Opinion
No. 2007-CA-000172-MR.
January 25, 2008.
Appeal from Knox Circuit Court, Honorable Roderick Messer, Judge, Action No. 93-CR-00177.
Gail Robinson, Assistant Public Advocate, Frankfort, Ketnucky, Oral Argument and Brief for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Kentucky, Oral Argument and Brief for Appellee.
OPINION
David Lake appeals from an order of the Knox Circuit Court denying his request for Kentucky Rule of Criminal Procedure (RCr) 11.42 relief after an evidentiary hearing. Lake raises issues of ineffective assistance of counsel and witness perjury and argues defense counsel improperly waived the hearing to transfer the case from juvenile court to circuit court that is mandated by Kentucky Revised Statute (KRS) 640.010(2). We have examined the issues and the record and availed ourselves of the opportunity to hear oral arguments. We conclude that the judgment of conviction must be vacated and the case remanded for additional proceedings in the juvenile court. Humphrey v. Commonwealth, 153 S.W.3d 854 (Ky.App. 2004).
On October 3, 1993, eighteen-year-old Christopher Golden sustained fatal injuries from a severe beating. Shortly after Golden's death, Lake was charged with murder. Seventeen at the time of the offense, Lake was brought before the juvenile court where his attorney waived a transfer hearing, allowing Lake to be prosecuted as an adult in the circuit court. After a jury trial, Lake was found guilty of murder and sentenced to twenty years' imprisonment.
This case has a lengthy procedural history which we will set forth before proceeding to the legal issues presented. Lake appealed his conviction and sentence to the Kentucky Supreme Court. He raised several issues on appeal; the important issue for purposes of the case at hand was ineffective assistance of counsel. Lake argued that defense counsel failed to adequately prepare for trial, subpoena necessary witnesses, conduct effective cross-examination, request a change of venue, move for dismissal of the indictment, or secure his release prior to trial. The Supreme Court considered all of these issues and upheld the conviction on appeal. Lake v. Commonwealth, No. 94-SC-000544-MR (Ky. August 24, 1995).
In 1995, Lake filed a pro se RCr 11.42 motion and asked for appointed counsel to assist him. Two years later, counsel filed an amended RCr 11.42 motion. The allegations of ineffective assistance of counsel included defense counsel's waiver of the statutorily mandated juvenile transfer hearing, failure to obtain an expert medical witness to controvert the cause of death, and an accusation that defense counsel accepted a $1,000.00 bribe from the victim's father to represent Lake poorly. Lake also raised the issue of perjury by a witness for the Commonwealth. The trial court's order of August 18, 1998, which denied the motion without a hearing, stated
The movant's first argument is that he was prejudiced by counsel waiving his transfer from juvenile to circuit court and stipulating to various items at the hearing in juvenile court. This does not rise to the level of prejudice necessary to maintain an action for ineffective assistance. There is no evidence available or capable of being shown which would indicate that but for this waiver the outcome would have been different.
Lake appealed from the trial court's order, and this Court affirmed the denial of relief in an unpublished opinion. Lake v. Commonwealth, No. 1998-CA-002187-MR (Ky.App. June 22, 2001). We agreed with the trial court's analysis on the waiver issue. Further, we noted that defense counsel's alleged failure to interview witnesses had already been adversely decided on direct appeal. Baze v. Commonwealth, 23 S.W.3d 619, 626 (2000). Finally, we determined that RCr 11.42 did not provide postconviction relief based on allegations of witness perjury, particularly where the conviction was supported by additional evidence. Hendrickson v. Commonwealth, 450 S.W.2d 234, 235 (Ky. 1970).
The Kentucky Supreme Court, in a one-sentence opinion and order, granted discretionary review, vacated our decision and the trial court's order, and remanded the case for an evidentiary hearing in light of the recently rendered opinions Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2002), and Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). Lake v. Commonwealth, No. 2001-SC-000562-D (Ky. September 18, 2002). Both cases involved claims of ineffective assistance of counsel. Norton's claims against his attorney included failure to call witnesses to testify to his intoxication and failure to argue in support of his tendered jury instruction on voluntary intoxication. Fraser, who pleaded guilty to murder and received the maximum sentence, alleged his attorney told him on the morning of trial that he was unprepared and coerced him into entering a guilty plea. The Supreme Court did not offer any specific guidance regarding the impact of these decisions on the allegations made by Lake.
