author: MOORE, Judge.

text:
    A.C., a Minor, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000714-ME.
    Court of Appeals of Kentucky.
    June 4, 2010.

      Rebecca Hobbs, Gail Robinson (argued), Frankfort, KY, for appellant.
    Jack Conway, Attorney General, Ken W. Riggs (argued), Assistant Attorney General, Frankfort, KY, for appellee.
    Before CAPERTON and MOORE, Judges; BUCKINGHAM, Senior Judge.

      . Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION AND ORDER

MOORE, Judge.

A.C., a female child, appeals the order of the Jessamine Family Court finding her in contempt of court and ordering her to be detained until placed in a home by the Cabinet for Health and Family Services (Cabinet), Department for Community Based Services (DCBS), but for no more than thirty days. The Commonwealth of Kentucky moves to dismiss the appeal on the basis that it is moot because A.C. has been released from the DCBS’s commitment. After a careful review of the record, we vacate the family court’s order because it is beyond dispute that AC.’s probation period expired before the court found her in violation of a valid court order, ie., a juvenile probation violation. We deny the Commonwealth’s motion to dismiss because the issues involved in this appeal are not moot.

The unfortunate circumstances that have intertwined and culminated in the appeal before us began in June 2007, when a juvenile complaint was filed against A.C., contending that she was “beyond control of [her] parent,” specifically, her mother. According to the “Preliminary Inquiry Formal/Informal Processing Criteria and Recommendations” filed in the record on June 11, 2007, A.C. “requested a Formal Court Hearing.” Also listed on the form is that “[t]he case is not appropriate for Informal Processing, it is recommended that this case be referred to court for a formal hearing or formal adjustment.”

Pursuant to KRS 610.080,

Juvenile proceedings shall consist of two (2) distinct hearings, an adjudication and a disposition, which shall be held on separate days unless the child, after consultation with an attorney, waives the right to formal predisposition investigation report and moves that the hearings be held the same day. However, if the disposition is to be commitment, the child’s waiver shall not be valid without the consent of the Department of Juvenile Justice or the cabinet.
(1) The adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence.

(Emphasis added).

Pursuant to KRS 610.070,

(1) All cases involving children brought before the court whose cases are under the jurisdiction of the court shall be granted a speedy hearing and shall be dealt with by the court without a jury.
(2) The hearings shall be conducted in a formal manner, unless specified to the contrary by other provisions of KRS Chapters 600 to 645.

On June 28, 2007, a “proceeding” took place in the family court. Evidence was not taken, and the record does not reflect that A.C. admitted to the charge of being beyond control, in violation of KRS 610.080. Nonetheless, on appeal, AC.’s counsel states that “it is possible, based upon the comprehensive order entered by the family court judge on June 28, 2007, that an agreement was reached between the County Attorney and defense counsel. Likewise, since a predisposition investigation report (PDI) was never submitted by the Cabinet for Health and Family Services (Cabinet), nor was a separate disposition hearing held, the agreement was likely intended to be an admission to the charge in exchange for the order of a one (1) year probation period.” With due candor to the Court, the Commonwealth at oral argument before this Court conceded that it cannot explain the silent record and proceedings.

This Court has said frequently that the court speaks only by its written record. Holland v. Holland, 290 S.W.3d 671, 675 (Ky.App.2009). The present case illustrates why this is imperative. Despite the silent written record, nothing the family court stated on the record leads to the conclusion that A.C. actually admitted to the status offense. Given the numerous other irregularities in this case, it is just as possible that no agreement was in fact made. Nonetheless, even assuming that A.C. had admitted to the charge brought against her, the family court had the obligation to hold a hearing under Boykin v. Alabama, 895 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See D.R. v. Commonwealth, 64 S.W.3d 292 (Ky.App.2001), as applied and analyzed in J.D. v. Commonwealth, 211 S.W.3d 60, 62-63 (Ky.App.2006),

Boykin is the seminal case in the arena of the validity of a guilty plea. In Boy-kin, the U.S. Supreme Court stated that “[sjeveral federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.... We cannot presume a waiver of these [] important federal rights from a silent record.” [Boykin] 395 U.S. at 243, 89 S.Ct. 1709. The Supreme Court ultimately held that the trial court committed error when it “accept[ed] petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” Id. at 242, 89 S.Ct. 1709. In D.R., this Court stated that “it [is] beyond controversy that Boykin [] applies to juvenile adjudications.” 64 S.W.3d at 294, FN2. The D.R. court went on to state that:
The validity of a guilty plea must be determined not from specific key words uttered at the time the plea was taken, but from considering the totality of circumstances surrounding the plea.... These circumstances include the accused’s demeanor, background and experience, and whether the record reveals that the plea was voluntarily made.
Id. at 294.
The Sixth Circuit Court of Appeals has also weighed in on this issue in a federal case arising out of the Western District of Kentucky, for which the juvenile had counsel. In Laswell v. Frey, 45 F.3d 1011, 1015 (6th Cir.1995), the court stated:
Upon review, this Court notes that an adjudication demands a determination of the truth or falsity of the allegations, and that a determination of the truth requires more than the simple verbal admission at the detention hearing at issue in the instant case. The Court is persuaded that, because no inquiry was made of the veracity of the charges or admission, because no inquiry was made to determine if “the plea” was voluntarily made, and because no inquiry was made as to the nature of the charges, that the proceedings cannot later be transformed from a determination of probable cause for detention into an acceptance of a valid guilty plea.
Our review of the record reveals that the district court explained J.D.’s Boy-kin rights to him only during the August detention hearing related to the terroristic threatening charge. However, the district court did not specifically review these rights in the context of his decision to admit to both the terroristic threatening and assault charges the following month. In fact, J.D. had never been apprised of his Boykin rights in relation to either the assault or beyond control charges. Thus, there is no evidence in the record to establish that his admission to the charges was voluntary and intelligent at the time it was entered. The situation in this case is quite similar to those of D.R. and Laswell, although J.D. was represented by counsel, unlike D.R. in his case.
The record in the present case shows that under any test, the bare minimum for compliance with Boykin was not met. We recognize that juvenile proceedings are by nature less formal than adult proceedings; and we are aware of the great number of cases most district judges handle. However, juvenile adjudication proceedings must meet constitutional muster, and this one does not. There was no colloquy whatsoever; and from the record it appears that the juvenile’s attorney responded to the district judge’s questions at the adjudication. Under KRS 610.080(1), “[t]he adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence.” (Emphasis added).
Based upon binding precedent, we must hold that the district court improperly accepted J.D.’s admission of guilt without first informing him of his Boykin rights at the time it accepted the plea, a step necessary to establishing that his plea was voluntary and intelligent. Accordingly, the district court should have granted J.D.’s motion to set aside the adjudication and disposition. The circuit court, in turn, committed reversible error in affirming the district court’s ruling.

(J.D. v. Commonwealth, 211 S.W.3d at 62-63)(underline added; internal notes omitted).

Despite the generous interpretation given by A.C.’s counsel on appeal of what actually took place at the proceeding on June 28, 2007, without a Boykin procedure, even an admission to the status offense could not have passed constitutional muster pursuant to J.D. Nonetheless, on that same day, the written record reflects that the family court entered a “Juvenile Status Offender Order” and found that A.C. was a status offender because she was beyond the reasonable control of her parents pursuant to KRS 600.020. The court ordered A.C. to: not leave her home without custodial permission; obey all rules of her home; attend all school sessions on time, have no unexcused absences and no behavior problems at school; not violate the law; maintain at least passing grades in school; and not consume, use, or possess any alcoholic beverages, tobacco products or illegal drugs. The court further ordered A.C. to serve one year of probation and undergo a mental health assessment, which was conducted. And, the court entered a pre-authorized pick up order for A.C., stating to her that if she violated the terms of her probation, she would be taken to jail and the court would not have to be bothered while “sleeping in bed” at night to sign any orders in regard to her. Unfortunately for A.C., this order was not timely appealed although the proceedings ignored constitutional and statutory mandates for juvenile proceedings. Accordingly, we are without jurisdiction to reverse this order. See Kentucky Rule(s) of Civil Procedure (CR) 73.02(l)(a).

