RENDERED: JUNE 14, 2018 TO BE PUBLISHED
2017-SC-000155-DG [Q)~ll~1/l/o:K,m fklmo11,DC..
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2015-CA-000709-DG JEFFERSON CIRCUIT COURT NO. 14-XX-000013
B.H. APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
The Commonwealth seeks discretionary review of a decision affirming the
Jefferson District Court Juvenile Session's finding that B.H. was incompetent
to stand trial and dismissing the charges against him. The circuit court
upheld, and the Court of Appeals affirmed. We granted the Commonwealth's
motion for discretionary· review to consider if the Juvenile Session of the
District Court (district court) acted without jurisdiction in determining B.H. 's
competency. After review of the record, we affirm . .• I. BACKGROUND .
.B.H. was born on December 21, 1997. He has an extensive history of
criminal charges; the first dating back to when he was nine years old. B.H. was still a juvenile at the time of the charges in this case. It is not necessary
for us to recount the details of B.H. 's criminal record, but among the charges
incident to this case were terroristic threatening, robbery, and murder.
In 2008, when B.H. was 10 years old, following a petition charging him
with first-degree sexual abuse and fourth-degree assault, Dr. David Finke was
appointed to perform a competency evaluation. Dr. Finke found that B.H.'s
intellectual . functioning. was extremely low or impaired; B.H. lacked a factual or
ratiqnal understanding of the trial process; and B.H. lacked the ability to assist
counsel in his defense. Dr. Finke found that B.H. was not competent to stand
trial and that he would not likely gain competency within the statutory
"foreseeable future" of one year .1
In 2010, a plethora of charges were again brought against B.H. Dr.
Finke was appointed to perforrri a competency evaluation. Dr .. Finke again
found that B.H. was not competent to stand trial.
In 2011, after B.H. was charged for multiple new offenses, Dr. Finke
performed another competency evaluation. Dr. Finke found B.H. incompetent
to.stand trial but stated that B.li. might gain competency within the
foreseeable future due to his maturity and improved understanding of .the
court system. In 2012, after receiving additional charges, B.H. was found
competent. Pending adjudication, B.H. was released_ on home incarceration .
. In December 2012, B.H ..was in an automobile accident and suffered
severe injuries; B.H. was admitted to the hospital with no· brain activity arid
1 Kentucky Revised Statute (KRS) 504.060(3).
\ . remained in a coma until Aprjl 2013. In September 2013, B.H. was arrested
for first-degree robbery and murder that had occu.rred the previous October
before the automobile accident.· The Commonwealth moved to transfer B.H. 's
case to circuit.court pursuant to KRS 635.020(2) and KRS 635~020(4), the
statutes for discretionary and mandatqry transfer, respectively. B.H. also ,r
moved for a competency evaluation.
The district court diq not immediately address the motion to transfer but
. first granted B.H.'s motion for a competency evaluation. Dr. Finke performed
the ev~uation, detailing the effects of the automobile accident on B.H. 's·
physical and cognitive functioning, and found· that B.H. was currently
incompetent to stand trial. _Dr. Finke acknowledged that it was possible for
B.H. to continue to have improved brain functioning and gain competency
within one year.
Dr. Brandon C. Dennis conducted a pediatriC neuropsychological
evaluation on B.H. and he filed his report with the court. Intelligence testing
generated a full-scale IQ of 46. Dr. Dennis concluded that even though B.H.
co-q.ld continue to make subtle improvements within the next year, he would
have persistent cognitive impairments, indefinite~y.
The district court then conducted a competency hearing. After hearing
from Dr. Finke and Dr. D~nnis, the court found B.H. incompetent to stand tri8.l.
.and unlikely to attain competency in the foreseeable future. The pending
charges were C'.iismissed without·prejudice. The Commonwealth appealed the
finding of incompetency to the Jefferson Circuit Court, arguing that the district
3 · court's. decision was not supported by substantial evidence. The -circuit court . .
affirmed, holding that there was substantial evidence to support the finding.
