A.W. v. Com., No. 2003-SC-000424-DG.

• Decision Date: 16 June 2005
• Docket Number: No. 2003-SC-000424-DG.
• Citation: 163 S.W.3d 4
• Parties: A.W., A Child Under Eighteen, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

163 S.W.3d 4

A.W., A Child Under Eighteen, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-000424-DG.

Supreme Court of Kentucky.

March 17, 2005.

As Modified on Denial of Rehearing June 16, 2005.

Timothy G. Arnold, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Robert E. List, Assistant Campbell County Attorney, Covington, Gregory D. Stumbo, Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

This is an appeal from the Court of Appeals, which upheld the Juvenile Court's exercise of contempt powers as punishment for violations of conditions of probation; yet reversed the contempt sentence due to the absence of several due process safeguards during the hearing.

A.W., a fourteen-year-old juvenile, was adjudicated a public offender on March 21, 2001 by the Campbell District Court, juvenile session, and given a thirty (30) day detention sentence, probated with conditions — two of which where "to abide by a nightly curfew" and "to receive no new charges." Less than two months later, in May of 2001, A.W. was charged with an additional count of Harassment. Then again, on June 24, 2001, the Department of Juvenile Justice (DJJ) filed an affidavit that A.W. had failed to abide by her curfew.

The matter was set for hearing the next day, at which time, A.W., and her counsel, were advised by the court the hearing would be a contempt hearing regarding her violations of probation. A.W. did not speak at the hearing; rather her counsel stated he had reviewed the DJJ's affidavit with A.W. and while A.W. "does not admit each . . . allegation . . ., she substantially admits . . . the contempt." The record does not reflect the consequences of any admission to the DJJ's allegations were ever explained to A.W. by the court.

Following the colloquy between A.W.'s counsel and the court, A.W. was held in contempt and sentenced to sixty (60) days detention, all but fifteen (15) of which were probated for two years. Appellant then appealed the Juvenile Court's Judgment to the Campbell Circuit Court, which affirmed, holding the juvenile code "compelled" a contempt finding. Thereafter, the Court of Appeals granted Discretionary Review and rendered it's Opinion, acknowledging the validity of contempt proceedings in juvenile proceedings, but reversing on a finding that "the procedures which the court followed ... did not comply with her substantive due process rights."

For reasons set out hereinafter, we affirm the Court of Appeals in its decision.¹

A.W. first contends the juvenile court erred in finding her guilty of contempt for violation of conditions of probation, as opposed to revoking her probation. We disagree. The Appellant cites several well reasoned decisions which support her argument. However, we are not dealing with adult sentencing, rather a very specific Kentucky Juvenile Justice Code, which as the Court of Appeals properly observed, is replete with references to, and authority for, the appropriate use of the court's inherent contempt powers in connection with the juvenile court's enforcement of its orders. KRS 610.010(10) specifically acknowledges that "(n)othing in this chapter shall prevent the District Court from holding a child in contempt of court to enforce valid orders previously issued by the court." Conditions of probation are orders of the court. See also, KRS 600.060.

The Appellant also suggests her conduct and failure to obey the probation order were not of such magnitude as to threaten the court's authority, or such that would tend to bring the court into disrepute, suggestively asserting this to be the sole standard for the appropriate exercise of contempt powers by a court. However, the standard is much broader than suggested. "Unlike the general authority to govern the course of a court proceeding, (the) contempt power may be used to regulate a party's out-of-court behavior.... Although a contempt proceeding is designed for the vindication of the dignity of the court . . . another purpose . . . is to persuade a contemnor to do what the law requires." 17 C.J.S. Contempt § 2.

The Juvenile Code simply does not allow a court to give up on the rehabilitation of a juvenile who refuses to perform the terms of probation. Thus, the contempt power exists for the purpose of compelling the juvenile to comply with the court's orders and to enable the court to help the juvenile become a productive citizen. "KRS Chapter 635 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen...." KRS 600.010(2)(e). Nor can it be said that the imposition of contempt sanctions for violations of specific conditions of probation, violates the Appellant's due process rights of fair treatment and/or double jeopardy. See, Butts v. Commonwealth, 953 S.W.2d 943 (Ky.1997), and Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1997).

