In re R.D.

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. 88-592
 
 
In re R.D.                                   Supreme Court
 
                                             On Appeal From
                                             District Court of Vermont
                                             Unit No. 1, Windsor Circuit
 
                                             June Term, 1989
 
 
John P. Connarn, J., Specially Assigned
 
Mark T. Cameron, Windsor County Deputy State's Attorney, White River
  Junction, for plaintiff-appellee
 
Martin & Paolini, Barre, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     ALLEN, C.J.   Defendant appeals from the denial of a motion to transfer
his case to juvenile court pursuant to 33 V.S.A. { 635(b).  Defendant con-
tends that the trial court erred in considering his prior juvenile record
in making its determination.  We affirm.
     Defendant was arrested for possession of one-half ounce or more of
marijuana in violation of 18 V.S.A. { 4224(e)(1)(B).  Defendant was sixteen
years old at the time of the alleged offense.  The state's attorney exer-
cised the discretion provided by 33 V.S.A. { 635(c) (FN1) and opted to file
charges in a court of criminal jurisdiction rather than juvenile court.
Defendant moved pursuant to 33 V.S.A. { 635(b) (FN2) to transfer the proceedings
to juvenile court.  According to the tenor of this motion, defendant's age
comprised the sole, and therefore an insufficient, basis for the State's
decision to charge defendant as an adult.  The State opposed the motion to
transfer and set forth the factors that underlay the decision to charge
defendant in criminal court.  The State's memorandum in opposition delin-
eated defendant's prior juvenile record, his noncompliance with the con-
ditions of juvenile probation, and his failure to engage in rehabilitation
efforts.  Defendant asserted his right to the confidentiality of his
juvenile records and objected to the State's use of these records to block
transfer to juvenile court.
     In an effort to insulate defendant's juvenile record from public
scrutiny, the trial court struck all references to the record from the
State's memorandum.  The trial court judge conducted an in camera review of
defendant's prior juvenile record and his history of noncompliance with
juvenile probation and rehabilitation efforts.  After considering these
among other factors, the court denied the motion to transfer and held
defendant over in district court for trial.
     Defendant appealed on the authority of State v. Lafayette, 148 Vt. 288,
532 A.2d 560 (1987) and squarely presents the issue of whether a trial court
may take account of a defendant's juvenile records when considering whether
to transfer a case to juvenile court.
     Law enforcement reports and files concerning a person subject to the
jurisdiction of the juvenile court are to be kept separate from the records
and files of arrests of other persons, and such records and files shall not
be open to public inspection nor their contents disclosed to the public,
with limited exceptions not here applicable.  33 V.S.A. { 663(a).  It is
apparent, however, that the Legislature did not intend that a district
judge, in making a transfer decision, be included within the prohibition.
Section 663(a) specifically empowers "the court" to authorize a disclosure
of the protected records "in the interest of the child."  In addition, {
663(b)(1) sets forth an exception to the nondisclosure rule and thereby
enables the juvenile court having the child before it to inspect the
juvenile's records and files.  Therefore, the reference to the "court" in {
663(a) must be to the district judge in a criminal proceeding.
     The juvenile justice system serves rehabilitative rather than punitive
goals.  In Re J.S., 140 Vt. 458, 468, 438 A.2d 1125, 1129 (1981).  The
confidentiality of juvenile proceedings, records and files protects the
delinquent from the stigma of his misconduct in order to make change and
growth possible.  Id.  To achieve these purposes, the Legislature left the
propriety of transfer to the sound discretion of the trial court for a case-
by-case determination.  State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250  (1984).  The trial court must, in the interest of the juvenile, have
access to all the facts to make an informed assessment of whether a parti-
cular defendant will benefit from the protection afforded juveniles.  When a
defendant with prior experience in the juvenile system comes before the
court on criminal charges, it is difficult to conceive of a more relevant
consideration than whether the system has worked for that person in the
past.
     The trial court evaluated the extent and nature of defendant's prior
record of delinquency, the nature of past treatment efforts and defendant's
response to them, the prospects for rehabilitation by use of procedures,
services and facilities available through juvenile proceedings, and whether
protection of the community would be best served by adjudication in criminal
or juvenile court. (FN3)  The trial court weighed these factors in response to
defendant's implication that age alone motivated the State to file charges
in criminal court.  Defendant's habitual truancy, six adjudications of
delinquency within two years of the most recent arrest, continual curfew
violations, and his failure to attend alcohol counseling sessions led the
trial court to decide against transfer to juvenile court.  These factors
play an important role in the calculus of whether defendant would benefit
from additional juvenile treatment.  "[T]rial courts have the broadest
possible discretion in ruling on transfer motions."  State v. Lafayette,    
Vt.    ,    , 564 A.2d 1068, 1069 (1989).  Here, the trial court acted
within its discretion by taking defendant's juvenile records into account.
See id. at    , 564 A.2d  at 1070 (trial court's denial of transfer affirmed
where defendant's prior juvenile record and the nature of the offenses
formed the basis of the court's decision); Jacobs, 144 Vt. at 75-76, 472 A.2d  at 1250 (defendant's juvenile record was properly before the court and
clearly supported trial court's findings that transfer to juvenile court
was not feasible for dealing with defendant).
     Defendant maintains that if the State desires to have a juvenile record
considered by the judge in order to justify treating defendant as an adult,
it must initiate the proceeding in juvenile court and then request a trans-
fer to criminal court under 33 V.S.A. { 635a(a). (FN4)  The prior record of
delinquency would then be available for consideration by the juvenile court
pursuant to 33 V.S.A. { 635a(d)(2), (3).  This argument ignores that fact
that { 635a(a) provides for a transfer to criminal court only in the limited
instance where a child who has attained the age of ten but not the age of
fourteen has allegedly committed one of the violent acts set forth by {
635a(a)1-11 (target offenses).  Given defendant's age, the Legislature
provided the state's attorney with the discretion to charge this offense in
either criminal or juvenile court.  33 V.S.A. { 635(c).  We presume the
Legislature intended each statutory provision to have effect and, where
possible, we will interpret a statute to achieve this result.  State v.
Teachout, 142 Vt. 69, 72, 451 A.2d 819, 820 (1982).  If the State had
initiated a delinquency proceeding in juvenile court against defendant, it
would have foregone the option of ever charging defendant as an adult.  The
election provided by { 635(c) would be rendered useless for non-target
offenses, such as defendant's charge of possession of marijuana.
     In drafting { 635(c), the Legislature intended to provide the state's
attorney with an effective choice between juvenile and criminal juris-
diction.  The viability of the election to charge a defendant in criminal
court will often depend upon the State's ability to counter a transfer
motion with portions of the juvenile record to rebut the assertion that a
defendant would benefit from juvenile treatment.  Otherwise, juvenile
offenders could blatantly misrepresent facts to the court under the cover of
confidentiality.
     Defendant also contends that the trial court's ruling subverts the
very purposes and objectives of 33 V.S.A. chapter 12 by protecting privacy
and confidentiality only after transfer to juvenile court.  Defendant notes
that, as part of the public court file, the State's response to the motion
to transfer exposed his juvenile record to public scrutiny from the time of
filing until the court denied transfer and struck all references to the
juvenile's record from the State's memorandum.  The trial court's ruling,
defendant argues, serves to only "lock the barn door after the horse is
stolen."
     We begin "with the presumption that pretrial proceedings and documents
are open to the public."  In Re K.F.,     Vt.    ,    , 559 A.2d 663, 664-65
(1989).  Pursuant to 33 V.S.A. { 635(c), procedures against defendants over
the age of sixteen and under the age of eighteen at the time of the offense
may originate in district court.  "The statutory scheme provides for the
confidentiality of juvenile proceedings only after a determination under {
635(b) and not before." (FN5)  Id. at   , 559 A.2d  at 665.  We assume the
Legislature was aware that district court proceedings would be conducted in
open court.  Id. at     n.2, 559 A.2d  at 665 n.2.  Though some loss of
confidentiality may result, this initial openness does not thwart the basic
purpose of Chapter 12 or the transfer statute.  Id. at ___, 559 A.2d  at 665
(statutory scheme does not lack rationality though it allows access to
arraignment and documents related thereto, but bars access to the juvenile
proceedings themselves).  While { 635(b) transfer proceedings are open to
the public, the trial court should take care to accommodate a defendant's
concern for the confidentiality of his juvenile records.  Here, the trial
court did so by examining defendant's juvenile records in camera and, upon
denial of the transfer motion, striking any reference to the juvenile record
from the State's memorandum.  In sum, the trial court acted within its
discretion by taking defendant's juvenile record into account, and imple-
mented protective measures that minimized any loss of confidentiality.
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Chief Justice


