Wright v. State

Mishon WRIGHT v. STATE of Arkansas

97-1042                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1998


1.   Juveniles -- juvenile transfer -- burden of proof. -- A
     defendant seeking a transfer from circuit court to juvenile
     court has the burden of proving that a transfer is warranted
     under Ark. Code Ann.  9-27-318(e); a circuit court's decision
     to retain jurisdiction of criminal charges against a juvenile
     must be supported by clear and convincing evidence; clear and
     convincing evidence is that degree of proof that will produce
     in the trier of fact a firm conviction as to the allegation
     sought to be established; when reviewing the denial of a
     motion to transfer to juvenile court, the supreme court views
     the evidence in the light most favorable to the State and does
     not reverse a circuit court's decision to retain jurisdiction
     unless the decision is clearly erroneous. 

2.   Juveniles -- juvenile transfer -- factors considered. -- When
     deciding whether to retain jurisdiction of or to transfer a
     case to juvenile court, the factors for the circuit court to
     consider are:  (1) the seriousness of the offense and whether
     the juvenile used violence in committing the offense; (2)
     whether the offense is part of a repetitive pattern of
     adjudicated offenses leading to the conclusion that the
     juvenile is beyond rehabilitation in the juvenile system; and
     (3) the juvenile's prior history, character traits, mental
     maturity, or any other factor reflecting upon the juvenile's
     prospects for rehabilitation; a circuit court does not have to
     give equal weight to each factor, nor does evidence have to be
     presented as to each factor. 

3.   Juveniles -- juvenile transfer -- factors sufficient to
     prevent finding circuit court's refusal to transfer was
     clearly erroneous. -- Where there is evidence that the current
     felony charges were part of a repetitive pattern of offenses,
     that past efforts at rehabilitation in the juvenile court
     system have not been successful, and that the pattern of
     offenses have become increasingly more serious, these factors
     alone prevent the supreme court from holding that the trial
     court's ruling on the juvenile-transfer motion was clearly
     erroneous.

4.   Juveniles -- juvenile transfer -- trial court justified in
     denying transfer. -- The trial court was clearly justified in
     denying the transfer of the current charges to juvenile court
     based solely on the fact that appellant's prior juvenile court
     record indicated that he was beyond rehabilitation by the
     juvenile system; appellant's prior juvenile record was not
     only extensive but also demonstrated a pattern of offenses
     that escalated in seriousness, with the last offense involving
     appellant's possession of a handgun at school; moreover, the
     current offenses charged in circuit court appeared to be part
     of a repetitive pattern of offenses.  

5.   Juveniles -- juvenile transfer -- age of appellant to be
     considered. -- The fact that the appellant was nineteen years
     old was relevant to his prospects for rehabilitation in the
     juvenile court system and is a factor that the supreme court
     considers important in reviewing the denial of a juvenile-
     transfer motion.

6.   Juveniles -- juvenile transfer -- appellant not currently
     committed to youth authority -- not apparent that appellant
     eligible for commitment. -- Although Ark. Code Ann.
      9-28-208(d) (Supp. 1997) provides for an extension of the
     commitment time for juveniles beyond age eighteen under
     certain circumstances, it presupposes that the youth was
     committed upon reaching eighteen and that the commitment will
     continue; because the record in this case was devoid of any
     evidence that appellant was currently committed to a juvenile
     facility, it was not apparent that appellant's commitment
     could be extended pursuant to section 9-28-208(d).  

