Senate Bill 200: Part 1

2015 Annual ConferenceTim Arnold

Glenda Edwards

What We’ll Be Talking About

• Part 1: Public Offenders: SB 200 Changes and Proposed Court Rules

• Part 2: Public Offenders: DJJ Regs, and Proposed Court Rules

• Part 3: Status Offenders: SB 200, FAIR Teams, and Proposed Court Rules

General Purpose of SB 200

“To the extent possible, out of home placement should only be utilized for youth who are high-risk or high-level offenders, and that low-risk, low-level offenders should be served through evidence based programming in their community”

– KRS 600.010(2)(b)3.

Diversion

• Mandatory diversion for kids charged with a first offense misdemeanor– KRS 635.010(4) (eff. 7-15-14)– If county attorney challenges provision, please let

JPDB know

Diversion

• Diversion encouraged for everybody else (FAIR teams)– Proposed JCRPP 13 E.2. Requires diversion in all eligible

public offense cases, where the county attorney does not object in writing, and the child does not decline diversion.

• Note: Judge may overrule diversion on a case by case basis– Challenge any “standing order” or “directive” requiring the

CDW to send all cases of a particular type to court.

• FAIR team process to be discussed later today (Part 3)

Limits on Dispositions

• Apply to all offenses committed on or after July 1, 2015, without request

• Under 446.110, apply to all offenses committed before July 1, 2015, if – the disposition order is not entered until the statute is

effective– The provisions of the statute are mitigating (e.g.,

limitations on commitment)– The child asks for SB 200 to apply

Dispositional Options – What hasn’t changed in SB 200

• Restitution and fines– But, see R.S. v. Comm., 423 S.W.3d 178 (Ky. 2014)

• Detention, except for violations (e.g. harassment)

• Status offenses procedures and dispositions (other than contempt)

Contempt

“Notwithstanding any other provision of KRS Chapter 600 to 645, the inherent contempt power of the court shall not be diminished, except that an order of detention for a child found in contempt shall not exceed thirty (30) days.” – KRS 600.060 (eff. 7/1/2015), see also KRS 635.055

(same), but not KRS 630.070.

Violations (e.g. harassment)

• No detention as a disposition

• No commitment as a disposition

• No probated commitment

Violations (e.g. harassment)

• Probation limited to 30 days, or 3 months if needed to complete a treatment program

• Consequence of probation violation – maximum 30 days detention– But, see N.T.G. v. Comm., 185 S.W.3d 218 (Ky. App.

2006)(Cannot probate what could not be imposed directly as a disposition).

No New Limits on Disposition for:

• A, B, C Felonies

• Any offense “involving a deadly weapon.” KRS 635.060(4)(a)2.

• Any offense “in which the child has been declared a juvenile sexual offender under KRS 635.510.” KRS 635.060(4)(a)2.

A, B, C Felonies

• Beware overcharging

• In determining degree of offense, prior offense aggravators do not apply in juvenile court. Phelps v. Comm., 125 S.W.3d 237 (Ky. 2004).

• Sentencing enhancements (like possession of a firearm) do apply in juvenile court. Jackson v. Comm., 363 S.W.3d 11 (Ky. 2012).

Deadly Weapon

• Did child commit an offense “involving a deadly weapon.” KRS 635.060(4)(a)2

• Deadly weapon means what it does in the penal code. See KRS 600.020(17) (incorporating KRS 500.080)

What does it mean to “involve” a deadly weapon?

Certainly more than merely that a weapon was present at the scene.• Most Restrictive: “Use” of a weapon during

the offense. See Darden v. Comm., 52 S.W.3d 574 (Ky. 2001)(possession of weapon not sufficient to prove “use” of a weapon for KRS 635.020(4)).

• Least restrictive: Possession or use of a deadly weapon necessary to prove offense.