While A.C. was serving her probationary period, which was to end on June 28, 2008, a dependency, neglect and abuse (DNA) petition was filed concerning A.C. in March of 2008. The DNA petition stated that there were allegations of physical abuse, emotional abuse, and neglect by AC.’s mother and stepfather toward A.C. During one of the early proceedings in the DNA case, the stepfather stated that “either [A.C.] goes or he goes (from home).” The court specifically asked A.C.’s mother, in the presence of A.C., who she was going to choose. Although A.C.’s mother tried to explain that the family needed help to remain intact, the court asked her to make the choice of either her husband or her daughter despite the fact that A.C. had lived with her mother and stepfather for eleven years. When A.C.’s mother did not make a clear choice, the court entered an order directing A.C. to be placed with her father. A.C. was directed to have no contact with her stepfather, but she was permitted to have supervised visits with her mother. From statements made on the videotapes of subsequent proceedings, A.C.’s mother was only able to have very little visitation with A.C., and A.C. had no visitation with her stepfather, although she expressed a desire to do so.

An adjudication hearing was held in the DNA case. A.C. recanted an earlier statement she had made that her stepfather had hit her one time but did acknowledge that he raised his hand as if he might hit her. A.C.’s testimony included that she wanted to go back home with her mother and stepfather because she had lived with them for eleven years but knew they needed parenting help. A.C.’s mother was again questioned regarding why she had chosen her husband over her daughter and again she stated she was just trying to keep her family together. The court held the mother to her “choice.”

In the adjudication order, the court found A.C. to be neglected and abused, finding specifically that

[A.C.] attempts to recant her earlier statements, unpersuasively. She [sic] explanations [sic] for the change are internally [and] externally inconsistent [with] other facts. She has been abused and continues to be at risk — mother is unable or unwilling to protect her.

A.C. remained in the custody of her father. She only had supervised visits with her mother, and apparently no contact with her stepfather.

In September 2008, a dispositional hearing was held in the DNA case. Most of the audio of the videotaped proceedings is inaudible, and the record scarcely records what occurred. The order entered on September 25, 2008, in the DNA action called it a “close case,” which we assume was supposed to read “closed case.” The written order also provides “diversion for Mr. Corman’s informational purposes.” There is no explanation of what this means.

The DNA case was therefore closed in September of 2008 and A.C.’s probation on the status offense ended in June of 2008, disposing of that matter. At oral argument before this Court, A.C.’s counsel argued that upon the final disposition of the DNA case and the status offense case, there was no longer an open case over which the family court could exercise particular case jurisdiction. The Commonwealth conceded that both cases were closed and that with these two cases closed, there is not a pending open case in family court regarding A.C.

Despite the fact that there are no longer any pending cases against A.C., in March 2009 a summons was issued in the DNA action, in which the father was ordered to appear and bring A.C. to court. The Cabinet also filed a “motion to review,” in which the case worker requested that the case “be brought before the court for status review.” The case worker wrote in the motion as follows: “There have been some behavior problems in school and at home. [A.C.] is currently living with her grandmother but father still retains custody. This worker believes it would be in her best interest to review her case status with the court.” Although no case number was specified on this “motion to review,” the motion was filed as part of the record in the DNA action.

The Cabinet’s “motion to review” was heard by the family court. But rather than focusing on the DNA action, the proceedings focused on a contempt charge against A.C. for the alleged violations of her probation, despite the fact that her probationary period had expired on June 28, 2008. A.C. received no notice until she appeared in court that she was there for a proceeding regarding violation of a court order or her probation terms.

A.C. was with her grandmother; A.C.’s mother was in California at the time of the hearing. It is unclear from the record under what statutory authority the court held the proceedings. At oral argument before this Court, neither A.C.’s attorney nor the Commonwealth could identify under what authority the family court assumed particular case jurisdiction.

Adding further insult to this untenable situation, at the “proceeding” the family court heard more than five minutes of arguments from the Cabinet, the County Attorney, the Guardian Ad Litem (GAL), and the attorneys for both of A.C.’s parents concerning A.C.’s allegedly bad behavior without A.C.’s appointed counsel being present for those arguments. A.C. stood without counsel, with only her grandmother at her side.

Much of the audio from the proceedings is difficult to understand, but it appears that unidentified persons speaking alluded to allegations that A.C. and a sibling had made against A.C.’s father regarding physical abuse. However, the record before this Court contains no such allegations or petitions filed against the father. The father’s attorney stated that the father was fearful regarding what allegations A.C. might make in the future. The GAL stated that A.C. has said things against her father that proved to be unsubstantiated, but the record before this Court does not bear that. This Court attempted to clarify this at oral argument, but neither attorney was aware of a written petition filed in regard to these allegations. And, again, in the presence of A.C., the family court noted that her mother had chosen her husband over A.C. When discussing where A.C. should be placed, the court stated that the mother was out of the question because she had made her election of her husband over A.C. The court stated directly to A.C. that she had “probably played [her] last card.” A.C. requested to speak but her request was denied by the court. In response, the court stated that A.C. should go out in the hall and talk to her lawyer. A break was taken for A.C. to do so.

After A.C. had an opportunity to speak with her attorney, the attorney pointed out to the court that no evidence had been taken on any of the alleged violations of A.C.’s probation. A.C.’s attorney also pointed out that, although the Cabinet believed there was no discipline in A.C.’s grandmother’s home, no evidence had been taken on that issue or whether A.C. was actually doing better while she was living with her grandmother. Additionally, A.C. made no admission to the allegations against her.

Despite that in its DNA adjudication order of May 7, 2008, the family court (1) specifically found A.C. to have been abused and neglected, and (2) found that A.C.’s attempts to recant her statements that her stepfather had hit her one time were “internally and externally inconsistent,” at the March 2009 proceeding the court stated in A.C.’s presence that she had found a way to manipulate her stepfather and in essence wanted to use those same methods against her father. The court also stated that A.C. had found a way to make it “jump,” referencing her statements regarding the petition in the earlier DNA action. The court further stated that A.C. had learned how to manipulate with lies and tears and sometimes had “pulled [its] strings, but this time it’s not.” Thereafter, the court stated directly to A.C. and in reference to her that “[its] heart was stone.”

The family court then revoked A.C.’s probation on the spot, ordering her to “[r]emain detained until placement by DCBS not to exceed 30 days.” She was immediately taken out of the courtroom and detained despite flagrant due process violations; the fact that no evidence was taken nor was there an admission to the alleged violations; the expiration of her probationary period; and the court’s failure to provide a written explanation of the evidence it relied upon. On the form titled “Juvenile Status Or Delinquency Disposition,” under the findings of fact and conclusions of law section, the court merely wrote that A.C. was found to be in “violation of VCO [Valid Court Order],” yet there was in fact no valid court order at the time for A.C. to have violated. The court adopted recommendations from a dispositional report. We assume that the “dispositional report” to which the court was referring was the juvenile probation violation that was included in the record and filed on the same day that the disposition was entered. According to that juvenile probation violation form, the violations A.C. had committed were as follows: (1) she missed several days of school; (2) she left her father’s care and did not have contact with him for two weeks and she changed schools; and (3) she had not been following the rules in her father’s home. As noted, no evidence was taken on these allegations, and A.C. did not admit to them. Remarkably, it was not explained nor explored how a fifteen-year-old was able to switch schools without adult assistance or permission.

