Parojinog v. State

• Citation: 384 A.2d 86,282 Md. 256
• Decision Date: 04 April 1978
• Docket Number: No. 63,63
• Parties: , 5 A.L.R.4th 225 Richard Wayne PAROJINOG v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 256

282 Md. 256

384 A.2d 86, 5 A.L.R.4th 225

Richard Wayne PAROJINOG v. STATE of Maryland.

No. 63.

Court of Appeals of Maryland.

April 4, 1978.

Arthur A. DeLano, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Bruce C. Spizler, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ELDRIDGE, Judge.

The issue in this criminal case is whether the State's prosecution of the defendant for arson and conspiracy to commit arson, following a juvenile proceeding based upon the same offenses, which juvenile proceeding resulted in an order for the defendant to pay restitution and to undergo therapy full-time for six months at a hospital, violates the prohibition against double jeopardy.

On May 23, 1975, seven juvenile petitions were filed against the defendant in the District Court of Maryland, Sixth District (Montgomery County), Juvenile Division, requesting that the court assume jurisdiction over him. The defendant, then eighteen years old, was charged with several separate delinquent acts of arson, conspiracy to commit arson and malicious destruction of property allegedly occurring between April 26, 1974, and September 19, 1974, at a time when he was seventeen years old. In addition to the juvenile petitions, a "Petition for Waiver" was filed by the State's Attorney.

On July 30, 1975, the District Court, sitting as a juvenile court, heard evidence on the State's petition to waive juvenile jurisdiction pursuant to Maryland Code (1974, 1975 Cum.Supp.), § 3-817 of the Courts and Judicial Proceedings Article. The State's evidence, for the most part, consisted of testimony and documents describing in detail the criminal acts which were committed, showing that the defendant participated in those acts, and disclosing the reasons for his participation. At the conclusion of the State's evidence on July 30, the trial judge announced that before he could make a determination as to waiver pursuant to the statutory criteria enumerated in § 3-817(d), ¹ a mental and physical "work up" by the Juvenile Services Administration and an evaluation by the Maryland Children's Center would be needed.

On September 10, 1975, the hearing resumed. After considering the arguments of the State and defense counsel, as well as the evaluation report of the Maryland Children's Center on the waiver issue, the trial judge declined to render a decision on the waiver issue but, sua sponte, ordered the proceedings continued for six months, until March 10, 1976. He also directed the defendant to undergo a program of daily full-time therapy at a local hospital for six months under the supervision of the Juvenile Services Administration and to pay restitution in the amount of $3,562.34 to the alleged victims. ² Subsequently, a "consent agreement" was filed, specifying the particular restitution payment to each victim.

On March 10, 1976, a third hearing was held in juvenile court, and on March 24, 1976, the juvenile judge signed an order waiving juvenile jurisdiction. About two months later, a twenty-eight count indictment against the defendant was filed in the Circuit Court for Montgomery County, alleging the same criminal acts. Prior to trial, the defendant filed a motion to dismiss the indictment on the ground of double jeopardy, which was denied on July 12, 1976.

The defendant took an immediate appeal to the Court of Special Appeals, arguing that the court order of September 10, 1975 directing him to pay restitution and undergo full-time psychiatric therapy at a local hospital, was a de facto adjudication of his guilt and constituted punishment for the acts with which he was charged. Prosecution as an adult following these juvenile proceedings, the defendant argued, would place him in jeopardy a second time, in violation of the Fifth Amendment to the United States Constitution. The State, on the other hand, argued that none of the proceedings in the juvenile court involved an adjudication that the defendant committed the offenses alleged in the petition. The State further argued that the juvenile court had no jurisdiction to make an adjudication and impose any disposition. The Court of Special Appeals affirmed the order of the circuit court, Parojinog v. State, 35 Md.App. 586, 371 A.2d 695 (1977), and this Court thereafter granted the defendant's petition for a writ of certiorari.

