Ernesto M., Jr., Matter of

• Court: Court of Appeals of New Mexico
• Writing for the Court: PICKARD; APODACA, C.J., and DONNELLY
• Citation: Ernesto M., Jr., Matter of, 915 P.2d 318, 121 N.M. 562, 1996 NMCA 39 (N.M. App. 1996)
• Decision Date: 01 February 1996
• Docket Number: No. 16203,16203
• Parties: In the Matter of ERNESTO M., JR., a Child. STATE of New Mexico, Plaintiff-Appellee, v. ERNESTO M., JR., Defendant-Appellant.

Page 318

915 P.2d 318

121 N.M. 562

In the Matter of ERNESTO M., JR., a Child STATE of New Mexico, Plaintiff-Appellee, v. ERNESTO M., JR., Defendant-Appellant.

No. 16203.

Court of Appeals of New Mexico.

Feb. 1, 1996.

Certiorari Denied March 21, 1996.

[121 N.M. 564] Appeal from the Children's Court of Eddy County; James L. Shuler, Children's Court Judge.

Tom Udall, Attorney General, Gail MacQuesten, Assistant Attorney General, Santa Fe, for Appellee.

Leonard J. Foster, Law Office of Leonard J. Foster, Albuquerque, for Appellant.

OPINION

PICKARD, Judge.

1. Ernesto M. (Child) appeals the adult sentence invoked by the children's court after he admitted to committing four crimes out of an eight-count indictment and thereby established that he was a "youthful offender." See NMSA 1978, § 32A-2-3(I) (Repl.Pamp.1993). Child raises seven issues on appeal: 1) NMSA 1978, Section 32A-2-20 (Repl.Pamp.1993) is unconstitutionally vague; 2) the children's court erred in weighing the sentencing factors under Section 32A-2- 20(C); 3) there was insufficient evidence adduced at the dispositional hearing that Child is not amenable to treatment; 4) there was insufficient evidence adduced at the dispositional hearing that Child is not eligible for commitment to an institution for the developmentally disabled or mentally disordered; 5) the children's court erred when it failed to conduct a timely dispositional hearing; 6) Child's constitutional rights were violated by the children's court's imposition of a sentence which amounts to cruel and unusual punishment; and 7) Child received ineffective assistance of counsel. We affirm.

FACTS

2. In December 1993, Child and a friend began to rob a convenience store, then beat, kidnapped, and repeatedly raped the clerk (Victim), both anally and vaginally. Child confessed to four of the eight crimes for which he was charged. A dispositional hearing was held in December 1994. Victim testified that Child had been the aggressor during the assaults and had giggled and laughed while perpetrating the rapes. He had also threatened to kill her, asking her if she was ready to die. When the Victim did not cry, Child told her that she was supposed to cry, and he appeared bothered that she was not crying. At the time of the attack, Child was seventeen years old. Several experts testified about Child's psychological and mental condition, and other witnesses testified about the treatment options available for juvenile offenders such as Child. The children's court found that Child was not amenable to treatment and was not eligible for commitment to an institution for the developmentally disabled or mentally disordered. Child was sentenced as an adult to thirty years in the custody of the New Mexico corrections division.

DISCUSSION

1. Constitutionality of Statute

3. Section 32A-2-20(A) provides that the children's court has discretion to determine that a child, who has committed a serious felony and is thereby a youthful offender under Section 32A-2-3(I), should be sentenced as an adult. Before the court may invoke an adult sentence, Subsection (B) requires the judge to make two findings: (1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and (2) the child is not eligible for commitment to an institution for the developmentally disabled or mentally disordered. Subsection (C) of the statute requires the children's court judge to consider the following factors when deciding whether to invoke an adult sentence:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(4) the sophistication and maturity of the child as determined by consideration of the child's home, environmental situation, emotional attitude and pattern of living;

(5) the record and previous history of the [child];

(6) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

(7) any other relevant factor, provided that factor is stated on the record.

4. Child complains that Section 32A-2-20 is unconstitutionally vague because it does not provide a standard of proof to guide the court's decision. The constitutional challenge brought by Child in this case is similar to the challenge raised by the children in State v. Doe, 103 N.M. 233, 704 P.2d 1109 (Ct.App.), cert. denied, 103 N.M. 177, 704 P.2d 431 (1985) (hereinafter 103 Doe ).