After rescheduling several times, a hearing was held on March 11, 2004. The trial court issued an order erroneously denying the motion as being successive. We remanded the case for a decision on the merits. The trial court entered a twenty-eight page order which thoroughly analyzed the issues, as well as the evidence both at the trial and at the evidentiary hearing, and again denied the motion for relief. This appeal followed.
Lake raises three issues on appeal. First, he alleges he received ineffective assistance of counsel at trial. Next, he claims that a witness for the Commonwealth gave perjured testimony. Finally, he asserts the case was improperly transferred from juvenile court to circuit court. This final claim, being dispositive of the appeal, renders unnecessary any consideration of the remaining issues.
The juvenile court scheduled a transfer hearing for Lake and his cousin and co-defendant, fifteen-year-old Jack Lake. Because Jack's attorney had filed a motion to withdraw and appointed counsel had just received notice that she had been assigned the case, the juvenile court continued Jack's transfer hearing. Lake's defense counsel was present in court and waived the transfer hearing on his client's behalf. The transcript is brief, and we will reproduce only the following pertinent sections:
[Lake's counsel]: Your Honor, we have no objection to the certification of David. But, I would ask before any more proceedings continue, that only family members of the defendants be permitted in the courtroom.
[The Judge rules that the Goldens, as parents of the victim, may remain in the courtroom. The County Attorney notes that he has no objection to continuing Jack Lake's transfer hearing.]
[Lake's counsel]: Judge, we need to prepare a certification order on David Lake.
[Judge]: Well, I'm just wondering do we need to actually, do we need to go forward with a hearing on that? This is the same situation we were in before. I just wonder, do we need to go ahead and. . . .
[Judge]: There's specific, there's specific findings that I have to make. You would almost have to stipulate to. . . .
[Lake's counsel]: (inaudible).
[Judge]: To the criteria listed in the statute. Uh, I don't know whether or not you want to do that. But, that's. . . .
[Lake's counsel]: Your Honor, I think we can actually do that, in a situation . . . (inaudible).
[Judge]: Okay. Well, let's take a look at that statute.
[Lake's counsel]: It says that the stipulation . . . whether the offense was against persons or property, the maturity of the child, prior record, best interest of the child and community, prospects of adequate protection, likelihood of reasonable rehabilitation.
[Judge]: (inaudible) . . . six. Okay.
[Lake's counsel]: Page (inaudible).
[Judge]: Okay.
[Lake's counsel]: (inaudible).
[Judge]: Alright. Well . . . are you willing to stipulate that there was probable cause, first of all?
[Lake's counsel]: Yes.
[Judge]: And, are you willing to stipulate, based on the evidence that you are aware of, that the court, uh, considering the factors listed in 640.010, sub, uh, 2(b), that, uh, the child would be, or the juvenile would be appropriate for certification?
[Lake's counsel]: Yes, Your Honor.
[Judge]: You're willing to stipulate to that?
[Lake's counsel]: Yes, Your Honor.
[Judge]: Alright, uh, the court will certify David Lake at this time, as an adult. To be tried as an adult, or at least to be sent to the Grand Jury as an adult. For their consideration set for December 6th. He will need to be in the circuit court on December 14th at 9:00 a.m. Uh. . . .
[Discussion of the Grand Jury schedule follows. The judge sets a $50,000.00 bond for David Lake.]
[Judge]: Okay. Thank you. I guess we need to prepare one of those certification orders, like in the last one.
Lady: (inaudible) do it today?
[Judge]: Uh, well, it doesn't have to be done immediately. But it would need to be done before the next Grand Jury convenes.
Lady: Alright.
[Judge]: And, just for the record, note that the certification hearing was waived and the criteria, uh, required for certification was stipulated to by the defendant.
Transcript of Hearing, Knox Circuit Court, March 11, 2004, pp. 152-59 (Original transcript is in capital letters; all ellipses present in original transcript). While this is not the most comprehensive transcript, it does support Lake's contention that he never spoke a word during the transfer hearing. He further asserts that defense counsel did not obtain his consent to waive the transfer hearing.
KRS 610.010 grants "exclusive jurisdiction in proceedings concerning any child living or found within the county who has not reached his or her eighteenth birthday or of any person who at the time of committing a public offense was under the age of eighteen (18) years" to the juvenile session of the district court, unless otherwise specified by KRS Chapters 600 to 645. KRS 600.010(1). The Juvenile Code also allows a juvenile to be tried as an adult in certain situations, including any juvenile charged with a capital offense, Class A felony, or Class B felony, who was at least fourteen years old at the time of the offense. KRS 635.020(2). However, any juvenile whom the Commonwealth seeks to prosecute as a youthful offender is entitled to a hearing in the juvenile court to decide whether the circuit court shall obtain jurisdiction to try the juvenile as an adult.
