K.R. v. Commonwealth

360 S.W.3d 179, 2012 Ky. LEXIS 4, 2012 WL 593199
CourtKentucky Supreme Court
DecidedFebruary 23, 2012
DocketNo. 2010-SC-000076-DG
StatusPublished
Cited by10 cases

This text of 360 S.W.3d 179 (K.R. v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.R. v. Commonwealth, 360 S.W.3d 179, 2012 Ky. LEXIS 4, 2012 WL 593199 (Ky. 2012).

Opinion

Opinion of the Court by

Justice NOBLE.

This case comes before the Court on review of the Court of Appeals’ affirmance of entry of a writ of mandamus by the [182]*182Jefferson Circuit Court requiring the Jefferson District Court to transfer Appellant, K.R., a/k/a J.W., to circuit court as a youthful offender pursuant to the mandatory transfer language in KRS 635.020(4) when a firearm is used in commission of a felony offense. For the reasons set forth herein, this Court affirms.

I. BACKGROUND

Appellant was charged with first-degree assault, first-degree burglary, and tampering with physical evidence in a juvenile proceeding in Jefferson District Court on June 19, 2008. At that time, she was sixteen years old. At a subsequent probable cause and transfer hearing under KRS 635.020(4), the Commonwealth amended the assault charge to complicity to commit assault in the first degree and the burglary charge to attempted burglary in the first degree.

At the hearing, the Commonwealth’s sole witness was a police officer who had investigated the case. The officer stated that Appellant had only lived in Louisville for a few months, engaging in prostitution. The adult male victim, Juan Velasquez, had acknowledged that he engaged in prostitution with her. At that time, he and Appellant got into a dispute over the nature of the sex act to be performed after he had already paid her. When she attempted to leave, he and some of his roommates grabbed her and pulled a bracelet off her arm.

Appellant reported the theft of her bracelet to a male friend, Javier Gutierrez, and another juvenile acquaintance, J.L., who had a gun. The three then drove by Velasquez’s apartment complex, and one of the men shot into an apartment. However, this was the wrong apartment, but Appellant did finally direct them to the correct one. Appellant knocked on the door and climbed up on the window, attempting to gain entry. When that failed, she and the two males started around to the back of the apartments, but one of the males saw Velasquez at a window and shot him in the face. Velasquez had to have surgery to remove a bullet from his jaw.

Appellant later took the gun from J.L. and gave it to another man, allegedly in exchange for drugs, and J.L. then beat her. This incident led to the police learning of the assault against Velasquez and charging Appellant.

The Commonwealth moved the district court to order transfer to the circuit court under KRS 635.020(4), which mandates transfer if the district court finds, among other things, that there was probable cause to believe that a firearm was used in the commission of a felony.1 After hearing the officer’s testimony at the transfer hearing, the district court found that there was probable cause for the charges — including complicity to assault — for purposes of detention. The court, however, found that there was no probable cause to believe that Appellant had used a firearm in the commission of the offenses. Specifically, the court found that there was no testimony that Appellant had wielded the gun, provided the gun, asked that the victim be shot, or knew in advance that someone would be assaulted. The court thus found that there was insufficient evidence to demonstrate Appellant’s “use” of the firearm under KRS 635.020(4). As a result, the district court declined to order transfer of the Appellant to circuit court as a youthful offender.

[183]*183The Commonwealth then filed a petition for a writ of mandamus with the Jefferson Circuit Court, asking that the court order the district court to transfer Appellant as a youthful offender. On October 9, 2008, the circuit court granted the writ of mandamus. Appellant filed a timely appeal at the Court of Appeals, which affirmed entry of the writ by the Jefferson Circuit Court. This Court granted discretionary review to clarify the effect of being charged with complicity when a firearm was used in commission of the offense under the firearm provision of KRS 685.020(4), and whether a writ is appropriate under circumstances such as those in this case.

II. ANALYSIS

Petitions for extraordinary writs are decided by a two-step analysis. First, a court must determine whether such an extraordinary remedy is even available before looking at the merits of a petitioner’s claim. See Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.1961). If the remedy is not available, “the petition should be dismissed forthwith.” Id. Second, if the remedy is available, the court looks to the merits of the petitioner’s claim and decides whether the lower court is proceeding erroneously. Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky.2004) (“[0]nly after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue.”). Even then, whether to issue the writ lies within the discretion of the higher court. Id. at 5 (“[W]hether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion.”); Bender, 343 S.W.2d at 800 (“The exercise of this authority has no limits except our judicial discretion.”).

A. The Writ of Mandamus Is an Available Remedy.

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. Hoskins, 150 S.W.3d at 10. The second class usually requires a showing of no adequate remedy by appeal and great and irreparable injury. Id. Of these two requirements, the first is mandatory; the second is not. Bender, 343 S.W.2d at 801. 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. A finding of “great injustice and irreparable harm” is not necessary in this type of writ. Grange Mut. Ins. Co. v. Trade, 151 S.W.3d 803, 808 (Ky.2004). However, if there is an adequate remedy by appeal, this type of writ is not available. Id.

The Court of Appeals affirmed the writ on the grounds that the Commonwealth had no adequate remedy by appeal and that this was one of the “certain special cases” discussed in Bender. Appellant argues that a writ of mandamus is not appropriate in this case because the Commonwealth did not establish the elements necessary under the “special cases” category.

The Court of Appeals correctly found that the Commonwealth did not have an adequate remedy by appeal in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
360 S.W.3d 179, 2012 Ky. LEXIS 4, 2012 WL 593199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kr-v-commonwealth-ky-2012.