for mandatory transfer due to the use of a firearm in the commission of a felony at age fourteen or greater. The current charges for which he was awaiting trial were terroristic threatening, receiving stolen property over $10,000.00, and murder.
At a case review on September 19, 2013, the court apparently did not address the Commonwealth's motion to transfer, but it did grant B.H.'s motion for a competency evaluation. Dr. Finke performed the evaluation, and as part of the history, detailed the results of the automobile accident. B.H. had suffered a traumatic brain injury that resulted in seizures and brain damage. B.H. was in a coma for a period of time. After he woke up from the coma, he regained his ability to speak and improved in his physical and cognitive functioning. Based on the evaluation, Dr. Finke stated that B.H. was currently incompetent to stand trial, noting that his deficits appeared to be related to his traumatic brain injury. He went on to note that B.H.'s brain could continue to improve in its function, and this could continue for a year post-brain trauma. Dr. Finke concluded that it was reasonable to believe that B.H. "may continue to improve and become competent in the foreseeable future, defined as one year by statute." The competency hearing was continued to permit discussion with the Commonwealth Attorney, and B.H. was released from HIP.
Dr. Brandon C. Dennis performed a pediatric neuropsychological evaluation on B.H. in November 2013 to assess his neurocognitive impairment and develop treatment recommendations, and this report was filed in the court's record. Dr. Dennis detailed the injuries B.H. incurred in the accident, noting that he became more alert and aware in mid-April and was admitted to Frazier Rehab in late May for acute inpatient rehabilitation. He was discharged to his home on June 21, 2013, and he continued with outpatient physical therapy, occupational therapy and speech-language pathology at another campus. Intelligence testing revealed a full scale IQ of 46, in the extremely low range, which Dr. Dennis believed represented a decline in his functioning. He concluded that cognitively, B.H. would "probably continue to make subtle improvements over the next 5 months up until the 1-year mark following his emergence from a minimally conscious state. "Unfortunately, I expect he will have persistent cognitive impairments indefinitely, especially in the context of low baseline intellectual functioning."
After he was discharged from the rehab facility, B.H. continued to be arrested for and charged with criminal offenses. In late October, B.H. was charged with criminal mischief for pushing over a motorcycle and theft by unlawful taking for taking part in the theft of two automobiles. In mid-November, B.H. was charged with criminal trespass for being at a grocery store from which he had been barred. We note that B.H. had been charged with at least nineteen offenses before his 18th birthday.
On January 21, 2014, the juvenile court held a competency hearing and heard testimony from Dr. Finke for the Commonwealth and Dr. Dennis for the defense. At the conclusion of the hearing, the court found that "the child is incompetent to stand trial and unlikely to attain competency in the foreseeable future." Therefore, the court dismissed without prejudice the pending charges for terroristic threatening, receiving stolen property over $10,000.00, and murder. In a separate order, the court dismissed without prejudice B.H.'s other pending charges based upon its finding of incompetence.
The Commonwealth appealed the juvenile court's ruling to the circuit court. In its statement of appeal, the Commonwealth argued that the juvenile court's ruling on competency should be reversed because its finding that B.H. would not be able to attain competency in the foreseeable future was not supported by substantial evidence and was therefore clearly erroneous. B.H. argued that the ruling should be affirmed. On April 6, 2015, the circuit court affirmed the juvenile court's ruling, holding that the lower court was within its discretion to make the decision it did based on the relevant circumstances of the case.
The Commonwealth moved this Court for discretionary review, raising for the first time the argument that the juvenile court acted outside of its subject matter jurisdiction in deciding competency. The Commonwealth did not choose to raise the issue of whether the juvenile court's decision was supported by substantial evidence. B.H. moved this Court to strike the Commonwealth's motion and dismiss the petition, arguing that the sole authority upon which it was based was a non-final opinion. While it does not appear that this Court ruled on this motion, it was implicitly denied when the Court granted the Commonwealth's motion for discretionary review.
On appeal, as in its motion for discretionary review, the Commonwealth limits its argument to whether the juvenile court acted within its subject matter jurisdiction in deciding the issue of B.H.'s competence rather than complying with the statutory mandate set forth in KRS 635.020(4). B.H. continues to argue that the appeal should be dismissed because the Commonwealth waived its right to raise this issue for the first time on appeal to this Court as the matter addressed particular case jurisdiction, which may be waived, not subject matter jurisdiction. We agree with B.H., and therefore we affirm without reaching the merits of the Commonwealth's argument.
Because the issue before this Court addresses a question of law, we shall review this issue de novo. A & A Mech., Inc. v. Thermal Equip. Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).