The second question is whether or not the Juvenile Court, in the exercise of its contempt powers, was bound by the detention limitations of forty-five (45) days for public offenses (for fourteen-year-olds) as set out in KRS 635.060(4). To answer this question, we again turn to Kentucky's Juvenile Justice Code.

Concededly, KRS 635.060's purpose is to limit the length of any sentence a juvenile court may set at "dispositional hearings" for "public offense" cases. KRS 600.020(46), however, defines "public offense" as "an action, excluding contempt...." KRS 600.060 further provides, "Notwithstanding any other provision of KRS Chapter 600 to 645, the inherent contempt powers of the court shall not be diminished." Clearly then, since the court below was not setting a sentence at a "dispositional hearing" for a "public offense," KRS 635.060 could not be a limitation on the court's inherent powers of contempt. A contempt sanction in a contempt hearing for the violation of the court's order is certainly distinguishable from a sentence set at a dispositional hearing for a public offense. Were it otherwise, "The general rule is that any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional." Norton v. Commonwealth, 37 S.W.3d 750, 754 (Ky.2001). That is, unless comity is granted. See, Foster v. Overstreet, 905 S.W.2d 504 (Ky.1995). Being an acknowledgment of the right of the courts to protect their inherent power, KRS 600.060, removes from question any limitations on such powers in this instance.

Based upon the foregoing, it is the opinion of this Court that KRS 635.060 does not act as a limitation on the length of sentence a juvenile court may impose in the appropriate exercise of its inherent contempt powers for violation of its orders.

Therefore, to the extent reviewed herein, the opinion of the Court of Appeals is affirmed.

LAMBERT, C.J., GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ., concur.

COOPER, J., dissents by separate opinion, with KELLER, J., joining that dissent.

1. The "cautionary dicta" in the Court of Appeals decision regarding the timing and use of a juvenile court's contempt powers, as well as the opinion of the court as to violations of due process, were not considered since they were not before us. CR 76.21(1), and Green River Dist. Health Department v. Wigginton, 764 S.W.2d 475, 479 (Ky.1989), overruled on other grounds, Withers v. U.K., 939 S.W.2d 340 (Ky. 1997).

Dissenting Opinion by Justice COOPER.

Today's majority opinion permits a trial court, under the pretext of exercising its contempt powers, to (1) increase a defendant's punishment post hoc because the defendant violated a condition of probation and (2) circumvent the explicit maximum sentences authorized by the Unified Judicial Code, specifically KRS 635.060. Because I believe a trial court's contempt powers should be narrowly defined and employed only when no other remedy is available, I respectfully dissent.

In Hord v. Commonwealth, 450 S.W.2d 530 (Ky.1970), our predecessor court held that to increase a defendant's punishment upon revocation of probation is "repugnant to the spirit, if not the letter, of the Federal and State Constitutions on [grounds of] former jeopardy, speedy trials, and due process." Id. at 531. In this case, the juvenile court did exactly that, increasing A.W.'s potential confinement from thirty to sixty days. By labeling A.W.'s wrongdoing as "contempt of court," instead of a "probation violation," the juvenile court accomplished indirectly what it could not do directly. Blasi v. Blasi, 648 S.W.2d 80, 82 (Ky.1983) (Leibson, J., concurring) ("[C]ourt has no power to do indirectly what it cannot do directly"). The fact that A.W. is a juvenile and not an adult is of no consequence. Juveniles are entitled to the same constitutional protections and fundamental fairness as adults. Application of Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (juvenile court delinquency "hearing must measure up to the essentials of due process and fair treatment"); W.M. v. State, 437 N.E.2d 1028, 1034 (Ind.Ct.App.1982) (juvenile court cannot use its contempt power to incarcerate a juvenile guilty only of a status offense).

Not only did the juvenile court increase the sentence for the underlying offense, it also increased the sentence beyond the maximum authorized by the General Assembly. "The power to define crimes and assign their penalties belongs to the legislative department." Hoskins v. Maricle, 150 S.W.3d 1, 11 (Ky.2004). KRS 635.060(4) expressly sets out the options a court has in the disposition of a case dealing with a public offender between the ages of fourteen and sixteen. A court may, inter alia, order confinement, "for a period of time not to exceed forty-five (45) days," KRS 635.060(4), and that limitation applies no matter how many offenses the child committed. Cf. Commonwealth v. W.E.B., 985 S.W.2d 344, 345 (Ky.1998) (...