Turning to the issue of A.C.’s detainment after the March 2009 proceedings, we first consider the Commonwealth’s claim that the appeal should be dismissed as moot. In support of its motion, the Commonwealth attached a letter from the Cabinet stating that A.C. had “been released from commitment to the Cabinet.... As of 11/19/09 [A.C.] is in the custody of her sister.... Please see the attached Court order.” The court order to which the Cabinet was referring was a docket sheet with the status offense case number at the top, and at the bottom, the following handwritten notes: “(1) DCBS commitment ends[;] (2) custody to [A.C.’s sister;] (3) Dec. 17, [20]09 review[; and] (4) support to be paid to custodian.”

A.C. included with her response in opposition to the Commonwealth’s motion to dismiss a letter from the same Cabinet worker clarifying that A.C. had

been released from commitment to the Cabinet.... As of 11/19/09 [A.C.] is in the custody of her sister.... According to our records [A.C.] was probated to the Court and the Court requested DCBS to supervise that probation [on] 1/17/2008. It is unknown whether or not an end date was given for the probation. To the knowledge of this agency, [A.C.’s] status offense remains under review of the Court. The next review date in Jessamine Co. Family Court is scheduled for 12/17/09.

The Commonwealth concedes that there is no actual case before the family court in regard to A.C. and, therefore, no particular case jurisdiction, yet the family court continues to hold status review hearings.

There typically must be an actual controversy in a ease before a court will review the issues involved in the case. If no such controversy exists, the case is rendered moot. However, a court will review even a moot case if the issues involved in the case are “capable of repetition, yet evading review.” Philpot v. Patton, 837 S.W.2d 491, 493 (Ky.1992) (internal quotation marks omitted).

The decision whether to apply [this] exception to the mootness doctrine basically involves two questions: whether (1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and [2] there is a reasonable expectation that the same complaining party would be subject to the same action again.

Id. (internal quotation marks omitted).

In the present case A.C.’s status offense — although her probation period has long since passed — is still being subjected to review and, in fact, a review hearing was scheduled at that time for December 17, 2009. Thus, because a status offense review hearing was scheduled by the family court and the court was necessarily proceeding, as was the Cabinet, under the erroneous assumption that the court retained jurisdiction over A.C.’s status offense, and that her period of probation had not expired, this Court will review this issue.

A.C. was released from the Cabinet’s commitment because she had served her maximum of thirty days of detention. However, thirty days is too short a period of time for the propriety of the commitment to be fully litigated prior to its cessation. Additionally, the Cabinet and the family court continue to hold review hearings concerning AC.’s status offense, so there is a reasonable expectation that A.C., who is still a minor, may again be detained by the Cabinet, particularly given the flawed history of the proceedings in this case. Therefore, this case meets the exception to the mootness doctrine. Accordingly, the Commonwealth’s motion to dismiss this appeal as moot is denied.

In its appellate brief, the Commonwealth also asserts that this Court should not review any issues pertaining to AC.’s commitment to the Cabinet pursuant to the doctrine of invited error. The Kentucky Supreme Court has held as follows:

Although most criminal cases addressing the issue of invited error do so in the context of a criminal defendant’s waiver of his right to a jury trial, ... the rationale behind the notion that one cannot commit to an act (such as waiving a jury trial) and later complain on appeal that the trial court erred to his detriment is equally applicable when a criminal defendant fails to act (such as foregoing the opportunity to question a witness).... A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where ... it is not clear that the defendant was prejudiced thereby.

Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky.2006) (internal quotation marks omitted).

The doctrine of invited exror does not apply to the present case. AC.’s due process rights were violated. And, nothing in the record supports that A.C. knowingly and voluntarily waived any of her rights. In fact, the only time she was even permitted to speak was during her testimony in the DNA case. When she asked to speak at the “contempt” proceedings, she was not permitted to do so. Nothing in the record reflects that the family court conducted any colloquies into whether she intended to waive any of her constitutional rights. These were not errors that she invited by knowingly waiving her constitutional rights. She certainly did not benefit from any of the errors; rather, she suffered from them on more than one occasion, including spending thirty days in detention. These were errors that occurred through no fault of A.C.’s. In fact, she was brought into court regarding the DNA action, then she was essentially blindsided by the Commonwealth and the court with the charge of contempt in the status offense action. Therefore, the Commonwealth’s allegation that the doctrine of invited error applies to this case lacks merit.

Moving to the contents of A.C.’s arguments before this Court, A.C. acknowledges in her appellate brief that her issues are not preserved. However, she contends that we should review it for palpable error. We agree.

Kentucky Rule(s) of Criminal Procedure (RCr) 10.26 provides as follows: “A palpable error which affects the substantial rights of a party may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” Because of the numerous due process violations A.C. suffered, we will review this issue.

Certain due process requirements must be met before a defendant’s probation may be revoked. “Although the State has a great interest in reincarcerating those individuals who are unable to meet the conditions of their probation, it may not do so without first affording an individual the minimum requirements of due process.” Robinson v. Commonwealth, 86 S.W.3d 54, 56 (Ky.App.2002).

[Tjhese requirements include: (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].

Robinson, 86 S.W.3d at 56 (internal quotation marks omitted).

In Commonwealth v. B.J., 241 S.W.3d 324 (Ky.2007), the Kentucky Supreme Court noted that status offenses “are neither criminal nor delinquent.” B.J., 241 S.W.3d at 327. The Court continued, noting that proceedings against a child for a status offense may

result in severe consequences to that child. T.D. v. Commonwealth, 165 S.W.3d 480, 483 (Ky.App.2005).
In light of these potentially severe consequences to the child, due process must be afforded, despite the non-criminal nature of juvenile proceedings. [W]here the fault of the child is at issue and penalties, including loss of liberty, may attach, criminal protections provided by the constitution apply. Id.

B.J., 241 S.W.3d at 327 (internal quotation marks omitted).

In Q.C. v. Commonwealth, 164 S.W.3d 515 (Ky.App.2005), a juvenile’s probation was revoked, and this Court held that “due process required the Commonwealth to serve him with written notice which set forth the specific grounds that constitute the alleged probation violation.” Q.C., 164 S.W.3d at 517. The Court continued, noting that if “the Commonwealth fails to give adequate written notice, then the lack of proper notice may be a ground for reversal.” Id.

In the present case, A.C. was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), the court erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for A.C.’s parents for more than five minutes during the hearing without A.C.’s counsel being present to represent her. However, A.C. was given the opportunity to speak with her attorney prior to the family court finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and A.C. did not admit to them. The family court also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation. Accordingly, the proceeding which led to A.C.’s detention was replete with due process violations.

We agree with A.C. that the order of March 12, 2009, must be vacated because the family court had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of A.C.’s probation.

The Commonwealth contends that, pursuant to KRS 620.025, when the DNA action was filed approximately nine months after the family court entered its June 2007 order in A.C.’s status offense case, the DNA petition acted to suspend all proceedings in the status offense case. We disagree with this interpretation.

Kentucky Revised Statute 620.025, upon which the Commonwealth relies, states:

A finding of jurisdiction under this chapter shall not necessarily preclude a finding of jurisdiction under KRS Chapters 625, 630, or 635; however, jurisdiction under this chapter shall take precedence. No child shall be released from the jurisdiction of the court under this chapter if concurrent complaints under KRS Chapters 630 or 635 are pending.

Although the plain wording of the statute provides that DNA actions take precedence over status offense actions, it does not provide that status offense actions should be suspended upon the initiation of a DNA action, contrary to the Commonwealth’s assertion. Furthermore, the Commonwealth has cited no other authority in support of this assertion.

Although there is no statutory merit to the Commonwealth’s argument, it would not apply in this situation assuming we agreed with it. By the time the petition in the DNA was filed, A.C. had already been on probation from June 2007 to March 2008; this is approximately nine months, leaving her with three months left to serve. The DNA case was closed in September 2008. So, even if we agreed — • which we do not — with the Commonwealth’s theory, A.C.’s probation expired at the latest in December 2008, well before the March 2009 “motion to review.” Therefore, the Commonwealth’s argument lacks all merit.

