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Hogan v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 27, 2016
NO. 2014-CA-001933-MR (Ky. Ct. App. May. 27, 2016)

Opinion

NO. 2014-CA-001933-MR

05-27-2016

TELFON HOGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Renee Vandenwallbake Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 14-CR-00357 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Telfon Hogan and an accomplice robbed a Dollar General Store. Hogan was fifteen years old. Hogan used a gun to accomplish the robbery and then fled from police. He was caught and charged as a juvenile offender in the Hardin District Court. A transfer hearing was held at which the district court found probable cause to transfer Hogan to the Hardin Circuit Court. There, Hogan entered a conditional guilty plea to one count of First-Degree Robbery, one count of First-Degree Wanton Endangerment, one count of First-Degree Fleeing or Evading, and one count of Possession of a Handgun by a Minor. Hogan's sentences were run concurrently; he received a ten-year imprisonment sentence. Hogan now appeals one preserved issue and one unpreserved issue.

I. The mandatory transfer statute is constitutional.

Hogan first claims Kentucky Revised Statutes (KRS) 635.020(4) is unconstitutional under multiple United States and Kentucky constitutional provisions. As there is Kentucky Supreme Court case law directly on point, Hogan's attorney admitted below, "I don't anticipate having the court agree with me at this point." Not surprisingly, the trial court did not agree.

On appeal, in spite of the on-point case law, Hogan devotes the lion's share of his brief to this issue. Having reviewed the record, the applicable case law, and the parties' arguments on appeal, we agree with the trial court that the statute is constitutional. We address Hogan's various arguments in turn.

A. Mandatory transfer statute.

KRS 635.020(4) provides:

Any other provision of KRS Chapters 610 and 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).

This statute "mandates transfer if the district court finds, among other things, that there was probable cause to believe that a firearm was used in the commission of a felony." K.R. v. Commonwealth, 360 S.W.3d 179, 182 (Ky. 2012). A district court is without discretion to transfer; transfer to circuit court for trial as an adult is mandatory once the requisite findings are made. K.N. v. Commonwealth, 375 S.W.3d 816, 820 (Ky. 2012).

B. The mandatory transfer statute does not violate due process and fundamental fairness.

Hogan first claims the automatic transfer statute violates due process of law and fundamental fairness pursuant to the Fourteenth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution. Hogan argues the statute violates the principles laid out in Kent v. United States, 383 U.S. 541, 11 Ohio Misc. 53, 86 S.Ct. 1045 (1966), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We need not tarry long on this issue, as the Kentucky Supreme Court has already rejected this claim over a decade ago in Caldwell v. Commonwealth, 133 S.W.3d 445 (Ky. 2004). Rather than admit the decision is on point and argue the law should be overturned, Hogan simply argues semantics: because the Kentucky Supreme Court failed to use the word "fundamental" before "fair[ness]" in its Caldwell decision, it did not decide whether the statute violates fundamental fairness pursuant to Kent. This wordplay ignores the unequivocal holding in Caldwell: "The essentials of due process and fair treatment required by Kent were satisfied." Id. 453. Failure to use the word "fundamental" does not alter the Kentucky Supreme Court's holding, and we will not distinguish it so.

Indeed, we cannot overturn the Kentucky Supreme Court. Supreme Court Rules 1.030(8)(a). Hogan concedes as much in his Prefatory Note to his Appellate Brief. Hogan nonetheless argues Caldwell is distinguishable or, alternatively, that his case should be transferred to the Kentucky Supreme Court. We find both arguments unpersuasive.

Hogan next claims the statute does not pass the rational basis test because there is no legitimate government interest that is rationally related to the statute. Again, the Kentucky Supreme Court squarely addressed this claim:

There is an obvious legitimate governmental interest in curtailing violent crimes by juveniles and protecting the public from harm. The decision of the legislature to further that interest by transferring certain juveniles to circuit court to be tried as adults after a finding of probable cause by the district judge is reasonably related to the pursuit of that legitimate goal. There is a rational basis for the statutory classification.
Id. Hogan argues psychological and sociological studies rendered since Caldwell show that juveniles who are treated as adults may increase recidivism rates, may cause psychological and physical harm to the juveniles, and may have a lessened deterrent effect.

