Commonwealth of Kentucky v. Paradise Burkhead ( 2022 )

RENDERED: MAY 6, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0873-MR
COMMONWEALTH OF KENTUCKY APPELLANT
v. APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 21-CR-000186
PARADISE BURKHEAD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.
GOODWINE, JUDGE: The Jefferson District Court Juvenile Division transferred
Paradise Burkhead’s (“Burkhead”) case to Jefferson Circuit Court under the then-
existing versions of the transfer statutes. After the statutes were amended and her
case was still pending, Burkhead moved to return her indictment back to district
court to conduct a new transfer hearing. The circuit court granted her motion.
After careful review, finding no error, we affirm.
On November 21, 2020, while walking around Louisville, Burkhead
and others allegedly committed a series of offenses. One of the individuals carried
a gun. First, the group attacked an individual on the sidewalk near Boone’s
Convenience Store. Then, they walked to the area of Sixth Street and River Road
where Rocky Seibert was shot and killed by one of the individuals. It is not
alleged that Burkhead fired the gun or ever had possession of it.
On December 18, 2020, a juvenile petition was filed against Burkhead
in Jefferson District Court. On December 21, 2020, the district court held a
hearing to determine whether the charges against Burkhead should be transferred
to circuit court for prosecution as an adult under KRS1 635.020(4) or a youthful
offender under KRS 640.010(2). The district court heard testimony and rigorous
cross-examination from Louisville Metro Police Detective Russell Lassiter, and the
court found:
[Burkhead] ran away from home in [the] middle of the
night/snuck out and engaged [with] a group that fired a
gun repeatedly, then attacked another individual on video
and then allegedly committed the murder of another all in
one night.
Record (“R.”) at 4. Based on these facts, the district court found probable cause to
transfer the charges against Burkhead to the circuit court under the then-existing
version of KRS 635.020(4).
1
Kentucky Revised Statutes.
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On January 25, 2021, Burkhead was indicted by a Jefferson County
grand jury and charged with complicity to commit murder2 and fourth-degree
assault.3 Burkhead was arraigned on February 1, 2021 and entered a plea of not
guilty.
On March 4, 2021, Burkhead filed a motion to return her case to
juvenile court alleging there was “exculpatory evidence which, if heard by the
juvenile judge, would have resulted in a finding of no probable cause on the charge
of Murder[,]” and because there was pending legislation which would amend the
provision of KRS 635.020(4) and KRS 640.010 for transfer of charges against a
youthful offender from juvenile to circuit court. R. at 36-37. On April 6, 2021, the
Commonwealth responded in opposition to Burkhead’s motion.
On July 9, 2021, the circuit court entered an order granting
Burkhead’s motion. The circuit court found, “returning the indictment against Ms.
Burkhead back to district court for the purpose of conducting another transfer
hearing is the most appropriate action to take in light of the recent amendment to
KRS 635.020(4).” R. at 106. Although “the district court [did] not appear to have
erred in any way in transferring Ms. Burkhead under the version of KRS
635.020(4) that was in effect at the time of her transfer,” the circuit court remanded
2
KRS 507.020, KRS 502.020 (capital offense).
3
KRS 508.030, KRS 502.020 (Class A misdemeanor).
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the indictment because the district court would have to consider different factors if
it were asked to determine whether transfer was appropriate under the amended
versions of KRS 635.020(4) and KRS 640.010. R. at 106-07. The Commonwealth
appealed and filed a motion for immediate relief, which this Court granted.
On appeal, the Commonwealth argues, despite the procedural nature
of the amendments to KRS 635.020(4) and KRS 640.010, the circuit court erred in
remanding the indictment against Burkhead to juvenile court for a second transfer
hearing because: (1) the district court properly transferred Burkhead’s case to
circuit court under the statutes that existed at the time of her transfer; (2) the circuit
court was not divested of jurisdiction due to the amendment of the transfer
provisions; and (3) KRS 446.110 does not require remand to juvenile court for
application of the amended statutes under the circumstances of this case.
We must determine whether the 2021 amendments to KRS 635.020(4)
and KRS 640.010 apply retroactively to an ongoing case in which transfer from
juvenile court to circuit court occurred before the statutory amendments became
effective. This is a question of law, which we review de novo. Hamilton-Smith v.
Commonwealth, 285 S.W.3d 307, 308 (Ky. App. 2009).
KRS 446.110 governs the retroactive application of criminal statutes:
No new law shall be construed to repeal a former law as
to any offense committed against a former law, nor as to
any act done, or penalty, forfeiture or punishment
incurred, or any right accrued or claim arising under the
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former law, or in any way whatever to affect any such
offense or act so committed or done, or any penalty,
forfeiture or punishment so incurred, or any right accrued
or claim arising before the new law takes effect, except
that the proceedings thereafter had shall conform, so far
as practicable, to the laws in force at the time of such
proceedings. If any penalty, forfeiture or punishment is
mitigated by any provision of the new law, such
provision may, by the consent of the party affected, be
applied to any judgment pronounced after the new law
takes effect.
