REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-000709-DG
JEFFERSON CIRCUIT COURT NO. 14-XX-000013
COUNSEL FOR APPELLANT: Andy Beshear Attorney General of
Kentucky Michael J. O'Connell Jefferson County Attorney
Christopher Brown Special Assistant Attorney General -
Assistant Jefferson County Attorney David A. Sexton Special
Assistant Attorney General - Assistant Jefferson County
COUNSEL FOR APPELLEE: Daniel T. Goyette Louisville Metro
Public Defender of Counsel Elizabeth Zilberberg Louisville
Metro Public Defender Bruce P. Hackett
Commonwealth seeks discretionary review of a decision
affirming the Jefferson District Court Juvenile Session's
finding that B.H. was incompetent to stand trial and
dismissing the charges against him. The circuit court upheld,
and the Court of Appeals affirmed. We granted the
Commonwealth's motion for discretionary review to
consider if the Juvenile Session of the District Court
(district court) acted without jurisdiction in determining
B.H.'s competency. After review of the record, we affirm.
was born on December 21, 1997. He has an extensive history of
criminal charges, the first dating back to when he was nine
years old. B.H. was still a juvenile at the time of the
charges in this case. It is not necessary for us to recount
the details of B.H.'s criminal record, but among the
charges incident to this case were terroristic threatening,
robbery, and murder.
2008, when B.H. was 10 years old, following a petition
charging him with first-degree sexual abuse and fourth-degree
assault, Dr. David Finke was appointed to perform a
competency evaluation. Dr. Finke found that B.H.'s
intellectual functioning was extremely low or impaired; B.H.
lacked a factual or rational understanding of the trial
process; and B.H. lacked the ability to assist counsel in his
defense. Dr. Finke found that B.H. was not competent to stand
trial and that he would not likely gain competency within the
statutory "foreseeable future" of one
2010, a plethora of charges were again brought against B.H.
Dr. Finke was appointed to perform a competency evaluation.
Dr. Finke again found that B.H. was not competent to stand
2011, after B.H. was charged for multiple new offenses, Dr.
Finke performed another competency evaluation. Dr. Finke
found B.H. incompetent to stand trial but stated that B.H.
might gain competency within the foreseeable future due to
his maturity and improved understanding of the court system.
In 2012, after receiving additional charges, B.H. was found
competent. Pending adjudication, B.H. was released on home
December 2012, B.H. was in an automobile accident and
suffered severe injuries. B.H. was admitted to the hospital
with no brain activity and remained in a coma until April
2013. In September 2013, B.H. was arrested for first-degree
robbery and murder that had occurred the previous October
before the automobile accident. The Commonwealth moved to
transfer B.H.'s case to circuit court pursuant to KRS
635.020(2) and KRS 635.020(4), the statutes for discretionary
and mandatory transfer, respectively. B.H. also moved for a
district court did not immediately address the motion to
transfer but first granted B.H.'s motion for a competency
evaluation. Dr. Finke performed the evaluation, detailing the
effects of the automobile accident on B.H.'s physical and
cognitive functioning, and found that B.H. was currently
incompetent to stand trial. Dr. Finke acknowledged that it
was possible for B.H. to continue to have improved brain
functioning and gain competency within one year.
Brandon C. Dennis conducted a pediatric neuropsychological
evaluation on B.H. and he filed his report with the court.
Intelligence testing generated a full-scale IQ of 46. Dr.
Dennis concluded that even though B.H. could continue to make
subtle improvements within the next year, he would have
persistent cognitive impairments, indefinitely.
district court then conducted a competency hearing. After
hearing from Dr. Finke and Dr. Dennis, the court found B.H.
incompetent to stand trial and unlikely to attain competency
in the foreseeable future. The pending charges were dismissed
without prejudice. The Commonwealth appealed the finding of
incompetency to the Jefferson Circuit Court, arguing that the
district court's, decision was not supported by
substantial evidence. The circuit court affirmed, holding
that there was substantial evidence to support the finding.
Commonwealth then moved the Court of Appeals for
discretionary review. There, the Commonwealth abandoned its
argument that the district court's decision was clearly
erroneous and instead argued that the court acted without
subject matter jurisdiction when it decided the issue of
competency. The Court of Appeals held that the district court
had subject matter jurisdiction over B.H.'s case, and the
Commonwealth had confused subject matter jurisdiction with
particular case jurisdiction. Because particular case
jurisdiction is subject to waiver, and the Commonwealth
failed to object to the competency determination at any stage
of litigation prior to discretionary review with the Court of
Appeals, the Court of Appeals held that the Commonwealth had
waived its right to contest any error.
Commonwealth then moved this Court for discretionary review,
which we granted. We agree with the courts below and affirm.
STANDARD OF REVIEW.
a question of law, and our review is de novo.
Caesar's Riverboat Casino, LLC v. Beach, 336 S.W.3d
51, 54 (Ky. 2011) (citing Appalachian Regional
Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky.
2007)). Furthermore, "[s]tatutory interpretation raises
pure questions of law, so our review is de novo,
meaning we afford no deference to the decisions below."
Department of Revenue, Finance and Admin. Cabinet v. Cox
Interior, Inc., 400 S.W.3d 240, 242 (Ky. 2013)
(citing Commonwealth v. Love, 334 S.W.3d92, 93(Ky.
The Juvenile Session of the District Court had subject matter
jurisdiction to conduct a competency hearing.
Commonwealth's argument before us is that the Juvenile
Session of the Jefferson District Court did not have subject
matter jurisdiction to consider the issue of B.H.'s
competency. According to the Commonwealth, once it filed a
motion to transfer, the district court was limited to holding
a transfer hearing pursuant to KRS 635.020(4) which states,
in pertinent part:
Any other provision of KRS 610 to 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(l4) 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.
Commonwealth maintains that, because B.H. was charged with a
felony in which a firearm was used and B.H. was fourteen
years old at the time of the offense, the district court
could only conduct a preliminary hearing regarding probable
cause as to these enumerated factors. In essence, the
Commonwealth argues the court's subject matter
jurisdiction was limited to the preliminary hearing required
for transfer. The Commonwealth's argument fails, however,
as our jurisprudence on both jurisdictional and
constitutional issues does not support the Commonwealth's
The General Assembly has vested district courts with
jurisdiction over juvenile cases.
juvenile code assigns jurisdiction to the juvenile session of
the district court for "any person who at the time of
committing a public offense was under the age of eighteen
(18) years. . . ." Commonwealth v. S.K., 253
S.W.3d 486, 487 (Ky. 2008) (internal citations omitted). The
code is intended to provide safeguards for juveniles.
Johnson v. Commonwealth, 606 S.W.2d 622, 623 (Ky.
1980). The jurisdiction of district courts is exclusive
relating to minors unless jurisdiction is vested by law in
some other court. See KRS 24A.130.
juvenile can be classified as a youthful offender and
transferred to the circuit court. The "circuit court
acquires jurisdiction over a case in which a juvenile is
accused of violating the penal code only ifihe
juvenile is alleged to be a youthful offender and
the district court transfers the child to circuit
court:" Jackson v. Commonwealth,363 S.W.3d 11,
17 (Ky. 2012) (emphasis added). Before the circuit court
acquires jurisdiction, the district court must hold a
preliminary hearing. Id. "Only after the
district court satisfies these ...