We find his arguments unpersuasive, as the legitimate governmental interest in Caldwell was not with the correctional treatment's efficacy, but rather with protecting the public and curtailing violent crime. As Hogan implicitly admits, the mandatory transfer statute may have some deterrent effect, and thus protects the public from harm. Hogan even admits some youth need to be transferred to be tried as adults. See Aplt's Brf. at 11 (". . . transfer to the adult system may be warranted in some cases[.]"). Thus, as some of the youth need to be transferred, the legitimate government interest is rationally related. Accordingly, we cannot and will not disturb the Kentucky Supreme Court's established case law. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986).

Finally, Hogan argues the mandatory transfer statute is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), which requires that a fact other than a prior conviction that increases a crime's penalty beyond the statutory maximum be submitted to a jury and found true beyond a reasonable doubt. Hogan acknowledges Caldwell addressed Apprendi's application and found the statute to be constitutional. Hogan summarily argues that the recent cases of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (executing individuals who were under eighteen when they committed capital crimes is prohibited by the Eighth and Fourteenth Amendments), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding Eighth Amendment prohibits imposing life without parole on juvenile offender who did not commit homicide), and Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (mandatory life imprisonment without parole for juvenile offenders who commit homicide violates Eighth Amendment), have altered Apprendi's jurisprudence and mandate a reexamination of Caldwell. We find those cases inapplicable in the instant case. Caldwell's application of Apprendi controls this case's outcome.

Accordingly, as Caldwell controls the outcome of Hogan's due process claims, we affirm the trial court's order finding the statute is constitutional.

C. The mandatory transfer statute does not violate equal protection.

Hogan next argues the mandatory transfer statute violates equal protection because it allegedly infringes on the rights of citizens to bear arms. Hogan states the statute creates two similarly situated classes: juveniles over the age of forteen who commit felonies without using firearms; and juveniles over the age of forteen who use firearms while committing felonies. We first note that Caldwell already decided the mandatory transfer statute does not violate equal protection under either the state or federal constitution. Caldwell, 133 S.W.3d at 453.

Hogan claims he has found a distinction to Caldwell. Hogan argues that the court in Caldwell missed the mark by not "discuss[ing] whether the classification arbitrar[ily] or irrationally burdens the fundamental constitutional right to bear arms." (Aplt's Brf. at 13). Hogan claims the mandatory transfer statute will impair a parent's ability to "bond" with his or her children "over using their firearms for recreation" or that children will be unable to "rely on them [the guns] to protect themselves from harm." Id. To that end, Hogan implausibly argues a tale of horrors where a youth who is using a gun to commit a crime has the situation "erupt[]" into one "that require[s] self-defense." (Aplt's Brf. at 14).

In other words, Hogan wants us to declare that teenagers in Kentucky would be safer if they could carry guns during the commission of felonies so they could protect themselves during the crime (from the victim?) or if the crime goes south (from the fairweather confederate?). This logic is circular, dangerous for society, and, most importantly, contrary to the best interests of youth such as Hogan. Hogan has spent the bulk of his brief arguing that youth are impetuous and psychologically unable to make rational, adult decisions. If they cannot make reasonable decisions at a distance, why would we expect armed teenagers to make reasonable decisions in the middle of committing inherently dangerous felonies? Hogan escalated his robbery by using a gun. He did not make his robbery safer for himself or anyone else.

In spite of Hogan's arguments, we need not linger long on Hogan's claims as the Kentucky Supreme Court's analysis of KRS 527.040, which prohibits felons from possessing firearms, makes the path jurisprudentially straight:

Decades of decisions have taught us that a statute prohibiting a class of individuals from doing anything must, at a minimum, be based on some rational basis in order to satisfy constitutional standards.
. . . .

. . . the text in Section 1(7) [of the Kentucky Constitution] does not support the notion that a person's right to bear arms is absolute since it plainly states that one may bear arms for the purpose of self-defense and defense of the State. Such language indicates that the right is conditioned on certain self-evident premises - that it be enjoyed lawfully and without undue interference with the rights of others. Thus, we reject Appellant's contention that our constitution somehow confers on all persons an absolute right to bear arms or that the area of firearms possession is completely exempt from legislative regulation.
Posey v. Commonwealth, 185 S.W.3d 170, 176-181 (Ky. 2006) (citations omitted).

