Smith v. State

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Deandre Smith v. State of Maryland, No. 135, September Term, 2006. CRIMINAL PROCEDURE JUVENILE REVERSE WAIVER : Appellant, Deandre Smith, then a juvenile, was charged with various criminal offenses, including carrying a han dgun in v iolation of S ection 4-203 of the Crimin al Law A rticle which precluded the juvenile co urt from exercising its exclusive ju risdiction over Smith. In criminal court, Smith plead guilty to motor vehicle theft and attempting to flee and elude an officer in a vehicle in exchange for having disposition of his charges handled by the juvenile court pursuant to Section 4-202.2 of the Criminal Procedure Article, Maryland Code (2001, 2004 Cum. S upp.), beca use the han dgun ch arge wo uld be nolle prosse d. The criminal court accepted the plea, found that Smith was amenable to treatment available in the juvenile justice system, and transferred jurisdiction of the case to the juvenile court. The juvenile court conducted the disposition hearing and committed Smith to the Department of Juvenile Services, which placed him in Bowling Brook Preparatory School. Smith subsequently escaped, was apprehended and appeared again before the juvenile court. The juvenile court found that Smith was not amenable to treatment in the juvenile justice system, and remanded Smith to the criminal court, which sentenced Smith as an adult. The Court of Appeals vacated the decision of the criminal court and rema nded the c ase to the juv enile court, holding that the juvenile court did not have the power to return the case to the criminal court for sentencing after the case had been transferred to it under Section 4-202.2. IN THE COURT OF APPEALS OF MARYLAND No. 135 September Term, 2006 DEANDRE SMITH v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene, Wilner, Alan M. (retired, specially assigned), JJ. Opinion by Battaglia, J. Wilner, J. concurs Filed: June 8, 2007 The case sub judice presents this Court with the task of determining whether, once a circuit court sitting as a criminal court transfers jurisdiction of a case to the juvenile court for disposition, the juvenile court in turn possesses the power to return the case to the criminal court. 1 Because we hold that the juvenile court does not possess such pow er, we sha ll vacate the sentenc e imposed by the criminal c ourt and rem and the ca se to the juve nile court. I. Introduction On March 31, 2005, appellant, Deandre Smith, then seventeen years of age, was indicted for one count of motor vehicle theft in violation of Maryland Code, Section 7-105 of the Criminal Law A rticle (CL), two counts of theft over $500 in violation of CL Section 7-104, one count of unauthorized use of an motor vehicle in violation of CL Section 7-203, two counts of willful and malicious destruction of property in violation of CL Section 6-301, one count of attempting to flee and elude a police officer in a vehicle in violation of Maryland Code, Section 21 -904 (e) of the Tran sportation Article (TR), one count of attempting to flee and elude a police officer on foot in violation of TR Section 21-904 (c), 1 The juvenile court is the circuit court for a county sitting as a juvenile court. See Md. Code (1974, 2001 Repl. Vol.), § 3-8A-01 (i) of the Courts & Judicial Proceedings Article (CJP). For purposes of our discussion, we refer to the circuit court sitting as a juvenile court as juvenile court, and to the circuit court sitting as a criminal court as criminal court. one count of willful failure to obey a reasonable and lawful order of a law enforcement officer in violation of CL 10-201 (C)(3), one count of obstructing justice by resisting a rrest, and one count of carrying a handgun in violation of CL Section 4-203 (a)(1). Although Smith was 17 at the time of the offenses, the handgun violation was an excluding charge over which the juvenile court did not have jurisdiction under Maryland Code, Section 3-8A03 of the Courts & Judicial Proceedings Article (CJP). Smith, nevertheless, filed a motion to remove the proceedings to juvenile court under Maryland Code, Section 4-202 of the Criminal Procedure Article (CP), which was denied by Judge Graydon S. McKee of the Circ uit C ourt for P rince Ge orge s Co unty. Sub sequ ently, Smith and the State entered into a plea agreement by which Smith pled guilty to one count of motor vehicle theft and one count of fleeing and eluding an officer in a vehicle, in exchange for having the disposition of his charges handled by the juvenile cou rt pursuant to CP Section 4-202.2, because the handgun charge would be nolle prossed. Judge Michael P. Whalen, sitting as judge of the criminal court, accepted the plea, fou nd that Sm ith was amenable to treatment available in the juvenile justice system, transferred jurisdiction of the case to th e juvenile co urt, and ordered the case sealed.2 Judge McKee conducted the disposition hearing and committed Smith to the Department of Juvenile Services, which placed him in Bow ling Broo k Prepara tory School. 2 Judge McKee, who was assigned to Smith s case, was unavailable for the hearing on the guilty plea. Judge Whalen conducted Smith s guilty plea proceeding, under an agreement that the disposition would be deferred pending Judge McKee s availability. -2- Smith subseque ntly escaped, w as appreh ended an d appeare d again be fore the juvenile court. Judge McKee found that Smith was not amenable to treatment in the juvenile justice system,3 ordered the original case unsealed, and remanded Smith to the criminal court for sentencing. On remand, Smith was sentenced to four years imprisonment on the motor vehicle theft charge, with all but six mo nths suspended, fo llowed by three years supervised probation; with respect to the fleeing and eluding an officer in a vehicle charge, Smith was sentenced to one year imprisonment, suspended, concurrent with the sentence for the motor vehicle theft charge. Smith no ted an app eal to the Co urt of Spe cial Appe als and subse quently, this Court issued, on its own initiative, a writ of certiorari p rior to any proce edings in the intermediate appella te court. Smith v. Sta te, 397 Md. 107, 916 A.2d 256 (2007). Smith s brief presents the following issue: Once the circuit court sitting as a criminal court transfers a case to the juvenile court for disposition under § 4-202.2 of the Maryland Criminal Proceedin gs Code, does the juvenile court 3 Between his escape from Bowling Brook and his apprehension, Smith participated in several burglaries in Carroll County and was charged with one count of third-degree burglary in violation of CL Section 