RENDERED : MAY 20, 2010
TO BE PUBLISHED
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BRANDI CHIPMAN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2007-CA-000690-MR
KENTON CIRCUIT COURT NOS .
06-CR-00539 AND 06-CR-00539-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING, VACATING AND _REMANDING
This case involves the disposition of a juvenile convicted in circuit court
and sentenced as a youthful offender. The Court of Appeals affirmed. This
Court granted discretionary review to address two issues : (1) Does KRS
640.040(4) apply to a youthful offender transferred to the circuit court based
on her "use of a firearm" under KRS 635 .020(4) when she pleads guilty to a
lesser included offense, the elements of which do not reflect the use of a
firearm? And (2), in answering the first question, what sources should the
court consider? For the reasons set forth below, the Court of Appeals is
reversed .
I. Background
Appellant, Brandi Chipman, was a seventeen-year-old girl with no prior
criminal history. She bought marijuana from Brandon Vest, and gave him a
video camera as collateral until she could come up with the money for the
drugs. Later, Vest refused to return the camera, claiming that he had sold it.
Learning that Vest still had the camera, Appellant asked three adult males to
accompany her while she went to Vest's apartment to exchange the money for
her camera.
One of the adults allegedly brought a gun with him, pistol-whipped Vest,
and took various items from the apartment. Appellant claimed that she
believed the adults were just going to accompany her while she retrieved her
property, and that she did not know one of them had a gun or that any of them
intended to rob or hurt any occupants of the apartment.
Appellant was charged with first-degree burglary, first-degree robbery,
and second-degree assault. After a preliminary hearing, the district court
transferred Appellant to circuit court, where a grand jury indicted her on these
three charges . She entered into a plea agreement with the Commonwealth
before trial, pleading guilty to second-degree robbery. In exchange, the
Commonwealth recommended an eight-year sentence and dismissal of the
other charges. She also agreed to testify against the adult males and to help
police apprehend two of them who had avoided arrest.
After some discussion, Appellant's attorney and the Commonwealth
agreed that Appellant should be sentenced as a juvenile, not as a youthful
offender. The circuit court disagreed, based on its interpretation of the relevant
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statute, and sentenced Appellant as a youthful offender to sixty-one months'
imprisonment . The court then allowed Appellant to amend her earlier plea to
be conditional, in order to allow this appeal .
The Court of Appeals affirmed Appellant's sentence. This Court granted
discretionary review to consider whether Appellant should have been sentenced
as a juvenile .
II. Analysis
Whether Appellant should have been sentenced as a juvenile or an adult
is a question of law. Consequently, this Court will review the decision of the
circuit court de novo . Richardson v. Louisville/Jefferson County Metro
Government, 260 S.W.3d 777, 778 (Ky. 2008) (citation omitted) .
At common law, through the present day, Kentucky has recognized that
children should not be held to the same standard as adults . However, as
modern society saw a rise in more heinous crimes being committed by
children, concerns about punishment and setting an example soon followed .
Consequently, the legislature enacted exceptions to the Juvenile Code by
creating a class of offenders known as "youthful offenders," who are children
that are prosecuted and sentenced as if they were adults . Yet, being mindful of
the traditional reluctance to treat children as adults, the legislature set a high
bar for children to be deemed youthful offenders .
Thus, under the statutory scheme, KRS 635 .010- .120 8v 640 .010- .120,
two steps are required before a child will be sentenced as a youthful offender.
First, the child must qualify for transfer to circuit court and prosecution as a
youthful offender by falling under one of the youthful offender provisions in
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KRS 635 .020(2)-(7) . Then, upon conviction in the circuit court, the child may
be sentenced as a youthful offender only if he is not "exempt" under KRS
640 .040(4) . This means that the child's ultimate conviction must continue to
qualify him as a youthful offender under one of the provisions in KRS
635 .020(2)-(7) . See Canter v. Commonwealth, 843 S.W .2d 330, 331-32 (Ky .
1992) . As a result, to be properly sentenced as an adult, a child must qualify
as a youthful offender both for prosecution and for sentencing . Id.
