IN RE JUAN A.
| Decision Date | 20 January 2000 |
| Docket Number | No. 1 CA-JV 98-0253.,1 CA-JV 98-0253. |
| Citation | 993 P.2d 1147,196 Ariz. 183 |
| Parties | In re JUAN A. |
| Court | Arizona Court of Appeals |
Richard Romley, Maricopa County Attorney by Patricia A. Nigro, Deputy County Attorney, Phoenix, Attorneys for Appellee.
Dean Trebesch, Maricopa County Public Defender by Suzanne Weschler Sanchez, Mesa, Attorneys for Appellant.
¶ 1 Initially, the State charged Juvenile with violating Arizona Revised Statutes Annotated ("A.R.S.") section 15-803(B) (Supp. 1998), which provides that "[a] child who is habitually truant as defined in this section may be adjudicated an incorrigible child as defined in § 8-201." Juvenile admitted this charge to a probation officer who was sitting as a hearing officer pursuant to A.R.S. section 8-323 (Supp.1999). The hearing officer adjudicated Juvenile incorrigible and ordered him to attend school, perform community service, and submit proof of compliance with those orders by a date certain.
¶ 2 When Juvenile did not submit proof of compliance with those orders by the date certain, the hearing officer, with no notice to Juvenile, instructed the Department of Motor Vehicles, pursuant to A.R.S. section 8-323(D), to suspend Juvenile's driving privileges until he turned eighteen or complied with the hearing officer's orders. Additionally, the State filed a delinquency petition alleging that Juvenile "knowingly disobeyed or resisted a lawful order, process or other mandate of the Maricopa County Juvenile Court, in violation of A.R.S. §§ 13-2810, 13-2801, 13-707, 13-802, and 13-812(B)." This class 1 misdemeanor is commonly referred to as "interfering with court proceedings." The factual basis for this charge was Juvenile's failure to submit proof of compliance with the incorrigibility case orders regarding school attendance and community service.
¶ 3 The delinquency petition was heard by a juvenile court judge. The hearing officer was present as the State's witness. After a few preliminary questions, the State asked the hearing officer whether Juvenile ever submitted proof of compliance with the orders regarding school attendance and community service. After the hearing officer said, "No, he did not," the State rested. On cross-examination, the hearing officer admitted that the only advice of rights he gave Juvenile prior to accepting his admission to the truancy charge was that he would be giving up his right to trial and his right to appeal and could be fined up to $150.
¶ 4 The trial court adjudicated Juvenile delinquent as charged and placed him on probation, with special terms regarding community service, curfew, and attendance in the Detention Prevention Program. This appeal followed. We have jurisdiction pursuant to A.R.S. section 8-235 (Supp.1999) and Arizona Rule of Procedure for the Juvenile Court 24.
¶ 5 The potential issues in this appeal are so numerous that counsel have had trouble focusing the analysis, and so have we. Ordinarily, a defendant has notice and a hearing before being sanctioned, but that did not happen here regarding the suspension of driving privileges. Ordinarily, when a defendant fails to comply with a "go to school" or other rehabilitative order, the State does not file a more serious charge and turn the judge who issued the order into a witness in a higher court, but that happened here. Ordinarily, we would not be concerned about an incorrigibility case when reviewing a delinquency case, but we have those concerns here, where one case was the predicate for the other, and the record on appeal shows a high probability that substantial procedural defects existed in the predicate case. ¶ 6 Juvenile's opening brief argued that the truancy statute was unconstitutional, the admission to that charge was involuntary, the driving privilege suspension was without notice, the delinquency petition was double punishment, and a truant cannot be adjudicated delinquent. We asked for and received supplemental briefing on several other issues. We now narrow the focus onto what we regard as the proper disposition of the appeal.
¶ 7 Because the delinquency case is the only one on appeal, we cannot decide the merits of Juvenile's collateral attacks on the incorrigibility case. That adjudication, disposition, and sanction could have been appealed from but were not. See A.R.S. § 8-235; Maricopa County Juv. Action No. JV-508488, 185 Ariz. 295, 297-98, 915 P.2d 1250, 1252-53 (1996) (). It is undisputed, however, that the delinquency case was based on the incorrigibility case, and that the hearing officer testimony that proved the delinquency charge also proved that Juvenile received inadequate advice of rights and notice of potential consequences in the incorrigibility case. Prior to accepting a juvenile's admission, the court must advise the juvenile of his rights, give notice of potential consequences, and obtain a waiver that is knowingly, intelligently, and voluntarily given on the record. See Maricopa County Juv. Action No. J-86715, 122 Ariz. 300, 302-03, 594 P.2d 554, 556-57 (App.1979).
¶ 8 We conclude from the present record that meritorious procedural challenges exist to the incorrigibility adjudication, disposition, and sanction. Although we reject Juvenile's efforts to have those issues resolved in this appeal, we conclude that this record reflects arguable grounds for relief pursuant to Arizona Rule of Procedure for the Juvenile Court 29(b), which provides that the court may allow a delayed appeal "where the failure to timely file was the result of excusable neglect." On this record, Juvenile's neglect in failing to file an appeal in the incorrigibility case is arguably excusable. He had no reason to challenge the inadequate advice of rights and inadequate notice of potential consequences in that case until the hearing officer suspended his driving privileges without notice and the State charged him with delinquency.
¶ 10 The legislature also made provision for situations in which the hearing officer decides to refer the case to an authority with more power than that delegated to the hearing officer. Section 8-323(D) provides that, "if on disposition [the juvenile] fails to comply with any court order, the juvenile hearing officer may refer the matter to the juvenile court for appropriate action...." The record on appeal does not reflect whether the delinquency petition in this case followed a hearing officer's referral of the incorrigibility case, and the issues on appeal do not require us to decide whether the "appropriate action" referred to in section 8-323(D) includes charging the juvenile with delinquency for failing to comply with incorrigibility case orders.
¶ 11 This appeal is suspended for sixty days, and the matter is remanded with directions to allow Juvenile a reasonable time in which to seek a delayed appeal in the incorrigibility case. Any such appeal would be pursuant to A.R.S. section 8-325 (1999), which provides that orders of a hearing officer may be appealed to the juvenile court. If proceedings on remand result in the predicate for the delinquency charge being set aside, the juvenile court can issue appropriate orders in the delinquency case and Juvenile can move to dismiss this appeal. If proceedings on remand result in reaffirmation of the delinquency adjudication, Juvenile can file a timely appeal in this court, move for consolidation with the present appeal, and request that all issues in both appeals be decided by this court based on the consolidated record.
1. The hearing officer statute provides as follows, with emphasis added to the sections most relevant to this appeal:
§ 8-323. Juvenile hearing officer; appointment; term; compensation; hearings
A. The judge of the juvenile court, or in counties having more than one judge of the...
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