6-204, one count of fourth-degree burglary in violation of CL Section 6-205, one count of theft over $500 in violation of CL Section 7-104, and one count of malicious destruction of property under $500 in violation of CL Section 6-301. Smith was found guilty of third-degree burglary based upon an agreed statement of facts; the State nolle prossed the remaining charges. A question regarding mootness was raised at oral argument, in light of Smith s coming of age and his conviction as an adult offender. We will reach the issue in the present case because if Smith s sentence in the instant case remains, it would constitute a conviction in any subsequent sentencing. See McMannis v. State, 311 Md. 534, 539, 536 A.2d 652, 654 (1988) (noting that because an enhanced prison term for a subsequent conviction was a collateral consequence, the case was not moot). -3- thereafter lack the power to remand the case to the criminal court, and does the criminal court lack jurisdiction to impose a sentence? We shall hold that once a criminal court transfers the case to the juvenile court for disposition, the juvenile co urt cannot re turn the case to the crimin al court. II. Discussion Smith contends that once a c riminal cou rt transfers jurisd iction of a ca se to a juven ile court for dispositio n under C P Section 4-202.2, the juvenile court does not possess the power to remand th e case to the criminal c ourt. Smith a rgues that C P Section 4-202.02 parallels CP Section 4-202, so that our opinions in In re Glenn S., 293 Md. 510, 445 A.2d 1029 (1982) and In re Franklin P., 366 M d. 306, 7 83 A.2d 673 (2001) would prevent the transfer that occurred in this case. Sm ith also contends that there is no statutory provision allowing the criminal court to retain jurisdiction over the case after it is transferred pursuant to Section 4202.2 and to return the case to the criminal court. Additionally, Smith argues that remanding the case to the criminal court for sentencing, after the disposition in juvenile court, would be contrary to the gene ral principles of the juvenile justice system and w ould violate double jeop ardy. 4 The State, conversely, contends that, after the criminal court transfers jurisdiction of 4 Because we decide this case on a non-constitutional ground, we decline to address the constitutional issue. See McCarter v. State, 363 Md. 705, 712, 770 A.2d 195, 199 (2001) (stating that, in Maryland, it is a well established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground ), citing Harryman v. State, 359 Md. 492, 503 n.6, 754 A.2d 1018, 1024 n.6 (2000). -4- a case to the juvenile court for disposition under CP Section 4-202.2, the juvenile court retains the power to remand the case to the criminal court. The State argues that although the legislative inten t of CP S ection 4-20 2.2 is to affo rd juvenile o ffenders rehabilitative treatment opportunities, the Legislature could not h ave intend ed to preclude a remand to the criminal court for sentencing if the juven ile acts inimica lly to treatment. Further, the S tate asserts that the analogy drawn between CP Sections 4-202 and 4-202.2 is inapplicab le because the transfer of jurisdiction in Section 4-202.2 is limited to disposition, rather than to transfer juris diction to the ju venile cou rt. The juvenile courts a re create d by statute and ha ve limite d jurisdi ction, ordinarily possessing exclusive original jurisdiction over youthfu l offenders alleged to have committed delinquent acts.5 CJP § 3-8A-03. Nevertheless, subsection (d) of Section 3-8A-03 identifies 5 Ordinarily, the juvenile courts have jurisdiction over a child under the age of 18 alleged to be delinquent. See CJP § 3-8A-03 of the Courts and Judicial Proceedings Article. The juvenile courts, however, retain jurisdiction over an individual adjudicated delinquent until the age of 21. CJP Section 3-8A-07 states in part: (a) Duration. If the court obtains jurisdiction over a child under this subtitle, that jurisdiction continues until that person reaches 21 years of age unless terminated sooner. *** (c) Termination. Unless otherwise ordered by the court, the court s jurisdiction is terminated over a person who has reached 18 years of age when he is convicted of a crime, including manslaughter by automobile, unauthorized use or occupancy of a motor vehicle, any violation of Title 2, Subtitle 5 or § 3-211 of the Criminal Law Article, or § 21-902 of the Transportation Article, but excluding a conviction for a violation of any other traffic law or ordinance or any provision of the State Boat Act, or the fish and -5- an excep tion, applicab le to the prese nt case, wh en a juven ile is charged with a violation of CL Section 4-203, unlawfully carrying a handgun: (d) Limita tions. The court does n ot have jurisdiction over: *** (4) A child at least 16 years old alleged to have committed any of the following crimes, as well as all other charges against the child arising out of the same incident, unless an order removing the proceedin g to the court has been filed under § 4-202 of the Criminal Procedure Article: *** (xvii) A violation of § 4-203, § 4-204, § 4-404, or § 4-405 of the Criminal Law Article. CJP § 3-8A -03 (d)(4)(xvii). Although a charge may be excluded from the juvenile court s jurisdiction under CJP Section 3-8A-03 (d), the criminal court may reverse waive 6 jurisdiction to the juven ile court before trial or before a plea is entered under CP 4-202, pursuant to various transfer criteria: (b) When transfer allowed. Except as provided in subsection (c) of this section, a court exercising criminal jurisdiction in a case involving a child may transfer the case to the juvenile court before trial or before a plea is entered under Maryland Rule wildlife laws of the State. 