The only provision which could qualify Appellant as a youthful offender
here is KRS 635 .020(4) . That provision states that a child
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.
This provision continues: "If convicted in Circuit Court, he shall be subject to
the same penalties as an adult offender," as set forth in this and other statutes .
Appellant does not argue that her initial transfer was improper . Rather,
her argument is that she could not be sentenced as a youthful offender
because she was "exempt" from such sentencing under KRS 640 .040(4) . That
provision states that: "Any youthful offender convicted of a misdemeanor or
any felony offense which would exempt him from KRS 635.020(2), (3), (4), (5),
(6), (7), or (8) shall be disposed of by the Circuit Court in accordance with the
provisions of KRS 635.060 [juvenile sentencing] ." This exemption provision
covers KRS 635.020(4), the "use of a firearm" provision at issue in this case .
The effect of this exemption statute was clearly articulated in Canter.
Canter was charged with murder and first-degree criminal abuse. She was
transferred to circuit court for trial as a youthful offender under KRS
635.020(2) because she was "charged with a capital offense, Class A felony, or
Class B felony, [and] had attained age fourteen (14) at the time of the alleged
commission of the offense ." The murder charge qualified her for transfer
because she was over fourteen and murder is a capital offense, see KRS
507.020(2) ; however, the first-degree criminal abuse charge did not because
that offense is only a Class C felony, see KRS 508.100(2) . Canter was
ultimately acquitted of the capital offense but convicted of the Class C felony,
and then sentenced as a youthful offender.
On appeal, the issue was whether Canter could be properly sentenced as
a youthful offender, given that her only conviction was for a Class C felony, a
charge for which she could not have been transferred. This Court unanimously
held that such sentencing was improper and remanded with instructions to
sentence her as a juvenile . Canter, 843 S .W.2d at 332 .
In its decision, this Court focused on the crime for which Canter was
actually convicted :
A Class C felony, of which Canter was ultimately convicted, certainly
would not fall within the purview of KRS 635 .020(2) ; had she originally
been charged with only a Class C felony, she clearly would have been
exempt from youthful offender status, and disposition would have been
pursuant to IKRS 635 .060 [juvenile sentencing] .
Id. The Court then explained the importance of focusing on the conviction for
sentencing purposes, rather than on mere charges:
The Commonwealth contends that Canter is not exempt from KRS
635 .020(2), because that statute was satisfied when Canter was "charged
with a capital offense ." We find the Commonwealth's position utterly
untenable. First, KRS 640 .040 is clearly and entirely intended to
prohibit certain sentencing alternatives . . . . The Commonwealth's
interpretation would render KRS 640.040(4) a nullity. Secondly, and
more fundamentally, we cannot accept the proposition that the final
disposition of any offender is dependent upon the original charge rather
than the ultimate conviction . We will not presume guilt, and particularly
not after acquittal.
Id .
The Canter decision makes it clear that sentencing of children is
controlled by the child's conviction, not any prior charge that may have been
the initial basis for transfer. Id. Indeed, as this Court realized in Canter, this
is the only way to give KRS 640.040(4) any effect, as that statute requires that
certain convictions in circuit court "exempt" children from youthful offender
sentencing . Such exemption would be impossible if the sentencing did not
depend on whether the ultimate conviction satisfied the youthful offender
statutes.
Thus, this case turns on whether the crime of which Appellant was
convicted continued to qualify her as a youthful offender. This depends on
whether she was actually convicted of a felony in which "a firearm was used ."
See KRS 635 .020(4) .
Despite the clarity of Canter, that case is not dispositive here because
KRS 635.020(4) creates a unique problem: it is the only youthful offender
provision whose applicability post-conviction will not be self-evident . All other
youthful offender provisions require looking at only the class of the crime, the
age of the defendant, and perhaps prior adjudications or convictions on his or
her record . I For that reason, determining whether the relevant provision still
applies when fixing a sentence can be done by glancing at the defendant's
conviction and official records . In almost every case the issue will be clear and
uncontestable, and a direct application of Canter will allow the court to resolve
the issue with little effort.