The Commonweaith then moved the _Court of Appeals for discretionary
review. There, the Commonwealth abandoned its argument that the district
·. court's decision was clearly erroneous and instead arglied that the court acted
without subject .matter.Jurisdiction when it decided the issue of competency._
The Court of Appeals held that the district court had s~bject ~atter
jurisdiction over B.H. 's case, and the Commonwealth had confused subject
matter jurisdiction with particular case jurisdiction. Because particular case
jurisdiction is subject to waiver, and the Commonwealth failed to object to the I
competency determination at any stage_ of litigation prior to discretionary
review with the Court of Appeals, the Court of Appeals held that the
Commonwealth had waived its right to contest any error.
The Commonwealth then moved this Court for discretionary· review,
which we granted. We agree with the courts below and affirm .
. II.· STANDARD OF REVIEW. I
Jurisdiction is a question of law, and our review. is de novo. · Caesar's . . Riverboat Casino, LLC v. Beach, 336 S:W.3d 51, 54 (Ky. 2011) (citing
Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, -53-54 (Ky.
2007)). Furthermore, "[s]tatutory in_terpretation raises pure questions of law,
so our review is· de novo, meaning we afford no deference to the decisions
below." Department of Revenue, Fr.nance and Admin. Cabinet v'. Cox Interior, Inc., 400 S.W.3d 240, 242 (Ky. 2013) (citing Commonwealth v. Love, 334
S.W.3d 92, 93 (KY: 2011)).
III. ANALYSIS.
A. The Juvenile Session of the District Court had subj~ct matter jurisdiction to conduct a. competency hearing.
The Commonwealth's argument before us is that the Juvenile Session of
the Jefferson District Court did not have subject matter jurisdiction to consider
the issue of B.H. 's competency. According to the Commonwealth, once it filed
a motion to transfer, the district court was limited to ~olding a transfer hearing
· pursuant to KRS 635.020(4) which states, in pertinent part:
Any other provision of KRS 610 to 645 to the contrary notwithstanding, if a child charged with a felony in which a firearm, whether functional or not, was used in the commission of the offense had attained the age of fourteen( 14) years at the time of the commission of the. alleged offense, he shall be transferred to the Circuit Court for trial as an .adult if,. following a preliminary ·hearing, the District Court finds probable cause to believe that the child committed a felony, . that a firearm was used in the commission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony.
The Commonwealth maintains that, because B.H. was charged
with a felony in which a firearm was used and B.H. was fourteen years
old at the time of the offense, the district court could only conduct a
preliminary hearing regarding probable cause as to these enumerated
·factors. In essence, the Commonwealth argues the court's subject
matter jurisdiction was limited to the preliminary hearing required for
transfer. The Commonwealth's argument fails, however, as our
5 jurisprudence on both jurisdic;:tional and constitutionaJ. issues does not . . support the Commonwealth's proposition.
1. The General Assembly has vested di•trict courts with jurisdic~ion ·over juvenile cases.
The juvenile code assigns J1:1risdiCtion to. the juvenile session of the
district court.for "any person who at the time of committing a public offense
.was under the age of eighteen (18) years ...."· Commonwealth v. S.K., 253
S.W.3d 486, 487 (Ky. 2008) (internal. citations omitted). The code is intended
to provide safeguards for juveniles .. Johnson v. .Commonwealth, 606 S.W.2d
622, 623 (Ky. 1980). · The jurisdiction of district courts is exclusive relating to
· minors unless jurisdiction is vested by law in some other court. See KRS
24A.130.
A juvenile can be classified as a youthful offender and transferred to th~ .
circuit cou~. The "circuit court acquires jurisdfotion over a case in which a
juvenile is accused of violating the penal code only if the juvenile is alleged -to be a youthful offender and the district court transfers the child to circuit . . . . .
court:" Jackson v. Commonwealth, 363 S.W.3d 11, 17 (Ky. 2012) (~mphasis
added). Before the circuit court acquires jurisdiction, the district ~ourt must
hold a preliminary hearing. Id. "Only af~er the .district court satisfies these ·
proce':lural hurdle.s does the circuit court acquire jurisdiction over fu.e
juvenile's case." Id. at 18. (internal citations omitted).
It is clear to this Court that the district court had jurisdiction over B.H.
