Imel v. State, s. 3--974A155

• Decision Date: 10 March 1976
• Docket Number: 3--1274A204,Nos. 3--974A155,s. 3--974A155
• Citation: 168 Ind.App. 384,342 N.E.2d 897
• Parties: Rocky Kevin IMEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee (two cases).
• Court: Indiana Appellate Court

Page 897

342 N.E.2d 897

168 Ind.App. 384

Rocky Kevin IMEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee (two cases).

Nos. 3--974A155, 3--1274A204.

Court of Appeals of Indiana, Third District.

March 10, 1976.

[168 Ind.App 385] John F. Lyons, James M. Prickett, Fort Wayne, for defendant-appellant.

Arnold H. Duemling, Jack R. Notestine and Richard R. DeCamp, Fort Wayne, Theodore L. Sendak, Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

In case No. 3--974 A 155, Rocky Kevin Imel appeals from an order waiving juvenile jurisdiction and directing that he be subject to prosecution as an adult. Case No. 3--1274 A 204 is an appeal from a waiver of juvenile jurisdiction upon a different charge a short time later. Because of the common questions presented in both appeals, we consolidate them for purposes of this opinion.

Imel's various assignments of error may generally be grouped into the following categories:

A. It was not properly established that the offenses under consideration had prosecutive merit.

B. Aside from the question of prosecutive merit, it was not established that juvenile jurisdiction should be waived.

C. The waiver statute is unconstitutional.

Imel was born September 14, 1957. Prior to the fall of 1972, it appears that Imel's only contact with the authorities involved the possible theft of a motor vehicle, for which he was reprimanded and released.

On November 15, 1972, a juvenile petition was filed against Imel charging that he was a delinquent child. The specifications charged that on September 16, 1972, he had taken unauthorized control of an automobile under circumstances not amounting to theft; that on October 11, 1972, he had similarly taken another auto and had shot into it with a .22 caliber rifle; that on September 24, 1972, he had committed a first degree burglary; and on September 16, 1972, he had been wandering about the streets at 3:00 a.m. in violation of curfew laws. The court found him guilty of having committed an act of delinquency.

On December 14, 1972, another juvenile petition was filed, and Imel was again found to have taken unauthorized control of a vehicle under circumstances not amounting to theft. As a result, he was placed upon strict probation.

On October 22, 1973, a petition was filed alleging that Imel had violated the conditions of his probation in that he had committed the theft of an automobile on May 28, 1973. The record discloses no disposition of this petition.

On January 11, 1974, another petition alleging violation of probation was filed. This petition alleged theft of an automobile on November 2, 1973, commission of a first degree burglary on December 7, 1973, and another theft on December 14, 1973.

This was followed by a third petition filed March 13, 1974. This petition alleged commission of a second degree burglary on December 23, 1973, an armed robbery on January 9, 1974, another armed robbery on January 15, 1974, a first degree burglary on January 18, an armed robbery on January 27, and an attempted robbery on January 27, 1974.

Also on March 13, 1974, the prosecuting attorney petitioned the court to waive juvenile jurisdiction and permit Imel to be prosecuted as an adult on all of the criminal charges referred to in the petitions of January 11 and March 13, 1974.

On March 20, 1974, the court conducted the waiver hearing which is the subject of Cause No. 3--974 A 155 and on March 22, 1974, waived jurisdiction on all of the charges alleged except the armed robbery charge of January 9 and the second degree burglary charge.

This waiver occurred prior to the 1975 amendments to IC 1971, 31--5--7--14, when the statute merely provided that if the child was fifteen years of age, or older, and committed an offense which would amount to a crime if committed by an adult, 'after full investigation,' the juvenile court might waive its jurisdiction and order the child held for trial as an adult.

In Kent v. U.S. (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, the United States Supreme Court held that such waiver proceedings were 'critically important' in terms of the due process guarantees of the Fourteenth Amendment. Accordingly, the Court held that the requirements of procedural due process mandate that in juvenile waiver proceedings, the juvenile is entitled to access to the social records and probation or similar reports which presumably are considered by the court; that he is entitled to a hearing; and that he is entitled to have the court state its reasons for its decision to the extent necessary to permit a meaningful review of the decision.