In contrast, the "firearm was used" provision is fact-specific and requires
the court to conduct deeper inquiry . The court must look at the particular
facts underlying the conviction because, as the Commonwealth points out in
its brief, KRS 635 .020(4) covers crimes for which the use of a firearm is not an
element but where a firearm was nevertheless used in a particular case.
Indeed, the crimes potentially covered by the provision are quite broad : it
requires that the "child committed a felony[ and] that a firearm was used in the
commission of that felony."
Seemingly, any felony could qualify under the right set of facts. For
example, although first-degree wanton endangerment and reckless homicide
need not involve a firearm, see KRS 508.060; KRS 507 .050, they certainly
could . And the crime for which Appellant pleaded guilty, second-degree
robbery, requires that "in the course of committing theft, [s]he use[d] or
threaten[ed] the immediate use of physical force upon another person ." KRS
1 See KRS 635 .020(2) ("capital offense, Class A felony, or Class B felony" by child at
least fourteen years old); (3) ("Class C or Class D felony," with one prior felony
adjudication as a juvenile, by child at least sixteen years old) ; (5) (felony, by child
with previous conviction as youthful offender, before eighteenth birthday) ; (6) (joining
lesser charges for youthful offenders under subsection (2)) ; (7) (felony committed
before eighteenth birthday by person who is at least eighteen years old) ; (8) (joining
certain offenses) .
515 .030 . This could involve-but certainly does not need to involve-the use
of a firearm.
However, the seeming breadth of this provision is curtailed because the
use of the firearm must be tied to the child . This is because the statute refers
to a firearm being "used in the commission of that felony," referring back to the
felony "that the child committed." KRS 635.040(4) (emphasis added) . Thus, the
child must use the firearm while committing a felony, or at least be complicit in
another person's use of a firearm. Indeed, this is consistent with the statutory
scheme, which subjects children to adult sentencing for only the most heinous
and serious of crimes . However, it also underscores the uniqueness of the "use
of a firearm" provision because it requires evidence in the record indicating
that the child used a firearm in committing the felony; the child's use of a
firearm will not be self-evident from the conviction .
If the use of a firearm is not self-evident from the conviction, it must
appear somewhere from the record . In this case, Appellant and the
Commonwealth reached a plea agreement before trial, and so no evidence was
introduced that might establish Appellant's use of a firearm . Indeed, other
than Appellant's plea colloquy, no testimony was heard at all. Of course, if this
case were tried, the court could have made findings, based on the evidence
introduced at trial, about whether Appellant had used a firearm. The
disposition of the child depends on whether or not a firearm was used, and so
a finding in this regard is necessary to properly fix the sentence . But here, the
court had no evidence before it on this point. The court only had the plea, and
so the plea must establish Appellant's use of a firearm . It did not do so.
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Of course, if the Commonwealth wishes to preserve the possibility of
youthful offender sentencing when negotiating pleas, it could require
defendants to stipulate to their use of a firearm (or to their complicity in
another's use of a firearm) as a condition of the plea agreement. In addition,
the Commonwealth could require an express, knowing, and voluntary waiver of
the right to juvenile sentencing, which would vest the court with the discretion
to sentence the defendant under the harsher, adult provisions, if appropriate .
See Kozak v. Commonwealth, 279 S.W .3d 129 (Ky. 2009) .
No such stipulation, agreement, or waiver was made here . In fact, the
record makes clear that the Commonwealth's Attorney had no objection to
sentencing Appellant as a juvenile . He told the court: "I have no problem after
having had it pointed out to me that she must be treated as a juvenile . The
legislature says that in these circumstances (juvenile sentencing is required],
then they are the ones that made the policy." The Commonwealth never
objected to juvenile sentencing or argued that Appellant had waived juvenile
sentencing . Indeed, the Commonwealth expressly stated that sentencing as an
adult was not a condition of the plea . And when the court ruled that Appellant
was to be sentenced as an adult anyway, the Commonwealth asked the court
to amend her plea to make it conditional to allow the issue to be appealed . In
short, the Commonwealth had the opportunity to secure the possibility of
youthful offender sentencing, but decided it was not in the interest ofjustice to
do so.