Deadly Weapon

• Offenses that will almost always qualify as involving a deadly weapon:– Wanton Endangerment (firing a gun)– Assault 4th, reckless

Deadly Weapon

• Offenses that do not involve “use” of a weapon, where weapon is an element of the offense:– Theft of a firearm– Possession of marijuana while in possession of a

firearm

Deadly Weapon

• No offense should qualify under this section if the gun was simply “laying around” (e.g., receiving, where a gun was found at the scene)

• Gun found at the scene is not “involved” in offense unless it was either used, or possession was an element.– Note, firearm enhancement in drug cases now requires

that that possession be “in furtherance of the offense.” KRS 218A.992(1).

Sex Offender

• Limitations on probation/commitment apply unless child is “declared” a sex offender under KRS 635.515.

• Juveniles can be adjudicated of a sex offense but not declared a sex offender if:– They are intellectually disabled or actively psychotic– They are 12 or under at the time of the offense

(discretionary)– They are adjudicated of a misdemeanor sexual offense

(discretionary)

Misd./D Felony with Prior Record

• Limited commitment possible if prior record sufficient

• Must have “at least three (3) prior adjudications, excluding prior adjudications of offenses designated as a violation, or at least four (4) prior adjudications of violations, which do not arise from the same course of conduct” KRS 635.060(4)(a)1.

Prior Record

• Limitations on probation/commitment apply unless either:– Three prior non-violations (any degree)– Four prior violations

• Violations do not mix and match with other offenses

• Where the offenses are felonies and misdemeanors, the degree of offense is irrelevant.

Prior Record

• Offenses cannot be from “the same course of conduct.”

• Multiple distinct crimes can occur in a single course of conduct, but generally must be tried together. Welborn v. Comm., 157 S.W.3d 608 (Ky. 2005).

• Use this provision to argue that expectation are that there are multiple separate prior dispositions before commitment will be authorized.

Misdemeanors

• Where client meets prior record exception, commitment limited to 12 months. KRS 635.060(4)(b)1.– DJJ Regulation – Maximum 4 months in

placement, with possibility of extension where needed. KRS 15A.0652(3)(d)1.

All Other Misdemeanors

• No commitment• No probated commitment• Probation limited to 6 Months, with leave for

extension up to 12 months “if the court ordered substance abuse or mental health treatment includes a program that requires longer than six (6) months to complete.”

• Maximum consequence for probation violation: 30 days in detention

D Felonies

• Where client meets prior record exception, commitment limited to 18 months. KRS 635.060(4)(a)1.– DJJ Regulation – Maximum 8 months in

placement, with possibility of extension where needed. KRS 15A.0652(3)(d)1.

All Other D Felonies

• No commitment

• No probated commitment

• Probation limited to 12 months

• Maximum consequence for probation violation: 30 days in detention

Probation and supervision

• New terminology for has traditionally been called probation to parents, probation to the court, and probation to DJJ.

• New terminology may affect supervision and use of graduated sanctions

Probation to Parents

• Now called “parental supervision” by statute and court rules. (Note: do not call it “probation”)

• Court rules authorize when services are not needed, or are being provided by the parents, or have been completed and the child is low risk. JCRPP 18 B.2.

• No detention without graduated sanctions. Raising to probation to DJJ is a graduated sanction. JCRPP 18 B.2.d.

Probation to Court

• Not referred to explicitly in statute.• Referred to in court rules as “Probation with

Court Monitoring.” JCRPP 18 B.3.• No discussion in statute or court rules for

revocation process/use of graduated sanctions.

Probation to DJJ

• Referred to as “Probation” in both statute and court rules

• DJJ has the right to visit and supervise the youth

• The Court shall authorize the use of graduated sanctions when probation is imposed.

• DJJ required to use graduated sanctions prior to seeking revocation

Probated Commitment

• Court may not probate commitment to DJJ unless:– Commitment was an available disposition– The dispositional order expressly states that

commitment has been probated– The court explained that commitment was probated

at the time of the original disposition

• Check the prior record and the tape every time!

Revoking probation

• No violation unless proved by a preponderance of the evidence

• Unless commitment suspended at original disposition in a written order, consequence for violation of probation: Maximum 30 days.

Requirement of Graduated Sanctions

• Under KRS635.060(2)(b)2., before probation can be revoked court must find either– Graduated sanctions have been attempted with

this youth, or– By clear and convincing evidence, that no

graduated sanctions are available.