B.H. was a juvenile at the time of the offense. Any petition of charge~ against
6 hirri was required to be brought under the juvenile code, granting jurisdiction
to the Jefferson District Court.
2. The Commonwealth confuses subject matter jurisdiction with particular case jurisdiction.
"It is fundamental that a court must have jurisdiction before it has
authority to decide a case. Jurisdiction is the ubiquitous procedural threshold
through which all cases and controversies must pass- prior to having their
substance examined." Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).
This Court's case law is replete with discussion and clarification of
jurisdictional issues. In Nordike v. Nordike, we addressed the three types of
jurisdiction: personal jurisdiction, subject matter jurisdiction, and jurisdiction
over the particular case. 231 S.W.3d 733 (Ky. 2007). Subject matter
jurisdiction is the court's power to hear and rule on a particular type of case
and is absent "only where the court has not been given any power to do
anything at all in such a case." Id. at 737-38 (quoting_ Duncan v. O'Nan, 451
S.W.2d 626, 631 (Ky. 1970) (quoting In Re Estate of Rougeron, 217 N.E.2d 639,
643 (N.Y. 1966) (emphasis added))).
On the other hand, there is particular casejurisdiction, which is the
court's authority to decide a specific case, not just that type of case. "This kind
of jurisdic:tion ·often turns solely on proof of certain compliance with .statutory
requirements. and so-called jurisdictional facts, such as that an action was
begun before a limitations period expired." Nordike, 231 S.W.3d at 738. "Once
a court has acquired subject matter and personal jurisdiction, challenges to its
7 subsequent rulings and judgment are questions incident to the exercise of
jurisdiction rather than to the existence of jurisdiction." Commonwealth v.
·Steadman, 411 S.W.3d 717, 722 (Ky. 2013) (internal citations omitted).
Whether a court ~as subject matter jurisdiction is determined at the beginning of a case, based on the type of case presented. General subject matter jurisdiction should be determinable from· the face of the charging document (the indictment) or other initial pleading (the complaint). Thus, a court 'will retain jurisdiction over such a case so long as jurisdiction was proper in the first place.
Id. (citing Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009)). 2
Once again, it is clear to this Court that the district court had subject )
matter jurisdiction over the Commonwealth's case against B.H. The charging
document, the petition, was mandated to be filed in district court. The type of
case is ajuvenile offender case that must be heard, at least initially, by the
district court. Only after the juvenile is presented to the Juvenile Session will
any discussion of the circuit court's jurisdiction arise. As such, subject matter
jurisdiction was properly vested in the Jefferson District Court at the time of
the competency hearing.3
2 See also Commonwealth v. Adkins, 29 S.W.3d 793, 795 (Ky. 2000) ("There is a presumption against divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction. Indeed, once a court has acquired jurisdiction, no subsequent error or irregularity will remove that jurisdiction, so that a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law, or both." (citations omitted)). · 3 The Commonwealth also cites to K.R. v. Commonwealth, 360 S.W.3d 179 (Ky. 2012) for the proposition that the General Assembly has found KRS 635.020(4) to be mandatory because of the seriousness of the use of guns by juveniles. The Comrilonwealth is correct that our legislature· has found transfer proceedings to be · supportive of the public policy "of essentially no tolerance of gun-related crimes by juveniles." Id. at 184. Despite this policy, the Commonwealth's reliance on K.R. is misplaced and runs afoul of its jurisdictional argument.
8 3. The Commonwealth waived its right to object to lack of particular case jurisdiction..
Subject matter jurisdiction cannot be waived or conferred by agreefi?.ent,
and a party may challenge a c_ourl's lack.of subject matter jurisdiction any.
