In Interest of ADR

Citation603 S.W.2d 575
Decision Date18 August 1980
Docket NumberNo. 61177,56658 and 57596.,61177
PartiesIn Interest of A. D. R., a child under seventeen years of age. STATE of Missouri, Respondent, v. Arthur Daniel RONE, Jr., Appellant.
CourtUnited States State Supreme Court of Missouri



Dale C. Doerhoff, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.


In this post-conviction civil action, movant asks this Court to recall the mandate and vacate our opinion affirming his robbery conviction, contending that defense counsel in the criminal appeal, was ineffective by constitutional standards. Such action, cognizable by our Court as the tribunal which heard and determined the appeal, is limited to consideration of that single issue, see Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), and governed by procedures prescribed for Rule 27.26 proceedings insofar as applicable.

Recently in Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979), we reiterated the standard for appraising ineffective assistance of counsel claims in post-conviction proceedings as follows: "In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that he was prejudiced thereby." The standard there enunciated for gauging trial counsel's conduct is appropriate for general application and is now adopted for evaluation of appellate counsel's actions.

Rone first asserts appellate counsel was ineffective in failing to properly preserve and present the then minor defendant's (movant here) challenge to the juvenile court's relinquishment of jurisdiction and because of that failure the issue was not reached on appeal, see In re A.D.R., 515 S.W.2d 438, 439 (Mo. banc 1974).1

When first considering Rone's motion to recall the mandate we made the preliminary determination that appellate counsel had failed to properly preserve the issue of the alleged error in the juvenile court's termination proceeding and as a result the issue was not reached on appeal. Accordingly, we recalled our mandate. However, having now reviewed the record and considered the merit of movant's contention we find, for reasons following, the juvenile court acted properly in terminating its jurisdiction allowing Rone's trial as an adult. Thus no prejudice flowed from the failure to preserve the issue and Rone's contention of ineffective assistance of appellate counsel must be denied.

Arthur Rone was convicted of first degree robbery in the circuit court of Jackson County September 29, 1971. The Jackson County Juvenile Court, pursuant to § 211.071, RSMo 1969, had entered an order terminating its jurisdiction and allowing Rone's (who was sixteen at the time of his offense) prosecution under the general law.

At about 9:00 p.m., December 14, 1970, the Abashion Confectionery in Kansas City was robbed by two youths, one of whom confronted the victim with a shotgun and said "Look at this, this is a holdup." The clerk thought it was a joke, but that impression was quickly dispelled when the robber shoved the muzzle against his chest and demanded money. Taking some currency, the robbers left and one of them, Rone, fired a blast into the ceiling of the store.

Patrolman Bryant of the Kansas City Police heard the shot and saw the robbers running from the store with a "long barreled gun." Their escape was thwarted when the van they drove from the scene, collided with another vehicle during a high speed chase. Almost immediately thereafter both were arrested.

Defendant (movant here) was taken to the 27th Street police station and there given the Miranda warnings. According to Officer Bryant, during the booking process and not in response to any question, defendant volunteered that it wasn't his day, that the money taken in the holdup was not worth it, and that he wished he had his leather coat left in the van. Discovering Rone was sixteen years of age the officer took him to the youth unit at the downtown police headquarters where they met a deputy juvenile officer, known to Rone from the "parental home." In the presence of this juvenile officer Rone went to another part of the same building.

It is unclear whether Rone's parents were notified then of his arrest but one of the investigation officers testified that some of Rone's personal articles were delivered to his parents when they came to police headquarters, apparently on the night of his arrest. On the other hand one of Rone's parents denied being present at the police station. Having been advised of his Miranda rights on three separate occasions and while in the presence of Deputy Juvenile Officer Gardner, Rone made additional statements confessing complicity in the crime.

