Kent, Matter of

• Decision Date: 19 December 1977
• Citation: 31 Or.App. 1219,572 P.2d 1059
• Parties: In the Matter of Darren Lee KENT, a child. STATE ex rel. JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Respondent, v. Darren Lee KENT, Appellant.
• Court: Oregon Court of Appeals

Page 1059

572 P.2d 1059

31 Or.App. 1219

In the Matter of Darren Lee KENT, a child.

STATE ex rel. JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Respondent, v. Darren Lee KENT, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 21, 1977.

Decided Dec. 19, 1977.

Phillip M. Margolin, Portland, argued the cause and filed the brief for appellant.

Kathleen Dahlin, Certified Law Student, Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and TANZER and ROBERTS, JJ.

SCHWAB, Chief Judge.

The issue presented by this appeal is whether the juvenile court's remand of a 16-year-old male to adult criminal court was proper. We agree with the reasoning of the juvenile court judge and hence uphold the order of remand. The facts are undisputed.

The juvenile involved in this case was first referred to the juvenile court system in Oregon when he was eight years old, after some minor vandalism. The juvenile was again referred to juvenile court in 1972, after he ran away from home twice. He was referred to juvenile court in 1973 for being beyond parental control and in 1974 on a charge of burglary. In 1975, the juvenile was referred to juvenile court several times after he ran away from home and made unauthorized use of a motor vehicle.

In April 1976, the juvenile moved to Seattle, Washington, with his natural father and stepmother. While in Washington, he once took his father's automobile and did over $4,000 worth of damage to it. As a result of this incident, the juvenile was cited for reckless driving, driving without an operator's license and failure to leave his name at the scene of an accident. The juvenile also once shot some bullets into the wall of his parents' home while in Seattle.

The juvenile returned to Oregon in November 1976 to live with his adoptive father and natural mother. Approximately two days after his sixteenth birthday in March 1977, the juvenile and his brother went to a party. He and his brother were almost ready to leave the party when a "biker," who was six feet four inches in height and weighed 275 pounds, asked the juvenile to arm wrestle him. Later, the "biker" hit the juvenile and began to beat his brother. The juvenile became frightened when his brother could not get up immediately after the beating. He ran home, grabbed a rifle, ran back to the party and killed the "biker" by firing the rifle through the window of the house where the party was being held.

The juvenile was then placed in Washington County Juvenile Detention pending a juvenile court hearing. Before the hearing, he escaped once from the detention center. The juvenile was charged in juvenile court with murder and escape. The state filed a petition with the court requesting that the juvenile be remanded to adult criminal court.

At the remand hearing, the General Superintendent of MacLaren and Hillcrest Schools testified for the state. He noted that the average age of the children who enter the MacLaren School for Boys is 16. The superintendent stated that between 1963 and 1977 the school had handled approximately 36 juveniles involved in homicides. He stated that he could recall no case in which a homicide was involved in which the school had requested that the juvenile court terminate its jurisdiction prior to a juvenile's twenty-first birthday. He did concede, however, that many juveniles who had not committed homicides were released at age 18. The superintendent also noted that in all but two percent of the cases the school handled, the juveniles were sufficiently rehabilitated to return to society without further supervision at age 21. However, he also stressed that it was difficult to predict, at the time a juvenile entered MacLaren, exactly when he would respond to treatment and hence be released. He concluded by stating that the school's poorest rehabilitative results are with juveniles who are in constant flight and who are constantly breaking attachments to people, places and activities.

A state-appointed psychologist who had examined the juvenile next testified. Psychological tests administered by him indicated that the juvenile was a suspicious and paranoid person who lacked guilt about what he had done because he did not feel loved. The psychologist recommended that the juvenile be remanded to the adult criminal court system but be placed under the care of the juvenile system. He reached this conclusion because he believed that it would take "some time" to deal with all of the juvenile's problems. The psychologist stated that since the juvenile system could supervise the juvenile only until age 21, continued correctional supervision over the child could be assured past age 21 only by placing him in the adult corrections system. We note that the psychologist concluded his testimony by noting that he believed it was probable the juvenile would be rehabilitated by age 21.