FOOTNOTES:


FN1.     The state's attorney may initiate charges in a juvenile court or a
court of criminal jurisdiction where the defendant was over sixteen and
under eighteen at the time of the alleged commission of the offense and the
offense charged is not one specified in { 635a(a).  33 V.S.A. { 635(c).

FN2.     33 V.S.A { 635(b) provides:
If it appears to any court of this state in a criminal
proceeding that the defendant was over the age of six-
teen years and under the age of eighteen years at the
time the offense charged was alleged to have been com-
mitted, . . . that court may forthwith transfer the
proceeding to the juvenile court under the authority of
this chapter, and the minor shall thereupon be con-
sidered to be subject to this chapter as a delinquent
child.

FN3.     While not required to do so, the trial court may refer to the
standards for transfer from juvenile to criminal court set forth in 33
V.S.A. { 635a(d).  See State v. Willis, 145 Vt. 459, 468-69, 494 A.2d 108,
113 (1985) (trial court may consider the criteria outlined in Kent v. United
States, 383 U.S. 541, 566-67 (1966), which include the record and previous
history of the juvenile, the likelihood of reasonable rehabilitation, and
the prospects for adequate protection of the public).

FN4.     A juvenile court may inspect the juvenile records and files of the
child before it.  33 V.S.A. { 663(b)(1).

FN5.     "If charges . . . are filed in a court of criminal jurisdiction,
that court may forthwith transfer the proceeding to the juvenile court under
the authority of this chapter and the person shall thereupon be considered
to be subject to this chapter as a delinquent child."  33 V.S.A. { 635(c)
(Emphasis added).