In re Julianna B.

• Citation: 179 Md. App. 512,947 A.2d 90
• Decision Date: 02 May 2008
• Docket Number: No. 1125 September Term, 2007.,1125 September Term, 2007.
• Parties: In re JULIANNA B.
• Court: Court of Special Appeals of Maryland

947 A.2d 90

179 Md. App. 512

In re JULIANNA B.

No. 1125 September Term, 2007.

Court of Special Appeals of Maryland.

May 2, 2008.

[947 A.2d 93]

Nancy S. Forster, Public Defender, Baltimore, for appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: HOLLANDER, JAMES R. EYLER, and SHARER,^* JJ.

HOLLANDER, Judge.

The Circuit Court for Montgomery County, sitting as a juvenile court, found Julianna B., appellant, delinquent, based on its determination that she committed second-degree murder and related offenses. At an initial disposition hearing on January 11, 2006, the court committed appellant to the Department of Juvenile Services ("DJS" or the "Department"). This Court affirmed. See In re Julianna B., 177 Md.App. 547, 936 A.2d 906 (2007) ("Julianna I").

The circuit court held a review hearing on June 18, 2007, at which it declined to modify the terms of appellant's commitment.¹ Instead, it continued appellant's detention at a secure DJS facility. Appellant challenges that ruling, posing the following questions:

I. In issuing an Order prohibiting the Department of Juvenile Services from implementing the program of rehabilitation that the Department had designed for Ms. B. which included passes for outings, home visits, and to pursue her college education, did the juvenile court violate the Separation of Powers Doctrine and the Juvenile Causes Act?

II. Notwithstanding uncontested evidence, including rarely given testimony by the Secretary of the Department of Juvenile Services, that Julianna B. had earned and was deserving of home passes and supervised college attendance as an important part of her program of rehabilitation, did the juvenile court abuse its discretion, violate the Juvenile Causes Act and violate Ms. B.'s due process rights in ordering that Julianna B. must not receive home passes or be permitted to attend college solely as a punitive measure because, in the judge's words, "21 months [of detention] is woefully inadequate"?

The State has moved to dismiss this appeal. It argues that "the juvenile court's discretionary ruling declining to alter the disposition in Julianna B.'s case does not constitute a final, appealable order."

For the reasons that follow, we shall deny the motion to dismiss, vacate the juvenile court's order, and remand for further proceedings.

I. FACTUAL & PROCEDURAL SUMMARY²

On September 23, 2005, during a fight in the parking lot of a high school, appellant, then fifteen years old, fatally stabbed fifteen-year-old Kanisha Neal (known as "Missy"). On December 22, 2005, the juvenile court determined that appellant's conduct constituted second-degree murder and related offenses. In Julianna I, 177 Md.App. at 549-54, 936 A.2d 906, we quoted, in part, the factual summary provided by the circuit court:

"On the night of September 23, 2005, [the victim] and her friends, and [appellant] and hers attended a football game between Sherwood and Blake [High Schools]....

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[The victim] walked towards [appellant] intending to fight.

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With respect to [the victim], I find that she was 5 feet, 5, and she weighed 225 pounds; that she was 15 years old; that she possessed no weapon at any time; that she only used her fists; that she threw the first punch; that she approached [appellant] as [appellant] stood still; that she pulled six hair extensions from [appellant]'s head; that she was unaware that [appellant] had a knife.... She was twice [appellant]'s weight and probably a lot slower than [appellant].

With respect to [appellant], I find that [appellant] was about 115 pounds; that she never ran for help to the police or adults.... She didn't run away.

* * *

This Court also finds that she armed herself in advance with a knife, a deadly weapon. When [the victim] approached, she stood still with clenched fist and a secreted knife. As I indicated, she didn't retreat.

* * *

Her current lie, that [one of her friends] placed an object in her back pocket, that [appellant] knew it was a knife without asking for one, seeing it, touching it, [the friend] saying anything is preposterous.

[Appellant] and [the victim] squared off, and [the victim] punched first, and [appellant] followed suit. [The victim] got the better of her, and [appellant] pulled out her deadly dagger; [appellant] never falling; never being choked. Her lucid responses for hours and hours afterwards and her pristine face depicted in [a photo taken shortly after the fight] gave testament to the State's theory of a one-on-one fight.