time, even for the first time on appeal. Hisle v. Lexington._Fayette .Urban County
Government; 2ss S.W_.3d 422, 431 (Ky. App. 200.8) (citing No~di~e, 231 S.W.3d
In K.R., the district court denied the Commonwealth's motiori to transfer and the Commonwealth filed a writ of mandamus with the circuit court. Id. at 182. The · circuit c_ourt issued the writ and both the Court of AppeBis and.this Court affirmed. Id. at _183. The crux of this Court's decision re~ted with the classes of cases in which writs are available. As Justice Noble stated: The extraordinary writs are available in two. classes of cases. · The first, which is not at issue here, requires, a showing that the lower court is acting without jurisdiction and there is no remedy available from an intermediate court: The second class usually requires a showing of no adequate remedy·by appeal and great and irreparable injury.... While it is true that writs are. extraordinary remedies usually disfavored by the courts, there are "special cases" . that merit entry of a writ when "a substantial miscarriage of justice" will .occur if the lower court proceeds . erroneously, and correction of the error is in ·"the interest of orderly judicial administration. Id. (internal citations omitted) (emphasis added). The Court went on to· find that a writ was available to the Commonwealth because it had no adequate rem~dy by appeal and the district court's decision threatened the sound a4ministration of justice. Id. at 184. Because the district ·court chose not to transfer the case; upon disposition, jeopardy would attach, and the Commonwealth ~ould have no :i:emedy by appeal or otherwise. Id.
The present case does not present the same conuridrum of inadequate remedies for · · the Commonwealth. We have held that "a trial ·court's dismissal of an ·indictment based on a finding that the defendant is incompetent to stand trial is not a dismissal with prejudice u_nless it is designated as such ... · ." Keeling v. Commonwealth, 381 S.W.3d 248, 258 (Ky. 2012) (internal quotations omitted). "We further.hold that prosecution of a criminal defendant originally found incompetent to stand trial for his alleged crimes is permissible upon a sub.sequent finding of competency to stand trial, so long as the later prosecution does not violate the defendant's Constitu.tional rights." ·Id. at 259. In this case, the Juvenile Session specifically dismissed the petition· "without prejudice," allowing the Commonwealth to bring a subsequent petition upon B.H. being found competent.· K.R. is clearly distinguishable and not applicable ..
9 at 738.). Particular case jurisdiction, however, is subject to waiver.· Id~ (citing
Collins v. Duff, 283 S.W.2d.179, 182 (Ky. 1955)).
Initially th~ CommonweaJth appealed the district court's determination nf
competency, arguihg that the record lacked substantial evidence to support the
finding. that B.H. was incompetent. u·was not until the Court of Appeals, and
· ultimately this Court, granted discretionary review that the issue of jurisdiction
was ever raised.
As stated above, subject matter jurisdiction is absent when the court
lacks authority to make any decisions. That is not the case here. The
Commonwealth's position notwithstanding, the district court had the authority
to conduet the transfer hearing. · Thus:, the district court had authority to take
some action and had proper subject matter jurisdiction over the case.
The Commonwealth's argument confuses lack of jurisdiction with a
court's error or -misuse of jurisdiction. The Commonwealth argues, irt this
case, that the district court could only conduct a hearing on the
Commonwealth's motion to transfer B.H. to.circuit court. The Commonwealth
simultaneously argues that the district court had subject matter jurisdiction to
conduct the transfer hearing but lacked the subject matter jurisdiction to
consider competency .. The Commonwealth.concedes that district courts
generally have subject matter jurisdiction to conduct competency hearings.
The Commonwealth's argument, however adamantly phrased in subject matter
terms, provides a quintessential example of particular case jurisdiction. And
because the Commonwealth did not raise the issue of jurisdiction until it was
10 ·before the Court of Appe8.Is, we must find that the Commonwealth has· waived
any right to contest the actions of the Jefferson district court. Hisle, 258
S.W.3d at 431.
B. The statutory evolution of KRS 635.020 supports this result~
Juvenile law is a relatively new body of jurisprudence. The juvenile code
was enacted with the intent to rehabilitate juvenile offenders as opposed to the
retributive nature of the penal code. See Phelps v. Commonwealth, 125 S.W.3d
237, 240 (Ky. 2004). "For this reason there are no distinctions made between
violations, misdemeanors, or felonies for purposes of dispositions in juveriile
court." Id. (citing A.E. v. Commonwealth, 860 S.W.2d 790, 793 (Ky. App.
1993)). Our General Assembly has tried to strike a balance with the juvenile
code and courts' handling of penal offenses committed by juveniles. The
evolution of this commitment to protect juvenile offenders is apparent in the
evolution of the transfer statute.