Accordingly, the Commonwealth’s motion to dismiss this appeal is denied. Additionally, the order of the Jessamine Family Court finding that A.C. violated its June 2007 status offender order is vacated. This matter is remanded to the family court with instructions that case no. 07-J-211-001 be closed and discharged.

The Court is aware that family courts have heavy dockets and that the juvenile portion of their dockets may take a great deal of those courts’ time and energy. However, juvenile proceedings must meet constitutional muster. J.D., 211 S.W.3d at 63. This one did not.

The Court notes that a review of the proceedings in this matter reveals an apparent dysfunctional family and a child in need of assistance. The purpose of juvenile proceedings is to assist the child and the family, not to employ methods that further break down the family unit. In this case, A.C.’s mother was called on to make a choice between her child and her husband in the presence of the child, while asking for assistance to keep the family unit together. And, although the family court had found A.C. to be an abused and neglected child, the court later used her allegations of abuse to reference that she had learned to manipulate the court and stated that the court’s “heart is stone” in reference to her. Certainly, A.C. has troubles, but a family and child in trouble should not be further torn apart by the system that is in place to provide stability and reunification.

ALL CONCUR.

      . Kentucky Revised Statute(s).

      . The DNA petition was originally filed under the status offense case number, 07-J-211-001, but the case number for the DNA case subsequently changed in the record to 07-J-211-002.

      . Remarkably, although the record is clear that nothing extended A.C.’s probation beyond June 2008, no one noted it during the proceedings.


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR, Chief Justice. ZEL M. FISCHER, Judge,

license: Public Domain

text:
    Miguel VACA, Appellant, v. STATE of Missouri, Respondent.
    No. SC 90554.
    Supreme Court of Missouri, En Banc.
    June 15, 2010.

      Susan L. Hogan, Public Defender’s Office, Kansas City, for Appellant.
    Daniel N. McPherson, Attorney General’s Office, Jefferson City, for Respondent.
   WILLIAM RAY PRICE, JR, Chief Justice.

I. Introduction

A jury convicted Miguel Vaca of various violent felonies arising from a string of armed robberies. Now Vaca asks for post-conviction relief, alleging ineffective assistance of counsel during the sentencing phase of his bifurcated trial. Because Vaca’s defense counsel possessed mental health evidence detailing Vaca’s mental illness, was apprised of the jury’s interest in Vaca’s mental condition, and did not consider whether to present such records or testimony to the jury, trial counsel was constitutionally ineffective. Vaca’s motion for post-conviction relief should have been granted in part. The judgment is affirmed in part, reversed in part and remanded.

II. Facts

A. Overview

The factual basis for this Rule 29.15 motion is not disputed. Vaca committed three armed robberies in Platte County in October and November 2002. All three robberies followed the same pattern: Vaca, wearing a ski mask, rode his bicycle from his apartment to nearby locations to commit a robbery with a Taurus revolver. He robbed two businesses — Quality Cleaners and Salon North. He also attempted the robbery of a child’s birthday party in his own apartment complex, where he abducted a woman at gunpoint and discharged his revolver at a bystander. From this pattern, police were able to apprehend Vaca and find the bicycle, ski mask, and revolver in addition to other evidence linking him to the robberies.

B. Pretrial Events

When appointed counsel first visited Vaca at the Platte County jail, Dr. Anya, the county jail psychiatrist, had already been attending to Vaca. Dr. Anya suspected that Vaca suffered from mental illness and had prescribed a regimen of Traza-done, Paxil, Clonazepam, and Zyprexa. In response to both this and Vaca’s overall demeanor, defense counsel enlisted the services of Dr. Bill Geis, a licensed clinical and forensic psychologist, to determine Vaca’s competency to stand trial and whether he had diminished capacity.

Dr. Geis interviewed Vaca and administered various psychological tests. This included the Weschler Adult Intelligence Scale to determine Vaca’s cognitive ability. The results showed that Vaca had an overall IQ of 73, which was confirmed by Vaca’s school records.

Two tests designed to detect the presence of schizophrenia were also administered. Both came back suggesting a schizophrenic condition. Dr. Geis also reviewed a Social Security Administration determination assessing a disability due in part to schizophrenia, which confirmed his results. Other medical records indicated that Vaca crashed his bicycle in 1988, which resulted in head trauma and a blood clot.

Dr. Geis’ report also documented a violent history including incidents in which Vaca stabbed an elementary school classmate with a pencil, punched a woman who allegedly made comments about him and physically fought with family members.

Ultimately, Dr. Geis’ report concluded: The defendant has a serious mental disease — schizophrenia—that clearly could have had an impact on his ability to form rational thought and conform his behavior to the expectations of society at the time of the offense. This condition of schizophrenia is corroborated by other medical personnel and appears to have been in existence for most of his life. He also has a condition of low intelligence (borderline intellectual functioning) that could have affected his ability to understand the impact of his actions.

Neither Dr. Geis nor defense counsel remembers discussing the report with each other, but both testified that it was standard practice to discuss any prepared psychological report. Both had vague recollections of a discussion and ultimately concluded that one must have occurred.

C. The Guilt Phase

Vaca’s trial was bifurcated by the newly codified procedure for non-capital cases in sec. 557.036, RSMo Supp.2008. Although defense counsel was an experienced trial advocate, this was his first bifurcated non-capital trial.

Defense counsel’s theory during the guilt phase was complete innocence centered on misidentification by key witnesses. Part of this strategy included counsel eliciting evidence of an uncharged fourth robbery at K.C. Collectibles. Police had recovered fingerprints from that robbery location that did not match Vaca. While police initially grouped this robbery with the three charged robberies, they later excluded it as unrelated.

It is unclear from the record whether counsel intended to introduce Vaca’s mental condition to the jury during the guilt phase. However, the State succeeded in preemptively excluding any mental condition evidence before defense counsel’s case in chief, arguing that defense counsel failed to notify the State of his intention to introduce such evidence as required by chapter 552.

The trial record does show that defense counsel tried to tease out testimony about Vaca’s mental condition during direct examination of his brother, but was met with sustained objections from the State. At no point during the guilt phase did defense counsel call Dr. Geis or attempt to submit his report into evidence.

During guilt phase deliberations, the jury sent four questions to the court:

1) Where has [Vaca] been since arrested 11-2002
2) Was [Vaca] given psychological testing
3) Had he been compliant with medications before arrest
4) Is he currently on meds

The court did not answer any of the questions. The jury returned with guilty verdicts on all the charges against Vaca.

D. Sentencing Phase and Posh-Trial Motions

During the sentencing phase of the trial, the State called to the stand the robbery-victims. Each testified about how Vaca’s actions had adversely affected their lives.

In response, defense counsel called Vaca’s father. He testified that he and Vaca’s mother had only visited Vaca twice in prison. Dr. Geis was not called during this phase of the trial, nor was his report received into evidence. The jury returned with sentences of life plus 102 years, which the court ordered to run consecutively.

Defense counsel filed a timely Rule 29.11 motion for a new trial. During the subsequent hearing, defense counsel asked the court to set aside the sentences based in part on the pre-sentence investigation report, which counsel argued, “does make mention of a report by Dr. Geis which evidences historical suffering from psychological disorders.” The trial court did not modify the jury sentence. On appeal, the conviction and sentence were affirmed. State v. Vaca, 204 S.W.3d 754 (Mo.App.2006)

E. Post-Conviction Proceeding and Appeal

Vaca brought a Rule 29.15 motion for post-conviction relief attacking trial counsel’s effectiveness during the sentence and guilt phase. Defense counsel and Dr. Geis were the only witnesses at the proceeding.

Dr. Geis testified during the Rule 29.15 proceeding that he was available during the sentencing phase to testify and that he would have been able to expand on his report and Vaca’s history of mental illness.