6 Reverse waiver is the transfer of jurisdiction from the criminal court to the juvenile court; waiver is the transfer from the juvenile court to the criminal court. See In re Franklin P., 366 Md. at 330-33, 783 A.2d at 687-89; In re Glenn S., 293 Md. at 511-12, 445 A.2d at 1029-30. -6- 4-242 if: (1) the accused child was at least 14 but not 18 years of age when the alleged crime was committed; (2) the alleged crime is excluded from the jurisdiction of the juvenile court under § 3-8A-03(d )(1), (4), or (5) of the Courts Article; and (3) the court determines by a preponderance of the evidence that a transfer of its jurisdiction is in the interest of the child or society. *** (d) Transfer criteria . In determining whether to transfer jurisdiction under subsection (b) of this section , the court sha ll consider: (1) the age of the child; (2) the mental and physical condition of the child; (3) the amenability of the child to treatment in an institution, facility, or program available to delinquent children; (4) the nature of the alleged crime; and (5) th e public s afet y. *** (g) Procedu res on tran sfer Ju venile cour t. If the cou rt transfers its jurisdiction under this section, the court may order the child held for an adjudicatory hearing under the regular procedu re of the juv enile court. CP § 4-202 (b ), (d), and (g). C P Section 4-202.2 co difies a law enacted by the General Assemb ly in 2002, 2002 Maryland Laws, Chapter 159, which permits a criminal cou rt to reverse waive jurisdiction to the juvenile court after trial, for disposition, if all the charges that resulted in excluding jurisdiction from the juvenile court had been eliminated: (a) In general. At sentencing, a court exercising criminal jurisdiction in a case involving a child shall determine whether to transfer jurisdiction to the juvenile court if: -7- (1) as a result of trial or a plea entered under M aryland Rule 4-242, all charges that exc luded jurisd iction from the juvenile court under § 3-8A-03(d)(1) or (4) of the Courts Article do not result in a finding of guilty; and (2)(i) pretrial transfer was prohibited under § 4-202(c )(3) of this subtitle; or (ii) the court did not transfer jurisdiction after a hearing under § 4- 202(b) of this subtitle. (b) Cons ideratio ns. In determining whether to transfer jurisdiction under subsection (a) of this section, the court shall consider: (1) the age of the child; (2) the mental and physical condition of the child; (3) the amenability of the child to treatment in an institution, facility, or program available to delinquent children; (4) the nature of the child s acts as proven in the trial or admitted to in a plea entered under Maryland Rule 4-242; and (5) p ublic saf ety. (c) May not consider tr ansfer. The court may not consider transferring jurisdiction to the juvenile court under this section if: (1) under the terms of a plea agreement entered under Maryland Rule 4-243, the child agrees that jurisdiction is not to be transferred; or (2) pretrial transfer was prohibited under § 4-202 (c)(1) or (2) of this subtitle. *** (e) Dispo sition. (1) If the court transfers its jurisdiction to the juvenile court, the court shall conduct a disposition under the regular pro cedures o f the juven ile court. (2) The record of the hearing and of the disposition shall be transferred to the juvenile court, subject to § 3-8A-27 of the Courts Article. CP § 4-202 .2 (a), (b), (c), and (e). We have held that juvenile courts, as statutorily created courts of limited jurisdiction, -8- may exer cise only those pow ers expre ssly designate d by statute. In In re Frankin P., 366 Md. at 306, 783 A.2d at 673, we considered whether a juvenile court had the authority to rescind its order waiving jurisdiction to the criminal court. In that case, Franklin P. was charged with variou s offense s, and the S tate successf ully petitioned the juvenile co urt to waive jurisdiction un der CJP S ection 3-81 7 to the crim inal court. 7 The juvenile court 7 As applied in In re Franklin P., CJP Section 3-817 provided in part that the juvenile court may waive the exclusive jurisdiction conferred by § 3-804 of this subtitle with respect to a petition alleging delinquency by . . . a child. Section 3-817 was codified without relevant change as CJP Section 3-8A-06 in 2001. 2001 Md. Laws, Chap. 415. CJP Section 38A-06, entitled Waiver of jurisdiction, provides in pertinent part: (a) How waived. The court may waive the exclusive jurisdiction conferred by § 3-8A-03 of this subtitle with respect to a petition alleging delinquency by: (1) A child who is 15 years old or older; or (2) A child who has not reached his 15th birthday, but who is charged with committing an act which if committed by an adult, would be punishable by death or life imprisonment. *** (d) Unfit subject for juvenile rehabilitation measures. (1) The court may not waive its jurisdiction under this section unless it determines, from a preponderance of the evidence presented at the hearing, that the child is an unfit subject for juvenile rehabilitative measures. (2) For purposes of determining whether to waive its jurisdiction under this section, the court shall assume that the child committed the delinquent act alleged. (e) Criteria. In making its determination, the court shall consider the following criteria individually and in relation to each other on the record: (1) Age of the child; (2) Mental and physical condition of the child; (3) The child s amenability to treatment in any institution, facility, or program available to delinquents; (4) The nature of the offense and the child s alleged participation -9- subseque ntly issued an order vacating that waiver, which we determined was impermissible: In Austin v. Director of Patuxent Institution, we stated, quoting from Scherr v. Braun, that [n]o principle is better established than that in exercising a statutory power, a court is without jurisdiction unless it complies with the statute. We went on to hold: [I]t is apparent that the court, in the exercise of the special jurisdiction conferred on it by statute, was required to follow the only course of action prescribed by the statute when, as here, the defendant was found not to be a defective delinquen t. If new trials are to be g ranted in defective delinquent proceedings, the Legislature, not the C ourts, sh ould pr ovide f or them . *** Petitioner is asking our Court to grant to the Juvenile Court the power to w aive jurisdic tion bac k to that c ourt by wa y of its modification of its original w aiver order. T he waive r statute contains no provision permitting the Juvenile Court to rescind its waiver o rder once a uthority is vested in the criminal c ourt. *** That, the juvenile court has no power to do. Id. at 333-334, 783 A .2d at 689-90 (citations om itted) (emphasis in original). Further, in In re Glenn S., 293 M d. at 510, 44 5 A.2d a t 1029, a ca se similar to the in it; and (5) The public safety. (f) Procedures. If jurisdiction is waived under this section, the court shall order the child held for trial under the regular procedures of the court which would have jurisdiction over the offense if committed by an adult. The petition alleging delinquency shall be considered a charging document for purposes of detaining the child pending a bail hearing. -10- present case except for the presence of Section 4-202.2, we considered w hether a juv enile court could remand jurisdiction to the criminal court after the criminal court had reverse waived jurisdiction to th e juvenile