KRS .635.020 was first enacted in 1986 and has uridergone multiple
amendments and revisions. In 1994, the statute looked only at the qffenses
charged ih determining whether a juvenile was to be maridatorily transferred to
circuit court. The juvenile was not entitled to a preliminary hearing regarding
probable cause for the transfer. · .. Any other provision of KRS Chapters 610 to 645 to the contrary notwithstanding, if a child charged with a felony in which a firearm was used ,in the commission of the offense had attained the age of fourteen (14) years at the time of the commission of the alleged / offense, he shall be tried in the Circuit Court as an adult offender and shall be subject to the same penalties as an adult offender, except that until he reaches the age of eighteen (18) years, he shall be confined in a secure detention facility for juveniles or for 11 youthful offenders, unless released pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be transferred to a facility operated by the Department of Corrections to serve any time remaining on his sentence. ·
In 1996, the General Assembiy amended the statute to provide for
maridatocy transfer after· the district court conducts a pre~iminary heanng:
Any other provision 'of KRS Chapters 610 to ·645 to the contrary notwithstanding, if a child charged .with a felony in which a firearm was used in the commission of th~· offonse had.attained the age of fourteen (14) years at the time of the commission of the alleged offense, he shall be transferred to the Circuit Court for trial as an adult if, following a preliminacy hearing, the District Court finds probable cause to believe that the child committed a felony, that a firearm was used in the commission of that felony, and that the child was fourteen (14) ye~s of age or older at the time of the commission of the alleged felony. . ...
The present . version of the statute took. effect in 2002, . to reflect the
legislature;s policy concerns regarding any use of firearms by juveniles.
Any other provision of KRS Chapters 610 ·to 645 to the contrary .notwithstanding, if ·a child .c_harged with a felony iri which a firearm, whether functional or not, was· used in the commission of the offense had _attained the age of fourteen (i°4) years at the time of th·e commission of the alleged offense; he shall be transferred to the Circuit Court for trial as an adult .if, following a preliminary hearing, the District Court finds probable cause to believe that· the child committed· a felony, that a firearm was used "in the co:mmission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony (emphasis added).
The evolution of KRS 635.020(4) reflects the progression of
society's general understanding of the juvenile justice system. Earlier
·. versions provided for automatic transfer based on ·the charge alone.
Later versions, and the current version,. add the protections of "certain
p_rocedural safeguards, such as a'preliminary hearing.~ Pollini v.
12 Commonwealth, 172 S.W.3d 418, 425 (Ky. 2005). It is this advancement . . in the law that persuades this Court to determine the General Assembly
intended juveniles to remain under th~ jurisdiction of the district courts,
except in the most extreme circumstances.
C. The Federal Constitution and the laws· of the Commonwealth support holding competency hearings, if necessary, prior to transfer proceedings. · . '
1. Defendants have a constitutional due process right to a fair trial and with that includes the requirement that the defendant be competent to stand trial.
The Commonwealth argues that the district court did not have the
authority to address the issue of competency prior to addressing the issue of
trap.sfer to the circuit court. The Commonwealth relies on Commonwealth v.
Deweese, 141 S.W.3d 372 (Ky. App. 2003). In DeWeese, the Commonwealth
moved for mandatory transfer pursuant to KRS 635.020(4) and, prior to the
transfer hearing, DeWeese requested discovery. Id. at 374. Discovery was
ordered, and the Commonwealth filed a writ of prohibition. Id. The Court of
Appeals ultimately held that the district court had no jurisdiction to order
discovery prior to ruling on the motion to transfer. Id. at 375-76.
De Weese is distinguishable from the present case. "There is no general
.... constitutional . . right to discovery in a criminal case ... the Due Process Clause
has little to say regarding the amount of discovery which the parties must be
afforded." Weatherford v. Bursey; 429 U.S. 545, 559 (1977) (internal
quotations and citations omitted); see also Porter v. Commonwealth, 394
S.W.3d 382, 387 {Ky. 2011).
13 There exists both a federal· constitutional right and a state statutory right
to competency. "The [Fourteenth Amendment] due-process right to a fair trial
is violated by a court's failure to hold a proper competency hearing where there
. is substantial evidence that.a defendant is incompetent." Padgett v.
