Deon Earnest v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

DEON EARNEST

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-739

May 2, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

[NO. CR98-4364]

HON. JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

The appellant was charged as an adult with committing two counts each of aggravated robbery, theft of property, and first-degree battery while he was seventeen. He moved to transfer his case to juvenile court but, after a hearing, that motion was denied. This interlocutory appeal followed.

For reversal, appellant contends that the trial court erred in denying his motion to transfer to juvenile court. We find no error, and we affirm.

Arkansas Code Annotated § 9-27-318 (Repl. 1998)1 provides, in pertinent part, that:

(b) A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:

(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult, would be any felony;

. . .

(d) Upon the motion of the court or any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;

(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and

(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile's prospects for rehabilitation.

(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

Although the trial court must consider all of the factors listed above, it is not required to give them equal weight. Rhodes v. State, 332 Ark. 516, 967 S.W.2d 550 (1998). Furthermore, while the trial court's decision to try the juvenile as an adult must be supportedby clear and convincing evidence, we will not reverse the trial court's decision in this regard unless it is clearly erroneous. Id.

In the present case appellant was charged with aggravated robbery, theft of property, and first-degree battery. There was evidence that three men approached two sisters in Little Rock. One of the men demanded a purse at gunpoint and struck one of the women with the gun. One or two of the men then struck the other woman, knocked her to the ground, and took her purse. Appellant was identified as one of the men who participated in the robbery.

The record also shows that appellant had previously been adjudicated delinquent for committing residential burglary and two instances of theft of property. He was previously placed in the Division of Youth Services and received alternative school, boot camp, and probation. His probation was ultimately revoked after he committed his second theft offense. Appellant was seventeen at the time of the offenses that he is currently alleged to have committed and is now over eighteen.

We think that the trial court correctly denied appellant's petition for transfer to juvenile court. The crimes with which appellant is charged are serious ones. See Rhodes v. State, supra. Furthermore, the record shows that appellant was previously adjudicated delinquent for breaking into a residence and stealing property, and for taking someone's wallet at school. The trial judge could manifestly find on this record that the current charges against appellant were part of a pattern of offenses that had become increasingly serious over time. It is true that appellant's mother believes that appellant has made good progress and that his experiences with the juvenile justice system have been beneficial to him. It is alsotrue that appellant's probation officer testified that he found appellant to be cooperative. However, we think cooperation with rehabilitation efforts, however laudable, should not be confused with successful rehabilitation. We think that the trial judge could properly find on this record that past rehabilitation efforts had failed and that appellant is beyond rehabilitation under the juvenile programs available to him now that he is over eighteen years of age. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). We hold that the trial court did not clearly err in denying appellant's motion to transfer to juvenile court.

Affirmed.

Hart and Vaught, JJ., agree.

1 This statute was amended in 1999.