State v. Charbonneau

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-379
 
 
State of Vermont                             Supreme Court
 
                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit
 
Todd Charbonneau                             September Term, 1989
 
 
Michael S. Kupersmith, J.
 
William Sorrell, Chittenden County State's Attorney, Burlington, and
  Jo-Ann Gross, Department of State's Attorneys, Montpelier, for
  plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
  Defender, Montpelier, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned
 
 
     ALLEN, C.J.   After a trial, the district court convicted defendant of
simple assault and thereafter sentenced him to a prison term.  Defendant
appeals his conviction and sentence.  We reverse and remand.
     In November of 1987, defendant, then age sixteen, was charged in
district court with simple assault.  Defendant had other cases pending in
juvenile court in which he had been adjudicated delinquent, but a
disposition order had not been issued.  The court sought to consolidate the
simple assault charge with defendant's pending juvenile cases and
transferred the matter sua sponte to juvenile court pursuant to 33 V.S.A. {
635(b).  On December 9, 1987, the court held a status conference on the
disposition of defendant.  SRS recommended placement at 204 Depot Street, a
residential treatment facility.  The court scheduled a disposition hearing
for the juvenile's pending cases for December 22, 1987 to enable defendant
to visit the facility with his mother, and indicated it would deal with the
simple assault at that future date.
     At the December 22 hearing, defendant indicated his unwillingness to
participate in the 204 Depot Street program.  Given the absence of another
suitable treatment facility, the juvenile court placed defendant on
probation for the pending juvenile cases, subject to various conditions.
With respect to the simple assault charge, the court ascertained that a
factual dispute existed and defendant would not admit to the delinquent act.
Without an admission, there would have to be an adjudication of delinquency
before the court could decide on the appropriate disposition of the case.
The court concluded it could not consolidate the simple assault case with
the pending juvenile cases for which it was placing defendant on juvenile
probation.  Referring to the simple assault case, the court stated:
	I transferred it to juvenile court at arraignment on my
	own motion feeling that the matter could be consolidated
	with [defendant's] other cases that were then pending in
	juvenile court.  At that time, I was not aware that
	[defendant] had already had two delinquency adjudica-
	tions in juvenile court. . . .  Nor was I aware that
	there had not been good compliance with the conditions
	of juvenile probation.  I think in order for a case to
	be in juvenile court, there has to be some likelihood
        that the juvenile will be able to benefit from the
        juvenile process.  Everything I have learned since I
        transferred the case to juvenile court is that we are
        not getting a whole lot of cooperation and the like-
        lihood of success on continued probation is not very
        good.  So, I don't see that we can carry out the goals
        of rehabilitation in juvenile court.  I think the matter
        ought to be in adult court . . . and that is what I
        intend to do with it.
 
The court then transferred the simple assault case back to district court.
     In district court, defendant was tried as an adult and convicted of
simple assault.  At sentencing, the court stated that it was considering a
split sentence with participation in drug and alcohol counseling as a
condition of probation.  The court explained that, if defendant was going to
take the position that drug and alcohol counseling was not a reasonable
condition, it would "have to really rethink whether probation is the way to
go."  Defendant objected on the grounds that the proposed conditions did not
reasonably relate to the underlying offense.  The court then sentenced
defendant to a one-to-twelve month prison term.
     On appeal defendant argues that:  (1) the juvenile court lacked
jurisdiction to retransfer the simple assault case back to adult court; and
(2) that the court violated his statutory right to appeal and his
constitutional right to due process of law by imposing a prison sentence
after defendant objected to the proposed condition of probation.  Because of
our resolution of the first issue, we need not reach defendant's second
claim.
     The State contends that the juvenile court held a merits hearing as
required by 33 V.S.A. { 655(c) on December 22, 1987, and therefore the
retransfer of the proceedings to district court was proper.  We disagree.
     Examination of the record of the December 22, 1987 status conference
discloses that, while the court discussed the disposition of defendant's
other pending juvenile cases, it had yet to conduct a merits hearing
regarding the simple assault, and took no evidence on that charge before
transferring the proceeding back to district court.
     In the alternative, the State argues that, even if no merits hearing
was held, the juvenile court acted properly because { 655(c) does not
require a merits hearing before transfer.  We disagree.
     When a district court acts as a juvenile court, it exercises special
and very limited statutory powers.  In re M.C.P., ___ Vt. ___, ___, 571 A.2d 627, 642 (1989).  "Generally, unless statutory authority exists for a
particular procedure, the juvenile court lacks the authority to employ it."
In re J.S., ___ Vt. ___, ___, 571 A.2d 658, 661 (1989).  The language of {
655(c) allows transfer only in the context of a disposition hearing, and
therefore after an adjudication of delinquency. (FN1)  See 33 V.S.A. { 654.  In
addition to { 655(c), only 33 V.S.A. { 635a empowers the juvenile court to
transfer a proceeding to adult court.  Defendant's simple assault charge,
however, does not fall within the list of serious offenses enumerated in {
635a(a).
     The juvenile court was without jurisdiction to retransfer the defendant
to the district court for prosecution as an adult on the simple assault
charge.
     Reversed and remanded.
                                        FOR THE COURT:
 
 
 
                                        Chief Justice




FN1.    Because the December 22, 1987 transfer hearing did not constitute a
merits hearing, we need not decide whether, without violating the protection
against double jeopardy, a defendant may be tried as an adult after an
adjudication of delinquency and subsequent transfer under 33 V.S.A. {
655(c).  See Breed v. Jones, 421 U.S. 519 (1975).  Nor do we express any
opinion whether, before an adjudication of delinquency, the juvenile court
could have dismissed the case without prejudice.