N.T.G. v. Commonwealth, 185 S.W.3d 218 (Ky.App. 2006)
Issue and Holding:
Whether a juvenile court can probate a sentence of detention for a juvenile under the age of 14, when a juvenile under the age of 14 cannot be sentenced to detention. The Court held no, a juvenile court cannot probate a juvenile to a prohibited sentence.
N.T.G. pled guilty to first degree criminal trespass, theft by unlawful taking under $300, and third degree criminal mischief. At the disposition hearing, the court sentenced the juvenile, age 13, to fifteen days in detention, probated upon certain terms, including payment of restitution and no unlawful contact with his co-defendant.
N.T.G. appealed to the Circuit Court. He argued that the juvenile court erred because 1) it failed to impose the least restrictive alternative method of treatment under KRS 630.120(4) and 2) it lacked the authority to impose fifteen days of detention on a 13 year old. The circuit court dismissed the first argument, since the least restrictive alternative method of treatment was not applicable to the facts in this case. That issue was not appealed. The circuit court rejected the second argument based on the fact that 1) KRS 645.060(2) does not prohibit a court from placing a 13 year old on probation and 2) the Kentucky Court of Appeals had previously remanded a case back to juvenile court, requiring that the court consider probation for a 13 year old.
N.T.G. petitioned the Court of Appeals for discretionary review. The petition was granted.
On appeal, N.T.G. argued that a juvenile court cannot probate a sentence that is cannot directly impose. The Commonwealth argued 1) that the issue was unpreserved, 2) that the disposition followed the overall intent of the juvenile code since it was imposed in the best interests of the child and directed toward treatment to bring about improvement in the juvenile, and 3) that any error was harmless since the juvenile was currently over fourteen years old.
As for the Commonwealth’s first argument, the Court held that the issue was preserved, and that even if it was not it would review the issue under RCr 10.26, the palpable error rule.
As for the Commonwealth’s remaining arguments, KRS 635.060 mandates that a juvenile court may only impose a sentence of detention upon a juvenile fourteen or older. The Court held that this statute is controlling and must be strictly enforced. A juvenile court also cannot probate a sentence of detention for a child under fourteen, because that is merely an empty threat.
The Court reversed the circuit court order and remanded the case back to district court for proceedings consistent with the opinion.