Commonwealth, 312 S.W.3d 336, 347 (Ky.. 2010) (internal citations omitted)
(emphasis in original). "Relevant evidence includes 'a defendant's irrational
behavior, his demeanor at trial, artd any prior medical opinion on competence. m
Id. "This last factor makes clear that the relevant .inquiry is whether there was
substantial evidence when it was time to hold the hearing, which occurs after
evaluative opinions on competence are filed with the court." Id.
The United ~tates Supreme Court has held that, when determining
competency, "the test must be whether he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding-
and whether he has a rational as well, as factual understanding of the
proceedings against him." Dusky v. U.S., 362 U.S. 402, 402 (1960). This Court
further discussed the statutory and constitution~! rights to competency in
Woolfolk v. Commonwealth:.
. ~ . when analyzing whether a defendant is competent to stand trial, two separate interests - a statlltory right under KRS 504.100(1) and a· ·constitutional right under the Fourteenth Amendment of the United States Constitution - are at stake. More importantly, w~ noted in Padgett that different standards govern those interests." Due process under the Fourteenth Amendment · requires that where substantial evidence that a defendant is not competent exists, the trial court is required to conduct an evidentiary hearing on the defendant's competence to stand trial. In contrast, under KRS 504.100, "reasonable grounds to believe the defentj.ant is incompetent to stand trial" mandates a
14 competency examination, followed by a competency hearing. Thus, while . the failure. to conduct a competency hearing implicates constitutional protections only when substantial evidence of incompetence · exists·, mere "reasonable grounds" to believe the defendant is incompetent implicates the stattitory right to an examination and hearfrig. · .
339 S.W.3d 411, 422 (Ky. 2011) (internal c~tations omitted). . . "The Due Process Clause does not mandate different standards of
competency at various stages of or for different decisions made during
the.criminal proceedings." Godinez v. Moran, 509 U.S. 389, 404 (1993)
· · (Kennedy, J., concurring). It was well within the district court's
discretion to decide the issue of competency prior to the transfer motion.
Capacity or competency to stand trial is addressed in several ways
in our precedent.. Rule of Criminal Proced:ure (RCr) 8.06 states:
If upon arraignment . or during the proceedings there are reasonable grounds to believe ·that the defendant· 1acks the capacity. to appreciate thenature and consequences of the. proceedings against him or .her, or to participate rationally in his or her defense, all proceedings shall be postponed until the issue of inGapacity is determined as provided by KRS·504.100.
KRS 504.100(1) provides :that "If upon .arraignment, or during ariy sta~e
of the proceedings, the court has reasonable grounds to believ~ the
defendant is incompetent to stand trial, the court shall appoint atleast
one (1) psychofogi~t or.psychiatrist to examine, treat and report on the
defendant's mental condition."
The Juvenile Code provides that all hearings "shal~ be conducted in.
accordance with the Kentucky Rules of Criminal Procedure unless
otherwise provided." KRS 645.070(1). The juvenile also has the right to
. 15 \
. be present at any heanng and has ~e right to cross-examine witnesses
and to present testimony. KRS 645.070(3) and (4).
Level of competence· required to permit a child's participation in juvenile court proceedings is no less · than . the competence demanded for trial or sentencing ·of an adult, i.e., children, like. adults, must be able .to understand the nature of the proceedings against them and to participate in their own defense; determination of competency, even .in the context of juvenile adjudicatory proceedings, is a fundamental right, and dispositions in juvenile proceedings, including rehabilitative dispositions, may involve both punishment and a substantial loss of liberty. · . . H. Eugene Breitenbach, Juvenile Court Proceedings,· 14 Am. Jur. Triais
619, at§ 5 (2018) (emphasis added). Included in the requirement thata.
defendant must be competent to stand trial is the propos.ition that a
defendant be able·to assist in his defense. Ford v. Wainwright, 477 U.S.·
399, 421' (1986) (citing Drape v. Missouri, 420 U.S. 162 (1975)).
Compliance with these rules can only occur if the defendant~ adult or
juvenile, is competent to be able to assist counsel in the defe.nse.
