D.C.M. v. Pemiscot Cnty. Juvenile Office

• Decision Date: 13 August 2019
• Docket Number: No. SC 97595,SC 97595
• Citation: 578 S.W.3d 776
• Parties: In the Interest of: D.C.M., a Minor, Appellant, v. PEMISCOT COUNTY JUVENILE OFFICE, Respondent.
• Court: Missouri Supreme Court

578 S.W.3d 776

In the Interest of: D.C.M., a Minor, Appellant,

v.PEMISCOT COUNTY JUVENILE OFFICE, Respondent.

No. SC 97595

Supreme Court of Missouri, en banc.

Opinion issued August 13, 2019

The juvenile was represented by Craig A. Johnston of the public defender's office in Columbia, (573) 777-9977.

The juvenile officer was represented by Christopher R. Wray and Solicitor General D. John Sauer of the attorney general's office in Jefferson City and Deputy Solicitor General Peter T. Reed of the attorney general's office in St. Louis, (573) 751-3321; and Joshua L.D. Tomlin, an attorney in Caruthersville, (573) 333-2396.

Mary R. Russell, Judge

D.C.M. appeals a judgment of the circuit court finding he committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree in violation of section 574.120.¹ Evidence adduced at the adjudication hearing demonstrated D.C.M. was sitting in the school cafeteria talking to another student, Jonathan,² when D.C.M. stated he felt like "blowing the school up" or wanted to see how it feels to "shoot the school up."

D.C.M. argues his attorney ("Counsel") was ineffective in representing him in the juvenile proceeding by failing to investigate and call Jonathan to testify at the adjudication hearing. He also argues the circuit court abused its discretion in denying Counsel's request for a continuance to subpoena Jonathan. Finally, he argues the circuit court lacked sufficient evidence to conclude beyond a reasonable doubt that he committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree.

The circuit court did not abuse its discretion in denying Counsel's request for a continuance, and, further, when viewed in the light most favorable to the judgment, there was sufficient evidence for the circuit court to find beyond a reasonable doubt that D.C.M. committed an act, which, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree. The record is insufficient, however, to determine whether Counsel was ineffective. As a result, these claims cannot be addressed on direct appeal. The case is remanded to the circuit court for an evidentiary hearing to determine whether Counsel was ineffective. In all other aspects, the judgment is affirmed.

Background

D.C.M. was a 16-year-old high school student with autism

, when the juvenile officer in Pemiscot County filed a petition against him. The petition alleged he had committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree, and, as a result, he was subject to the jurisdiction of the juvenile division. Evidence adduced at the adjudication hearing demonstrated that D.C.M. was sitting in the high school cafeteria when another student, Tamara, overheard D.C.M. tell a classmate, Jonathan, "I feel like blowing the school up." A student named Zachary testified he heard D.C.M. say that "he wanted to see how it feels like to blow up the school and wanted – shooting up the school." Zachary further testified, "He said that he might do it tomorrow, the day – same day at – He said he's going to do it tomorrow." After hearing D.C.M.'s comments, Tamara left the cafeteria and told the school principal. The principal called the police, and the staff isolated D.C.M. in a classroom until law enforcement officers arrived. Officers then took D.C.M. to the juvenile office.

Police interviewed D.C.M., who denied making any threatening statements and said he was only joking. Police also interviewed Jonathan. The police report provided, "Jonathan stated that he did not recall [D.C.M.] making any threats or statements but that he didn't doubt it. [Jonathan] stated that [D.C.M.] has made racial comments towards other students but that he had not heard [D.C.M.] make any statements."

The juvenile officer filed a petition, and an adjudication hearing was held 12 days later. The juvenile officer called seven witnesses: four students, a police officer, and two school principals. Two witnesses, Tamara and Zachary, testified they heard D.C.M. make the threatening statements. D.C.M. testified he did not make any threatening statements and said the other witnesses were lying. Counsel then requested a continuance to subpoena Jonathan as well as two other students, Joshua and Marcus, who were also sitting at the table with D.C.M. The juvenile officer objected, asserting Counsel had access to the police report that named all of the witnesses and, therefore, had a sufficient opportunity to obtain the witnesses' presence at the hearing. The circuit court denied the request.