co urt, pursuan t to Section 594A of Article 27 of the Maryland Code (1957, 1982 Rep l. Vol.).8 In that case, G lenn S., a juv enile, allegedly committed a robbery w ith a deadly weapon. Subsequently, the criminal court reverse waived jurisdiction of the case to the juven ile court for adjudication, whereupon Glenn S. was placed 8 Section 594A of Article 27 of the Maryland Code was the statutory predecessor to CP Section 4-202. As interpreted in In re Glenn S., Section 594A stated: (a) Transfer to juvenile court. In any case involving a child who has reached 14 years of age but has not reached 18 years of age at the time of any alleged offense excluded under the provisions of § 3-804 (d)(1) or (d)(4) of the Courts Article, the court exercising jurisdiction may transfer the case to the juvenile court if a waiver is believed to be in the interests of the child or society. (b) Determination as to waiver of jurisdiction. In making a determination as to waiver of jurisdiction the court shall consider the following: (1) Age of child; (2) Mental and physical condition of child; (3) The child s amenability to treatment in any institution, facility, or program available to delinquents; (4) The nature of the alleged offense; and (5) The public safety. *** (d) Procedures of the juvenile court. If the jurisdiction is waived, the court may order the person held for trial under the regular procedures of the juvenile court. Maryland Code (1957, 1982 Repl. Vol.), Article 27, § 594A. In 2001, Section 594A was recodified without relevant change as CP Section 4-202. 2001 Md. Laws, Chap. 10. Section 4-202 was repealed and reenacted without relevant change in 2002. 2002 Md. Laws, Chap. 159. -11- in Waxt er Child ren s C enter pe nding t rial. He e scaped , and thereafter the juvenile court ordered that jurisdiction be returned to the crimin al court bec ause Gle nn S. wa s not fit for rehabilitation in the juven ile justice system. W e conclud ed that the juvenile court did not have the pow er to return the case to the c riminal cou rt, noting that the powers o f the juven ile court, those granted by statute, did not include the power to modify the criminal court s order reverse w aiving the c ase to the juv enile court: The juvenile cau ses provisio ns . . . do not ex pressly or implied ly allow the juvenile c ourt to modify decisions of the circuit court sitting in a criminal case. Because courts of special jurisdiction exercise only those powers granted to them by statute, the juvenile court in this case had no power to vacate the order of the circuit court, thus returning the case to the criminal side of the circuit court. Although the juvenile court has the statutory power to transfer jurisdiction of a case to the c ircuit court pursuant to § 3-817 of the Courts A rticle, that section o nly applies in cases where the juv enile court has exclusive original jurisdiction. Because the charge here was robbery with a deadly weapon, origina l jurisdict ion wa s in the c ircuit co urt, . . . § 3-817 has no applica tion. Jurisdiction in this case w as originally in the circuit court, was transf erred to the ju venile cou rt and it remains there. Id. at 516-17, 445 A.2d 1032 (citations omitted). The lesson of In re G lenn S. and In re Franklin P., thus, is that juvenile courts only have the powers granted them by statute, and to those we now turn. Our goal, when interpreting statutes, is to identify and effectuate the legislative intent underlying the statu te(s) at iss ue. Gilmer v. State, 389 Md. 656, 662, 887 A.2d 549, 553 (2005); Cain v. Sta te, 386 Md. 320, 327, 872 A.2d 681, 685 (2005); Derry v. S tate, 358 Md. -12- 325, 335, 7 48 A.2d 478, 483 (2000); Pete v. State , 384 M d. 47, 57 -58, 86 2 A.2d 419, 425 (2004); Graves v . State, 364 Md. 329, 345, 772 A.2d 1225, 1235 (2001 ). See also Harris v. State, 331 Md. 137, 148-49, 626 A.2d 946, 951 (1993) ( [T]he search for [legislative] intent is most accurately described as an effort to discern some general purpose, aim, or policy of the statute. ); In re Keith G., 325 M d. 538, 542 , 601 A.2d 1107, 11 09 (1992 ); Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991) ( Our focus is, therefore, centered upon the statute s policy or purp ose. ). The best source of legislative in tent is the statute s plain language, and when the language is clear and unambiguous, our inquiry ordinarily ends there. Gilmer, 389 Md. at 663, 887 A.2d at 553; Cain, 386 Md. at 327, 872 A.2d at 685; Pete, 384 Md. at 57-58, 86 2 A.2d a t 425; Drew, 379 Md . at 327, 842 A.2d at 6; Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 1350 (1995); State v. Thompson, 332 Md. 1, 6-7, 629 A.2d 731, 734 (1993). In the interest of completeness, however, we may look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when th e purpose of the statute is taken into account. Harris v. S tate, 331 Md. 137, 146, 626 A.2d 94 6, 950 (1993). See also Robey v . State, 397 Md. 449, 454, 918 A.2d 499, 502 (2007); Stanley v. Sta te, 390 Md. 175, 185, 887 A.2d 1078, 1084 (2005). In other words, the resort to legislative history is a confirmatory process; it is not undertaken to seek contradiction of the p lain me aning o f the sta tute. Robey, 397 Md. at 454, 918 A.2d at 502; Stanley, 390 Md. at 185, 887 A.2d at 1084. In such instances, we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant -13- enactm ents. Robey, 397 Md. at 454, 918 A.2d at 502. The State argue s that the CP Sections 4-202.2 and 4-202 are different because the transfer of jurisdiction in Section 4 -202.2 is limite d to dispositio n. Section 4-202.2, how ever, does not include any provision permitting the juvenile court to remand the case to the criminal court. See CP § 4-202.2. In this respect, the reasoning of In re Glenn S. is pertinent; the juvenile co urt can only exercise those powers explicitly provided to the court by statute. The only statutory provision permitting the juvenile court to transfer jurisdiction to the criminal court, other than when jurisdiction is transferred automatically under CJP Section 3-8A-07, is CJP Section 3-8A-06, which permits a juv enile court to waive jurisdiction to the criminal court before trial under certain conditions. That section, however, by its express terms, is applicable only when the juvenile court has exclusive jurisdiction initially, which the juvenile court did not have in this case because S mith was charged w ith the excluding charge, the handgun violation. The State argues, nevertheless, that although the legislative history of CP Section 4202.2 indicates that the section was enacted to afford juvenile offenders rehabilitative treatment