45 F.3d 1011 (6th Cir. 1995), 94-5246, Laswell v. Frey

Docket Nº:94-5246.
Citation:45 F.3d 1011
Party Name:Marie Anne LASWELL, Petitioner-Appellant, v. Richard FREY, Jailer, Department of Corrections, Respondent-Appellee.
Case Date:January 27, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1011

45 F.3d 1011 (6th Cir. 1995)

Marie Anne LASWELL, Petitioner-Appellant,

v.

Richard FREY, Jailer, Department of Corrections, Respondent-Appellee.

No. 94-5246.

United States Court of Appeals, Sixth Circuit

January 27, 1995

Argued Nov. 17, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied March

17, 1995.[*]

Page 1012

C. Thomas Hectus, Allen Button (argued and briefed), Williams & Wagoner, Louisville, KY, for petitioner-appellant.

R. Allen McCartney, McCartney & Swicegood, Louisville, KY, David A. Smith, Asst. Atty. Gen. (argued and briefed), Frankfort, KY, for respondent-appellee.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; and ZATKOFF, [**] District Judge.

ZATKOFF, District Judge, delivered the opinion of the court, in which SUHRHEINRICH, J., joined. KENNEDY, J. (pp. 1016-17), delivered a separate dissenting opinion.

ZATKOFF, District Judge.

This matter is before the Sixth Circuit on petitioner-appellant Marie Anne Laswell's appeal from a decision of the U.S. District Court for the Western District of Kentucky denying a petition for a writ of habeas corpus, sought pursuant to 28 U.S.C. Sec. 2254. The District Court held that the Commonwealth of Kentucky did not place Laswell in double jeopardy when, after a juvenile hearing, the Commonwealth moved to have Laswell tried as an adult. We affirm.

I.

On July 25, 1991, petitioner Marie Anne Laswell and two others were arrested for a June 25, 1991, robbery and double murder in Union City, Kentucky. Laswell was 16-years-old at the time of the arrest. On July 26, 1991, Laswell was arraigned in the juvenile session of the Union County District Court. Laswell was charged only with two counts of complicity to commit first-degree robbery at the time, although all the relevant facts were known to the prosecutor. Laswell was represented by appointed counsel at this hearing.

At the hearing, the court advised Laswell of the charge against her, and instructed Laswell of her constitutional rights, including the right to an attorney, the right to remain silent, the right to confront witnesses against her, the right to appeal the determination of the court, and the right to examine any reports filed with the court and to question the person making that report.

After explaining the charge, the court continued:

COURT: Okay. This is a detention hearing to determine whether or not you should be detained further. I need to explain to you that you have the right to an adjudication hearing which is actually a trial on these charges, and depending upon the decision made at that or upon your plea or admission of the offense, you have the right to a disposition hearing.

LASWELL: What's that?

COURT: A disposition hearing is where we have a pre-disposition report filed to see what kind of background or history you have. Based upon your past social history and past criminal history, then a decision will be made as to what your

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punishment would be regarding these charges. Do you understand that?

LASWELL: Yes, I do.

COURT: Okay, and at this time do you admit or deny these offenses?

LASWELL: I admit them.

COURT: I understand you have already given a statement, a written statement, is that correct?

LASWELL: That's right.

COURT: What's the Commonwealth's position on further detention?

DAVIS: 1 Your Honor, the Commonwealth would request detention pending disposition of this case.

(Tr. 93-94).

Following the proceeding, the court made a signed calendar entry, which stated:

Juvenile advised of rights. Charges explained. P.D. appointed and appeared. Waiver of dual representation signed and explained. Juvenile admitted offenses. Juvenile to remain in detention until disposition. Predisposition report to be filed. Disposition hearing set August 15, 1991 at 2:00 p.m.

(Union District Court Calendar: 7/26/91).

Between the time of the July 26, 1991, hearing and the disposition hearing set for August 15, 1991, the Commonwealth added two counts of murder and moved to transfer jurisdiction of Laswell from juvenile to adult court. Laswell was informed of the Commonwealth's intentions at the August 15, 1991, hearing.

At that time, the defense counsel objected, arguing that the July 26, 1991, hearing had been an adjudicatory proceeding, and that therefore jeopardy had attached and Laswell could not be tried as an adult. The court rejected the argument and scheduled a youthful offender hearing for August 29, 1991, stating:

We may have a questionable and atypical point of law as far as exactly when everything takes place. However, when I explain to people what an adjudication hearing is, I explain to them that it is just like a trial. The evidence is presented by the commonwealth and also from the defense, and we did not have that. I do not have any of the facts in this case. In adult court, a defendant may have the right to withdraw their guilty plea prior to a sentencing hearing which would be basically the adjudication hearing. Again, it would [be] different from a jury trial, but there is a parallelogram [sic] there. I don't have a textbook definition of what an adjudication hearing is, but I think I would have to agree with...

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