Appeal in Coconino County Juvenile Action No. J-9896, Matter of

• Decision Date: 12 August 1986
• Docket Number: No. 1,J-9896,CA-JUV,1
• Citation: 150 Ariz. 435,724 P.2d 54
• Parties: In the Matter of the APPEAL IN COCONINO COUNTY JUVENILE ACTION NO.312.
• Court: Arizona Court of Appeals

Page 54

724 P.2d 54

150 Ariz. 435

In the Matter of the APPEAL IN COCONINO COUNTY JUVENILE ACTION NO. J-9896.

No. 1 CA-JUV 312.

Court of Appeals of Arizona,

Division 1,

Department C.

Aug. 12, 1986.

[150 Ariz. 436] Aspey, Watkins & Diesel by Bruce S. Griffen, Flagstaff, for appellant.

John Verkamp, Coconino County Atty. by Richard L. Palmatier, Flagstaff, for appellee.

OPINION

PAUL G. ULRICH, Judge Pro Tem.

The central issue presented for our determination is whether the trial court abused its discretion in ordering appellant transferred from juvenile court to stand trial as an adult pursuant to Rule 14, Rules of Procedure for the Juvenile Court (RPJC). We hold the trial court abused its discretion in ordering appellant transferred and reverse.

FACTS

On July 30, 1985, the Coconino County Attorney filed a delinquency petition in juvenile court charging appellant with two counts of theft, both class three felonies, and two counts of liability as an accomplice to armed robbery, one count of conspiracy to commit armed robbery, and one count of liability as an accomplice to first degree burglary, all class two felonies.

The charges were based on a series of events which commenced in July, 1985, when appellant ran away from her Washington, Missouri home with her boyfriend Stephen Brown. Appellant left home largely because her parents did not approve of her relationship with Brown. Appellant and Brown left Missouri in a stolen Pontiac Trans Am automobile. However, appellant did not then know it was stolen. Upon their arrival in Oklahoma City, the couple abandoned the Trans Am and Brown stole a 1982 Ford Bronco at gunpoint from two juveniles. Appellant admitted seeing the gun in Brown's gym bag but maintained Brown assured her he owned it solely for self-defense. The couple proceeded onward to Flagstaff, Arizona, where a 1984 Chevrolet Corvette automobile caught Brown's eye. Brown instructed appellant to wait for him down the street in the Bronco until he returned with the Corvette. He then forced his way into the home of the Corvette's owner, robbed the family at gunpoint of cash and the automobile keys, picked up appellant in the stolen automobile and then led law enforcement officers on a chase at speeds exceeding 130 miles per hour during a rainstorm. He eventually spun off the side of the road into a ditch and emerged from the vehicle holding a gun to his head and threatening suicide. Appellant stood by his side during the ensuing hour-long standoff. She apparently was responsible for convincing Brown to turn himself in. The record indicates appellant was aware Brown intended to steal the Corvette and attempted to dissuade him from engaging in any criminal activity. The record further indicates she did not remove herself from the situation because she was afraid to return home and face the consequences of her actions and because she was concerned for Brown's safety.

Pursuant to the county attorney's petition, a transfer hearing was held before the Coconino County Juvenile Court on August 21, 1985. Appellant was then over seventeen and one-half years old, with less than five months remaining until her eighteenth birthday. The trial court heard testimony from court-appointed psychologist Dr. Eugene Moen, privately-retained psychologist Dr. Nancy Krebbs, appellant's probation officer Carmen Reyes and her father regarding appellant's potential for rehabilitation prior to her eighteenth birthday. The court also considered a pre-hearing transfer report prepared by Mr. Reyes, a psychological report prepared by Dr. Moen and nine character reference letters provided to the court by appellant's acquaintances.

By minute entry dated August 22, 1985, the trial court determined there was probable cause to believe the offenses had been committed and that appellant committed the offenses. See RPJC 14(b). The trial court further found, in accordance with RPJC 14(c), that the public safety and interest would best be served by transfer of appellant to adult court for prosecution. In a separate minute entry, the court ordered appellant released to the custody of her father. She then returned to her family home in Missouri. Pursuant to the transfer order, appellant was charged as an adult by a seven-count indictment filed August 29, 1985 in Coconino County Superior Court with the six charges initially set forth in the delinquency petition as well as an additional count of conspiracy to commit first degree burglary, a class two felony.

