M.D.N., In Interest of

• Decision Date: 14 December 1992
• Docket Number: Cr. N
• Citation: 493 N.W.2d 680
• Parties: In the Interest of M.D.N., a child. Les WITKOWSKI, Petitioner and Appellee, v. M.D.N., a Child; Merle Sherman, Uncle; and Child's Guardian Ad Litem, William D. Schmidt, Attorney at Law, Respondents and Appellants. o. 920121.
• Court: North Dakota Supreme Court

Page 680

493 N.W.2d 680

In the Interest of M.D.N., a child.

Les WITKOWSKI, Petitioner and Appellee, v. M.D.N., a Child; Merle Sherman, Uncle; and Child's

Guardian Ad Litem, William D. Schmidt, Attorney at

Law, Respondents and Appellants.

Cr. No. 920121.

Supreme Court of North Dakota.

Dec. 14, 1992.

Bruce B. Haskell and Paul C. Seado, Asst. State's Attys., Bismarck, for petitioner and appellee; argued by Bruce B. Haskell.

Rodney K. Feldner, Mandan, for respondents and appellants.

William D. Schmidt, Guardian Ad Litem, Bismarck.

VANDE WALLE, Justice.

M.D.N. appealed from a juvenile court order transferring from the Juvenile Court of Burleigh County to the District Court of Burleigh County, jurisdiction of the prosecution of four charged offenses of Murder, each count a AA Felony. We affirm.

On January 31, 1992, a petition was filed with the Juvenile Court of Burleigh County which alleged that M.D.N. was a delinquent child because, on or about January 26 or 27, 1992, M.D.N. committed four acts classified as AA Felony Murder pursuant to section 12.1-16-01, NDCC. The victims were M.D.N.'s mother, father, brother, and sister. M.D.N. was 15 years old when the alleged murders occurred and when the petition was filed.

On the same day the petition was filed, the Burleigh County State's Attorney's Office filed a "Motion to Transfer," requesting the transfer of jurisdiction to the Burleigh County Court pursuant to section 27-20-34, NDCC. ¹

A hearing on the petition was held in the Juvenile Court of Burleigh County. After consideration of the evidence and testimony presented and making its findings of fact, the court ordered jurisdiction of the offenses transferred to the District Court of Burleigh County in order that M.D.N. be tried as an adult on the charges that he committed those offenses.

On appeal, M.D.N. contends that the transfer to adult court was in error as the State failed to prove that there was a definite probability, or substantial evidence to support a finding, that M.D.N. was not amenable to treatment or rehabilitation as a juvenile through available facilities as required for transfer under section 27-20-34, NDCC. ² See f.n. 1.

Crimes committed by juveniles may be equally as harmful as those committed by adults, but it has long been recognized that juveniles and adults do not share equal responsibility for their offenses. Perhaps this stems from the theory that crime among juveniles is not exclusively the juvenile's fault--offenses by the juvenile may represent a failure of the school, the family, and the social system, all which share the responsibility for their development. From this basic concept, the North Dakota Legislature has established a separate judicial procedure for juveniles which incorporates the view that juveniles are less culpable than adults; have less judgment, character or fully-formed identities than adults; and are more apt to change their ways than adults. Indeed, our juvenile justice system was envisioned to be a humane process of rehabilitating wayward youths rather than merely punishing them. NDCC Sec. 27-20-01.

Whether violent young offenders should be tried and, if found guilty, should be sentenced as juveniles or as adults poses difficult practical and theoretical problems. Relinquishing juvenile court jurisdiction over young offenders to an adult criminal court represents a choice between sentencing in rehabilitative juvenile courts or sentencing in essentially punitive adult criminal courts. Conceptually, rehabilitation and punishment may be mutually exclusive penal goals. But see NDCC Sec. 12-47-01 [penitentiary is for punishment and "reformation" of offenders]. Punishment is retrospective and imposes harsh consequences for past offenses. It has a goal of proportional punishment which accords great significance to the seriousness of the offense. Rehabilitation, however, is prospective and tries to improve the offender's future welfare. Rehabilitation assigns primary importance to the individual as its sentences are nonproportional and indeterminate.

But punishment and rehabilitation are not the only concern. In recent years, society has demanded more incarcerations of criminals, and many states have responded by diluting the rehabilitative philosophy of juvenile court. It is difficult to embrace a rehabilitative stance toward juveniles who have committed particularly heinous or serious violent crimes which provoke strong emotions and fear for safety of the public. It is not surprising to find that with the initial adoption of a juvenile justice system in North Dakota in 1911, a provision was enacted which allowed a juvenile to be tried and punished in adult criminal court. S.L.1911, ch. 177, Sec. 11, codified at NDCC Sec. 27-16-13, repealed by S.L.1969, ch. 289, Sec. 4.