Defense counsel also testified during the Rule 29.15 proceeding. Counsel stated that the State’s evidence was substantial, that Vaca’s conviction was likely, and that he knew that this case would probably be going to the sentencing phase. The following exchange between post-conviction counsel and defense counsel then occurred:

Q. Okay. Before trial did you give any consideration to calling Dr. Geis as a witness in the sentencing phase?
A. In the sentencing phase, no.
Q. Okay. Now ... did the idea to call Dr. Geis at sentencing not even occur to you or did you rule it out for some strategic reason?
A. There was no strategic reason that I can recall for not calling Dr. Geis at sentencing.

The trial court overruled Vaca’s motion for post-conviction relief. Vaca relies on two points on appeal. First, during the guilt phase, defense counsel was ineffective for eliciting evidence of the fourth uncharged robbery. Second, during the sentencing phase, defense counsel was ineffective for giving no consideration to calling Dr. Geis to testify or to entering his report into evidence.

III. Analysis

A. Standard of Review

The motion court’s findings are presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). A motion court’s judgment will be overturned only when either its findings of fact or its conclusions of law are clearly erroneous. Rule 29.15(k); Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). This Court must be left with a “definite and firm impression that a mistake has been made.” Id.

B.Ineffective Assistance of Counsel

“To show that his counsel was ineffective, [Vaca] must demonstrate, first, that his counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Edwards v. State, 200 S.W.3d 500, 518 (Mo. banc 2006) quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, there must be a showing of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” which is a probability “sufficient to undermine confidence in the outcome.” Id.

C.Eliciting Evidence of the Uncharged Fourth Robbery was Reasonable Trial Strategy

Vaca contends that defense counsel’s decision to enter into evidence a fourth uncharged robbery at K.C. Collectibles was unreasonable strategy that prejudiced both his guilt and sentencing phases.

“The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.” Anderson v. State, 196 S.W.3d 28, 37 (Mo. banc 2006); Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005). “Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.” State v. Johnston, 957 S.W.2d 734, 755 (Mo. banc 1997).

Defense counsel’s overall theory alleged that the State’s witnesses had identified the wrong person and that another assailant had committed all the robberies. The fourth uncharged robbery was a building block to prove this. The police had recovered fingerprints from the fourth robbery location that did not match Vaca’s and later determined that the robbery was an isolated incident.

Defense counsel’s attempted syllogism was that the police were initially correct— all four robberies were committed by the same person, and the unmatched fingerprints were physical evidence of Vaca’s innocence. In hindsight this strategy failed, but this is not the standard for evaluating defense counsel’s effectiveness.

Defense counsel was met with overwhelming evidence of Vaea’s guilt. Police recovered a revolver from Vaca’s apartment that ballistically matched the robbery weapon. Multiple victims were all able to identify Vaca by his distinctive lisp and physical description. The victims also identified Vaca’s bicycle as similar to the one ridden by their assailant. A bag of money was recovered from his apartment. In this bag, there was a dollar bill with a brief note regarding one of the robberies in Vaca’s handwriting. Vaca initially confessed to detectives that he committed the three robberies. In the face of such compelling evidence, there were few options available for defense counsel.

As to the evidence’s effect on the sentencing phase, during the Rule 29.15 hearing, defense counsel explicitly testified that in preparing for trial he contemplated strategy’s risk. When counsel explicitly weighs the risks and rewards of admitting evidence during the guilt phase that might later be damaging during the sentencing phase, counsel’s ultimate decision is one of trial strategy. Vaca is not entitled to post-conviction relief on this point.

D.Counsel Was Ineffective as to the Treatment of Dr. Geis’ Testimony

This Court has recognized that a claim of ineffective assistance may be found when a movant can prove that “(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.” Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004).

All the elements of Hutchison are met in this case. The State concedes the first three points that Dr. Geis was known by counsel, available and willing to testify. As to the fourth element, the submission of mental health history, subject to counsel’s strategic judgment, is a viable defense during a bifurcated sentencing phase. See Glass v. State, 227 S.W.3d 463 (Mo. banc 2007).

As stated earlier, “the selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.” Williams, 168 S.W.3d at 443. However, this is true “[w]here counsel has investigated possible strategies.” Middleton v. State, 103 S.W.3d 726, 736 (Mo. banc 2003) (emphasis added). Here, defense counsel admitted that he gave no consideration to calling Dr. Geis and there “was no strategic reason” for not calling him.

This is not a case where counsel failed to investigate the existence of a mental illness. See e.g. State v. Ferguson, 20 S.W.3d 485, 509 (Mo. banc 2000); Williams, 168 S.W.3d at 441. Rather, defense counsel actually possessed Dr. Geis’ report, and he and Dr. Geis discussed its contents. Counsel recognized problems associated with Vaca’s mental condition the moment he met him in the Platte County jail. Counsel’s statement in the Rule 29.11 hearing shows that he knew about the report after the trial’s completion. Dr. Geis was available and willing to testify on Vaca’s behalf.

Further, defense counsel was clearly apprised that this may be in issue in the jury’s mind. The jury asked four questions to the judge during guilt deliberations regarding Vaca’s mental state. Because defense counsel conceded that conviction was probable, he knew that strategy during the sentencing phase was vital to the representation of his client.

It is unclear why counsel did not consider whether to admit Dr. Geis’ testimony. As it was counsel’s first bifurcated non-capital trial, counsel may have erroneously believed the exclusion of mental health evidence during the guilt phase carried over to the sentencing phase. Counsel’s inaction fell below an objective standard of reasonableness. This omission, in front of this particular jury, undermines this Court’s confidence in the sentencing phase’s outcome.

While Dr. Geis’ testimony and report may have helped Vaca, it may have also embittered the jury. This Court has noted that counsel strategically concluding so has been precisely reasonable in previous sentencing cases. As such, the holding of this case is not that counsel was ineffective for not calling Dr. Geis. Rather, this case rests on the fact that the question of whether to call Dr. Geis was never considered.

IV. Conclusion

Defense counsel must retain the flexibility to make strategic decisions regarding the evidence available and the circumstances of his or her client’s actual trial. Counsel may choose to call or not call almost any type of witness or to introduce or not introduce any kind of evidence for strategic considerations. Here however, experienced defense counsel candidly admitted that, without consideration and for no strategic reason, he failed to call a mental health expert. His failure to consider was ineffective.

This Court’s holding should not be construed to direct future defense counsel for Vaca to either admit or omit Dr. Geis’ testimony during his new sentencing phase. Rather, what is required is that future counsel give due consideration to the question before making a strategic choice.

Vaca’s trial counsel was constitutionally ineffective during the sentencing phase of trial. He is entitled to a new sentencing phase. The motion court’s overruling of his motion as to the sentencing phase is reversed. The judgment in all other respects is affirmed. The cause is remanded.

TEITELMAN, RUSSELL, WOLFF, BRECKENRIDGE and STITH, JJ., concur.

FISCHER, J., dissents in separate opinion filed.

ZEL M. FISCHER, Judge,

dissenting.

I respectfully dissent because the principal opinion strays from the well-settled proposition that Strickland, prejudice cannot be proven by mere speculation.

The principal opinion concludes that Vaca established prejudice because Dr. Geis’s testimony may have helped him. The principal opinion also admits the doctor’s testimony may have hurt Vaca. This conclusion is admittedly speculative— “While Dr. Geis’ testimony and report may have helped Vaca, it may have also embittered the jury.” In fact, the principal opinion does not conclude that the failure to produce mental health evidence in this case was below the standard of care, but that the failure to consider whether to present mental health evidence was below the standard of care.

For purposes of demonstrating ineffective assistance of counsel, prejudice must be definite and identifiable. For example, in State v. Kenley, 952 S.W.2d 250, 268 (Mo. banc 1997), the movant alleged counsel was ineffective because he failed to call witnesses to testify as to his mental state at the time he committed the crime. This Court rejected his claim because the testimony the movant claimed would have changed the outcome at trial was speculative:

Moreover, Kenley has not proven prejudice. First, as we stated in Section II of this opinion, the testimony of the three medical experts was conflicting and speculative. Each of the three experts had a different theory supporting why Kenley behaved the way he did on the night of the murder.

