Opinion
NO. 2011-CA-001269-MR
02-01-2013
JOSHUA BEAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: La Mer Kyle-Griffiths Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE C. RENÉ WILLIAMS, JUDGE
ACTION NO. 10-CR-00062
OPINION
AFFIRMING
BEFORE: MAZE, MOORE AND TAYLOR, JUDGES. MAZE, JUDGE: Joshua Bean appeals from a judgment of conviction by the Crittenden Circuit Court following a conditional guilty plea pursuant to RCr 8.09. Bean reserved his right to appeal from an order by the Crittenden District Court, Juvenile Division, which transferred the juvenile charges against him to circuit court for trial as a youthful offender. Bean argues that the juvenile court's findings are insufficient to meet the requirements for a discretionary transfer under KRS 640.010(2). We conclude that the juvenile court made sufficient findings which were supported by substantial evidence and a correct application of those facts to the law. Finding no abuse of discretion in the transfer, we affirm the judgment of conviction.
Kentucky Rules of Criminal Procedure.
Kentucky Revised Statutes.
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On June 30, 2010, a juvenile complaint was issued charging Bean with first-degree burglary. After Bean appeared in juvenile court, the Commonwealth moved to transfer the matter to circuit court for Bean to be adjudicated as a youthful offender. After conducting a hearing, the juvenile court granted the motion and ordered the case transferred.
Thereafter, on October 4, 2010, a Crittenden County grand jury returned an indictment charging Bean with one count each of first-degree burglary by complicity, and theft by unlawful taking - firearm by complicity. Subsequently, Bean entered a conditional plea to charges of second-degree burglary by complicity and theft by unlawful taking - firearm by complicity. He specifically reserved his right to appeal the juvenile court's transfer order. In accord with the Commonwealth's recommendation, the trial court sentenced Bean to five years' imprisonment on each count, to run concurrently for a total of five years. This appeal followed.
KRS 640.010(2)(b) sets out the criteria the district court must consider in determining whether to transfer a juvenile as a youthful offender. At a minimum, the district court must consider:
1. The seriousness of the alleged offense;KRS 640.010(2)(c)further provides:
2. Whether the offense was against persons or property, with greater weight being given to offenses against persons;
3. The maturity of the child as determined by his environment;
4. The child's prior record;
5. The best interest of the child and community;
6. The prospects of adequate protection of the public;
7. The likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile justice system; and
8. Evidence of a child's participation in a gang.
If, following the completion of the preliminary hearing, the District Court finds, after considering the factors enumerated in paragraph (b) of this subsection, that two (2) or more of the factors specified in paragraph (b) of this subsection are determined to favor transfer, the child may be transferred to Circuit Court, and if the child is transferred the District Court shall issue an order transferring the child as a youthful offender and shall state on the record the reasons for the transfer. The child shall then be proceeded against in the Circuit Court as an adult, except as otherwise provided in this chapter.
KRS 640.010(2) grants the juvenile court considerable discretion in considering these factors and balancing the needs of the juvenile with those of society. Stout v. Commonwealth, 44 S.W.3d 781, 788 (Ky. App. 2000). Consequently, the juvenile court's decision to transfer a juvenile to circuit court for trial as a youthful offender will only be disturbed for abuse of that discretion. Id. A trial court abuses its discretion when its decision rests on an error of law (such as the application of an erroneous legal principle or a clearly erroneous factual finding), or when its decision cannot be located within the range of permissible decisions allowed by a correct application of the facts to the law. See Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004).
In this case, the district court conducted a juvenile transfer hearing on August 18, 2010. Officer Charles Hoover of the Marion Police Department testified about the circumstances surrounding the charges against Bean. On May 29, 2010, Officer Hoover was approached by Nikki Sullivan about a burglary of the home of Clifton Tabor. Nikki informed Officer Hoover that her brother, Cody Sullivan, and Joshua Bean had broken into the Tabor's home, stolen a number of items, including several swords, a firearm and other items of value. Nikki further told Officer Hoover that Sullivan and Bean had taken the items to the home of Bean's father, Thomas Bean. She also informed Officer Hoover that Sullivan had tried to give her several of the items. At Officer Hoover's direction, Nikki went back to Thomas Bean's home and retrieved several of the items from Sullivan and Bean.