The prohibition against double jeopardy, applicable in Maryland both as a common law principle and under the Fifth Amendment to the United States Constitution, prohibits successive prosecutions for the same offense as well as multiple punishment for the same offense. Newton v. State, 280 Md. 260, 263-264, 373 A.2d 262 (1977), and cases there cited. Moreover, the Supreme Court has held that the federal constitutional guarantee against being twice placed in jeopardy is fully applicable to juvenile adjudicatory proceedings, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

Before addressing the issue of whether the adult criminal prosecution of the defendant would constitute double jeopardy because of the juvenile court's directives on September 10, 1975, concerning restitution and therapy, it would be useful to review briefly some of the pertinent procedures under the Maryland statutory provisions relating to juvenile causes, Code (1974, 1977 Cum.Supp.), §§ 3-801 through 3-834 of the Courts and Judicial Proceedings Article. Section 3-812 provides, inter alia, for the filing of a petition alleging that a child is delinquent. It requires that such petition set forth in clear and simple language the alleged facts constituting the delinquency and the laws allegedly violated by the child. When a delinquency petition has been filed, the court, sitting as a juvenile court, has "exclusive original jurisdiction" over the child (§ 3-804). Child is defined to mean a person under the age of 18 years (§ 3-801(d)), and, where a person is alleged to be delinquent, "the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction" (§ 3-805(a)). Once the juvenile court obtains jurisdiction, "that jurisdiction continues until that persons reaches 21 years of age unless terminated sooner" (§ 3-806(a)). One method for the termination of jurisdiction is, of course, waiver, and § 3-817 (d) sets forth the criteria to be considered by the juvenile court in determining whether to waive its exclusive jurisdiction.

Three distinct types of hearings by the juvenile court are provided for: a waiver hearing (§ 3-817); and adjudicatory hearing (§ 3-819); and a disposition hearing (§ 3-820). A waiver hearing is to be held prior to an adjudicatory hearing, and its purpose "is solely to determine whether the court should waive its jurisdiction" (§ 3-817(b)). The issue in a waiver hearing is not whether the child is guilty of committing the delinquent act but whether he is an unfit subject for juvenile rehabilitative measures. For purposes of making this decision, "the court shall assume that the child committed the delinquent act alleged" (§ 3-817(c)).

Unless jurisdiction has been waived, the court is to hold an adjudicatory hearing after the waiver hearing, the purpose of which "is solely to determine the merits of the allegations of the petition" (§ 3-819(a)). While making it clear that a waiver hearing is to be "prior to an adjudicatory hearing" (§ 3-817(b)), the statutory provisions specify no particular time interval between the waiver hearing and the adjudicatory hearing. ³ After the adjudicatory hearing, the juvenile court must hold a separate disposition hearing unless all parties waive their right to such a hearing, and the disposition hearing may be held on the same day as the adjudicatory hearing (§ 3-820(a)). Included among the types of disposition which the court may make are to place the child under supervision in his own home or with others "upon terms the court deems appropriate" and to "commit the child to the custody . . . of the Juvenile Services Administration" (§ 3-820(b)). In addition, where the court has found that a child has wilfully or maliciously damaged or destroyed the property of another, it may order the child to make restitution payments (§ 3-829(e)).

Turning to the facts of the case before us, it is clear from the above-described statutory provisions that the juvenile court acquired exclusive jurisdiction over the defendant on May 23, 1975, when juvenile petitions were filed alleging that the defendant committed delinquent acts when he was seventeen years old. This jurisdiction continued through September 10, 1975, when the court ordered that the defendant undergo daily full-time therapy at a hospital for six months under the jurisdiction of the Juvenile Services Administration and that he make restitution. It is also clear that these orders were dispositional in nature, and under the statutes required, as a precondition, an adjudication that the defendant had committed delinquent acts. Moreover, an order to make restitution necessarily involves a determination that the individual so ordered bears responsibility for the loss. While the record does not disclose whether or not the juvenile court expressly made an adjudication of the defendant's guilt, the court implicitly made an adjudication. Finally, there can be no doubt that the juvenile court erroneously exercised its jurisdiction under the statutory scheme by making an adjudication and disposition without first having decided the waiver issue.

On these facts, we believe that this case is within the Supreme Court's holding in Breed v. Jones, supra, 421 U.S. at 520, 95 S.Ct. 1779, that the Fifth Amendment's Double Jeopardy Clause prohibits the prosecution of a person as an adult following juvenile...