Id.

In State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000), the movant alleged counsel was ineffective for failing to plead a Brady violation. This Court found the movant failed to prove prejudice because his claim was “obviously a speculative proposition” in that the undisclosed evidence would not in any way negate his guilt. Id.

In this case, both defense counsel and the sentencing judge, who was also the judge who overruled this post-conviction motion, knew that changing the focus to present this mental health evidence after having defended the case on the basis of a reasonable trial strategy that Vaca was not guilty would have resulted in a harsher, not more lenient, sentence.

I also question whether the circuit court’s determination that defense counsel provided ineffective assistance of counsel was clearly erroneous. The principal opinion’s assumption that there “was no strategic reason” not to present this mental health evidence based solely on defense counsel’s testimony ignores the fact that the circuit court is not required to believe defense counsel’s testimony. Further, the principal opinion’s conclusion that “defense counsel candidly admitted that, without consideration and for no strategic reason, he failed to call a mental health expert” is a mischaracterization of the testimony. Defense counsel’s statement was that “[tjhere was no strategic reason that I can recall for not calling Dr. Geis at sentencing.”

This Court is required to give due regard to the circuit court’s ability to have judged the credibility of the witnesses’ testimony. Rule 84.18(d)(2). Therefore, the circuit court’s finding of fact that defense “counsel pursued reasonable trial strategy regarding his concerns about the movant’s mental competence” is supported by the record and certainly not clearly erroneous.

In addition, the assumption that this mental health evidence would have been admissible at the penalty phase fails to consider § 552.015, RSMo 2000, § 557.086.3, RSMo Supp.2008, and Rule 25.05(1)(2) and (3), which may require a different result.

I would affirm the motion court’s overruling of Vaca’s Rule 29.15 motion. Vaca has not demonstrated that the result of this proceeding would have been different; therefore, he has failed to prove Strickland’s prejudice requirement.

      . "Evidence of mental disease or defect excluding responsibility shall not be admissible at trial of the accused unless the accused, at the time of entering such accused’s plea to the charge, pleads not guilty by reason of mental disease or defect excluding responsibility, or unless within ten days after a plea of not guilty, or at such later date as the court may for good cause permit, the accused files a written notice of such accused's purpose to rely on such defense.” Sec. 552.030.2, RSMo Supp.2008.

      . The Pre-sentence Investigation Report is not part of the record on appeal; however, mention of it is made in the transcript, which is part of the record.

      . "The purpose of having a separate penalty phase in non-capital trials ... is to permit a broader range of evidence relevant to the appropriate punishment to be imposed.” State v. Prosser, 186 S.W.3d 330, 333 (Mo.App.2005). While a broader range of evidence becomes relevant during sentencing, admissibility is still subject to the trial court’s discretion. Sec. 557.036.4, RSMo. Supp. 2008.

      . Commentators have noted the double-edged nature of such evidence, finding that many jurors hold a "presumption of an absolute linkage between mental illness and dangerousness.” Michael L. Perlin, The Sanest Lives of Jurors in Death Penalty Cases: The Puzzling Role of Mitigating: Mental Disability Evidence, 8 Notre Dame J.L. Ethics & Pub. Pol’y 239, 274 (1994).

      . See, e.g., Strong v. State, 263 S.W.3d 636, 653 (Mo. banc 2008) (trial counsel’s failure to call two psychological experts held effective assistance because counsel sought to show defendant as a "good man” not a mentally deranged one); Edwards v. State, 200 S.W.3d 500 (Mo. banc 2006) (counsel's failure to pursue introduction of defendant's Asperger's syndrome held effective assistance because counsel sought to show defendant as a loving family person); See also Storey v. State, 175 S.W.3d 116, 144-47 (Mo. banc 2005).

      . Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The circuit court concluded as a matter of law:
      The report trial counsel obtained from Dr. Geis concerning movant’s mental status did not establish that movant was either incompetent or not guilty by reason of mental disease or defect. Movant did not suffer from a mental disease or defect that qualified as a defense under Chapter 552.
      Section 552.015 provides limitations on the admissibility of mental disease or defect evidence.


author: MARY R. RUSSELL, Judge.

text:
    STATE of Missouri, Respondent, v. Kellen C. MCKINNEY, Appellant.
    No. SC 90607.
    Supreme Court of Missouri, En Banc.
    June 29, 2010.

      Frederick J. Ernst, Public Defender’s Office, Kansas City, for Appellant.
    Shaun J. Mackelprang and Robert J. (Jeff) Bartholomew, Attorney General’s Office, Jefferson City, for Respondent.
   MARY R. RUSSELL, Judge.

A jury found Kellen McKinney guilty of two counts of first degree murder, two counts of armed criminal action, and one count of attempted escape. He was sentenced to consecutive terms of life imprisonment for the murder and armed criminal action charges; he also was sentenced to a consecutive four-year term for the attempted escape charge. He appeals, asserting that the attempted escape charge was joined wrongly to the other charges and, therefore, the trial court erred in refusing his motion seeking severance of the attempted escape charge.

Because McKinney’s attempted escape charge was connected to the other charges, joinder was proper, and the judgment is affirmed.

I. Background

John and Mildred Caylor, a couple in their 70s, were murdered. McKinney was arrested for their murders after being linked to the crime by blood, DNA, and other evidence.

While McKinney was incarcerated, jailers searching his cell discovered evidence that he was planning an escape. The evidence of McKinney’s attempted escape included: a floor drain was found in a sock wrapped in one of McKinney’s prisoner jumpers; a latch from his cell was missing; the cage over a smoke detector showed signs of tampering; a sock and screw were found under McKinney’s bed with a number of bed sheets that were tied together; mortar in the wall near McKinney’s cell window had been chiseled and loosened; and McKinney’s belongings included two metal brackets, two screws, and a hand-drawn map of the jail area. Based on this evidence, a charge of attempted escape from confinement while under arrest for a felony was added to the murder and armed criminal action charges McKinney was facing for the Caylors’ deaths.

McKinney filed a “Motion For Severance Of Offenses, Due To Improper Join-der and Substantial Prejudice.” He argued that joinder was improper under section 545.140, RSMo 2000, and Rule 23.05 because the alleged attempted escape offense occurred nine weeks after the Caylors’ murder, was not of the same or similar character, was not based on the same act or transaction, and was not a connected part of a common scheme or plan. He contended that severance was required to prevent substantial prejudice to him. He argued that joinder might impact his willingness to testify in his own defense and likely would cause the jury to consider evidence of guilt on one charge as evidence of guilt on another charge. The State responded that joinder was proper because the crimes were of the same or similar character and part of the same occurrence.

McKinney’s severance motion was overruled after a hearing. The trial court concluded that the State was entitled to join McKinney’s attempted escape offense to his other charges because the attempted escape showed his consciousness of guilt.

McKinney ultimately was found guilty by the jury on all the charges. He appealed, asserting that the trial court erred in overruling his motion to sever based on improper joinder.

II. Joinder Was Proper

Whether joinder is proper is a question of law. State v. Morrow, 968 S.W.2d 100, 109 (Mo. banc 1998). Liberal joinder of criminal offenses is favored. Id. (citing State v. Simmons, 815 S.W.2d 426, 428 (Mo. banc 1991)).

Joinder of offenses is governed by Rule 23.05, which states:

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

Section 545.140.2 also provides for joinder of offenses, stating:

[T]wo or more offenses may be charged in the same indictment or information ... if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

McKinney asserts that joinder was improper because the attempted escape occurred nine weeks after the Caylors’ murders and at a different location. He contends that the attempted escape cannot be considered part of the “same transaction” as the Caylors’ murders or part of a “common scheme or plan” relating to their deaths. And he also argues that the attempted escape charge was joined improperly to the other charges because it was dissimilar in character. McKinney’s arguments, however, fail to give effect to all the provisions for join-der under Rule 23.05 and section 545.140.2. These joinder provisions are listed as alternatives, and one alternative permits joinder where offenses are “connected.”