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, if any, necessary to fall within the purview of KRS 635.020.
(b) If the District Court determines probable cause exists, the court shall consider the following factors before determining whether the child's case shall be transferred to the Circuit Court:
1. The seriousness of the alleged offense;
2. Whether the offense was against persons or property, with greater weight being given to offenses against persons;
3. The maturity of the child as determined by his environment;
4. The child's prior record;
5. The best interest of the child and community;
6. The prospects of adequate protection of the public; and
7. The likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile justice system. . . .
KRS 640.010(2)(a) and (b) (1993). The statute also required the juvenile court to consider the factors prior to entering an order transferring jurisdiction to the circuit court. KRS 640.010(2)(c). Further, this Court has previously said that a transfer order is not sufficient if it merely parrots the statutory language or states that transfer is in the best interests of the child and community without more specific findings. Schooley v. Commonwealth, 556 S.W.2d 912, 915 (Ky.App. 1977).
In Schooley, we considered the propriety of a transfer order after the appellant filed an RCr 11.42 motion alleging the Jackson Circuit Court had failed to gain jurisdiction over his case. Schooley had pleaded guilty to two felony offenses, filed no direct appeal, and failed to raise the issue of his transfer from juvenile to circuit court during a prior RCr 11.42 motion. This Court began examining the issue by stating:
If the juvenile court fails to make adequate findings, the transfer order is deemed invalid. In Richardson v. Commonwealth, Ky., 550 S.W.2d 538 (1977) the Supreme Court held that an order transferring jurisdiction from the Christian County Juvenile Court was invalid. The Supreme Court then stated that the circuit court did not acquire "jurisdiction" of either the "person or the subject matter" of the case. Not having jurisdiction, the indictment and subsequent judgment in the circuit court were "void." Juvenile offenders convicted in circuit court have successfully challenged their convictions on the grounds of the inadequacy of the transfer order in a number of different circumstances. In the Richardson and Hubbs [ v. Commonwealth, 511 S.W.2d 664 (Ky. 1974)] cases, the challenge was by direct appeal from a judgment based upon a jury verdict. In the Bingham [ v. Commonwealth, Ky., 550 S.W.2d 535 (1977)] case, the challenge was by direct appeal from a judgment entered upon a guilty plea. In the Hamilton [ v. Commonwealth, 534 S.W.2d 802 (1976)] case, the challenge was successfully raised in a subsequent prosecution for being an habitual criminal. Strange as it may seem, there never has been a successful challenge by a motion under RCr 11.42.
Schooley, 556 S.W.2d at 915. We observed that the circuit court has general jurisdiction over felonies, including felonies committed by juveniles if there has been a statutorily valid transfer order. Therefore, the question to be determined was whether the circuit court had gained jurisdiction over the case of this particular juvenile appellant. "[T]he question is one of policy rather than power. The policy consideration is one of due process." Schooley, 556 S.W.2d at 916. We concluded that, in order to succeed with such a claim on an RCr 11.42 appeal, there must be
an error . . . of such magnitude as to render the judgment of conviction so fundamentally unfair that the defendant can be said to have been denied due process of law. The interest of the public in the finality of criminal judgments of long standing weighs heavily in the determination when the error is relatively minor. When the trial court has general subject matter jurisdiction, an erroneous finding of the existence of a jurisdictional fact necessary to the court's jurisdiction in the particular case does not necessarily render the judgment subject to collateral attack.
Schooley, 556 S.W.2d at 917. Due to the appellant's age, the length of time since his conviction, his guilty plea, and failure to raise the issue on direct appeal or in his first RCr 11.42, we determined that this case did not involve a denial of due process sufficient to justify setting aside his conviction.
When the trial court denied Lake's first RCr 11.42 motion in 1998, its analysis focused on the issue of whether defense counsel's waiver of Lake's right to a transfer hearing caused prejudice to his defense. This Court, ruling in 2001, agreed that it did not. However, neither this Court, nor the trial court, had the benefit of our more recent decision in Humphrey v. Commonwealth, 153 S.W.3d 854 (Ky.App. 2004). Humphrey involved a fifteen year-old who, like Lake, proceeded from the juvenile court to the circuit court via waiver. He then pleaded guilty to the charges against him and later sought to set aside his conviction by filing an RCr 11.42 motion. Humphrey, unlike Lake, signed a waiver form which stated that his attorney had explained his right to have a preliminary hearing before a judge to determine probable cause before his case was referred to the Grand Jury.
