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D.M.K. v. Calvert

Court of Appeals of Kentucky

August 11, 2017

D.M.K. (A JUVENILE) APPELLANT
v.
HONORABLE GINA KAY CALVERT AND THE COMMONWEALTH OF KENTUCKY APPELLEES

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE ACTION NO.15-CI-003566

          BRIEF FOR APPELLANT: Joshua Michael Reho Louisville, Kentucky

          BRIEF FOR APPELLEE: Andrew Graham Beshear Attorney General of Kentucky Dorislee Gilbert Assistant Attorney General Frankfort, Kentucky Gina Kay Calvert Louisville, Kentucky

          BEFORE: DIXON, J. LAMBERT AND MAZE, JUDGES.

          OPINION AFFIRMING AND REMANDING

          MAZE, JUDGE.

         Appellant, D.M.K. (a juvenile), appeals from an order of the Jefferson Circuit Court granting the Commonwealth's petition for a writ of mandamus and ordering the Jefferson District Court to find probable cause for two counts of first-degree wanton endangerment. We affirm the circuit court's order granting the writ, although on different grounds than set forth in the circuit court's order, and we remand the matter to the district court for further findings required for transfer under Kentucky Revised Statute (KRS) 640.010.

         The charges in this case stem from a fatal shooting that occurred on March 13, 2015. At the time, D.M.K, born October 17, 1997, lived in Jefferson County with his mother, thirteen-year-old sister, six-year-old brother, and four-year-old sister. D.M.K.'s six-year-old brother stated that, on the day in question, he observed D.M.K. playing with a gun he had obtained, cocking the hammer back and forth. Shortly thereafter, D.M.K. and his family left the house to go to the hospital to visit D.M.K.'s newborn child. D.M.K. left the loaded gun sitting on a low dresser in his bedroom. Following the hospital visit, the family, except for D.M.K., returned to the house. Apparently, the six-year-old and four-year-old were in D.M.K.'s room when the little girl saw a bag of coins sitting on his dresser and attempted to reach for it. When she did so, she accidently grabbed the gun, causing it to discharge. D.M.K.'s sister was killed by a single gunshot to her head.

         Later that same evening, police interviewed D.M.K., who admitted to having left the gun on the dresser. Kentucky State Police subsequently tested the gun and determined that the trigger pull was two or three pounds when it was cocked and thirteen pounds when it was not. Accordingly, police concluded that the gun had been left behind with the hammer cocked back.

         On March 28, 2015, D.M.K. was arrested and charged with four counts of first-degree wanton endangerment - one count for each family member at the house at the time of the shooting - and one count of possession of a handgun by a minor, first offense. He was arraigned on March 30, 2015. On that same day, the Commonwealth moved to transfer D.M.K. to circuit court under KRS 635.020(3) and (4) as a youthful offender since D.M.K. had several prior felony adjudications.

         The following day, the district court held a waiver/transfer hearing. The Commonwealth announced that it was only proceeding under KRS 635.020(3), which permits, but does not mandate, transfer of a juvenile to circuit court if the juvenile has been charged with a Class C or D felony, was at least sixteen years old at the time of the alleged offense, and previously had been adjudicated a public offender for a felony offense. Accordingly, the district court proceeded with a preliminary hearing to "determine if there [was] probable cause to believe that an offense was committed, that [D.M.K.] committed the offense, and that [he was] of sufficient age and ha[d] the requisite number of prior adjudications[.]" KRS 640.010(2)(a).

         During the hearing, the district court took judicial notice of D.M.K.'s "file, " which established that he met both the age requirement and the prior number of adjudications. However, following the presentation of evidence, the district court ruled that it did not believe there was probable cause for first-degree wanton endangerment. The district court explained, in part,

Clearly in reading all of the commentary and all of the cases, the basic differentiation between wanton endangerment one and wanton endangerment two with weapons is what you actually do with the weapon. Do you point it at a person directly? Do you shoot into a loaded vehicle directly? . . . . Going on and reading more of the commentary . . ., the commentary says, and I quote, "for example, aimlessly firing a gun in public is not as wanton in degree as firing a gun into an occupied automobile and should not carry the same criminal sanction." Whether I agree with it or not, whether I like it or not, I believe the case law and commentary have made it clear, um, that under these circumstances with a weapon being left unattended and cocked, um, still does not meet the level of wanton endangerment first degree under the established case law, principles, and commentary. Uh, therefore I'm not able to make a finding of wanton endangerment in the first degree based upon the case law and commentary, regardless of my personal beliefs.