The juvenile's current Washington County Juvenile Department counselor was the last person to testify at the remand hearing. She stated that the juvenile is immature and lacks impulse control and apparently acts without thinking about the consequences of his actions. The counselor stated that she believed the juvenile should be placed in Oregon State Hospital where a special adolescent treatment center was in operation. She concluded her testimony by stating that she had no "concrete opinion" as to whether the juvenile should be placed in the adult corrections system or the juvenile court system.

The juvenile court judge ordered that the juvenile be remanded to adult criminal court. In so doing, he made the following written findings of fact:

"a. The above child is 16 years of age with a date of birth of March 18, 1961.

"b. The above child has had several referrals to the Juvenile Department, including being made a ward of the Court and being placed on formal probation.

"c. The above criminal offense is obviously a serious offense which involved the use of a deadly weapon in a homicide.

"d. The criminal case has prosecutive merit which (sic) a Grand Jury would be likely to return an indictment against the above juvenile.

"e. The above juvenile, because of emotional, psychological or other behavioral problems, is likely to require Court supervision beyond his 21st birthday when Juvenile Court involvement must cease by law.

"f. The above juvenile is emotionally immature for his age * * * ."

Appeals from the juvenile court are reviewed de novo. ORS 419.561(4); State ex rel. Juv. Dept. v. Slack, 17 Or.App. 57, 520 P.2d 905, rev. den. (1974), with the findings of the juvenile court given no weight except on matters of credibility of witnesses. ¹ State ex rel. Juv. Dept. v. Cole, 28 Or.App. 367, 373, 559 P.2d 918, aff'd 280 Or. 173, 570 P.2d 365 (1977).

ORS 419.476(1)(a) provides:

"The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

"(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation of a law or ordinance of the United States or a state, county or city * * * ."

ORS 419.533(1) sets forth the factors which a juvenile court must consider in determining whether to remand a juvenile to adult criminal court:

"A child may be remanded to a circuit, district, justice or municipal court of competent jurisdiction for disposition as an adult if:

"(a) The child is at the time of the remand 16 years of age or older;

"(b) The child committed or is alleged to have committed a criminal offense or a violation of a municipal ordinance; and

"(c) The juvenile court determines that retaining jurisdiction will not serve the best interests of the child because the child is not amenable to rehabilitation in facilities or programs available to the court."

If a juvenile court decides to retain custody over a juvenile, it may place the juvenile in the legal custody of the Children's Services Division for care, placement and supervision. ORS 419.507(2). A juvenile placed in the legal custody of the Children's Services Division must be placed in a juvenile training school if the juvenile is between 12 and 18 years of age, ORS 420.011(1), and

"(a) The child is found to be within the jurisdiction of the juvenile court by reason of the ground set forth in (ORS 419.476(1)(a)); and

"(b) The juvenile court having jurisdiction so orders." ORS 419.509(1)(a) and (b).

A juvenile who is a student at a juvenile training school may be either voluntarily or involuntarily committed to an institution for the mentally ill (e. g., Oregon State Hospital) under the statutory procedures set forth in ORS 420.500 to 420.515.

If a juvenile is remanded to adult criminal court and subsequently convicted and sentenced to a prison term, ORS 137.124 delegates the decision as to where the juvenile will be confined to the Corrections Division:

"(1) If the court imposes a sentence of imprisonment upon conviction of a felony, it shall not designate the correctional facility in which the defendant is to be confined but shall commit the defendant to the legal and physical custody of the Corrections Division.

"(2) After assuming custody of the convicted person the Corrections Division may transfer inmates from one correctional facility to another such facility * * * as best seems to fit the needs of the inmate and for the protection and welfare of the community and the inmate.

" * * * ."

When the Corrections Division determines that a male convicted of a crime should not be imprisoned in the Oregon State Penitentiary, ORS 421.705 and 421.710 give the division the authority to imprison the male in the Oregon State Correctional Institution:

"The Oregon State Correctional Institution in Marion County is to be maintained for the confinement, discipline, education, rehabilitation and reformation of such male persons as are committed to its custody or transferred to it...