Requirement of Graduated Sanctions

• Under JCRPP 18 B.6.g.1)b) court must:i. Make a finding by clear and convincing evidence

that graduated sanctions have been applied and failed; or

ii. That there are no appropriate graduated sanctions short of detention to address the violation; and

iii. That the child is an immediate threat to himself or others.

Graduated Sanctions & DJJ

Level of sanction to be used based only on seriousness of the violation• Low: The violation has no level of threat to self, family, or

community.• Moderate: Violation has the potential of threat to self,

family, or community. Youth is exhibiting a pattern of substance use.

• High: Violation is clearly threatening to self, family, or community. Youth’s substance abuse has escalated to the point of being out of control making it highly likely for him to reoffend.

Graduated Sanctions & DJJ

One a response level is determined, the particular response is determined by considering the following factors:• Frequency• Length• Amenability• Gravity

Graduated Sanctions

• Cases should not be reported to court for a probation violation unless the response level is high.

• The very minor violation should never result in a report to court, even if it happens over and over again.

• At some point, moderate level violations become high level violations if the child doesn’t change his/her behavior.

Clicker time!

I am in the:

1. Eastern Region2. Bluegrass Region3. Western Region4. Northern Region 5. Central Region6. Louisville office

Eastern

Region

Bluegrass

Region

Weste

rn Regio

n

Northern

Region

Central R

egion

Louisv

ille offi

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Question #1

On July 2, 2015, Client (age 16) allegedly threatens another youth. No weapon was involved. He is charged with terroristic threatening 3rd. Client’s prior record is two prior offenses for terroristic threatening 2nd for making similar threats at school, and three separate charges of harassment without physical contact. All prior offenses were tried and disposed of separately.

What is the maximum possible disposition?

1. Commitment until 182. Probation until 183. Probation for 12

months4. Probation for 6

months, unless extended for a treatment program

5. None of the above Commitment u

ntil 18

Probation until 1

8

Probation fo

r 12 m

onths

Probation fo

r 6 m

onths,

...

None of the ab

ove

20% 20% 20%20%20%

Question #1

• Defendant has two non violations, and three violations. Neither are sufficient to trigger the prior record exception, so the limitations of KRS 635.060 apply

Question #2

On January 1, 2016, client charged with harassment (no physical contact), for an incident which had happened a week before. It is her first offense of any kind. The CDW refers the complaint to the county attorney’s office, and the county attorney directs the CDW to bypass disposition and file a petition formally charging client. The CDW complies.

Diversion is required by statute.

1. True2. False

True

False

50%50%

Bizarrely, statute only requires diversion for misdemeanors. However, counsel should argue that equal protection requires that violations get similar treatment.

Question #3

Next week you are appointed to represent a client charged with a misdemeanor offense. It is his third such offense. Your client is eventually found guilty, and disposition is scheduled for July 10, 2015.

You are sick on July 10, and a colleague covers for you. The next day you come back to your office and get an earful from your client. He was committed until 18, and he says you told him that the most he faced is six months probation. Your colleague says that he asked the judge to probate, but the judge said he did not have to for your client. Your colleague, who does not generally practice in juvenile court, says he was not aware of the changes to SB 200.

What went wrong?

1. You told your client the wrong information.

2. The judge is a flaming idiot who did not follow the law.

3. Your colleague did not specifically ask for SB 200 to apply, and so the judge was not required to apply those limitations retroactively.

You told your c

lient t

he...

The judge is

a flaming id

i..

Your colle

ague did not sp...

33% 33%33%

Question #3

• In Sapp v. Comm., 2011 WL 4430884 (Ky. 2011), the Kentucky Supreme Court found that defendant who was sentenced to five years for possession of drug paraphernalia. Sentencing was after the effective date of HB 463, which made that offense a misdemeanor. The Supreme Court refused to apply the new law because the defendant “did not consent to application of the new statute and, therefore, has waived any challenge to his sentence.”

• Red letter rule: You’ve got to ask!!!