In other words, the Constitutional provisions on the right to bear arms are not so strong as to necessitate protections for youth who want to commit armed robberies. The mandatory transfer statute is rationally related to many legitimate governmental interests, including the protection of innocent citizens and the protection of the youthful offenders. We will not disturb Caldwell's finding of the same even with Hogan's novel right-to-bear-arms claim.

Accordingly, we affirm the trial court's order on this issue.

D. The mandatory transfer statute is not a cruel and unusual punishment.

Hogan next claims the mandatory transfer statute violates the Eighth Amendment of the United States Constitution's and Section 17 of the Kentucky Constitution's prohibitions against cruel and unusual punishment. Both provisions prohibit "cruel" punishments, while the federal constitutional also prohibits "unusual" punishments. Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003). This phrasing difference is of no consequence to the legal analysis. Id. Both refer to "inhumane" or "barbarous" treatment or punishment that has become obsolete; it also refers to punishment that is severe in amount or duration, though "if the punishment is within the maximum prescribed by the statute violated, courts generally will not disturb the sentence." Id. (Citations omitted).

There is nothing inhumane or barbarous about the mandatory transfer statute. Under the statute, a defendant is given a hearing, and if the Commonwealth demonstrates probable cause exists regarding certain factors, a district court judge must transfer the case to the circuit court for trial as an adult. KRS 635.020. Accordingly, a juvenile is given due process on both sides of the equation. There is nothing inhumane or barbarous about judicious amounts of due process.

Moreover, if convicted in circuit court, the juvenile is to be confined in a juvenile facility until he or she reaches eighteen years of age. Once the juvenile reaches age eighteen, he or she is then brought back to the circuit court for sentencing pursuant to KRS 640.030(2). Under that statute, the sentencing court must make one of three determinations: (1) place the youthful offender on probation or conditional discharge; (2) return the youthful offender to the Department of Juvenile Justice to complete a treatment program; or (3) incarcerate the youthful offender at a Department of Corrections institution. KRS 640.030(2)(a)-(c).

We are aware that some sentences preclude a circuit court judge from making the first two determinations at an eighteen-year-old sentencing hearing. Commonwealth v. Carneal, 274 S.W.3d 420, 427-28 (Ky. 2008). Nonetheless, this "ameliorative" statute provides a "second look" at the manner the youthful offender is serving his sentence. Id. at 428 (citing Britt v. Commonwealth, 965 S.W.2d 147, 149 (Ky. 1998)).

Indeed, Hogan's counsel was aware of this fact and moved the trial court, prior to a final adjudication of his circuit-court charges, to place Hogan in a treatment facility so when the court reevaluated Hogan's sentence when Hogan turned eighteen he could show the circuit court he had been amenable to treatment. Thus, the mandatory transfer statute provides extra layers of protection for youthful offenders. It is neither inhumane nor barbarous.

Furthermore, the sentences imposed against Hogan were within the statutory ranges. There is nothing cruel and unusual about receiving a sentence within the statutory range - a sentence that any adult committing the same crimes could receive. Cf. Turpin v. Commonwealth, 350 S.W.3d 444 (Ky. 2011).

We likewise find the United States Supreme Court case trio of Roper-Graham-Miller does not change the result. Hogan argues these cases show that youthful offenders are less culpable and less deserving of criminal sanctions. While those cases stand for that proposition on the extreme end of the spectrum - capital sentences and sentences of life without parole - the instant case involved a proportionately smaller term-of-years sentence. The United States Supreme Court expressly removed such sentences from categorical prohibition in Roper. "In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes[.]" 543 U.S. at 571, 125 S.Ct. at 1196. Likewise, Graham and Miller only condemned mandatory life-without-parole sentencing schemes for youth, leaving open the door for term-of-years sentencing schemes. See Miller, 132 S.Ct. at 2466.

