N.L. v. Commonwealth , 323 S.W.3d 732 ( 2009 )

KELLER, Judge,

concurring in result.

As the majority has correctly noted, as a general rule trial judges have broad discretion to grant or deny a continuance. Woodall v. Commonwealth, 63 S.W.3d 104, 128 (Ky.2001). In this case, the district court did in fact grant a four-day continuance to N.L.’s counsel due to the fact that N.L.’s counsel’s first chance to receive and therefore review the juvenile sexual offender assessment report (hereinafter report) was the day of the dispositional hearing. The continuance was granted to allow time for N.L.’s counsel to analyze the report and prepare any appropriate court examination. While I agree with the majority that the mandates of justice require some limitation on the considerable discretion given to trial courts in the granting or refusal of a continuance, I disagree that the facts of this case render that the district court abused its discretion. As noted by the majority, the Department of Juvenile Justice (hereinafter DJJ), may undertake a juvenile sexual offender assessment pursuant to the authority of KRS 635.510(3). Furthermore, pursuant to this statute, upon receipt of the findings of the assessment the juvenile court judge still has the discretion to determine whether the child should be declared a juvenile sexual offender. A review of the audio record in the matter before us reveals that at the dispositional hearing, N.L.’s counsel made a second motion for continuance and request for an ex parte hearing. It is somewhat unclear from this writer’s review of the record the exact purpose for the ex parte hearing requested by N.L.’s counsel. However, N.L.’s counsel does cite the potential confinement of N.L. for up to three years and the need for additional time to provide a response (assum-ingly to the report) already tendered to the court. The Commonwealth stated on the record it had no objection to defense counsel’s request.

A further review of the record reveals that the court was unclear as to the reason for the requested ex parte hearing as the court specifically questioned N.L.’s counsel regarding same. Further, it is this writer’s opinion after review of the audio record of the hearing that N.L.’s counsel did not directly address the court’s question on this matter. Additionally, the court stated that it was concerned that N.L. had been in detention too long and that a further delay would only further lengthen his detention time. Therefore, the court ordered N.L.’s disposition be implemented “per the recommendations of DJJ.” The court clearly articulated a sound and reasonable basis for denying the motion for a continuance, and it appears from the record that the court was referencing the best interest of N.L. Therefore, it is my opinion that the district court did not abuse its discretion.

However, a review of KRS 31.185, which references ex parte requests for funds reveals the following:

The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.

KRS 31.185(2) (emphasis added).

The aforementioned mandates that once a defense attorney requests an ex parte hearing under the statute, the court shall conduct the hearing ex parte and on the record. The district court should have conducted an ex parte hearing at the request of N.L.’s counsel. At the conclusion of an ex parte hearing authorized by KRS 31.185(2), the district court retains the discretion to decide whether or not public funds shall be expended as requested. Therefore, nothing in this opinion shall be construed as directing the district court to order that public funds shall be used to obtain a second juvenile sexual offender assessment by a provider of the defendant’s choice. It should also be noted that it was unclear to the district court and it is unclear from the record as reviewed by this writer what exact purpose N.L.’s counsel had in mind for the requested ex parte hearing. District courts, in particular juvenile court divisions, handle many matters at an often rapid pace to keep up with the demands of their docket. It is incumbent on counsel to make clear to the court what exact relief they are requesting when that request is made.

Furthermore, the majority is critical of the district court for failing to make findings as required by KRS 600.010(2)(c). While it would have been preferable for the dispositional order to contain some additional reference to the court’s decision to commit N.L. to DJJ, the court record in and of itself references N.L.’s prior history of non-compliance while on probation. The majority cites us to X.B. v. Commonwealth, 105 S.W.3d 459, 461 (Ky.App.2003), to support its position in reference to the district court’s failure to make compulsory findings. However, as noted in footnote three of that opinion, “[h]ad the record clearly indicated that X.B. had been before the court on previous occasions and that the court had attempted lesser restrictive alternatives, then the result herein may have been different.” Id. at 461. That precise factual scenario is supported by the record in this case which reveals that N.L. had been noncompliant while on prior probation with the district court.

Accordingly, I would hold that the opinion of the circuit court, upon discretionary review from the district court, be vacated and this matter remanded to the Kenton District Court so the court may hold a hearing as mandated by KRS 31.185(2).