         The district court did make a finding that probable cause existed for four counts of second-degree wanton endangerment.

         The Commonwealth thereafter filed a motion for the district court to reconsider its ruling as it related to the two children who were in D.M.K.'s room at the time of the incident. Following a second hearing, the district court denied the motion to reconsider. The district judge again noted that her decision was based upon her experience as a prosecutor, the lengthy probable cause hearing, case law, commentary and legislative intent, and that nothing in the Commonwealth's motion had swayed her to change her legal position that probable cause for first-degree wanton endangerment had not been established. As a result, because there was no finding of probable cause for a felony offense, the district court ruled that D.M.K. could not be transferred to the circuit court under KRS 635.020(3).

         The Commonwealth then filed a petition in the circuit court seeking a writ of mandamus ordering the district court to find probable cause for two counts of first- degree wanton endangerment. Following a hearing, the circuit court granted the writ. This appeal ensued. Additional facts are set forth as necessary.

         The decision whether to grant or deny a petition for a writ of prohibition or mandamus is within the sound discretion of the court in which the petition is filed. Commonwealth v. Peters, 353 S.W.3d 592, 595 (Ky. 2011). As such, the decision is reviewed by an appellate court for an abuse of discretion. However, if the basis for granting or denying the petition involves a question of law, the appellate court reviews the decision de novo. Id.

         D.M.K. argues on appeal that the circuit court erred in issuing the writ of mandamus because findings made by the district court in a discretionary juvenile transfer case are not subject to a writ. Further, D.M.K. contends that, in issuing the writ, the circuit court failed to properly defer to the district court's finding that probable cause did not exist for first-degree wanton endangerment. Before addressing the merits of D.M.K.'s arguments, we believe that a discussion of Kentucky's juvenile transfer procedures is warranted.

         "[N]ot all juvenile offenders should be proceeded against in juvenile court, " and "the state has a compelling interest in protecting the public from a juvenile who will not be helped by the juvenile system . . . ." Stout v. Commonwealth, 44 S.W.3d 781, 786-88 (Ky. App. 2000). To that end, under certain circumstances a juvenile offender accused of violating the penal law may be transferred by the district court to circuit court to be proceeded against as a youthful offender. Jackson v. Commonwealth, 363 S.W.3d 11, 17 (Ky. 2012). KRS 635.020 provides for both automatic and discretionary transfer of certain juvenile offenders to circuit court. Stout, 44 S.W.3d at 786.

         Transfer under KRS 635.020(4) is referred to as a mandatory or automatic transfer because transfer is mandatory when a firearm is used in the commission of the underlying offense so long as the other statutory elements are met. K.R. v. Commonwealth, 360 S.W.3d 179 (Ky. 2015). In other words, 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 (Ky. App. 2012). On the other hand, transfer under the other provisions of KRS 635.020 is known as discretionary transfer because the district court is referred to KRS 640.010, which outlines certain determinations that must be made. Specifically, the statute provides, in relevant part:

(2) In the case of a child alleged to be a youthful offender by falling within the purview of KRS 635.020(2), (3), (5), (6), (7), or (8), the District Court shall, upon motion by the county attorney to proceed under this chapter, and after the county attorney has consulted with the Commonwealth's attorney, conduct a preliminary hearing to determine if the child should be transferred to Circuit Court as a youthful offender. The preliminary hearing shall be conducted in accordance with the Rules of Criminal Procedure.
(a) At the preliminary hearing, the court shall determine if there is probable cause to believe that an offense was committed, that the child committed the offense, and that the child is of sufficient age and has the requisite number of prior adjudications, ...

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