7.   Juveniles -- juvenile transfer -- trial court's decision to
     retain jurisdiction not clearly erroneous -- decision modified
     as to one count required to be filed in juvenile court. --
     Given that appellant's age may have prevented him from being
     committed to a juvenile facility, that his prior juvenile
     record demonstrated a lengthy and escalating pattern of
     offenses, and that he conceded that the charges in this case
     involved violence, the trial court's decision to retain
     jurisdiction of the current charges was not clearly erroneous;
     the supreme court held, however, that the one count of
     misdemeanor theft of property must be filed in juvenile court
     because the prosecutor has no discretion to file that charge
     in circuit court; the decision of the trial court was
     affirmed, with the modification that the misdemeanor theft
     charge be transferred to the jurisdiction of the juvenile
     court.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
affirmed as modified.
     Stephen E. Morley, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly S. Terry, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Mishon Wright appeals the order of the Pulaski
County Circuit Court denying his motion to transfer the charges
against him to juvenile court.  We have jurisdiction of this
interlocutory appeal.  Ark. Sup. Ct. R. 1-2(a)(11); Ark. Code Ann.
 9-27-318(h) (Supp. 1997).  We cannot say the trial court's
decision to retain jurisdiction of the case was clearly erroneous,
and therefore we affirm.
     Pursuant to section 9-27-318(b)(1), Appellant was charged in
circuit court, by two separate informations, with three counts of
aggravated robbery, two counts of theft of property (one felony,
one misdemeanor), and one count of committing a terroristic act. 
Appellant filed a motion to transfer the charges to juvenile court,
asserting that his prior juvenile history does not indicate that he
is incapable of being rehabilitated.  Appellant asserted further
that he was not of sufficient emotional maturity to appreciate the
seriousness of the offenses for which he was charged.  After a
hearing on the motion to transfer, the circuit court decided to
retain jurisdiction of the case, based upon Appellant's extensive
juvenile record.  Appellant was seventeen years old when the
hearing was held on his transfer motion.  Appellant now asserts
that the trial court erred in refusing to transfer his charges to
juvenile court.  We find no merit to his assertion of error and
affirm the circuit court's decision to retain jurisdiction.
     During the transfer hearing conducted on July 10, 1996,
Appellant presented the testimony of one witness, his mother Brenda
Wright.  Mrs. Wright stated that Appellant had a juvenile record,
beginning in 1990, but that he had never been offered any type of
counseling or rehabilitation program from the juvenile system. 
Instead, she stated, Appellant had only been punished by the
juvenile system.  She stated that the only violent offense for
which Appellant had been involved was a third-degree battery that
occurred in 1991, and that he had not been violent at home.  She
stated that during the time that Appellant was involved in the
juvenile system, they were never offered family counseling or any
kind of counseling at all.  She stated that she could not recall
whether Appellant had ever been evaluated for counseling purposes. 
Her position was that Appellant had always been placed in the
training school and that his emotional needs had been ignored by
the juvenile system.  She indicated that Appellant was currently in
the training school, but that he was in a different program
("JUMP") than before and was doing well.  She stated that Appellant
was currently working on obtaining his high school equivalency
diploma.  
     On cross-examination, however, Mrs. Wright admitted that when
Appellant was placed on probation by the juvenile court, he was
ordered to participate in various programs, including Stepping
Stone Special Reintegration, Changing Directions, and Diversion
programs.  She also admitted that when Appellant was in the custody
of the Offices of Youth Services (OYS), he received treatment, but
she denied that the programs were actually treatment programs.  She
maintained that although Appellant may have been ordered to
participate in such programs, no one followed through to make sure
he actually participated.
     The prosecution did not put on any testimony; instead, the
prosecutor chose only to describe the basis of the current charges
and to introduce into evidence the court records of Appellant's
prior juvenile history.  As to the charges listed in the first
information, case number CR 96-1079, the prosecutor stated that on
November 29, 1995, Appellant and several males approached Charles
Williams, as he was walking down the street, and asked Williams
what was up with his jacket, a Starter jacket.  Appellant and the
other males eventually jumped out of their car and attacked
Williams and stole his jacket.  One of the males had a gun and hit
Williams with it.  Williams later viewed a photographic lineup and
identified Appellant as one of the persons who assaulted him and
stole his jacket.  Appellant was subsequently charged with
aggravated robbery and theft of property.
     As for the offenses charged in the second information, case
number CR 96-1080, the prosecutor stated that Don Forrest and his
son were sitting in their car at a railroad crossing, waiting for
a train to pass, when a black male approached them and told them to
get out of the car.  Almost simultaneously, the guardrail at the
crossing came up and the train passed.  Forrest then sped off in
his car and the male fired three or four shots at the car, one of
which entered the car and barely missed Forrest's son.  Later that
same date, at a nearby Fina station, Appellant approached Aletha
Cannon, who was on the telephone, and demanded at gunpoint that she
give him her car.  Cannon complied.  As a result of these two
incidents, Appellant was charged with two counts of aggravated
robbery, one count of theft of property, and one count of
committing a terroristic act.  
     The prosecutor then offered as evidence Appellant's prior
records as a juvenile offender, which demonstrated that he was
found delinquent of the following offenses:
     October 10, 1990    Theft of Property; Appellant placed on
                         probation for three months, ordered to
                         attend school regularly, and to write a
                         letter of apology to the victim.

