Humphrey v. Com., No. 2003-CA-000906-MR.

• Decision Date: 21 May 2004
• Docket Number: No. 2003-CA-000906-MR.
• Parties: Victor Lamont HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

153 S.W.3d 854

Victor Lamont HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-CA-000906-MR.

Court of Appeals of Kentucky.

May 21, 2004.

Rehearing Denied July 2, 2004.

Discretionary Review Denied by Supreme Court February 9, 2005.

Gail Robinson, Frankfort, KY, for appellant.

Albert B. Chandler III, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Frankfort, KY, for appellee.

Before GUIDUGLI, McANULTY, and TAYLOR, Judges.

OPINION

McANULTY, Judge.

Victor Lamont Humphrey (Humphrey) appeals from an order of the Jefferson Circuit Court denying his motion under RCr 11.42 seeking to vacate an earlier judgment of the Jefferson Circuit Court sentencing him to a total of 10 years in prison for two counts of complicity to commit second-degree arson. Humphrey was a juvenile at the time the offenses were committed.

Humphrey's primary contention is that his waiver of his right to a preliminary hearing in the juvenile court prior to the transfer of his case to the circuit court was not knowingly and intelligently given. Humphrey seeks to vacate the final judgment of the Jefferson Circuit Court and remand his case to juvenile court. At a minimum, Humphrey requests an evidentiary hearing on his claims. For the reasons explained below, this Court concludes that there are material issues of fact that cannot be conclusively resolved by an examination of the record, necessitating an evidentiary hearing. However, we further conclude that Humphrey failed to establish any factual basis which should have caused the district court to experience reasonable doubt as to his competence to stand trial. Consequently, the trial court's order is vacated and remanded in part and affirmed in part.

Humphrey was originally charged with two counts of second-degree arson and nine counts of third-degree arson for his alleged involvement in setting two garage fires, the first fire occurring on November 2, 1999, and the second on June 4, 2000. At the time of the June 2000, fire, Humphrey had just turned fifteen years old. For clarity's sake, we note here that Humphrey was represented by three different attorneys during the proceedings against him. The first represented him in district court. The second, whose representation is at issue in this appeal, represented Humphrey when his case was transferred from district court to circuit court. The third attorney represented Humphrey during probation revocation proceedings.

In October of 2000, Humphrey signed a Waiver of Rights form in the district court. As a result, the district court did not conduct the preliminary hearing mandated by Kentucky Revised Statutes (KRS) 640.010(2) "to determine if the child should be transferred to Circuit Court as a youthful offender." Instead, the district court issued an order transferring the case to the circuit court. On October 20, 2000, prosecutor Brian Good filed an information charging Humphrey with two counts of complicity to commit second-degree arson. Humphrey entered a guilty plea to both charges, and the circuit court sentenced him on December 1, 2000, to ten years on each count to run concurrently for a total of ten years, probated for five years. Ultimately, on February 1, 2002, the circuit court revoked Humphrey's probation for violations of conditions of his probation.

Humphrey did not file a direct appeal of the judgment of conviction. After the circuit court revoked his probation, he filed a motion under RCr 11.42 to vacate the final judgment and remand his case to juvenile court. After the Commonwealth failed to file a response to Humphrey's RCr 11.42 motion within the time prescribed by RCr 11.42(4), Humphrey filed a motion to grant his RCr 11.42, or alternatively, to schedule an evidentiary hearing. Eventually, the Commonwealth did file a response, and the trial court summarily denied Humphrey's RCr 11.42 motion, precipitating this appeal.

Humphrey presents a number of claims for our review. First, Humphrey argues that he could not waive his right to a transfer hearing. In the alternative, Humphrey argues that if he could waive his right to a transfer hearing, he did not do so knowingly and intelligently. Second, Humphrey asserts that he was denied effective assistance of counsel by the action and inaction of the attorney that represented him during the waiver to circuit court and the subsequent entry of the guilty plea. Third, Humphrey contends that the district court deprived him of due process by failing to conduct a competency hearing. Finally, Humphrey argues that, at a minimum, the trial court should have conducted an evidentiary hearing on his motion.

I. WAIVER OF PRELIMINARY HEARING IN DISTRICT COURT

For the purposes of the following discussion, the preliminary hearing established in KRS 640.010(2) may be referred to as a "preliminary hearing" or a "transfer hearing" or a "waiver hearing." Humphrey argues that KRS 635.020(2) and KRS 640.010(2) mandate a preliminary hearing prior to a transfer to circuit court. KRS 635.020(2) states as follows:

If a child charged with a capital offense, Class A felony, or Class B felony, had attained age fourteen (14) at the time of the alleged commission of the offense, the court shall, upon motion of the county attorney made prior to adjudication, and after the county attorney has consulted with the Commonwealth's attorney, that the child be proceeded against as a youthful offender, proceed in accordance with the provisions of KRS 640.010.

As Humphrey was charged with two counts of second-degree arson, class B felonies, and he had reached age fourteen (14) at the time of the alleged commission of the offenses, KRS 640.010(2) is applicable. KRS 640.010(2), in relevant part, provides as follows:

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.

As set out in KRS 640.010(2)(a), the purpose of the preliminary hearing is for the district court to 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." The import of a child being transferred from district court to circuit court is that the child loses the greater procedural protections and provisions of the juvenile justice system and is held for trial under adult procedures. See Kent v. United States, 383 U.S. 541, 547, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

Humphrey points out that in utilizing the word "shall" throughout KRS 635.020(2) and KRS 640.010(2), the legislature intended there be no waiver of the preliminary hearing by the minor; thus, Humphrey's waiver was a nullity. We disagree. Voluntary waiver by the minor of the preliminary hearing in KRS 640.010(2) is not an aberration. In so concluding, we refer to KRS 600.010(2)(e), which specifies that "[u]nless otherwise provided, such protections [of KRS Chapters 600 to 645, the Kentucky Unified Juvenile Code] belong to the child individually and may not be waived by any other party." In other words, in this provision, the legislature is signaling its intent that a child may waive any of the rights set out in the Kentucky Unified Juvenile Code, unless otherwise provided. See D.R. v. Commonwealth, Ky.App., 64 S.W.3d 292, 296 (2001) (holding that, under KRS 610.060, "a child may waive the right to counsel only if that child has first been appointed, and consulted with, counsel concerning the waiver.")

In concluding that a child may voluntarily waive the preliminary hearing, we further rely on the nature of the proceeding, which is dispositional rather than adjudicatory. On this point, the preliminary hearing "does not result in any determination of guilt or innocence or in confinement or punishment." State v. Muhammad, 237 Kan. 850, 703 P.2d 835, 839-40 (1985) (holding that, under Kansas state law, a court may conduct a transfer hearing "without a voluntary waiver of appearance by the juvenile if counsel is present and allowed to participate on the juvenile's behalf.") Moreover, applying the reasoning of Commonwealth v. Townsend, Ky., 87 S.W.3d 12, 15 (2002), if a defendant can waive his constitutional right to a trial by jury, which he can, there is no reason why he cannot also waive his statutory right, under KRS 640.010, to a preliminary hearing to determine if he should be transferred to circuit court as a youthful offender. (Townsend held that a defendant could waive the "finally discharged" provision of KRS 640.030(2)(b).)

Humphrey further supports his argument that the preliminary hearing cannot be waived by citing Benge v. Commonwealth, Ky., 346 S.W.2d 311 (1961) for the proposition that, since a transfer hearing is a jurisdictional requirement, a juvenile is unable to waive that hearing. Benge, however, was a direct appeal case from a judgment entered on a verdict, and this case is not. Benge, 346 S.W.2d at 312. This case is a collateral attack under RCr 11.42 of a guilty plea, therefore, we believe Schooley v. Commonwealth, Ky.App., 556 S.W.2d 912 (1977), is applicable on this point.

In Schooley, the appellant, Lonnie Schooley, filed a motion under RCr 11.42 in which he argued that the circuit court never acquired jurisdiction over the charges against him because there was no valid transfer of the case by the juvenile court. Id. at 914. In analyzing the issue, the court considered the fact that circuit courts had general jurisdiction to try felony cases. Id. at...