5. The children in 103 Doe challenged NMSA 1978, Section 32-1-30 (Repl.Pamp.1981) (since repealed) on the grounds that it was unconstitutionally vague, failed to provide a standard of proof, failed to provide adequate notice of the factors to be considered, and deprived the children of meaningful appellate review. 103 Doe, 103 N.M. at 238, 704 P.2d at 1114. Section 32-1-30 was similar to the statute challenged by Child in this case in that both concern the treatment of juvenile offenders as adults. Prior to the enactment of Section 32A-2-20, the children's court judge was permitted under Section 32-1-30 to transfer a criminal matter from the children's court to the district court under specified circumstances.

6. We note that Section 32-1-30 provided even less guidance to the children's court than Section 32A-2-20. Compare Section 32-1-30 with Section 32A-2-20. Nevertheless, this Court in 103 Doe found that Section 32-1-30 passed constitutional muster. So long as the statute satisfied the due process rights of the child (e.g., notice, hearing, assistance of counsel, and statement of the judge's reasons for making the decision) no standard of proof for finding amenability was required. 103 Doe, 103 N.M. at 238-40, 704 P.2d at 1114-16.

7. Applying the 103 Doe analysis to the instant case indicates that Section 32A-2-20 is also constitutional. The State must notify the children's court and the child of its intent to invoke an adult sentence. Section 32A-2-20(A). The children's court is then required to hold a hearing. Id. The child is entitled to counsel during the proceedings. NMSA 1978, § 32A-2-14(B) (Repl.Pamp.1993). While the children's court is given discretion in deciding whether to sentence the child as an adult or juvenile, Section 32A-2-20(B) directs the court to find that the child is not amenable to treatment or rehabilitation and that the child is not eligible for commitment before an adult sentence may be invoked. The children's court is further directed by subsection (C) to consider seven individual factors when making the findings required by subsection (B).

8. We hold that Section 32A-2-20 is not arbitrary or discriminatory and adequately provides for the elemental due process rights of the child. Consequently, the statute satisfies constitutional requirements.

2. Weighing of Factors

9. The children's court judge determined that the order of enumeration of the seven factors set forth in Section 32A-2-20 suggested that they were to be read in descending order of importance. Thus, the children's court determined that the seriousness of the offense was the most important factor to be considered in determining whether to sentence Child as an adult. Next, the court was to examine the manner of the Child's acting, and so on.

10. Child asserts that this method of balancing prejudiced him. An assertion of prejudice is not a showing of prejudice. State v. Hoxsie, 101 N.M. 7, 10, 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989). Child has not indicated how the determination that he should be sentenced as an adult would have been different had the children's court employed a different methodology.

11. At the dispositional hearing, the children's court concluded that almost all of the factors weighed against sentencing Child as a juvenile. The crimes which Child admitted committing were extremely serious. Victim testified that Child instigated many of the crimes, which were committed in an aggressive, violent, premeditated, and willful manner. Child perpetrated his crimes against a person rather than property. The children's court found Child to be of average intelligence. Child did not have a prior criminal history, which the court did weigh in Child's favor. Finally, based on the testimony of some of the experts, the children's court was concerned that the length of time during which Child would be subject to the jurisdiction of the children's court was insufficient to ensure the protection of society against future crimes by Child. The children's court did not find any other factors to be relevant.

12. Considering the factors, the evidence supported the children's court's determination that Child was not amenable to treatment and was not eligible for commitment. Our review of the judge's findings as to each factor does not indicate that using a different method of considering the factors would have resulted in a different outcome for Child. On the facts of this case, there was ample evidence as to each of the enumerated factors in Section 32A-2-20(C) to justify the children's court's decision to impose an adult sentence on Child.

3. Amenability to Treatment

13. Child complains that the children's court abused its discretion when it found that Child was not amenable to treatment or rehabilitation as a child in available facilities. Child maintains that the expert testimony was uncontradicted that he was amenable to treatment and that he was eligible for treatment in available, appropriate facilities. We disagree.

14. It is well settled in New Mexico that a fact finder may disregard the opinions of experts. State v. Alberico, 116 N.M. 156, 164-65, 861 P.2d 192, 200-01 ...