     March 25, 1992      Third-Degree Battery; Appellant placed on
                         indefinite probation, ordered to pay
                         restitution to the victim in the amount of
                         $1,006 and to complete the Diversion
                         program.

     March 11, 1993      Fleeing; Appellant continued on probation
                         and ordered to enter and complete the
                         Stepping Stone Special Reintegration
                         program, Diversion program, and to
                         participate in the Changing Directions
                         program over the summer.

     August 16, 1993     Theft by Receiving (of an automobile) and
                         Fleeing; Appellant committed to OYS and
                         ordered to pay restitution to the victim
                         in the amount of $457. 

     December 15, 1993   Obstructing Governmental Operations;
                         Appellant was ordered detained and his
                         probation officer was instructed to pursue
                         placement for him at Watershed; Appellant
                         was subsequently released to his mother
                         for twenty-four-hour supervision and was
                         ordered to attend Watershed on a daily
                         basis.

     November 22, 1994   Breaking and Entering; Appellant committed
                         to OYS. 

     May 6, 1996         Minor in Possession of a Handgun on School
                         Property and Obstructing Governmental
                         Operations; Appellant committed to OYS
                         until the age of eighteen, with a
                         recommendation that he be placed in the
                         serious offender program and that he
                         receive counseling and educational
                         programs.