In an opinion written by our late colleague, Justice McAnulty, this Court defined waiver.
A waiver is the voluntary relinquishment of a known right. See Herndon v. Wingo, Ky., 404 S.W.2d 453, 455 (1966). Thus, in order for there to be a valid waiver of Humphrey's right to a preliminary hearing to determine if his case should be transferred to circuit court, there must be proof that Humphrey voluntarily gave up a right that he knew he had. Although there is no authority in Kentucky that addresses the requisites of a valid waiver, case law from other jurisdictions is instructive on the issue of waiver of the transfer hearing. See State v. Berry, 647 So.2d 830 (Fla. 1994); State v. Mayfield, 241 Kan. 555, 738 P.2d 861 (1987); State v. N.G., 305 N.J.Super. 132, 701 A.2d 976 (1997). Moreover, the state of Texas provides for a waiver of rights by statute. See V.T.C.A. Family Code, Sec. 51.09(a). The consensus among those jurisdictions is that the court must inform the child of the right to the preliminary hearing and ensure that the waiver of this right is voluntarily, knowingly and intelligently made. Considering the facts that children require special considerations due to their intelligence and experience, and the United States Supreme Court has stated that whether a child should be deprived of the special protections of the juvenile justice system is a critically important question, we believe these assurances are necessary to ensure due process and fair treatment of the child. See Kent [ v. United States], 383 U.S. 541, 86 S.Ct. 1045, 1053-54, 16 L.Ed.2d 84.
Humphrey, 153 S.W.2d at 858-59. We noted that Humphrey's purported waiver failed to mention the consequences of waiving his transfer hearing, as well as the considerations governing transfer stated in KRS 640.010(2)(b). Further, the limited colloquy between the juvenile court and Humphrey did nothing to cure the deficiencies in his signed waiver.
As to what Humphrey understood about his transfer from district court to circuit court, in his original RCr 11.42 motion, Humphrey asserted that his attorney just told Humphrey that he was taking his case to circuit court. In other words, Humphrey alleged that he was not advised of the consequences of waiving the required preliminary hearing in district court. We do not believe that the Waiver and the recorded discussion between the district court and Humphrey conclusively resolve the fact of a valid waiver. "[I]f there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record," an evidentiary hearing is required. Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 452 (2001).
Humphrey, 153 S.W.2d at 859. Based on the record of the proceedings in juvenile court, we concluded that Humphrey's RCr 11.42 motion required an evidentiary hearing on the issue of whether his waiver was voluntarily, knowingly, and intelligently made.
In the case at hand, there is absolutely no evidence of a valid waiver of the statutory requirements of KRS 640.010(2). Lake neither signed any document purporting to waive his right to a transfer hearing, nor did the juvenile court conduct such a hearing. The record contains no evidence that Lake spoke a word in court the day of his scheduled transfer hearing. Neither does the judge engage in any explanation of Lake's rights. Rather, the juvenile court accepted defense counsel's stipulation of his client's appropriateness for transfer with very little questioning, and none of it directed at Lake.
KRS 600.010(2), which was originally enacted in 1986 with an effective date of July 1, 1987, states that it is the Commonwealth's policy to provide judicial procedures which protect the rights of all parties. Further, "all parties are assured prompt and fair hearings. Unless otherwise provided, such protections belong to the child individually and may not be waived by any other party." KRS 600.010(2)(g). Consequently, the trial court erred in accepting a purported waiver from defense counsel when the right to a transfer hearing belonged solely to Lake and could only be waived by him. The reasoning of our previous decision in Humphrey, requires this Court to vacate Lake's conviction and remand the case to the juvenile court.
The statute, as originally enacted, read "(e) It shall further be the policy of this Commonwealth to provide judicial procedures in which rights and interests of all parties, including the parents, are recognized and all parties are assured prompt and fair hearings. Unless otherwise provided, such protections belong to the child individually and may not be waived by any other party." However, the legislature amended the statute in 2000, changing the subsection to (g) and adding the words "and victims" after the phrase "interests of all parties, including the parents. . . ."
For the foregoing reasons, the judgment convicting David Lake of murder is vacated, and this case is remanded to the Knox District Court, juvenile session, with directions to dispose of the case in accordance with statutory procedures governing the transfer of cases from juvenile to circuit court.
ALL CONCUR.