A petition was filed by the juvenile officer of Jackson County alleging that Rone participated in an armed robbery. Subsequently, on December 18, 1970, that officer filed a motion requesting dismissal of the petition, so Rone might be tried as an adult. At the hearing conducted January 29, 1971, under § 211.071, RSMo 1969, evidence as to the nature of the offense, Rone's amenability to treatment by the juvenile court, the adequacy of Missouri juvenile facilities to deal with the juvenile's problem and his incorrigibility as evidenced by the repeated referrals in the juvenile system, was presented. The juvenile court then dismissed the petition, relinquished its jurisdiction and entered an order allowing Rone's prosecution as an adult. Rone was tried in the circuit court and on his conviction of robbery first degree was sentenced to 15 years imprisonment.

Movant contends that chapter 211, RSMo 1969 creates a "right" to treatment for persons subject to the jurisdiction of the juvenile court and that the Juvenile Court's relinquishment of jurisdiction abrogated that "right." In this connection it has been held that when the State in its role as parens patriae places a child in a juvenile facility under restraint of liberty, it has a concomitant obligation to provide treatment. Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Martarella v. Kelley, 349 F.Supp. 575, 585 (S.D.N.Y. 1972). In those cases it was stated the right to treatment emanates from the eighth and fourteenth amendments to the United States Constitution. Other decisions have based the obligation for treatment on the ameliorative purpose of State juvenile acts. See Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060, 1072 (1976). However, we need not reach the question of whether Chapter 211, RSMo 1969, creates such "right" to treatment for confined juveniles, because as movant recognizes, any such right is limited by the express terms of § 211.071, RSMo 1969, which provides that a child "not a proper subject" for the juvenile system may be prosecuted under the general law.2 Once the juvenile court has relinquished jurisdiction, the juvenile is subject to criminal prosecution as an adult, State v. Ford, 487 S.W.2d 1, 5 (Mo. 1972), cert. denied, 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973), and any juvenile treatment rights terminate.

While a laudable purpose of our juvenile code is the rehabilitation of erring youths, State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (Mo. 1933), the statute has been described as a complete code, with each section to be construed in relation to the other, State v. Williams, 473 S.W.2d 382, 383 (Mo. 1971). The legislature by providing that one not a proper subject may be prosecuted as an adult clearly intended in a proper case that consideration of societal needs and the likely unrewarding ameliorative effect of the juvenile justice system require application of the general law. Pertinent here is the following statement of this Court responding to a constitutional attack on an earlier statute: "Boys, like others of the species, are not cast in the same mould. Measures that are sufficient to reclaim one are wholly without avail as to another." State ex rel. Boyd v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061, 1066 (Mo. banc 1929).

Against this background we examine the question of whether the Jackson County Juvenile Court erred in relinquishing its jurisdiction.

Following Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), our Court has held the juvenile in such proceedings is entitled to notice, access to social reports and investigations pertaining to him, a hearing in which he is represented by counsel and, to permit meaningful appellate review, a statement of reasons for the termination. State ex. rel. T.J.H. v. Bills, 504 S.W.2d 76, 80-81 (Mo. banc 1974). However, the Supreme Court of the United States "has never attempted to prescribe criteria for, or the nature of quantum of evidence that must support, a decision to transfer a juvenile for trial in an adult court." Breed v. Jones, 421 U.S. 519, 537, 95 S.Ct. 1779, 1790, 44 L.Ed.2d 346 (1975). Missouri decisions have identified a variety of factors germane to a decision to terminate juvenile court jurisdiction in § 211.071 proceedings, State ex rel. T.J.H. v. Bills, 495 S.W.2d 722, 728 (Mo.App. 1973), and in State v. Owens, 582 S.W.2d 366, 374 (Mo.App. 1979), several were enumerated:

Relevant factual criteria which have been used by the courts as a basis for such discretion are 1) whether the juvenile's age, maturity, experience and development are such as to require prosecution under the general law, Coney v. State, 491 S.W.2d 501, 512 (Mo. 1973), 2) whether or not the juvenile had a mental disease or defect which would prevent him from knowing or appreciating the nature, quality or wrongfulness of his conduct and which would render him incapable of conforming his conduct to the requirements of the law, State v. Kemper,

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