The records further reflect that during the time that Appellant was
engaging in the above offenses, from 1990 through 1996, his
probation was revoked several times by the juvenile court. 
Additionally, Appellant failed to appear for various hearings,
requiring the juvenile court to issue "pick up" orders for his
return.  Similarly, during this time period, both his mother and
his father failed to appear for various hearings, resulting in the
court's issuance of show cause orders for them, with his mother
being held in contempt of court on one occasion.  After hearing the
testimony and receiving the evidence, the trial court made the
decision to retain jurisdiction of the current charges in circuit
court on the basis of Appellant's extensive juvenile record. 
     A defendant seeking a transfer from circuit court to juvenile
court has the burden of proving that a transfer is warranted under
section 9-27-318(e).  McClure v. State, 328 Ark. 35, 942 S.W.2d 243
(1997).  A circuit court's decision to retain jurisdiction of
criminal charges against a juvenile must be supported by clear and
convincing evidence.  Section 9-27-318(f); McClure, 328 Ark. 35,
942 S.W.2d 243.  Clear and convincing evidence is that degree of
proof that will produce in the trier of fact a firm conviction as
to the allegation sought to be established.  Id.  When reviewing
the denial of a motion to transfer to juvenile court, we view the
evidence in the light most favorable to the State.  Id.  We do not
reverse a circuit court's decision to retain jurisdiction unless
the decision is clearly erroneous.  Id. 
     When deciding whether to retain jurisdiction of or to transfer
a case to juvenile court, the factors for the circuit court to
consider are:  (1) the seriousness of the offense and whether the
juvenile used violence in committing the offense; (2) whether the
offense is part of a repetitive pattern of adjudicated offenses
leading to the conclusion that the juvenile is beyond
rehabilitation in the juvenile system; and (3) the juvenile's prior
history, character traits, mental maturity, or any other factor
reflecting upon the juvenile's prospects for rehabilitation.
Section 9-27-318(e).  A circuit court does not have to give equal
weight to each factor, nor does evidence have to be presented as to
each factor.  McClure, 328 Ark. 35, 942 S.W.2d 243; Cole v. State,
323 Ark. 136, 913 S.W.2d 779 (1996).
     Appellant does not dispute the seriousness of the offenses
with which he is currently charged.  In fact, he concedes that the
charges against him contain violence.  Notwithstanding that
concession, he argues that when the evidence is considered as a
whole, the trial court's decision was erroneous because the
testimony given by Mrs. Wright establishes that he is not beyond
rehabilitation and that he should be dealt with by the juvenile
system, rather than the adult penal system.  We disagree.
     The trial court was clearly justified in denying the transfer
of the current charges to juvenile court based solely on the fact
that Appellant's prior juvenile court record indicates that he is
beyond rehabilitation by the juvenile system.  Mrs. Wright's
testimony that Appellant was never offered any treatment or
rehabilitation programs by the juvenile court system was directly
contradicted by the juvenile records presented by the prosecution. 
Appellant's prior juvenile record is not only extensive, but also
demonstrates a pattern of offenses that have escalated in
seriousness, with the last offense involving Appellant's possession
of a handgun at school.  Moreover, the current offenses charged in
circuit court appear to be part of a repetitive pattern of
offenses, especially those charged in the second information. 
Where, as in the present case, there is evidence that the current
felony charges were part of a repetitive pattern of offenses, that
past efforts at rehabilitation in the juvenile court system have
not been successful, and that the pattern of offenses has become
increasingly more serious, these factors alone prevent us from
holding that the trial court's ruling on the transfer motion was
clearly erroneous.  Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).
     Additionally, the fact that Appellant is now nineteen years
old is relevant to his prospects for rehabilitation in the juvenile
court system and is a factor that this court has considered
important in reviewing the denial of a transfer motion.  Jensen v.
State, 328 Ark. 349, 944 S.W.2d 820 (1997).  We agree with the
State's argument that Appellant cannot be committed to a juvenile
facility for rehabilitation based upon the current charges unless
he is currently committed to such a facility.  Appellant argues
that because he was in the custody of the Office of Youth Services
at the time of the transfer hearing, "he might well be a candidate
to stay there."  Appellant's argument is unpersuasive.  This court
has repeatedly stated that although Ark. Code Ann.  9-28-208(d)
(Supp. 1997) provides for an extension of the commitment time for
juveniles beyond age eighteen under certain circumstances, "it
presupposes that the youth was committed upon reaching eighteen and
that the commitment will continue."  Id; see also Brooks v. State,
326 Ark. 201, 929 S.W.2d 160 (1996); Hansen v. State, 323 Ark. 407,
914 S.W.2d 737 (1996).  Thus, because the record in this case is
devoid of any evidence that Appellant is currently committed to the
Office of Youth Services, it is not apparent that Appellant's
commitment could be extended pursuant to section 9-28-208(d).  
     Accordingly, given that Appellant's current age may prevent
him from being committed to a juvenile facility, that his prior
juvenile record demonstrates a lengthy and escalating pattern of
offenses, and that he concedes that the current charges involve
violence, we hold that the trial court's decision to retain
jurisdiction of the current charges was not clearly erroneous.  We
note, however, as the State has pointed out, that the one count of
misdemeanor theft of property must be filed in juvenile court, as
the prosecutor has no discretion to file that charge in circuit
court.  See section 9-27-318(a)(3).  We therefore affirm the
decision of the trial court, with the modification that the
misdemeanor theft charge be transferred to the jurisdiction of the
juvenile court.
     Affirmed as modified.