Thus, we find no cruel and/or unusual punishment violation in Hogan's term-of-years sentence. It is noteworthy that the record discloses a picture of Hogan that is substantially different than the childlike follower described in his appellate brief. He has a history of prior, escalating criminal conduct and was chastised on the record in district court for his poor behavior in the juvenile facility. He also appears to be a smart individual who can succeed at intellectual endeavors. Given a complete picture of Hogan's actions, it is understandable that a circuit court would utilize its discretion and accept a plea offer for a minimum sentence on first-degree robbery. Accordingly, we find the mandatory transfer statute does not constitute a cruel and unusual punishment.

In summary, all of Hogan's constitutional claims fail as a matter of law. Thus, the trial court's order denying Hogan's motion to declare the mandatory transfer statute unconstitutional is affirmed in toto.

II. Hogan's double jeopardy claim.

Finally, Hogan claims his convictions for first-degree robbery and first-degree wanton endangerment violate double jeopardy. Hogan admits this issue is unpreserved and requests palpable error review. Hogan argues that the wanton endangerment charge was informally adjusted in district court, thus it could not be recharged in circuit court.

The Commonwealth concedes factually it is possible that a double jeopardy violation occurred, but argues that on the face of the record it is unclear whether the informally adjusted wanton-endangerment charge was the subject of the grand jury indictment, or whether there was additional evidence that led to a second wanton-endangerment charge. It argues Hogan should file a post-conviction motion if he wishes to pursue this claim so the facts can be fully developed. We find both parties have missed the mark, as the charges were dismissed without prejudice in district court.

On June 12, 2014, at the conclusion of the transfer hearing in district court, the Commonwealth asked the court to find probable cause for first-degree robbery, first-degree fleeing or evading, and possession of a handgun by a minor, so those charges could be presented to a grand jury in circuit court. The Commonwealth also moved the trial court to informally adjust the first-degree wanton endangerment charge.

In response to the motion, Hogan's counsel stated agreement with the informal adjustment, noting that if such a request had not been made, Hogan would have asked the court to find no probable cause existed. The district court agreed with the parties and informally adjusted the wanton endangerment charge and dismissed the charge without prejudice. Hogan's case was then transferred to circuit court where he was indicted on the wanton endangerment charge along with the other three charges.

The district court judge wrote on the docket sheet, "Informally adjust on MCA/DWOP on MCA." Having reviewed the video-recorded proceedings below, we interpret "MCA" as "motion of the county attorney" and "DWOP" as "dismissed without prejudice." --------

Under the informal adjustment statutes that were in effect during the hearing, "when a court proceeds with an informal adjustment, an agreed-upon resolution to the case occurs rather than an adjudicated disposition." Q.M. v. Commonwealth, 459 S.W.3d 360, 368 (Ky. 2015). Informally adjusted charges, as they existed during Hogan's transfer hearing, could not be resurrected as a formal court proceeding:

A case is either informally adjusted or it is tried through the formal court proceedings of adjudication and disposition with their attendant due process requirements. Once a child and the other interested parties have agreed to an informal process where these constitutional safeguards are waived, shifting to a formal process . . . is not legally supportable.
Id. at 369-70. See also id. at 371 ("Electing to proceed by informal adjustment means that there will not be formal proceedings on that charge.") (Emphasis in original). As there is no formal court proceeding on the charge, "If the child successfully performs the terms of the informal adjustment, then the case should be dismissed." Id. at 368.

Here, it is apparent that the informal adjustment had no terms other than to dismiss the charges without prejudice. Dismissing a case without prejudice for subsequent prosecution in another forum does not violate double jeopardy principles. See Derry v. Commonwealth, 274 S.W.3d 439, 445-446 (Ky. 2008). Accordingly, Hogan's unpreserved double jeopardy claim fails.

III. Conclusion.

Both of Hogan's appellate claims fail. The mandatory transfer statute is not unconstitutional, and a later prosecution for charges that were dismissed without prejudice does not violate double jeopardy principles. Therefore, for the reasons stated above, we affirm the judgment and sentence entered against Hogan.

ALL CONCUR. BRIEF FOR APPELLANT: Renee Vandenwallbake
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Hogan v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 27, 2016
NO. 2014-CA-001933-MR (Ky. Ct. App. May. 27, 2016)
Case details for

Hogan v. Commonwealth

Case Details

Full title:TELFON HOGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 27, 2016

Citations

NO. 2014-CA-001933-MR (Ky. Ct. App. May. 27, 2016)