The crux of the Commonwealth's argument is based upon the application of KRS 635.020(4) of the Uniform Juvenile Code, which provides as follows:
(4) Any other provision of KRS Chapters 610 to 645 to the contrary notwithstanding, if a child charged with a felony in which a firearm, whether functional or not, 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 transferred to the Circuit Court for trial as an adult if, following a preliminary hearing, the District Court finds probable cause to believe that the child committed a felony, that a firearm was used in the commission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony. If convicted in the Circuit Court, he shall be subject to the same penalties as an adult offender, except that until he reaches the age of eighteen (18) years, he shall be confined in a facility or program for juveniles or for youthful offenders, unless the provisions of KRS 635.025 apply or unless he is released pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be returned to the sentencing Circuit Court for proceedings consistent with KRS 640.030(2).In addressing the constitutionality of this statute, the Supreme Court of Kentucky explained:
We find that the words of KRS 635.020(4) are more reasonably construed as a limitation by the General Assembly of the district court's jurisdiction over the accused as a youthful offender once the district court has determined there is reasonable cause to believe the accused is a child over the age of 14 and is charged with a felony involving the use of a firearm. KRS 610.010(1) provides that "unless otherwise exempted," the Juvenile Session of district court shall have exclusive jurisdiction of cases involving public offenses by those under the age of eighteen. KRS 635.020(4) "otherwise exempts" minors accused of felonies involving firearms. Clearly, it is within the prerogative of the General Assembly to place such limitations on the jurisdiction of district court under Section 113(6). Subsection (4) of KRS 635.020
simply recites the legal result of jurisdiction vesting in the circuit court under Kentucky Constitution Section 112(5) once the legislature has limited the district court's ability to try that category of offense.Commonwealth v. Halsell, 934 S.W.2d 552, 555 (Ky. 1996). Based upon this statutory and case precedent, the Commonwealth contends that the juvenile court could only hold a preliminary hearing to determine whether B.H. committed a felony in which a firearm was used when he was fourteen years of age or older; it could not hold a competency hearing or decide that or any other issue.
The wrinkle in this case is that the Commonwealth admittedly failed to make this argument before either the juvenile court or the circuit court on appeal. Generally, an appellant is precluded from raising an issue on appeal that has not been preserved below. As the Supreme Court of Kentucky stated in Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016),
We have long endorsed a rule that "specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal." When a trial court never has the opportunity to rule on a legal question presented to an appellate court, an appellant presents a different case to the appellate court than the one decided by the trial court. Indeed, an appellate court is "without authority to review issues not raised in or decided by the trial court." The proper role for an appellate court is to review for error—and there can be no error when the issue has not been presented to the trial court for decision.(footnotes omitted). There are exceptions to this rule, such as in the area of subject matter jurisdiction. The Commonwealth cites to Gullett v. Gullett, 992 S.W.2d 866, 868-69 (Ky. App. 1999), for the following statement of the law:
Jurisdiction of the subject matter cannot be conferred by waiver or consent. Commonwealth, Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525, 526 (1962); Johnson v. Bishop, Ky. App., 587 S.W.2d 284, 285 (1979); CR 12.08. The question of subject matter jurisdiction may be raised at any time and is open for the consideration of the reviewing court whenever it is raised by any party. Berryman at 526—527.Because the Commonwealth argues that KRS 635.020(4) addresses the juvenile court's subject matter jurisdiction, the argument could be raised at any time in the proceeding, including for the first time on appeal. We do not find any merit in the Commonwealth's argument.
We agree with B.H. that the Commonwealth has confused subject matter jurisdiction, which is always subject to review at any time because it cannot be waived, with particular case jurisdiction, which is subject to waiver. The Supreme Court addressed the difference between these two concepts in Commonwealth v. Steadman, 411 S.W.3d 717 (Ky. 2013). The issue decided in Steadman was whether the circuit court retained jurisdiction over restitution, an issue that was raised for the first time on appeal, and whether this addressed subject matter jurisdiction. The Court determined that this was a question of particular case jurisdiction rather than subject matter jurisdiction, and it concluded that "the trial court had lost jurisdiction of this case, but not subject-matter jurisdiction, when it entered the restitution order more than ten days after entering the final judgment imposing the sentence." Id. at 724. The Court stated that particular case jurisdiction is subject to waiver, id., and that the defendant had waived his ability to raise a particular case jurisdiction argument because he failed to object and "never gave the trial court an opportunity to resolve these issues." Id. at 726. See also Basin Energy Co. v. Howard, 447 S.W.3d 179, 184 (Ky. App. 2014) ("Subject-matter jurisdiction must be determined without resort to particular-case factual inquiries. The parties' actions in the litigation cannot confer subject-matter jurisdiction or take it away once it has been properly established. Subject-matter jurisdiction either exists or it does not.").