opportunities, the Legislature could not have intended to preclude a remand to the criminal court for sentencing if the juven ile s actions ref lect that he or s he is not amen able to treatme nt. To the contrary, howev er, rehabilitation o f a juvenile is not a single e vent; it is an on-g oing pr ocess. See Lop ez-Sanch ez v. State, 388 M d. 214, 2 47-49 , 879 A .2d 695, 714-15 (2005) (Wilner, J., concurring) (noting that th e purpose of the Juv enile Cau ses statute -14- is to provide a program of rehabilitatio n consisten t with the ch ild's best interest and protection of the public interest, such that the juvenile court has co ntinuing jurisd iction to assist the rehabilitation of the juvenile); Raiford v. State, 296 Md. 289, 294, 462 A.2d 1192, 1194 (1983) ( The basic difference, however, between trial as an adult an d trial as a juve nile lies not in the fact-finding processes, but in the procedures looking to rehabilitation after a determination that an individual did in fact commit a cts which were violations of the criminal statutes of this State. ), quoting Wiggins v. State, 275 Md. 689, 709, 344 A.2d 80, 91 (1975) (emphasis added ). To permit the ju venile cou rt to reverse the decision of the criminal court that the juvenile is amenable to treatment and return the case to the crimin al court wo uld contradict the nature and purpose of the juvenile justice system.9 The juvenile co urts were c reated with the specific purpose [t]o provide for the care , protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent w ith the child s best interests and the protection of the public interest. CJP § 3-8A-02 (a). 10 Add ition ally, we have repeatedly noted that the Legislature intended the juvenile justice system to be 9 See also Crosby v. State, 71 Md. App. 56, 66, 523 A.2d 1042, 1046 (1987) ( To read the statutes otherwise and permit multiple waivers, waiver between courts could unproductively clog dockets and create a sense of uncertainty of responsibility within the judicial system. Additionally, the ultimate disposition of juvenile cases, which should be handled expeditiously, would be unnecessarily delayed by the addition of an extra waiver hearing. ). 10 See CJP § 3-8A-02 (b) ( This subtitle shall be liberally construed to effectuate these purposes. ). -15- guided generally by principles of protection and rehabilitation of the individual rather than a societal goal of punishment and retribution. Moore v. Miley, 372 Md. 663, 672-73, 814 A.2d 557, 563 (2003); In re Anthony R., 362 Md. 51, 72, 763 A.2d 136, 148 (2000) (remarking that the juvenile court jurisdiction statutes were written mindful of the special goals of the ju venile ju stice system , particularly to rehabilitate and treat juv enile delinquen ts so that they become useful and productive mem bers of society ); Moquin v. State, 216 Md. 524, 528, 140 A.2d 914, 916 (1958) (iterating that the juvenile court system does not contemplate punishing children found to be delinquent, but rather contemplates an attempt to correct and rehab ilitate ). We have also stated that, [e]ven when this Court h as extende d criminal d efendan t type rights to juven iles, the cases e xplain that the overall proceedings maintain their focus on the special g oals of delinqu ency adju dication . Moore, 372 Md. at 673, 814 A.2d at 564; In re Franklin P., 366 Md. at 329-30, 783 A.2d at 687 ( The purpose of the juvenile waiver hearing is not to determine guilt or innocence, but rather to determine whether or not the juvenile is a fit subject f or juvenile re habilitation m easures. ); In re Victor B., 336 Md. 85, 92, 646 A.2d 1012, 1015 (1994) ( Despite any penal overtones the juvenile justice system may have acquired ov er the years . . . however, the Juvenile Causes Act gives clear indication that juvenile pro ceedings a re not crimin al matters an d that they retain th eir special and informal nature . ). G iven that the keystone o f Maryland s disposition o f juvenile delinquents is that the moral responsibility or blameworthiness of the child [is] of no -16- conseq uence , such that delinquency adjudication is seen as the oppor tunity for the Sta te to provide needed rehabilitative intervention, Moore, 372 Md. at 673, 814 A.2d at 563-64, quoting In re Victor B., 336 Md. at 91-92, 646 A.2d at 1015, it would contradict the nature of the juvenile justice system to permit the juvenile court, unsatisfied with the progress of a juvenile s reh abilitation, to return Smith to the criminal cou rt for sentenc ing as an ad ult. Moreover, CP Section 4-202.2 cle arly was enac ted to transfer jurisd iction of the c hild offender to the juv enile co urt for th e purpo se of p rovidin g rehab ilitation. T he legislative history of Section 4-202.2 re flects it was enac ted to complement to the provisions of Section 4-202 of the sam e Article in order to per mit the crimin al court to reverse waive jurisdiction of the case to the juvenile court in order to p rovide reha bilitative treatme nt for the juv enile when the juvenile is not convicted of the offense which precluded the juvenile court from exercising jurisdiction initially. The Senate Judicial Proceedings Committee, in its Floor Report for Senate Bill 428 (2002), reported that the bill rectified a problem with the jurisdiction transfer statute to promote rehabilitation and treatment for juvenile offenders: THIS BILL ALLOWS A JUVENILE CHARGED AS AN ADULT, BUT NOT CONVICTED O F THE CHARGE THAT WAS THE BASIS FOR BEING EXCLUDED FROM J U V E N I L E C O U R T J U R I S D I C T IO N , T O BE TRANSFERRED BACK TO JUVENILE COURT FOR PURPOSES OF DISPOSITION. THE BILL RESULTED FROM A RECOMMENDATION OF THE COMMISSION ON JUVENILE JUSTICE JURISDICTION. *** In its September 30, 2001 final report to the Governor and -17- General Assembly, the [Commission on Juvenile Justice Jurisdiction] made a number of recommendations. One recommendation was that youth who are initially excluded from the juvenile court s jurisdiction based upon their ch arges and are only convicted of crimes for which they would not have been excluded should be given the opportunity to bring before a co urt the merits of a transfer to the juvenile justice system for purposes of disposition. Senate Judicial Proceedings Committee, Floor Re port for Se nate Bill 428 (2002) (em phasis in original). Specifically, the Final Report of the Commission on Juvenile Justice Jurisdiction noted: Maryland is one of 24 states which permits a juvenile who is being prosecuted as an adult in criminal court to petition to have the case transferred to juvenile court for adjudication. An adult criminal court may transfer or reverse