Once [appellant] pulled the knife, she slashed at [the victim] and made contact with her on six occasions, three cuts to [the victim]'s abdomen, one on each arm, which were consistent with defensive wounds, and a stab wound to the heart.

.... [Appellant] said she didn't know she stabbed [the victim]. As soon as [the victim] fell, [appellant] stopped fighting, and she immediately concealed the knife. These actions belie her statement.

Furthermore, the narrow wound to [the victim]'s left ventricle, which entered 3-1/2 inches, were [sic] straight in and straight out, which would indicate consciousness of penetration.

* * *

Flight is evidence of consciousness of guilt, and she fled the scene and discarded the knife somewhere. [Appellant] never went over to the victim to render aid or say that she was only trying to get her off. She never went over and said, `Oh, my gosh! I can't believe this happened. Are you okay? I didn't mean to go this far. I didn't want you to die. I didn't want you to fall.' Never said that. Never approached that. Rather, she remorselessly said ... `I stabbed that fat bitch.'

* * *

No, [appellant], you were not in immediate danger of death or serious bodily injury. You never kicked [the victim] in the shins, screamed for help, or ever tried to cut her in her lower legs if your head was down, as you say. You escalated the fight by plunging that serrated blade into [the victim]'s heart with the intention to inflict serious bodily injury. I do not find that you acted in perfect self-defense or imperfect self-defense.

I, therefore, find, beyond a reasonable doubt, that you were involved in the second degree murder of [the victim] with the intent to inflict serious bodily harm, with a depraved heart, and by way of felony murder."

On January 9, 2006, DJS filed a Pre-Disposition Investigation Recommendation ("PDI"), noting that appellant had no prior record. In a section captioned "Perception of Offense(s)," DJS observed that "Julianna presents as very remorseful regarding her involvement in the current offense. She is prepared to take responsibility for her actions." The final section of the PDI was captioned "Recommended Treatment Service Plan." It called, inter alia, for "[p]lacement at the Waxter Children's Center."

A psychological evaluation of appellant, conducted by James J. Smith, Ph.D., a psychologist, was appended to the PDI. Dr. Smith noted that appellant "admitted to stabbing the victim during a physical altercation." Further, he said: "During her [pre-trial] detention at the Noyes Center, Julianna has been described [as] respectful, relates well to others, and her behavior has been characterized as above average. She has attained the highest behavioral level in the detention center." Dr. Smith offered the following recommendation:

Given the serious nature of the current offense, it is recommended that Julianna be considered for placement outside of her home and community and into a DJS facility. Although such a placement needs to be an appropriate consequence for her actions, there does not appear to be a need for intensive therapeutic services, and such a placement is not likely to be long term. However, placement in a locked facility, such as the Waxter Center, could be considered, but the length of her stay could be tied to her overall compliance and performance within the program. The prognosis for successful completion of such a program is considered to be very good.

The court held a disposition hearing on January 11, 2006.³ A representative of DJS, identified in the transcript as "Ms. Armstrong," joined in the recommendation expressed in the PDI. She requested placement of Julianna in "the long-term secure program" at Waxter Children's Center. Armstrong added: "It's the long-term behavior modification peer program," and cautioned: "We don't know how long she'll be at Waxter. It'll depend on her behavior and then the Court's decision based on how long the Court wants her to stay there."

Appellant's counsel pointed to the reports from the staff at Noyes, indicating appellant's exceptional behavior, and suggested that "home detention would permit [appellant] to be in a situation where she could have all the restrictions, but at the same time, get the education." Her attorney also asked the court "to maintain [appellant's] level of schooling."

The Assistant State's Attorney ("ASA") "adamantly oppose[d]" the request for home detention, arguing:

Your Honor, this is a case in which the Court found [appellant] involved in committing a second degree murder....

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And, Your Honor, the State believes that based on the serious nature of the offense, Ms. B's role in it, and in holding her accountable for what she's done, the State is going to ask that [appellant] be held, ordered to be held at the Waxter facility until she is 21.

After hearing a brief statement from Joyce Neal, the victim's mother, the court acknowledged "the grief and loss that the Neal family has endured," noting: "I have no sentence within my disposal that could even the score of this incident." It ruled:

Now, having found Julianna involved of second degree murder, this case is back before me for final disposition. And that's somewhat of a misnomer, because this Court will maintain jurisdiction over this case until she reaches the age of 21 or the case is dismissed before that; that is, the jurisdiction terminated. I will...