D.M.K. (A JUVENILE) APPELLANT
HONORABLE GINA KAY CALVERT AND THE COMMONWEALTH OF KENTUCKY APPELLEES
FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE
FOR APPELLANT: Joshua Michael Reho Louisville, Kentucky
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
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.
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.
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.
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.
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).
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.
district court did make a finding that probable cause existed
for four counts of second-degree wanton endangerment.
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).
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
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.
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
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.
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
(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, ...