Tuesday, April 30, 2013

KY COA - M.A.M - Juvenile, Boykin, Pre-Adjudication Contempt

M.A.M. v. Commonwealth: ___, S.W.3d ____, 2013WL1488509 (Ky. App. 2013)(Motion to Publish pending, not yet final):
Finding there was a Boykin violation even though counsel present when M.A.M not informed of what rights would be waived or the consequences of an admission to the charges. “the family court made no inquiry during the November 15, 2011 adjudication hearing as to the veracity of the charges or of the child's stipulation, and no inquiry was made as to whether M.A. M.'s stipulation was voluntary or coerced. Nor did the court inform the child during that hearing and before accepting his plea of what the possible consequences, in terms of the range of punishments, would be if he admitted his guilt.”  
The court also held that children cannot be held in contempt for pre-adjudication orders because have not received their full due process rights! Specifically the court held, “In the present case, the JSOO was entered based solely on the allegations against the child. M.A.M. did not receive his full due process rights before the order was entered. Consequently, the (court order) was not a valid court order, and the child could not be held in contempt for violating it.”
Practice Tip: Always object to the entering of pre-adjudication orders, but if they get entered you can argue against any pick-up orders or contempt hearings based on violations of these pre-adjudication orders on due process grounds.
Contributed by La Mer Kyle-Griffiths

Monday, April 29, 2013

KY SC - Edwards - Youthful Offenders and Violent Offender Statute

Edwards v. Harrod, 361 S.W.3d 755 (Ky. 2013)
The Kentucky Supreme Court decided a question that has created much confusion in youthful offender cases: does the violent offender statute apply to youthful offenders in the area of parole?  The court answered with a clear YES.  “(U)nder our holding today, the parole board cannot grant parole to youthful offenders who are ineligible under the Violent Offender Statute.” The Court’s rationale was that “. . . contrary to the probation-eligibility restriction of the Violent Offender Statute, the parole-eligibility limitation on violent offenders does not conflict with the youthful offender statutory scheme.”  The Court held that the differences between probation and parole justified the prohibitions in KRS 439.3401 as there was no statute within the juvenile code that specifically exempted juveniles. All youthful offenders convicted of a violent offense must serve 85% of their sentence before they can be considered for parole.  DOC is also applying the good time and meritorious credit restrictions of KRS 439.3401 to youthful offenders.  
Contributed by Renee VandenWallBake and La Mer Kyle-Griffiths

Thursday, April 25, 2013

"Mistakes Kids Make" Interactive Campaign Launched

The Mistakes Kids Make campaign is a storytelling project funded through the John D. and Catherine T. MacArthur Foundation that seeks to reform policies that punish youth for minor offenses and instead hold youth accountable through supportive measures that teach youth responsibility and improve their chances for a productive life. The campaign’s website features a short video about how one-size-fits-all policies may prevent kids from getting past their mistakes, as well as short stories from celebrities and athletes who have overcome mistakes they made. The campaign asks supporters to pledge to stand up for decisions made in their community that hold kids accountable while providing the support they need to improve their lives. For more about Mistakes Kids Make, click here

Sixth Circuit Rules School’s Search Of Student Cellphone Violated Fourth Amendment - JDSupraLawNews

In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.

The Decision

The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.

That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.

The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.

rest of article from JDSupra 

Wednesday, April 24, 2013

KY COA - Reilly - Deferred Prosecution

Reilly v. Commonwealth, 2011-CA-001608 (To Be Published) 

The Court of Appeals held that KRS 218A.14151(2) does not require a prosecutor to state substantial and compelling reasons for denying deferred prosecution to an eligible person.  Rather, according to the Court, that statute requires the prosecutor to state an opinion on whether the defendant should receive presumptive probation when deferred prosecution has already been denied.  

The Court of Appeals also holds that a judge cannot grant presumptive probation to a defendant without the prosecutor’s agreement, “[T]he court is without authority to question the prosecutor’s motives when it rejects a request to defer prosecution or to order probation without the prosecutor’s agreement.”  

The Court held that the defendant’s interpretation of the statute, allowing a trial court to decide whether a prosecutor had stated substantial and compelling reasons for denying deferred prosecution, would violate the separation of powers doctrine, citing Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).  [Petition for rehearing/motion for discretionary likely to be filed.]

Contributed by Stephen Buck 

Tuesday, April 23, 2013

KYCOA - Lewis - Sufficiency of Evidence for Robbery

Lewis v. Commonwealth, 2012-CA-000244 (To Be Published)

The Court of Appeals held that sufficient evidence of Second-degree Robbery exists when the defendant kept his hands in his pockets and propped one arm upon the counter as he demanded money from a convenience store clerk.  It is reasonable for a victim to assume one making such demand for money might be armed and have a weapon in his pocket in light of the robber’s act of keeping his hands in his pockets and placing one arm on the counter during the crime.

Contributed by Stephen Buck