In Morrow, this Court noted definitions of “connected” for purposes of reviewing the propriety of joinder:

“Connected” is defined as: “[jjoined; united by junction, by an intervening substance or medium, by dependence or relation, or by order in a series.” Black’s Law Dictionary 302 (6th ed.1990). In Webster’s, “connected” is defined as: “joined or linked together [in] a series, having the parts or elements logically related.... ” Webster’s International 480 (3d ed.1981).

968 S.W.2d at 109.

Morrow discussed a number of ways that the offenses in that case were “connected” — by time, by similarities in the manner they were committed, by motive, and “by their dependence and relationship to one another.” Id. Morrow’s discussions focused on the facts of that particular case and did not limit the factors that can “connect” offenses for joinder purposes. Charges may be “connected” for reasons other than sharing a eommon time or location.

In this case, McKinney’s charges shared a “dependence and relationship to one another” that rendered them “connected” in satisfaction of the joinder provisions of Rule 23.05 and section 545.140.2. McKinney’s incarceration for the felony charges of murder and armed criminal action provided the basis for the State to charge him with attempted escape from confinement while under arrest for a felony. His apparent motive for the attempted escape was avoidance of prosecution for the other charges, and the trial court correctly noted that his attempted escape provided evidence of his consciousness of guilt that was relevant to the other charges. The trial court did not err in finding that joinder was proper in McKinney’s case.

III. Severance Was Not Required

Even where joinder is proper, however, severance may be necessary to prevent substantial prejudice to the defendant that could result if the charges are not tried separately. Morrow, 968 S.W.2d at 109; see Rule 24.07. Whether to grant severance is a decision left to the trial court’s sound discretion. Morrow, 968 S.W.2d at 109. The trial court’s decision overruling McKinney’s motion to sever will be reversed if the trial court abused its discretion in overruling the motion and if there was a clear showing of prejudice. See State v. Hobbs, 826 S.W.2d 851, 854 (Mo.App.1992). A trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Fassero, 256 S.W.3d 109, 115 (Mo. banc 2008).

In considering whether severance is required, the court considers “the number of offenses joined, the complexity of the evidence, and the likelihood that the jury can distinguish the evidence and apply it, without confusion, to each offense.” Morrow, 968 S.W.2d at 109. Severance is proper only after the defendant “makes a particularized showing of substantial prejudice if the offense is not tried separately” and after the “court finds the existence of a bias or discrimination against the party that requires a separate trial of the offense.” Rule 24.07; see also Morrow, 968 S.W.2d at 109. Any prejudice from join-der “may be overcome where the evidence with regard to each crime is sufficiently simple and distinct to mitigate the risks of joinder.” Morrow, 968 S.W.2d at 109 (internal quotation omitted).

In McKinney’s case, the evidence relating to the attempted escape charge and the murder and armed criminal action charges was “sufficiently simple and distinct to mitigate the risks of joinder.” Cfi Morrow, 968 S.W.2d at 110. Because the jury could distinguish the evidence for each offense and apply it without confusion, the trial court did not abuse its discretion in determining that severance was unnecessary.

IY. Conclusion

For the foregoing reasons, this Court finds no error in McKinney’s case. The trial court’s judgment is affirmed.

All concur.

      . This Court has jurisdiction over this case pursuant to Mo. Const, art. V, sec. 10, as this case was taken on transfer after its disposition by the court of appeals.

      . All statutory references are to RSMo 2000.

      . This Court noted in State v. Williams:

      Evidence of escape is admissible as bearing on defendant's consciousness of guilt as to pending charges.... The existence of circumstances indicating the escape was not motivated by consciousness of guilt may be considered by the jury to reduce the weight of the escape evidence, but it does not render the escape evidence inadmissible. Whether the escape was motivated by a consciousness of guilt or another reason is a question for the jury.
      97 S.W.3d 462, 469 (Mo. banc 2003) (internal citations omitted).


author: MICHAEL A. WOLFF, Judge.

text:
    CITY OF KANSAS CITY, Missouri AVIATION DEPARTMENT, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 90714.
    Supreme Court of Missouri, En Banc.
    June 29, 2010.
    Jeremiah J. Morgan, Attorney General’s Office, Jefferson City, for Director of Revenue.

      Mark W. Comley of Newman, Comley & Ruth PC, Jefferson City, Melody L. Cock-rell, Kansas City, for City of Kansas City.
   MICHAEL A. WOLFF, Judge.

Kansas City buys electricity from a local utility and sells it to tenants and subtenants at the city-owned Charles B. Wheeler Downtown Airport. After years of paying sales taxes to the state, the city in 2007 stopped paying the taxes because the city contended that it was not in the business of rendering a taxable service at retail under section 144.020, RSMo 2000.

The director of revenue issued assessments against the city for the unpaid taxes. The city appealed the assessments to the administrative hearing commission, which upheld the city’s position.

On this appeal, the Court holds that, in selling electricity to its tenants and subtenants, Kansas City is engaged in the business of rendering a service at retail that is subject to tax. The commission’s decision is reversed, and judgment is entered for the director.

Facts and Procedural History

Kansas City owns and, through its aviation department, manages the Charles B. Wheeler Downtown Airport pursuant to its charter. It leases facilities at the airport to a variety of tenants, at least some of whom sublease some of their leased space.

Two substations serve the airport with electricity. One substation, located on Richards Road, is owned partially by Kansas City and the distribution line from that substation is fully owned by Kansas City. Kansas City Power & Light (“KCP&L”) provides Kansas City with electricity at the substation and bills the city about six cents per kilowatt hour for the electricity as it enters the substation. The Richards Road substation provides all of the electricity for the tenants and subtenants located on the west side of the airport. Each building on the west side of the airport has a separate electrical meter, which Kansas City owns and maintains. City employees read the meters and record the readings at each location on a monthly basis. Kansas City then bills each tenant and subtenant about nine cents per kilowatt hour. The rate charged to the tenant or subtenant is designed to recover some of the city’s expenses for providing electricity.

The facilities on the east side of the airport receive their electricity from a distribution line extending from the Broadway Bridge substation. Both the substation and this distribution line are owned by KCP&L. Facilities on the east side of the airport are billed in three different ways. The tenant and subtenants located in hangar Nos. 2 and 3 are metered through individual meters and billed by Kansas City in the same way as tenants on the west side of the airport. A second group of tenants, located in the terminal building, are not metered individually by the city because of logistical difficulties in providing individual meters within the building. Instead, the city estimates electricity usage and embeds the estimated cost of electricity in the tenants’ rent. Finally, a third group of facilities, located north of the terminal building, receive their electricity directly from KCP&L, which is responsible for metering, billing and collecting sales tax. In this case, only the electricity usage by the tenants and subtenants who are metered and billed by the city is at issue.

Prior to August 2007, Kansas City reported the amounts collected from its metered tenants for their electrical usage as taxable. In August 2007, however, the city stopped paying sales tax returns for the electrical usage of its metered tenants. This led to the director of revenue assessing sales taxes to Kansas City for the months of August, September and October 2007, which were estimated based on the city’s previous returns.

Kansas City appealed the director’s sales tax assessments to the administrative hearing commission. The commission found that Kansas City is not subject to sales tax on its provision of electricity to its lessees because the city is not engaged in the business of rendering a taxable service at retail under section 144.020. The commission’s decision was based on a finding that Kansas City was not “in the business” of selling electricity. Rather, the commission stated that “[t]he city provides a public service with its airport” pursuant to the city’s charter “and the provision of electricity is a necessary incident to that service.” The commission further reasoned that the city was not “providing] electricity to its tenants with a profit motive in mind.”

Kansas City also argued that the tax was prohibited by article III, section 89(10) of the Missouri Constitution, which prohibits sales tax on a city’s purchases. The commission found that it was the city’s “sales” of electricity that were at issue, not the city’s purchases, but said that, regardless, the city was not required to pay sales tax.