Question #4

Client, who has no prior record, is charged with Arson for setting a small fire inside an abandoned house. The fire occurred after the effective date of SB 200 and caused minimal damage. The prosecutor is willing to allow Client to plead to a misdemeanor criminal mischief charge, but only if Client agrees to be committed for 12 months under KRS 635.060(4)(b)1.. It is a lead pipe cinch that if the case goes to trial the judge will find Client guilty of the Arson charge and commit, and so Client accepts the prosecutor’s offer.

The Court Can Commit the Youth As Agreed

1. True2. False

True

False

50%50%

See Kozak v. Comm., 279 S.W.3d 129 (Ky. 2008)(YO could agree to adult sentencing for non-qualifying offense as condition of plea agreement). But see McClanahan v. Com., 308 S.W.3d 694 (Ky. 2010)(parties could not agree to sentence outside the lawful range of punishment).

Question #5

Client was placed on probation in 2014 for a misdemeanor offense. The order stated “client probated to DJJ until 18.”

In September 2016, client allegedly violated probation by failing to return home by curfew. DJJ imposed graduated sanctions. Several weeks later Client was seen by assistant county attorney out well after curfew. The ACA filed a probation revocation petition.

What is the is the maximum disposition?

1. Commitment2. 30 days in detention3. Nothing

Commitment

30 days in detention

Nothing

33% 33%33%

Question #5

• Commitment is not available, because it was not probated.

• If the limitations on probation were unrelated to the judgment, then the probation ended at the end of 2015 (6 months from July 1, 2015).

• If the limitations on probation are part of the judgment, then probation continued, and 30 days is the maximum.

Questions #6 and #7

Client was found guilty of trafficking in the first degree in 2013 (D felony), and given probated commitment, which was explained to the youth and contained in a written order. Client had no violations and on January 1, 2015, was put on unsupervised probation by DJJ. As a result of an incident on July 16, 2015, client was arrested and charged with trafficking in the second degree, second offense, and a probation violation. Client has no other record.

#9: What is the maximum disposition on the new offense?

1. Commitment until 18

2. Commitment for 12 months

3. Probation for 12 months

4. Probation until 18

Commitment u

ntil 18

Commitment f

or 12 m

onths

Probation fo

r 12 m

onths

Probation until 1

8

25% 25%25%25%

Question #6

Client can only be probated on the current offense. Client cannot be charged with a second offense because he was not “convicted” of the first offense. Therefore, the offense is a class D felony. He does not have the requisite prior record to qualify for commitment.

#7: What is the maximum for the probation violation

1. Commitment until 18

2. Commitment for 12 months

3. 30 days in detention4. Detention and

commitment not available

Commitment u

ntil 18

Commitment f

or 12 m

onths

30 days in detention

Detention and co

mmitme..

25% 25%25%25%

Question #7

As a general rule, the underlying offense controls the disposition on the probation charge, so commitment may be available for the prior offense.

However, argue that as the first offense was not eligible for commitment under SB 200, SB 200 should apply and the commitment portion of the order should be striken.

Question #8

On Sept. 15, 2015, Client and co-defendant are caught smoking weed in Client’s living room. Just before apprehension, Officer saw Client pass a blunt to co-defendant. After arrest Officer secures a warrant and conducts a lawful search of the home, and finds Client’s father’s 9mm handgun in a side table drawer in Client’s living room. Client admits that he knew the firearm was there, but he never looked at it or touched it, and co-defendant was never aware of the firearm. Client has no prior record at the time of the offense. Client is charged with possession of marijuana while in possession of a firearm. Upon prosecutor’s motion, judge rules pretrial that if firearm enhancement is proved, the offense would be an offense involving a deadly weapon.

Assuming the judge’s ruling is correct, what is the maximum disposition

1. Commitment until 18, because the offense involves a deadly weapon.

2. Probation for 6 months because the firearm did not further the offense.

3. None of the aboveCommitm

ent until 1

8, be...

Probation fo

r 6 m

onths .

..

None of the ab

ove

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Question #8

KRS 218A.992 requires that the possession of the firearm must be “in furtherance of the offense.” No case has construed this requirement, but by its terms it must ensure that the offense is in some way “furthered” by the firearm. There is no evidence to show the offense was furthered by the existence of the firearm.

(But don’t assume the judge is right, either.)

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