In support of upholding the youthful offender sentencing on appeal, the
Commonwealth points to two statements made to the court. Specifically, that
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Appellant "acknowledged that one of the participants had a . . . pistol" during
the plea colloquy and that "the Assistant Commonwealth's Attorney explained
for the court that the co-defendant pistol whipped the victim ." This does not
adequately establish that Appellant used a firearm or was complicit in another
person's use of a firearm.
With respect to the colloquy, Appellant's agreement with the court that
one of the adult males accompanying her "was carrying a .25 caliber pistol"
does not establish her use of the pistol. First, this Court has stressed that
"use" requires something more than mere "possession" or being "armed." See,
e.g., Darden v. Commonwealth, 52 S .W.3d 574, 577 (Ky. 2001) ("We believe the
terms `possession of a weapon' and `use of a weapon' are two entirely different
concepts .") ; Haymon v. Commonwealth, 657 S.W .2d 239, 240 (Ky. 1983) ("[T)he
General Assembly took pains to distinguish between being `armed' with a
weapon and the `use of a weapon' in the burglary statute.") . Carrying a firearm
is synonymous with possessing or being armed with a firearm; Appellant did
not state that the firearm was used by her or anyone.
Second, and more importantly, this statement is not an admission that
the pistol was used by Appellant . As noted above, KRS 635.020(4) requires
that the child use the firearm (or be complicit in its use) . Appellant admitted
that one of her co-defendants happened to have a gun . This is a far cry from
admitting to even a personal connection to the gun, much less a personal use,
especially since Appellant had maintained throughout the proceedings that she
was unaware that her companion had brought the pistol with him.
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With respect to the Commonwealth's statement to the court, Appellant's
use of the firearm cannot be established by the Commonwealth's theory of the
case . "[T]he arguments of counsel are not evidence." Miller v. Commonwealth,
283 S .W.3d 690, 695 (Ky. 2009) . In fact, if anything, the Commonwealth's
belief that juvenile sentencing was appropriate based on the plea suggests that
the Commonwealth's theory was that although Appellant had planned the
robbery, she was not complicit in the use of a firearm . But in any event,
juvenile dispositions must be based on the underlying conviction, as in Canter,
or in the case of the "use of a firearm" provision, based on evidence introduced
supporting the underlying conviction . Here, the conviction is based on a plea,
which does not in any way show Appellant's use or complicity in another's use
of a firearm.
In short, the record before the court suggesting that Appellant used a
firearm conpists of her statement that somebody else possessed a firearm and
the prosecutor's statement about the Commonwealth's theory of the case . The
former is not an admission to her use, as the statute requires; the latter is not
proper evidence of any sort. No stipulation to using a firearm was made in the
plea agreement, a condition the Commonwealth could have placed during
negotiations. This is not enough to conclude "that [Appellant] committed a
felony[ and] that a firearm was used in the commission of that felony." KRS
635 .020(4) . For that reason, Appellant is exempt from youthful offender
sentencing by virtue of KRS 640 .040(4) . Cf. Canter, 843 S .W.2d at 332 .
III. Conclusion
The Court of Appeals is reversed, Appellant's sentence is vacated, and
the case is remanded with instructions to sentence her as a juvenile under KRS
635 .060.
Minton, C.J. ; Abramson, Cunningham, and Scott, JJ ., concur. Venters,
J., dissents by separate opinion in which Schroder, J., joins .
VENTERS, J ., DISSENTING : There is no reasonable doubt in this case
that in the second-degree robbery that Chipman committed, a firearm was
used to persuade the robbery victim to surrender possession of Chipman's
camera . The Majority opinion imposes an unreasonably narrow interpretation
of KRS 635 .040(4) in holding that, because the gun was held in the hand of her
accomplice instead of her own, she is immune from the enhanced punishment
the legislature intended for youthful offenders who commit crimes with guns.
While the Majority's holding may seem benign, even compassionate, in this
case of "a seventeen-year-old girl with no criminal history," its sinister aspect
will become glaringly apparent when invoked by youthful gang members with a
violent and dangerous past . I therefore dissent . Schroder, J., joins .
COUNSEL FOR APPELLANT :
Timothy G . Arnold
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Gregory C . Fuchs
Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204