waive a youth initially excluded from the jurisdiction of the juvenile court to juvenile court if such a waiver is in the interests of the child or society. The court must consider the same factors that the juvenile court considers when deciding whether to waive a child to adult court (age, mental and physical condition, amenability to treatment, nature of offense, and public safety). *** It is Unfair for Youth Charged, But Not Convicted Of, an Excluded Offense to Remain in the Adult System Without Further Possibility of Transfer to the Juvenile Justice System. Youth who are charged w ith serious crimes excluded from the jurisdiction of the juvenile court may be convicted of lesser crimes as adults, even if they are not found gu ilty of the more serious offense which formed the basis for their exclusion from the juvenile justice system. When the charges that are a predicate to criminal jurisdiction do not result in co nviction, it is unfair to co ntinue using the original c harge as the basis for adult criminal jurisdiction without requiring the criminal cou rt, -18- at sentencing, to consider the possibility of transfer to the juvenile justice system for disposition. A survey of Commission members conducted by the Subcommittee revealed a Commission consensus that such youth be given the opportunity to bring before the court the merits of a transfer for purposes of disposition. *** Youth Charged , But Not C onvicted Of, an Excluded O ffense Should Be Eligible for Transfer to the Juvenile Justice System If Convicted of a Lesser Offense. *** The law should be amended to req uire youth who are excluded from juvenile court jurisdiction, but not convicted of the offense which was the basis for that exc lusion, to be considered for transfer back to juvenile court for disposition. When the charges that are a predic ate to crimina l jurisdiction do not result in conviction, the criminal court should be required to c onsider, at sentencing, whether transfer to juvenile court for disposition is appropriate. Commission on Juven ile Justice Jurisdiction, Final Report to the Governor and General Assemb ly 24, 34, 5 3 (Sep t. 30, 200 1) (emp hasis in o riginal). See also Department of Legislative Services, Fiscal Note, Senate Bill 428 (2002) (noting that [a] criminal court must determine whether to transfer jurisdiction to juvenile court at sentencing of a case involved a child if, as a result of trial or a plea entered (in lieu of trial), all charges that precluded the juvenile court from exercising jurisdiction did not result in a finding of guilty, and that such a requirement could result in a shift of cases from the criminal s ystem to the juv enile -19- system. ).11 To perm it the juvenile c ourt to rema nd to the crim inal court, when frustrated by the juvenile s progress, would ob viate the legislative intent to transfer the juvenile s case in order to engage in the rehabilitation process. In conclusion, once the criminal court transferred jurisdiction of the case to the juvenile court for disposition of the charges under CP Section 4-202.2, the juvenile court could not remand the case, and therefore, Smith s sentence as an adult must be vacated. JUDGMENT OF TH E CIRCU IT COURT FOR P RINC E GEO RGE S COUNTY VACATED, AND CASE 11 See also Written Testimony in Support of Senate Bill 428, Public Justice Center, F. Michael Higginbotham (February 28, 2002) ( Thus, when a child is accused of an excluded offense and is later not found guilty of the offense that excluded him/her from the jurisdiction of the juvenile court, it is both equitable and logical that the court reconsider whether the needs of the child and the public s safety are more adequately addressed by the juvenile justice system as opposed to the adult criminal system. . . . Every year, hundreds of children are charged with an excluded offense, many of them file a transfer motion and many of them are denied. Many of these same children, however, are ultimately never convicted of the excluded offense; they either plea guilty to a lesser offense or proceed to trial where they are found not guilty of the excluded offense. By operation of Maryland s jurisdictional statute, these children remain in the adult system and receive adult sentences for offenses that would normally invoke the intervention of the juvenile court. To avoid this dilemma, once the excluded offense has disappeared, a criminal court should (re)determine whether the child can be served by the juvenile system without the glare of an excluded offense and accompanying presumption factoring into the court s judgment. ) (emphasis added); Written Testimony in Support of Senate Bill 428, State of Maryland Department of Juvenile Justice, H. Erle Schafer (February 28, 2002) ( Youth who are charged with serious crimes excluded from the jurisdiction of the juvenile court may be convicted of lesser crimes as adults, even if they are not found guilty of the more serious offense which formed the basis for their exclusion from the juvenile justice system. When the charges that are a predicate to criminal jurisdiction do not result in conviction, it is unfair to continue using the original charge as the basis for adult criminal jurisdiction without requiring the criminal court, at sentencing, to consider the possibility of transfer to the juvenile justice system for disposition. The law should be amended to require youth who are excluded from juvenile justice jurisdiction, but not convicted of the offense which was the basis for that exclusion, to be considered for transfer back to juvenile court for disposition. ) (emphasis added). -20- REMANDED TO THE JUVENILE COURT. COSTS TO BE PAID BY PRINCE GEORGE S COUNTY. -21- IN THE COURT OF APPEALS OF MARYLAND No. 135 September Term, 2006 ______________________________________ DEANDRE SMITH v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilne r, Alan M . (Retired , Specially Assigned), JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: June 8, 2007 I concur in the Court s Opinion and judgment but offer these additional thoughts. First, although both the Code and this Court have long spoken of the jurisdiction of the juvenile and criminal courts (see, for example, Md. Code, §§ 3-8A-03 - 3-8A-07 and §§ 3803 and 3-80 4 of the C ts. & Jud. P roc. Article (C JP); In re Glenn S., 293 Md. 510, 445 A.2d 1029 (1982); In re Victor B., 336 Md. 85, 646 A.2d 1012 (1994)), that may, in the present setting, b e mislea ding. As the Court notes, both the juvenile and criminal courts are now part of the Constitutionally-created Circuit Courts that exist in the State s 23 counties and Baltimo re City. Article IV, § 1 