Based on the evidence presented at the adjudication hearing, the circuit court continued jurisdiction over D.C.M. and placed him in the custody of the division of youth services for an indefinite term. D.C.M. appeals.³

Analysis

I. Mootness

D.C.M. turned 18 and was released from supervision approximately one month before the case was argued and submitted. As a result, this Court must examine whether this appeal is now moot.⁴

Because "[m]ootness implicates the justiciability of a controversy and is a threshold issue to appellate review," this Court must consider, either on a party's motion or acting sua sponte , whether an appeal is moot. Mo. Municipal League v. State , 465 S.W.3d 904, 906 (Mo. banc 2015) (alteration in original) (quoting LeBeau v. Comm'rs of Franklin Cty. , 459 S.W.3d 436, 438 (Mo. banc 2015) ). "When an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed." State ex rel. Griffith v. Precythe , 574 S.W.3d 761, 763 (Mo. banc 2019). "A case is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." State ex rel. Gardner v. Boyer , 561 S.W.3d 389, 394 (Mo. banc 2018) (quoting State ex rel. Hawley v. Heagney , 523 S.W.3d 447, 450 (Mo. banc 2017) ). If a case is moot, this Court can exercise its discretion to decide the case on the merits if one of two narrow exceptions to the mootness doctrine exist: "(1) when a case becomes moot after submission and argument; and (2) when the issue raised is one of general public interest and importance, recurring in nature, and will otherwise evade appellate review."

State ex rel. Peters-Baker v. Round , 561 S.W.3d 380, 384-85 (Mo. banc 2018) (citations omitted).⁵

Both D.C.M. and the State argue a decision by this Court would impact D.C.M. and urge this Court to decide this case on its merits. While D.C.M. recently turned 18 and has since been released from supervision, a record of his adjudication would remain. Juvenile records for offenses that would be felonies if committed by an adult are open to the public to the extent criminal proceeding records are open to the public. Section 211.321.2(2). The offense of making a terrorist threat in the second degree is such a felony. See section 574.120.⁶ The question whether an appeal of a case in which a juvenile has been released from supervision implicates the mootness doctrine is one of first impression for this Court.⁷

In a case factually analogous to the one here, but in a criminal context, this Court addressed the merits of an adult's appeal of his conviction despite that he had been pardoned. State v. Jacobson , 348 Mo. 258, 152 S.W.2d 1061, 1064 (Mo. 1941). Although the pardon allowed him not to serve his sentence, the appeal was not moot because the underlying conviction remained on his record. Id. Jacobson emphasized that an individual should have the opportunity "to remove the discredit and stigma flowing from the judgment of conviction." Id. Further, if convicted of another crime in the future, Jacobson recognized the defendant would be subject to greater penalties due to his prior conviction. Id. As a result, this Court concluded the case was not moot because there was "still a substantial element of controversy existing." Id.

As in Jacobson , D.C.M. should be given the opportunity to remove the discredit and stigma associated with his record of adjudication. Even though D.C.M. has been released from supervision, his conduct would have constituted a felony had he been an adult at the time he committed the act. If D.C.M. is tried in the future for a criminal offense, evidence of this prior juvenile adjudication could be introduced. See S.B.A. , 530 S.W.3d at 620. For these reasons, this case is not moot, as addressing this appeal would have a practical effect on an existing controversy. See Gardner , 561 S.W.3d at 394. Accordingly, this Court will review the merits of the appeal.

II. Ineffective Assistance of Counsel

D.C.M. argues that he had a due process right to the effective assistance of counsel in his juvenile proceeding and that Counsel violated this right when he failed to investigate and call Jonathan to testify, as well as when Counsel elicited and failed to object to certain testimony. The State recognizes juveniles have a due process right to effective assistance of counsel under Missouri law but argues D.C.M. cannot raise these claims on direct appeal and, even if he could raise these claims, Counsel did not provide ineffective assistance. The issue of what procedure should be followed when reviewing ineffective assistance of counsel claims in juvenile cases is a question of law that receives de novo review. See Grado v. State , 559 S.W.3d 888, 895 (Mo. banc 2018).

It is well-established that a child has a right to counsel at a delinquency proceeding pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In re Gault , 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), overruled on other grounds by Allen v. Illinois , 478 U.S. 364, 372-73, 106 S.Ct. 2988, 92...