The director sought review of the commission’s decision that the city’s provision of electricity to its tenants was not subject to sales tax. The court of appeals found that the decision of this case required “construction” of the revenue laws, which is under this Court’s exclusive jurisdiction pursuant to article V, section 3 of the Missouri Constitution, and transferred the case to this Court pursuant to article V, section 11 of the Missouri Constitution.

Analysis

This Court reviews the commission’s interpretation of revenue laws de novo. Six Flags Theme Parks, Inc. v. Dir. of Revenue, 102 S.W.3d 526, 527 (Mo. banc 2003). The commission’s factual determinations are upheld if they are supported by the law and they are supported by substantial evidence in the record. Id.

Section 144.020.1 levies and imposes a tax “upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail” in the state of Missouri. A “seller” is defined as a “person selling or furnishing tangible personal property or rendering services, on the receipts from which a tax is imposed pursuant to section 144.020.” Section 144.010.1(11). A “ ‘[s]ale at retail’ means any transfer made by any person engaged in business, [including] [s]ales of electricity [and] electrical current....” Section 144.010.1(10)(b). The issue before this Court, therefore, is whether Kansas City is engaged in the business of selling electricity to its airport tenants.

Section 144.010.1(2) defines “business” as “any activity engaged in by any person, or caused to be engaged in by him, with the object of gain, benefit or advantage, either direct or indirect....” This Court has previously noted that “[t] his language is very broad, and is surely designed to make transactions [that] might not otherwise be covered taxable.” St. Louis Country Club v. Admin. Hearing Comm’n of Missouri, 657 S.W.2d 614, 617 (Mo. banc 1983). To demonstrate a person is engaged in business, the director is not required “to show that the taxpayer has a purpose of maximizing revenue, or of deriving income.... ” Id.

In St. Louis Country Club, the Court found that private country clubs were engaged in the business of providing the clubs’ facilities for members’ guests for a fee. Id. The Court reasoned that club members undoubtedly considered “the opportunity to entertain guests to be important for social or business reasons.” Id. at 617-18. Therefore, because club members received a benefit from guests being able to come to the clubs, the clubs also received a benefit since the clubs “exist only for the benefit of their members.” Id. at 617. This benefit was sufficient for the Court to find “at least an indirect benefit or advantage from guest fees” such that the country club was engaged in business, even though the clubs were not-for profit corporations and their budgets regularly showed a deficit at the end of the year. Id. at 615, 618.

Relying on its decision in St. Louis Country Club, this Court has also held that the fees charged by a city to operate its recreational program, as mandated by the city’s charter, are taxable. City of Springfield v. Dir. of Revenue, 659 S.W.2d 782, 783, 785 (Mo. banc 1983). The Court noted that these fees, including admission fees, participation fees and sales of concessions, “seldom exceeded] and often [did] not meet the direct costs of the program,” and that the city often had to subsidize most of the programs through property taxes. Id. at 783. The Court also noted that the funds to pay for the activities and the sales taxes to be imposed “are appropriated and come from public funds of the [c]ity.” Id. Nevertheless, the Court found that the city of Springfield was engaged in a business, and the fees were taxable. Id. at 785.

In both St. Louis Country Club and City of Springfield the fees received were not sufficient to cover the expenses of either the country clubs or the recreational activities of the city. Similarly here, the nine cents per kilowatt hour apparently is not enough to cover Kansas City’s expenses in providing electricity to its tenants. However, as suggested by this Court in St. Louis Country Club and City of Springfield, nothing in the definition of “business” suggests that an entity engaging in business must recover a profit or even break even.

To be engaged in a business, the city only needs to receive an indirect gain, benefit or advantage. Section 144.010.1(2). In this case, the commission’s decision specifically noted that “[t]he City provides a public service with its airport, and the provision of electricity is a necessary incident to that service. The use of the electricity is for the purpose of furthering the City’s governmental interest in leasing the airport facilities.” (Emphasis added). Further, Kansas City admits that it had other options it could have pursued in ensuring its tenants received electricity, but it would have been economically imprudent for the city to do so. Like in St. Louis Country Club where this Court found that club members’ interest in being able to entertain guests at the club was an indirect benefit to the club so that guest fees were taxable, here Kansas City’s interest in leasing its airport facilities is furthered by providing electricity to its tenants and subtenants, and the city is receiving an indirect benefit.

It is immaterial that Kansas City’s provision of electricity is simply something the city does as part of its charter-mandated ownership and management of an airport. In City of Springfield, Springfield was required to provide recreational services pursuant to its charter. Providing concessions and charging admission fees and performance fees were a necessary incident to the city’s provision of recreational services that the city chose to provide. Nevertheless, this Court held those fees to be taxable. City of Springfield, 659 S.W.2d at 785. Here, Kansas City chooses to buy electricity from KCP&L for six cents per hour and then provide the same electricity to its tenants and subtenants for nine cents per kilowatt hour. Like Springfield, Kansas City is engaging in business under section 144.010.1(2).

Kansas City also argues that the director’s tax on electricity is prohibited by article III, section 39(10) of the Missouri Constitution. Article III, section 39(10) provides that “[t]he general assembly shall not have power ... [t]o impose a use or sales tax upon the use, purchase or acquisition of property paid for out of the funds of any county or other political subdivision.” The commission properly found that the director is making no attempt to tax the city’s purchases of electricity here. Instead, the director is taxing the city’s “sales” of electricity to its tenants, who are the ones using, purchasing and acquiring the electricity. See City of Springfield, 659 S.W.2d at 784 (“It is clear that there is no constitutional prohibition to the sales tax here imposed. The sales tax is nothing more than a tax on gross receipts from the selling of goods or providing services at retail. It is evident that there is no tax on the use, purchase or acquisition of property paid for from City funds.”).

Conclusion

Kansas City is engaging in the business of selling electricity to its tenants and subtenants. The city, therefore, is required to pay sales tax on these sales under section 144.020. The decision of the administrative hearing commission is reversed, and judgment is entered in favor of the director. Rule 84.14.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . Specifically, the electricity of the tenants on the west side of the airport and the tenant and subtenants located in hangar Nos. 2 and 3 is at issue.

      . The sales lax assessed for the airport was $1,457.03 for August, $1,353 for September and $1,277.50 for October 2007, a total of $4,088.31. Under agreement with the director of revenue, the city has filed “zero" returns for any reporting period subsequent to October 2007 pending the outcome of this case.

      . The statutory definition of a "person” includes a municipal corporation such as Kansas City. Section 144.010.1(6).

      . The city argues that, unlike the voluntary purchasers of the goods and services in City of Springfield, here each tenant’s need for power is joined inextricably to the use and enjoyment of the tenant's leasehold. However, as stated above, the plain language of the statutory definition of "business” makes clear that the test is whether the taxpayer receives a gain, benefit or advantage by providing the good or service. No analysis is required of whether the good or service is needed for full use of another good or service. Further, just as the purchasers of participation fees in City of Springfield had to pay these fees to participate in the relevant activity, the tenants here have to pay for electricity to enjoy their leaseholds fully.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Harold D. ISAAC, Jr., Appellant.
    No. ED 92878.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 9, 2010.
    Margaret M. Johnston, Columbia, MO, for appellant.
    Chris Koster, Atty. Gen., John W. Grantham, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Harold D. Isaac, Jr., appeals from the judgment entered upon a jury verdict convicting him of forcible rape, Section 566.030 RSMo 2000, forcible sodomy, Section 566.060 RSMo 2000, first-degree burglary, Section 569.160 RSMo 2000, felonious restraint, Section 565.120 RSMo 2000, and two counts of armed criminal action, Section 571.015 RSMo 2000. No jurisprudential purpose would be served by a written opinion. We have furnished the parties with a memorandum, for their information only, setting forth the reasons for our decision. We affirm. Rule 30.25(b).