CRIMINAL: Youthful offenders, violent offenders, upon reaching majority: COM. V. MERRIMAN & COM. HICKMAN (SC 9/18/2008)

COM. V. MERRIMAN
COM. V. HICKMAN
CRIMINAL: Youthful offenders, violent offenders, upon reaching majority
2006-SC-000330-DG.pdf  REVERSED AND REMANDED – Fayette
2006-SC-000332.pdf AFFIRMING – Jefferson
2006-SC-000690-DG.pdf REVERSED AND REMANDED – Fayette
PUBLISHED:
Opinion by Noble; Venters not sitting
Date Rendered: 9/18/2008

The sole question at issue in these two cases is whether a juvenile, convicted as a youthful offender, is subject to the provisions of KRS 439.3401, the Violent Offender Statute. The Court of Appeals issued opposite opinions from two panels, and since this is a matter of first impression, this Court granted discretionary review on the Commonwealth’s motion. SC held that youthful offenders are not subject to the Violent Offender Statute. The decision of the Court of Appeals in Hickman v. Commonwealth is affirmed and the decision in Merriman v. Commonwealth is reversed and remanded for the review mandated by KRS 640.030(2).

The intent of the Juvenile Code was set forth by the legislature in KRS 600.010: "[P]romoting protection of children" ; that "Any child . . . under KRS Chapters 600 to 645 . . . shall have a right to treatment reasonably calculated to bring about an improvement in his condition ; "providing each child a safe and nurturing home"; and that "all parties are assured prompt and fair hearings," plus other specific intentions. With these goals in mind, KRS Chapter 640, Youthful Offenders, must be read for its purpose as well. This Chapter has no separate introductory statutes, but instead begins with when and how a preliminary hearing shall be conducted. This Chapter makes it clear that if a child qualifies as a youthful offender and is transferred to circuit court, he "shall then be proceeded against in the Circuit Court as an adult, except as otherwise provided in this chapter." KRS 640 .010(2)(c) (emphasis added). This concluding language is important because KRS 640.030, 640 .040, and 640 .050 do provide otherwise by requiring specific procedures adult offenders do not get, and providing some specific limitations on treating youthful offenders as adults. Particularly, the "resentencing" procedure and required adjudications in KRS 640.030(2) are unique, specific, and mandatory ("that individual shall be returned to the sentencing court" ; "the sentencing court shall make one (1) of the following determinations"). Indeed, KRS 640.030 is in its entirety an exception to treating a youthful offender as an adult offender.

By mandating the courts to make certain determinations when a juvenile is returned on his 18th birthday, the legislature had no need to specifically say in addition that the Violent Offender Statute does not apply. By the very language in KRS 640 .030(2), it is apparent that the Violent Offender Statute cannot act to prevent consideration of probation or conditional discharge on the youthful offender’s 18th birthday.

Digested by Scott C. Byrd
www.olginandbyrd.com

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