of the State Constitution lists the courts that are the repositories of the judicial power o f the State, an d it does no t mention a Juvenile C ourt. It is the Circ uit Courts that are authoriz ed to hear and decide all cases at law and in equity other than those which fall within the class of controversies reserved by a particular law for the exclusive jurisdiction of some other forum, such a s the D istrict Co urt. First Federated Com. Tr. v. Comm r, 272 Md. 329, 335, 322 A.2d 53 9, 543 (19 74) (Em phasis added). M aryland Rule 16-204 expressly makes the juven ile court part of the f amily division o f the Circu it Courts require d to hav e famil y division s. There is no sep arate Ju venile C ourt in M aryland. At one time, the juvenile courts in some counties were not part of the Circuit Co urt, and that did have pure jurisdictional significanc e, but that is no longer the case. What the Legislature, through a collection of statutes, has effectively done is to designate a part of each Circuit Court as a juvenile court and, with some exceptions, to allocate to that -1- designated part of the C ircuit Court th e exclusive authority to handle certain kinds of cases involving juvenile s. See CJP §§ 3-801(i) and 3-8A-01(i), defining the juvenile court as the circuit court for a county sitting as the juvenile court. In considering that allocation of auth ority, viv a vis the part or division of the Circuit Court that handles criminal matters, we might want to begin speaking of the role and authority of the criminal and juvenile co urts in terms of the proper exercise of the ju risdiction comm itted to th e Circu it Cour t. That allocation is important and must be honored. It is not just an organizational matter but implements the different procedures and options available in the juvenile co urt that, in delinquency cases, the proceedings are regarded as civil, rather than criminal, that there is no right of jury trial, that there is a much more therapeutic overlay requiring greater coordination with the de partments o f health, edu cation, social services, and juvenile services, and that the disposition options are quite different from those available in criminal proceedings. Failure to honor this legislative allocation will ordinarily co nstitute reversib le error, but the alloca tion is not truly a jurisdictional one, at least in the sen se that this Co urt, in recent times, has come to view the concept of jurisdiction. My second thought proceeds from the first. In allocating authority between the juvenile and criminal courts, the Legislature has com mitted to the criminal court the initial authority to deal with juvenile s who comm it certain m ore grie vous o ffense s. See CJP § 38A-03(d). Unless such a case is transferred to the juvenile court pursuant to what is commo nly called a reverse waiver (see Criminal Procedure Article (CP) § 4-202), the -2- General Assembly has decided, as a general rule, that a juvenile who has allegedly committed one or more of those offenses should be treated as if he or she were an adult and not be afford ed the m ore ben eficen t proced ures an d optio ns avai lable in th e juven ile court . The obvious premise of the 2002 law that enacted CP § 4-202.2 was that (1) where a juvenile has been cha rged with offen ses described in CJP § 3-8A-03(d)(1) or (4) that, subject to any reverse waiver, must be resolved in the criminal court, 1 as well as lesser related offenses that, subject to waiver by the juvenile co urt, would ordinarily be resolvable only by the juvenile court, and (2) pursuant to the man date of §§ 3-8A -03(d)(1) and (4), those lesser related charges are also submitted to the criminal court, and (3) the § 3-8A-03(d)(1) or (4) offenses have, in some way, been resolved in the juvenile s favor and the only conviction(s) entered in the criminal court are for one or more of the lesser related offenses, the criminal court should be permitted, in its discretion, to transfer the case to the juvenile court for disposition. Although the lesser related charges have been adju dicated in the criminal cou rt, the criminal court judge may believe that the dispositional options available only in the juvenile co urt would be more a ppropriate th an those av ailable in the c riminal cou rt. In exercis ing that d iscretion to transf er the ca se for d ispositio n, the criminal court 1 CJP § 3-8A-03(d)(1) excludes from the juvenile court a child 14 years old or older who is alleged to have committed an act which, if committed by an adult, would be a crime punishable by death or life imprisonment and all other charges arising out of the same incid ent. Section 3 -8A-03( d)(4) exclu des a child 1 6 years old or o lder who is alleged to have committed any of 17 offenses listed in that subsection, which are sex offenses or offenses involving other forms of violence or weapons, and all other charges arising out o f the same incident. -3- judge must consider the five factors set forth in § 4-202.2(b). For the most part, they are the same factors that the criminal court must consider for an initial reverse waiver under CP § 4-202 and that a juvenile court must consider for waiver to a criminal court under CJP § 38A-06(e) and includ e the amenab ility of the child to trea tment in pro grams av ailable only through juvenile court disposition. It is implicit that the discretion exercised by the criminal court judge, applying those factors, should not then be second-guessed by a juvenile court judge, even if, as here, it is the same individual. If the respondent thereafter commits further delinquent acts, which cause a juvenile court judge to conclude that the respondent is no longer amendable to treatment in the juvenile system, the judge may waive jurisdiction with respect to those offenses and send that case to the criminal court. (In this case, those subsequent charges were filed directly in the criminal court because Smith had turned 18 when they were c ommitted). Following the approach taken in In re Glenn S., supra, 293 Md. 510, 445 A.2d 1029, the Court seems to put this prohibition against second-guessing the decision of the criminal court judge on jurisdictional grounds that the juvenile court has no jurisdiction to send the matter back to the criminal court. I prefer to view it as a matter of fairness and proper court administration that the juvenile not be bounced back and forth like a ping pong ball in the same case. What is at issue is not really fundamental jurisdiction, which is vested in the Circuit C ourt, bu t rather its approp riate exe rcise. I would hold that, once a criminal court judge, after considering the