Shortly thereafter, Thomas Bean contacted Officer Hoover and stated that Joshua Bean was missing. After further discussions, Thomas Bean secured most of the remaining stolen items and turned them over to Officer Hoover. However, one sword and several other items were never recovered. Later that day, Officer Hoover arrested Joshua Bean and Cody Sullivan. Bean was charged as a juvenile and Sullivan, who was 18 at the time, was charged as an adult. Both gave statements to the police after being advised of their Miranda rights.
Thomas Bean testified that Joshua had given him no problems at home and he was doing well in school. However, he further testified that Joshua had admitted being under the influence of drugs when he committed the offense. In addition, Thomas Bean stated that he didn't know that Joshua used drugs or how he had obtained them.
Byron Rich of the Department of Juvenile Justice (DJJ) testified that juveniles committed to the DJJ could be held until their 19th birthday. He testified that if Bean were committed to the DJJ he could potentially complete the rehabilitation program offered by the Department. Rich added that successful completion of the program was dependent on Bean's cooperation. He further testified that DJJ could not hold Bean after his 19th birthday even if he failed to successfully complete the program.
Bean's counsel argued that only one factor - the seriousness of the offense - favored transfer of the case to circuit court. The trial court concluded that two factors favored transfer. While the court acknowledged that the offense was against property, the court noted that first-degree burglary is still a very serious offense. The court also emphasized that the circumstances were aggravated by the facts that a firearm was taken and that Bean was under the influence of drugs at the time of the offense. The court also found that Bean's prospects for rehabilitation favored transfer. Although Bean had no prior criminal charges, the court noted that he was already 18 and could not be held by the DJJ beyond his 19th birthday.
Bean first argues that the juvenile court failed to make written findings regarding which factors favored transfer, as required by KRS 640.010(2)(b). However, the juvenile court executed an AOC Form JV-28 with the factors listed and checked two of the factors as favoring transfer. The juvenile court also made oral findings on the record explaining its reasoning for each of these factors. Under the circumstances, the juvenile court's written and oral findings are sufficient to provide meaningful appellate review. Harden v. Commonwealth, 885 S.W.2d 323, 324 (Ky. App. 1994).
Furthermore, we find that the juvenile court did not abuse its discretion by granting the motion to transfer. KRS 640.010(2)(c) requires the juvenile court to consider the enumerated factors but does not require the court to set out detailed findings concerning each relevant factor. The juvenile court specifically found two factors favored transfer of Bean's case to circuit court. These findings were sufficient to meet the requirement of KRS 640.010(2)(c).
Since the offense involved burglary of an unoccupied house, Bean argues that transfer was not appropriate under this factor. However, KRS 640.010(2)(b)2 does not prohibit transfer of a juvenile charged with an offense against property, nor does it require transfer of a juvenile charged with an offense against persons. Rather, this merely requires the juvenile court to give greater weight to offenses against persons than against property. The juvenile court gave the greatest weight to the circumstances surrounding Bean's conduct and the underlying seriousness of the charged offense.
The juvenile court made additional oral findings on other factors, but did not check the appropriate boxes on the form order transferring the case to circuit court. Since a court speaks only through its written orders, we emphasize that the juvenile court's oral findings should be memorialized in some way on the final written order. Kindred Nursing Centers Ltd. P'ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). But while it would have been preferable for the juvenile court to check any other applicable boxes on the form order, the juvenile court's written findings are sufficient on their face to meet the requirements of the statute.
Furthermore, the juvenile court's oral findings point to the theft of a firearm and the fact that Bean was using drugs at the time of the offense as facts favoring transfer. While these facts were relevant in considering the seriousness of the offense under KRS 640.010(2)(b)1, they are also relevant to the best interests of the child and the community, as well as the prospects of adequate protection of the public, as set out in KRS 640.010(2)(b)5 & 6. The juvenile court also addressed the difficulty of Bean completing a rehabilitation program in DJJ custody before his 19th birthday, which is a relevant consideration under KRS 640.010(2)(b)7. Although the facts of this case could have produced a different result, we cannot find that the court abused its discretion by granting the motion transferring Bean to circuit court for trial as a youthful offender.
Accordingly, the judgment of conviction by the Crittenden Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: La Mer Kyle-Griffiths
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky