Smith v. Com.

• Citation: 412 S.W.2d 256
• Parties: David William SMITH, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 03 March 1967
• Court: United States State Supreme Court — District of Kentucky

Page 256

412 S.W.2d 256

David William SMITH, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 3, 1967.

David W. Smith, Jr., pro se.

Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

STEINFELD, Judge.

David William Smith, Jr., appeals from the order denying his RCr 11.42 motion to vacate the sentence for which he is now incarcerated in the penitentiary. The trial court afforded an evidentiary hearing, after which the relief sought was denied. The bases for appeal are: (1) that appellant was deprived of due process by the failure of the juvenile court to afford him counsel, and (2) ineffective court-appointed counsel in the circuit court trial.

On April 9th or 10th, 1958, appellant committed armed robbery in Pike County. At that time appellant was 17 years old; he was then a member of the U.S. Navy and absent without leave from his naval duty. Appellant was arrested in West Virginia (his home state) on April 13, 1958. He waived extradition and was returned to Kentucky and incarcerated in the Pike County jail. On April 28, 1958, a hearing was had before the judge of the Pike County Court, sitting as a juvenile court pursuant to KRS Chapter 208. The following order was entered by the juvenile court on that occasion:

'PIKE COUNTY JUVENILE COURT

April 28, 1958

Commonwealth of Kentucky Plaintiff

vs.

David William Smith, Jr. Defendant

Order

A hearing in the above-styled action having been set down for hearing on April 21, 1958, and the accused, David William Smith, Jr., being present in court with his parents, Mr. and Mrs. David William Smith, Sr., and the court having heard witnesses for the Commonwealth, and being sufficiently advised under the provisions of KRS 208.140 as amended, this case is hereby ordered to the Pike Circuit Court Grand Jury for proper action.

/s/ Ervin S. Pruitt, Judge'

On June 3, 1598, the Pike County Grand Jury indicted appellant upon the charge of armed robbery. He was brought before the court on June 9, 1958, at which time counsel was appointed for him by the circuit court judge. The order reciting the appointment of counsel reflects that appellant waived formal arraignment and entered a plea of guilty. The case was passed until the next day for submission to a jury for fixing sentence. The jury fixed sentence at imprisonment for life.

Was appellant entitled to counsel in the juvenile court? Was the failure to appoint counsel for him there of such serious consequence as to vitiate the juvenile court's waiver of its jurisdiction? What effect did the failure to appoint counsel in the juvenile court have upon the validity of the conviction and consequent sentence in the circuit court? All of these are searching and vexing questions which are squarely presented in this appeal.

As early as 1911, when the first juvenile court legislation in Kentucky appeared for testing before this court, it was written that proceedings looking toward the rehabilitation of a juvenile were not criminal proceedings. See Marlow v. Commonwealth, 142 Ky. 106, 133 S.W. 1137. That landmark case stated with approval the underlying principle supporting juvenile courts as agencies for rehabilitation of minors by use of this language:

'The purpose in view is not punishment for offenses done, but reformation and training of the child to habits of industry, with a view to his future usefulness when he shall have been reclaimed to society, or shall have attained his majority. Having been abandoned by his parents, the state, as parents patriae, has succeeded to his control, and stands in loco parentis to him.'

See 133 S.W. at page 1141. Text writers in this field have continued to recognize that precept as warranting juvenile courts in the exercise of a benign, paternalistic supervision over juveniles. This may be sound as it relates to rehabilitation efforts for delinquent juveniles but that is not the situation at bar. Here we deal with the effect of the Juvenile Court's relinquishing the delinquent for processing as an adult.

An annotation on the question of the right to counsel in juvenile court proceedings appears in 60 A.L.R.2d 691, et seq. The case preceding the annotation is the much discussed Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666, 60 A.L.R.2d 686, in which it was held that a juvenile was entitled to counsel even in a delinquency proceeding looking only toward his commitment to training school. We need not decide whether that decision will be followed in delinquency proceedings in this jurisdiction. The interested reader should consult 45 Ky. Law Journal 532--537 for comment upon right to counsel in juvenile court proceedings.

The most recent pronouncement upon the matter before us is found in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Kent the juvenile had an attorney, but the juvenile court did not rule on certain motions made by the attorney. The juvenile court waived jurisdiction of Kent, who was then indicted and convicted of felonies; he was sentenced to imprisonment for indeterminate terms ranging from 30 to 90 years. The juvenile court did not conduct a hearing relating to the question whether its jurisdiction of Kent should be waived. In the course of the opinion delivered in Kent by Mr. Justice Fortas, it was written:

'We do not consider whether, on the merits, Kent should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony--without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to a similar issue, would proceed in this manner. It would be extraordinary if society's special concern for children, as reflected in the District of Columbia's Juvenile Court Act, permitted this procedure. We hold that it does not.' Id., 86 S.Ct. at p. 1053, 16 L.Ed.2d at p. 93.

In the same opinion it is said:

'It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important statutory rights of the juvenile.' Id., 86 S.Ct. at p. 1055, 16 L.Ed.2d at p. 94.

In summarizing the court's views in Kent, Mr. Justice Fortas wrote for the court:

'The net, therefore, is that petitioner--then a boy of 16--was by statute entitled to certain procedures and benefits as a consequence of his statutory right to the 'exclusive' jurisdiction of the Juvenile Court. In these circumstances, considering particularly that decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years' confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.' Id., 86 S.Ct. at p. 1055, 16 L.Ed.2d at p. 95.

In light of the foregoing language we think there is no room for debate on the question whether the present appellant was entitled to counsel in the juvenile court proceedings. As noted, the record demonstrates that he had none.

This was a critical stage of the litigation. Pursuant to KRS 208.020 the jurisdiction of the juvenile court is exclusive unless it be surrendered by that court. Childers v. Commonwealth, Ky., 239 S.W.2d 255. Surrendering jurisdiction was not compulsory on the part of the juvenile court.

A remaining question is whether the error in failing to provide counsel in these circumstances is one that may be reached by RCr 11.42 proceedings. The error could have been raised in the circuit court by a motion to dismiss the indictment and it could have been raised upon appeal to this court if properly preserved. In King v. Commonwealth, Ky., 387 S.W.2d 582, and many subsequent decisions following it, we have held that the post-conviction relief afforded by RCr 11.42 is not a substitute for the appeal process, and does not...