The juvenile court's jurisdiction terminated on January 7, 1986, appellant's eighteenth birthday. A.R.S. § 8-246(A); Matter of Appeal in Juv. Action No. J-94518, 138 Ariz. 287, 674 P.2d 841 (1983); Matter of Appeal in Juv. Action No. J-86509, 124 Ariz. 377, 604 P.2d 641 (1979) cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 245 (1980). However, because the present indictment is based upon the juvenile court's transfer order and no indictment has been filed subsequent to appellant's reaching majority, we ordered further criminal proceedings in the superior court stayed pending disposition of this appeal. Since the criminal indictment and the superior court's jurisdiction in the criminal proceedings are based solely upon the transfer order, the appeal is not moot. See, e.g., Matter of Appeal in Juv. Action No. J-93117, 134 Ariz. 105, 654 P.2d 39 (App.1982). We have jurisdiction pursuant to A.R.S. § 8-236(A).

AMENDED RPJC 14

The procedure for ordering a transfer from juvenile to adult court is divided into two separate determinations: (1) whether there is probable cause to believe the offenses were committed and were committed by the juvenile, and (2) the determination of transfer. RPJC 14(a) and (b). Appellant challenges only the juvenile court's transfer determination on appeal. In ruling on the transfer determination, the juvenile court is required by RPJC 14(c), as amended effective March 1, 1984, to decide "whether the public safety or interest would best be served by the transfer of the child for criminal prosecution." In making this determination, the court is required to consider the following factors:

(1) the seriousness of the alleged offense and whether it was committed in an aggressive, violent, premeditated or willful manner;

(2) whether the alleged offense was against person or against property, and whether personal injury resulted;

(3) the sophistication and maturity of the child as determined by consideration of the child's age, intelligence, education, environment, emotional attitude and pattern of living;

(4) the child's physical, mental and emotional condition;

(5) the record and previous history of the child, including previous contacts with juvenile courts and law enforcement agencies in this and other jurisdictions, prior periods of probation in any court and their results, and any prior commitments to juvenile residential placements and secure institutions;

(6) whether the child has previously been transferred for criminal prosecution in this or any other state;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of services and facilities currently available to juvenile court; and

(8) any other factors which appear to be relevant to the determination of the transfer issue.

RPJC 14(c); see also Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

The juvenile court made the following findings in accordance with the factors listed in RPJC 14(c):

1. That the offense charged was committed in a premeditated manner even though the juvenile did not directly commit the offense. She had knowledge of the primary actor's intent, his capabilities and of his past acts immediately prior to the commission of the crimes in this State. The fact that she tried to dissuade him from committing said crimes is of itself proof that she knew or had reason to believe that the crimes alleged were to be committed and that she should have taken evasive action through the appropriate agencies. The crimes themselves were of the most serious and violent nature and she only passively objected to their commission.

2. The crimes alleged threatened the lives of everyone involved. The juvenile knew of the potential threat involved.

3. That the juvenile appears to be a bright, intelligent person who, but for these events, has been a law abiding citizen. She has spent much of her formative years attending a parochial school. Her parents are interested, concerned parents. However, there appears to be a problem between them that now has to be addressed by counseling.

4. That the mental, physical and emotional condition of the juvenile appears to be fine.

5. That the child has an upstanding record up to the time of her running away.

6. That she has never been charged with a crime prior to this time.

7. That the Juvenile Court does not provide adequate or reasonable rehabilitation services and facilities for the juvenile in this case. The juvenile will be 18 within a short period of time (January 1, [sic] 1986). She has indirectly participated in several very serious crimes. Perhaps, she was a follower and not the perpetrator. Perhaps, she has pulled the wool over the eyes of everyone with whom she has come in contact. The safe approach for the juvenile and public mandates a more enlightening period of "rehabilitative" services than five months. From the testimony of the experts, the Court feels that five months is the inside figure for assured rehabilitation. This Court cannot gamble with the juvenile's future and the protection of the public in view of the seriousness of the allegations against her. The serious nature of the crimes and the division between the juvenile and her family are not matters that warrant a short curative or rehabilitative period.

8. That the Court cannot be concerned with the fact that the juvenile has been charged with felonies. The law provides for the...