There is no question that the juvenile court had subject matter jurisdiction over B.H. in this case. "The district court shall be a court of limited jurisdiction and shall exercise original jurisdiction as may be provided by the General Assembly." Ky. Const. § 113(b). The General Assembly vested exclusive juvenile jurisdiction in the district court "in all cases related to minors in which jurisdiction is not vested by law in some other court." KRS 24A.130. Accordingly, district courts have been afforded subject matter jurisdiction over juvenile actions, and the Juvenile Session of the Jefferson District Court certainly had subject matter jurisdiction over B.H. in this case.
KRS 635.020(4) requires a juvenile court to determine whether it has particular case jurisdiction over a juvenile. If probable cause exists that the juvenile had committed a felony involving a firearm once he or she reached the age of fourteen, the juvenile court must transfer the action to the circuit court. In order to determine whether it has particular case jurisdiction, the juvenile court must hold a probable cause hearing. In the present case, the juvenile court certainly had subject matter jurisdiction over B.H. to hold such a hearing. If the juvenile court had found each of these elements after holding a preliminary hearing, it would have been required to transfer B.H.'s case to the circuit court for further proceedings. If not, it would retain particular case jurisdiction over the matter. While the Commonwealth certainly requested transfer pursuant to KRS 635.020(4), the juvenile court apparently did not hold a preliminary hearing to decide this issue, and the Commonwealth never objected at the juvenile court level to the competency proceedings or sought review related to this issue. Therefore, the Commonwealth effectively waived its right to raise this issue in the present appeal because it failed to preserve the issue below.
Because the Commonwealth failed to preserve the issue of whether the juvenile court had the authority to decide the issue of competency, we shall not address the merits of that argument in the present appeal.
Accordingly, because the Commonwealth has not raised any other issues in its appeal, and has apparently conceded that the juvenile court's order regarding competency was correct by not contesting it in this appeal, we affirm the opinion of the Jefferson Circuit Court upholding the Juvenile Session of the Jefferson District Court's order finding B.H. incompetent and dismissing without prejudice the pending charges against him, including the murder charge.
THOMPSON, JUDGE, CONCURS.
ACREE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ACREE, JUDGE, DISSENTING: Respectfully, I dissent.
The Commonwealth is raising, for the first time before this Court, the question of subject matter jurisdiction. That is permissible. "The issue of subject-matter jurisdiction cannot be waived because it goes to the very heart of a court's ability to determine an issue in controversy[.]" Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010). The issue in controversy is B.H.'s competency. The district court does not have jurisdiction over that subject matter.
The Commonwealth's allegations do not challenge particular case jurisdiction which involve "questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (quoting Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 430 (Ky. App. 2008) (quoting Buckalew v. Buckalew, 754 N.E.2d 896, 898 (Ind. 2001) (emphasis in original))). The Commonwealth's allegations question the existence of the district court's jurisdiction to conduct a competency hearing. "In other words, they are allegations . . . of a failure of the court's power to act at all" regarding competency. Id. Our Supreme Court has already addressed the same allegations in a previous case and found a lack of subject matter jurisdiction.
In Nelson v. Shake, the issue was "whether a district court's order to hold a competency hearing prevents any other court proceeding . . . from going forward . . . ." 82 S.W.3d 914, 915 (Ky. 2002). The Supreme Court answered in the negative because "the competency of an individual is irrelevant to indictment." Id. at 916. Furthermore, despite the district court's proper exercise of personal jurisdiction over B.H., that court had no jurisdiction over the subject matter of his competency. As the Supreme Court said:
The proper forum to hold any competency hearing lies in the circuit court, which is where this case will be ultimately decided. The circuit court will have to use its due discretion to determine whether to conduct a hearing concerning[, in the case now before us, B.H.'s] capacity to stand trial. . . . [T]he district court has no jurisdiction in this matter[.]Id. at 917.
The Commonwealth's argument that the district court lacks subject matter jurisdiction to conduct a competency hearing has not been waived. Therefore, I dissent. BRIEFS FOR APPELLANT: Andy Beshear
Attorney General of Kentucky Michael J. O'Connell
Jefferson County Attorney David A. Sexton
Christopher M. Brown
Special Assistant Attorneys General
Assistant Jefferson County Attorneys
Louisville, Kentucky BRIEF FOR APPELLEE: Bruce P. Hackett
Elizabeth Hope Zilberberg
Louisville Metro Public Defender's
Office
Louisville, Kentucky