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Q.M. v. Commonwealth

Supreme Court of Kentucky

May 14, 2015


Released for Publication June 4, 2015.

Page 361


FOR APPELLANT: Renee Sara Vandenwallbake, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.

FOR APPELLEE: Jack Conway, Attorney General; Patricia Lynn Pryor, Commonwealth Attorney, Hopkinsville, Kentucky; Jeanne Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, Kentucky.

OPINION OF THE COURT BY JUSTICE NOBLE. Minton, C.J.; Abramson, Barber and Venters, JJ., concur. Cunningham, J., concurs in result only. Keller, J., not sitting.


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The policy and processes that make up the juvenile justice system, laid out in Kentucky in the Unified Juvenile Code, have received a great deal of attention on a national level over the last few years once it became widely known that millions of dollars were being spent to incarcerate juvenile offenders indiscriminately, to remove many from their homes for minor offenses, and to do this with very little due process. Anne S. Tiegen, Nat'l Conf. of State Legis., Legislative Reforms in Juvenile Detention and the Justice System 7 (2015).[1] Juvenile courts, charged with determining the best interests of the juvenile defendants before them, often faced complicated family issues and lacked training about the specifics of juvenile growth and development. There were limited remedies available to deal with an ever-increasing number of children being brought into court.

Kentucky has been at the forefront of this national debate, as is evidenced by sweeping changes to the existing juvenile code relating to status and public offenses through a legislative enactment commonly referred to as Senate Bill 200. See 2014 Ky. Laws Ch. 132 (SB 200). This legislation resulted from recognition of escalating budgetary demands for the existing juvenile offense system without a commensurate increase in successful outcomes. Legislative leaders formed a task force that met for two years, studying the existing processes, current research about how best to aid children with the problems that brought them into the system, and the financial impact of juvenile treatment. The report from the task force was the catalyst that led to the passage of Senate Bill 200, part of which took effect in 2014, with the rest to go into effect July 1, 2015.

This case, however, arises under the version of the statutes in effect prior to the amendments of 2014-2015.[2] Because this case concerns a juvenile code process known as an " informal adjustment," which is a concept carried over to the newly revised code, albeit with changes, and because the facts of this case raise questions about the validity of the process as applied, this court granted discretionary review to determine the scope of a juvenile court's authority in issuing and monitoring an informal adjustment. Additionally, this Court seeks to clarify the rights of a child subject to this process.

I. Background

On April 13, 2011, " Jon," [3] the then fifteen-year-old Appellant, was in class late in the day. For whatever reason, he pulled his penis out of his pants, put it on

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the shoulder of the student in front of him, and tried to stick it in the student's ear and hit him in the face with it. This obviously caused a disturbance, and a juvenile complaint was filed two days later. This was converted to a petition charging Jon with third-degree sexual abuse. Then, on April 19, 2011, Jon was arrested and brought before the district court, where he was detained. At the next court date, Jon was represented by Jason Holland, a conflict attorney for the juvenile division of the Department of Public Advocacy (DPA), because the locally assigned DPA juvenile defender was conflicted out due to representing the complaining witness. Jon was released from detention on a conditional order of release.

During this time, Jon also had a pending juvenile offense case on a charge of assault that had occurred during a domestic violence incident between his mother and her ex-boyfriend.

Then, on May 24, 2011, during a pretrial conference, the district judge ordered that Jon's case be " informally adjusted" on the condition that he move out of the state of Kentucky to Oklahoma to live with his father, and the existing order of release with its conditions was terminated. That is the extent of the order, which was handwritten on a court docket sheet. Notably, the order does not state any other condition, including a time frame, or the parameters of what it meant to " live with" his father. As the record later indicated, Jon's father had another family in Oklahoma.

Jon and his mother (who was his legal custodian) were forced to comply with the order to avoid formal juvenile prosecution, and did so. Jon moved to Oklahoma, apparently enrolled in school there, and remained for around five months. He then returned to his mother in Kentucky.

In October, when the Commonwealth learned that Jon was back in Kentucky, his case was placed on the docket for " review." No written motion was filed, but the Commonwealth orally moved the district court to redocket the case and reinstate the sex offense charge, because Jon was back in Kentucky.

Jon and his mother appeared, but his previously appointed attorney (Jason Holland) had not been given notice and thus did not appear. The local DPA juvenile defender, who was conflicted out of representing Jon because she actively represented the complaining witness, nonetheless " stood in" as counsel for Jon.

The district court heard nothing beyond the Commonwealth's allegations that Jon had returned to Kentucky in violation of the court's previous order before ruling. No testimony was taken to establish that Jon had willfully violated the terms of the informal adjustment, and no arguments were made about the limitations of the informal adjustment, and whether there was a violation at all. In fact, Jon was effectively without counsel at this point, because the attorney " standing in" was conflicted out from making substantive arguments on his behalf. The district court sustained the motion to re-docket charges " as he did not stay in Oklahoma with dad." Jon was released on " strict" conditions of release and ordered to appear the following week for a pretrial conference, of which Jason Holland was to be notified.

After the court ruled on this motion, there was some discussion between the DPA lawyer and Jon's mother about where to go to find Jason Holland's office. In response to the DPA lawyer, Jon's mother attempted to explain that Jon was back in Kentucky for several reasons: he was unhappy away from her and his home, he felt his father favored his step-children, and most importantly, a dependency, neglect

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and abuse case may have been initiated against the father in Oklahoma, which put Jon at risk. As the child's legal custodian, the mother wanted him out of harm's way. During the conversation, a male voice, possibly that of the prosecutor,[4] can be heard saying, " He's supposed to stay there [Oklahoma] for these charges to go away." In response to Jon's mother's explanation, the male voice can be heard saying: " Okay. That's fine. But these charges have to come back."

The record is not clear, but it appears that the prosecutor believed the Kentucky Children's Law Center had been consulted about representing Jon. At an appearance on December 15, 2011, the prosecutor stated that he had received a call from an " agency" that he had been told the week before would be representing Jon. He said that that unnamed agency said that they do not do criminal cases and thus it was his understanding that Jon was not represented at that time. He then noted that Jon needed to find out whether he was going to get a private attorney or have another DPA-conflict attorney appointed. Jon's mother said she would hire a private attorney. The judge ordered that they appear on December 22 with an attorney. The written order refers to the Kentucky Children's Law Center, noting that it does not represent children in juvenile court.

There is no recording of the December 22 appearance in the record. A written order, however, states that on that date, Jason Holland was reappointed as conflict counsel, and that the matter was ...

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