2. Transfer hearings are critical stages requiring effective assistance of counsel and a finding of competency attaches at the . transfer stage. · ·
A defendant has a right to be present at every t;rj.tical stage of a
proceeding. See RCr 8.28; Commonwealth v. B.J.~ 241 S.W.3d 324 (Ky.
2007); Section 11 of the Kentucky Constitution;·.Price v. Commonwealth,·
31 S.W.3d 885, S92 (Ky. 2000); U:S.C.A. Const. Amend. 6. The United
.·states Supreme Court has held that ttansfe:r hearings ·are· critically
importantproceedings. See Kent v. U.S., 383 U.S. 541, 560 (1966) ..
16 "Neither the Fourteenth Amendment nor the Bill of Rights is for
adults alone." In Re Gault, 387 U.S. 1, 13 (1967).
The rights to confront one's accusers, to cross-examine witnesses, to pres~nt evidence and testimony of one's own, to be unaffected by prejudicial and unreliable evidence, to participate ·meaningfully in the dispositional decision, to take an appeal have substantial meaning for the overwhelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively. ·
Id. at n. 65.
"The right to representation by counsel is not a formality. It is not
a grudging gesture to a ritualistic requirement. It is of the essence of
justice." Kent, 383 U.S. at 561. "Whatever else it may mean, the right to
counsel granted by the Sixth .and Fourteenth Amendments means at
·least that a person is entitled to the help of a lawyer at or after the time
that judicial proceedings have been initiated against him 'whether by way
of formal charge, preliminary hearing, indictment, ir,iformation, or
arraignment. m Brewer v. Williams, 430 U.S. 387, 398 (1977) (internal
citations omitted).
"The Sixth Amendment, applied to the States through the
Fourteenth Amendment, guarantees that in all criminal prosecutions, the
accused shall . . . have the Assistance of Counsel for his defence [sic].
The core of this right ha~ historically been, and remains today, the
opportunity for a defendant to consult with an attorney and to have him
investigate the case and prepare a defense for trial." Kansas v. Ventris,
· 556 U.S. 586, 590 (2009) (internal quotations and citations omitted).
17 Effective assistance requires counsel to move for a hearing if and
when a defendant's competency inay be at issue. This is so because · . . . . inherent in effective representation is a,client who can ;;tl.so assist in the
preparation of.a defense. A juvenile, and B.H. herein, has the iight to ·
present testimony. and cross-examine witnesses at a preliminary hearing.
See KRS 649'.070(3) and (4). Had the district court not considered the·
··issue of competency, it would have infringed on B.H.'s right to effective
assistance of counsel. As such, this provides yet another.reason for our
affirmance of the court's actions.
· In closing, we note that this c·ase ·presents a cautionary tale
regarding our treatmen_t of juveniles. B.H., while possibly a danger to
. _himself, was, most certainly, a· danger to others. He was raised and ip.
the custody of his grandmother. We c8?not help but wonder about the
management of B.H. 's. life and whether . or not some intervention . by social
. services, our court _system, or otherwise, might have ~erved to minimize . . . .
~e tragedy in this story. While this Court has no doubt about B.H.'s
incompetency, we should strive to balance the interests of rehabilitating
juveniles, reunifying families, and protecting society from public offenses.
IV. CONCLUSION~
. For·the foregoing reasons, we affirm the district court's determination of.
competency prior to the transfer hearing. ]\1ot only did the district court have
jurisdiction to make this determination,. the fundamental notions of justice and
18 . both our state and federal constitutions mandate this action. As such, we
affirm.
All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and
Wright, JJ., concur. VanMeter, J., concurs in result ?nly. . .
COUNSEL FOR APPELLANT: ·
Andy· Beshear Attorney General of Kentucky
Michael J. O'Connell Jefferson County Attorney
Christopher Brown Special Assistant Attorney General - Assistant Jefferson County Attorney
David .A. Sexton Speci~ Assistant Attorney General-Assistant Jefferson County Attorney
COUNSEL FOR APPELLEE:
Daniel T. Goyette Louisville Metro Public Defender of Counsel
Elizabeth Zilberberg . Louisville Metro Public Defender
Bruce P. Hackett