With limited exceptions, the juvenile courts of North Dakota have exclusive jurisdiction over those accused persons under the age of eighteen regardless of the seriousness of the charge. NDCC Secs. 27-20-02(1), 27-20-03. Although this objective qualification is helpful to the juvenile court in determining a waiver of jurisdiction, the boundaries of childhood itself are at best artificial, and waiver involves the appropriate disposition of offenders who only chronologically happen to be juveniles. Varying definitions of the end of childhood are applied for different purposes, for example, the right to vote [age eighteen, NDCC Sec. 16.1-01-04(1) ], to marry without parental consent [age eighteen, NDCC Sec. 14-03-02], to drive an automobile without a parent [age sixteen, NDCC Sec. 39-06-03(1) ], and to purchase alcohol [age twenty-one, NDCC Secs. 5-01-08, 5-01-09]. The authority of a juvenile judge to transfer a minor to adult court implies that despite the explicit age jurisdiction and various "states of readiness" as inherent in the above statutes, society has acknowledged that certain actions taken by juveniles may signal an end to childhood. As a result, the allowances made for the juvenile's lesser moral and social development will no longer be tolerated or accepted. ³

Trying a juvenile as an adult is a severe sanction with harsh consequences. The status of "juvenile" carries a shield from publicity, protection against extended pre-trial detention and post-conviction incarceration with adults, and guarantees that confinement will not extend beyond the age of twenty. NDCC Sec. 27-20-36(6). In addition, status as a juvenile provides protection against loss of civil rights, against disqualification for public employment, and against the personal status degradation and restriction of legitimate opportunities that often follow a criminal conviction. There are also studies which indicate that youths treated as adults have a greatly reduced probability of surviving adolescence with their life chances intact. ⁴ Accordingly, a transfer of jurisdiction of a juvenile's offenses to adult court involves more than just a choice of forum--it involves a choice of jurisprudential philosophy that governs the nature and purpose of the proceeding, the severity of the punishment, and the long-term effect on the youth.

Our review under the Uniform Juvenile Court Act, ⁵ Chapter 27-20, NDCC, is based "upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." NDCC Sec. 27-20-56(1); Eastburn v. J.K.H., 392 N.W.2d 406 (N.D.1986). We reexamine the evidence in a manner similar to the former procedure of trial de novo. In Interest of J.K.S., 321 N.W.2d 491 (N.D.1982); In Interest of M.D.J., 285 N.W.2d 558 (N.D.1979).

The Legislature has set forth a "reasonable grounds" standard for waiver of juvenile court jurisdiction and transfer of juveniles to adult court in section 27-20-34(1)(b)(4), NDCC. The standard of reasonable grounds has been compared to a showing of probable cause. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); In Interest of A.D.L., 301 N.W.2d 380 (N.D.1981). ⁶ Probable cause is a minimal burden of proof. It is generally employed in the judicial decision-making process when the effect of the determination has temporary or short-term consequences. Healy v. Healy, 397 N.W.2d 71 (N.D.1986). We have held that if it appears to be so or there is a definite probability based on substantial evidence, the standard of probable cause has been met. Woehlhoff v. State, 487 N.W.2d 16 (N.D.1992); In Interest of R.R., 305 N.W.2d 38 (N.D.1981) citing State v. Persons, 201 N.W.2d 895 (N.D.1972). Therefore, a waiver-of-jurisdiction hearing is decided upon whether or not there is probable cause, "reasonable grounds", that the factors listed in section 27-20-34(1)(b)(4), NDCC, are met. The State bears the burden of persuasion on these issues. A.D.L., supra. ⁷

The factors necessary to transfer jurisdiction are both subjective and objective. Objective considerations include the age of the youth, section 27-20-02(1), NDCC. North Dakota, as do most other states, looks to the subjective elements "amenability to treatment," and "interests of the community." ⁸

We cannot, however, ignore another objective consideration--the seriousness of the offense. We have observed that section 27-20-34(1), NDCC, does not require that the nature and severity of the offense must be taken into consideration at the transfer hearing to determine if treatment and rehabilitation as a juvenile can be accomplished through available facilities or if the interests of the community require that the child be placed under legal restraints or discipline. In Interest of P.W.N., 301 N.W.2d 636 (N.D.1981). We nonetheless have held that the nature and severity of the offense must be given some consideration. Id. Experience tells us that a youth committing a heinous and serious crime requires a course of treatment different than the treatment accorded a youth who commits a nonviolent offense. Id. Similarly, we have held that the...