Whether a statute applies retroactively depends on whether the change
is substantive, procedural, or remedial. Rodgers v. Commonwealth, 285 S.W.3d
740, 751 (Ky. 2009). First, “[s]ubstantive amendments are those ‘which change
and redefine the out-of-court rights, obligations and duties of persons in their
transactions with others.’” Id. (quoting Commonwealth of Kentucky Department of
Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000)). Second, “procedural
amendments – ‘[t]hose amendments which apply to the in-court procedures and
remedies which are used in handling pending litigation’ . . . – are to be
retroactively applied . . . so that the proceedings ‘shall conform, so far as
practicable, to the laws in force at the time of such proceedings.’” Id. Third,
changes to “penalty provisions – provisions pertaining to punishment, such as
those creating terms of imprisonment, periods of probation or parole, fines, or
forfeitures – may be retroactively applied if the defendant ‘specifically consents to
the application of the new law which is “certainly” or “definitely” mitigating.’” Id.-5-
(citations omitted).
Here, the Commonwealth agrees the amendments to the statutes in
question are procedural, but they should only apply to cases still pending in
juvenile court. The Commonwealth argues the “proceedings” ended when
Burkhead’s transfer from juvenile court was fully adjudicated. However, the
Commonwealth cites no law in support of its position.
Whether Burkhead is entitled to a new transfer hearing with
retroactive application of the applicable statutes depends on the definition of
“proceedings.” We reviewed Kentucky law and found no statute or case law
explicitly defining this term. In interpreting a statute, we “use the plain meaning of
the words used in the statute.” Perdue v. Commonwealth, 411 S.W.3d 786, 790
(Ky. App. 2013) (citations omitted). Black’s Law Dictionary defines “proceeding”
as follows:
1. The regular and orderly progression of a lawsuit,
including all acts and events between the time of
commencement and the entry of judgment. 2. Any
procedural means for seeking redress from a tribunal or
agency. 3. An act or step that is part of a larger
action. 4. The business conducted by a court or other
official body; a hearing. 5. Bankruptcy. A particular
dispute or matter arising within a pending case – as
opposed to the case as a whole.
“‘Proceeding’ is a word much used to express the
business done in courts. A proceeding in court is
an act done by the authority or direction of the
court, express or implied. It is more
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comprehensive than the word ‘action,’ but it may
include in its general sense all the steps taken or
measures adopted in the prosecution or defense of
an action, including the pleadings and judgment.
As applied to actions, the term ‘proceeding’ may
include – (1) the institution of the action; (2) the
appearance of the defendant; (3) all ancillary or
provisional steps, such as arrest, attachment of
property, garnishment, injunction, writ of ne exeat;
(4) the pleadings; (5) the taking of testimony
before trial; (6) all motions made in the action; (7)
the trial; (8) the judgment; (9) the execution; (10)
proceedings supplementary to execution, in code
practice; (11) the taking of the appeal or writ of
error; (12) the remittitur, or sending back of the
record to the lower court from the appellate or
reviewing court; (13) the enforcement of the
judgment, or a new trial, as may be directed by the
court of last resort.” Edwin E. Bryant, The Law of
Pleading Under the Codes of Civil Procedure 3-4
(2d ed. 1899).
Proceeding, BLACK’S LAW DICTIONARY (11th ed. 2019).
Additionally, in the Rodgers discussion of retroactive application of
“procedural amendments,” the Kentucky Supreme Court stated such amendments
apply retroactively “in handling pending litigation.” Rodgers, 285 S.W.3d at 751.
Based on the Black’s Law Dictionary definition of “proceedings” and the
discussion of “procedural amendments” in Rodgers, we discern the plain meaning
of “proceedings” under KRS 446.110 means amended statutes apply retroactively
in any case with no final decision on the merits.
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In addition to giving plain meaning to the language in a statute, we
must also interpret according to “legislative intent.” Commonwealth v. Plowman,
86 S.W.3d 47, 49 (Ky. 2002). KRS 600.010 expressly states the legislative intent
of the Kentucky Unified Juvenile Code codified in KRS Chapters 600 to 645. In
pertinent part, KRS 600.010 states, “The Commonwealth shall direct its efforts to
promoting protection of children.” KRS 600.010(2)(a). Additionally, the
legislature specifically describes the intent for KRS Chapters 635 and 640:
(e) KRS Chapter 635 shall be interpreted to promote the
best interests of the child through providing treatment
and sanctions to reduce recidivism and assist in making
the child a productive citizen by involving the family, as
appropriate, and by advancing the principles of personal
responsibility, accountability, and reformation, while
maintaining public safety, and seeking restitution and
reparation;
(f) KRS Chapter 640 shall be interpreted to promote
public safety and the concept that every child be held
accountable for his or her conduct through the use of
restitution, reparation, and sanctions, in an effort to
rehabilitate delinquent youth[.]
KRS 600.010(2).
The legislature’s express intent is to rehabilitate and reform
delinquent youth. As Burkhead argues, the legislature amended the transfer
process to carry out this intent.
Here, the plain language of KRS 446.110 and the express legislative
intent for KRS Chapters 635 and 640 support the circuit court’s decision to remand
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Burkhead’s case to juvenile court for a new transfer hearing. Although the district
court properly transferred Burkhead’s case to circuit court under the previous
versions of the applicable statute, the proceedings against her are ongoing as she
has not yet been convicted or acquitted under the indictment. Therefore, we hold
Burkhead is entitled to a new transfer hearing retroactively applying the amended
versions KRS 635.020(4) and KRS 640.010.
For the foregoing reasons, we affirm the judgment of the Jefferson
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Rob Eggert
Attorney General of Kentucky Louisville, Kentucky
Jason B. Moore
Special Assistant Attorney General
Louisville, Kentucky
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