Shortly thereafter, our Supreme Court interpreted our statute and the requirements of Kent in Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320. In Summers the Court indicated that although it was not limiting the factors that might justify waiver, as a guideline, waiver might be appropriate where it was determined after hearing that (a) the offense 'has specific prosecutive merit in the opinion of the prosecuting attorney;' or (b) 'it is heinous or of an aggravated character, greater weight being given to offenses against the person;' or (c) even if less serious, it is 'part of a repetitive pattern of juvenile offenses which would lead to a determination that said juvenile may be beyond rehabilitation under the regular statutory juvenile procedures;' or (d) where it is found to be in the best interest of the public welfare and for the protection of the public security generally that he be required to stand trial as an adult.

Subsequently in Atkins v. State (1972), 259 Ind. 596, 290 N.E.2d 441, the Court held that the prosecutor's opinion, standing alone, that the offense, if waived to criminal court, would have prosecutive merit would not justify waiver.

Furthermore, in State v. Jump (1974), Ind.App., 309 N.E.2d 148, the Second District pointed out that where the proper procedural requirements have been met, the decision itself of whether or not to waive juvenile jurisdiction remains within the sound discretion of the juvenile court judge.

In this context, we turn to consideration of the questions presented by Imel. There is no assertion here that the juvenile court failed to acquire jurisdiction, ¹ that Imel was denied access to relevant records, ² or that the requirements of a fair hearing were not met. ³ Instead, Imel challenges the constitutionality of the waiver statute and questions the sufficiency of the evidence to support the determination to waive.

Imel's contentions that the waiver statute is void for vagueness, violative of due process, and an illegal delegation of powers were recently rejected by this court in Clemons v. State (1974), Ind.App., 317 N.E.2d 859, trf. den., cert. den. and need not be reconsidered here.

We also reject Imel's contention that the statute violates the requirements of equal protection. Admittedly, most legislative classifications based upon age are arbitrary in the sense that no specific reason may be demonstrated for selecting the precise age that separates the class. How can one logically distinguish between the eighteen year old who qualifies to vote, and his seventeen year-three hundred fifty day old companion who does not? That, however, is not the controlling question.

The juvenile code reflects the doctrine of the state as parens patriae. It recognizes that among those committing antisocial acts are youthful persons, and that there is a presumption based upon human experience that there is likely to be a lack of mature discretion, discriminatory judgment and stability of character on the part of these offenders. It also recognizes the value of investing the court with sound discretion in its treatment of youthful offenders so that disposition of a case may be governed, at least in part, by the significant attending circumstances. In so doing, the legislature provided that although all juveniles as defined in the act were to be exclusively within the jurisdiction of the juvenile courts, in appropriate circumstances that court might waive its jurisdiction for older offenders. Such a distinction is reasonable. It is not rendered unreasonable by selection of age fifteen as the line of demarcation, for such an age appears to be reasonably related to the class established. Furthermore, the fact that the juvenile is tried as an adult does not mean that there are no choices available for his disposition if he is subsequently convicted. In a given case, the court may still have great latitude in making its disposition.

We now consider the waiver of juvenile jurisdiction over Imel. He first asserts that the standard of proof to be applied at waiver hearings must be the criminal standard of proof beyond a reasonable doubt. We disagree. In addition to the general civil nature of delinquency proceedings, it must be recalled that a waiver hearing is not an adjudicatory proceeding. Clemons v. State, supra. Thus, while Atkins recognizes the statutory presumption in favor of dealing with juveniles within the juvenile court system, the burden thereby imposed may be discharged by a preponderance of the evidence. See, e.g., In re Murphy (1972), 15 Md.App. 434, 291 A.2d 867.

Imel next attacks the court's finding that the charges against him have prosecutive merit. We believe the opinion of our Supreme Court in ...