required statutory -4- factors set forth in CJP §4-202.2, rules that the juvenile should have the benefit of the dispositional options available in the juvenile court, that ruling must be respected and not countermanded by a judge exercising the authority of a juvenile court. Th e statutory authority of the criminal court judge to make that decision, after all, is based on the premise that, had the charges that kept the case out of juvenile court in the first place and tha t were resolved in the juvenile s favor not been made, the juvenile court would have been required to deal with disposition in any event, so nothing inappropriate has actually been imposed on the juvenile c ourt. Fina lly, and more globally, I suggest that the time may have come for a serious reexamination of whether this dual structure within a single court, beset with exceptions and waivers, continues to serve any useful purpose. The children in need of assistance (CINA) cases handled in juvenile cou rt can just as ea sily be dealt with in the family divisions of the Circuit Court w ithout classifying them as ju venile court cases. The label, I suggest, adds little of practical value. The family divisions already deal with guardianships, adoptions, and child access cases, and the same health, education, and social services now available to the Circuit Court judges who sit as a juvenile co urt can be m ade availab le to the Circuit Court judges w ho are assig ned to the f amily divisions, w ithout the labe l of juvenile c ourt. 2 2 At one tim e, a significan t part of the ju venile cou rt caseload w ere children in need of supervision children who may have committed some minor offenses but w hose real problem was th at they were out of effec tive control by their parents. They were disobedient, they were often truant from school, they stayed out late, they were beginning to get int o troub le. See CJP § 3-8A-01(e). That category of child somewhat midway -5- With respect to delinquency cases, some offenses are placed initially in the criminal court and some in the juvenile co urt, subject to w aivers both ways. If the ca se is in juven ile court, the child is deprived of a right to a jury trial a nd, m ost o ften , the c ase is tried by a master rather than a judge, even though a finding of delinquency could result in a significant deprivation of lib erty. 3 The posited advantages of a supp osedly separa te juvenile co urt, with these deviatio ns, are that (1) there is a relat ive, b ut by no means complete , anonymity associated with juvenile court proceedings, which protects the child from the glare of publicity, (2) the child does not receive a criminal record if found delinquent, and (3) dispositions more appropriate to juv enile offenders are available in ju venile court. I question whether those perceived advantages require a separate quasi-jurisdictional organizational structur e, how ever. Except f or the fact tha t there is no jury in juvenile court and the adjudicator may be a master rathe r than a judg e, the due p rocess prote ctions are essentially the same in both juvenile and criminal proceedings, notwithstanding that delinquency proceedings are regarded as civil ra ther than crimina l. What is the trade-of f for denying a child 17 year s old between the C INA and the delinquent is now a backwater of juvenile court cases. It may be time to look mo re closely at it and p erhaps ex pand it som ewhat, as it c ould provide a better focus for services and help. I expect that the family divisions of the Circuit C ourts ca n deal w ith those children at least as well as the juve nile cou rts once did. 3 It is true that, following a finding of delinquency by a master, the law permits a juvenile to have a de novo trial before a judge upon exceptions filed within a rather limited period of time. W e do not pe rmit that kind of proced ure in crimin al court, even in relatively minor misdemeanor cases. -6- the right of jury trial possessed by a child 18 years old? Certainly not anonymity. If the law permits juvenile co urt proceed ings to be clo sed, or acce ss to them lim ited, it can permit that degree of confidentiality as well if those cases proceeded in the criminal courts. The name juv enile court is not n eces sary to allow that k ind o f con fide ntial ity. The real, or at least perceiv ed, value o f juvenile co urt in delinqu ency cases tha t begin and remain, or are transferred, there are the more therapeutic dispositional options. But the law could just as easily provide th ose option s in the crimin al court, includ ing the prospect of expungement or reclassification as a civil infractio n if the juve nile successfully completes whatever program is ordered by the court. I see no reason why the criminal courts could not interface with the so cial service an d juvenile service age ncies as the ju venile cou rts do. We now offer special training to judges in the family divisions; similar training could be offered to judges in criminal court who would handle cases involving young offenders. The concept o f the juvenile court as a beneficent alternative to the traditional approach to the treatmen t of children who co mmit criminal of fenses cam e about in the 1890s. It was a progressive idea then. But tha t was a d ifferen t era. A huge part of our social structure has undergone significant change since then. The stability and even the nature and structure of families are different. The whole social dynamic facing children is different, beginning almost f rom bir th and e xtendin g throu gh ado lescenc e. We have, at least tacitly, acknowledged those facts by tinkering ov er the years w ith the role and the process of the juvenile court by removing whole categories of offenses -7- from its initial reach, subject to waivers back or forth, by imposing most of the due process available in criminal co urt into its proceedings and thus significantly circumscribing the broad discretion of what once was termed the benevole nt Star Ch amber, an d, in Baltimore City and most of the metropolitan counties, by committing a large role to masters rather than judges. Yet we hold firm to the 19th Century structure, with its quasi-jurisdictional but amorphous circumference, which may well be outdated. It may be time to step back and take another look, to foc us more su bstantively on th e role that the c ourts, in collaboration with other agencies, should play (and have the resources to play) in these cases rather than on an antiq ue le gisla tivel y-created labe l, or p igeo nhole, that ma y serve to li mit u sefu l flex ibility. -8-

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