State v. A.G.

• Decision Date: 27 July 2011
• Docket Number: No. 10–1116.,10–1116.
• Citation: 2011 Ark. 244,383 S.W.3d 317
• Parties: STATE of Arkansas, Appellant, v. A.G., Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 244

383 S.W.3d 317

STATE of Arkansas, Appellant,

v.A.G., Appellee.

No. 10–1116.

Supreme Court of Arkansas.

June 2, 2011.

Rehearing Denied July 27, 2011.

Held Invalid

A.C.A. § 9-27-318( l ).

Dustin McDaniel, Att'y Gen., by: Leaann J. Irvin, Ass't Att'y Gen., for appellant.

William R. Simpson, Jr., Little Rock, and Brandy Turner, Public Defender, by: Thomas Kendrick, for appellee.

DONALD L. CORBIN, Justice.

This is an appeal by the State of Arkansas from an order of the Pulaski County Circuit Court transferring Appellee A.G.'s criminal case to the juvenile division of circuit court. On appeal, the State asserts that the circuit court's order granting the transfer was clearly erroneous. We accepted certification of this appeal from the Arkansas Court of Appeals, as it involves an issue of interpretation of one of our court rules and a statute; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(b)(6) (2011). Because this is not a proper appeal by the State pursuant to Arkansas Rule of Appellate Procedure–Criminal 3 (2010), we dismiss the appeal.

Appellee was charged by felony information on May 13, 2009, with one count of arson, in violation of Arkansas Code Annotated section 5–38–301 (Supp.2009), and manslaughter, in violation of Arkansas Code Annotated section 5–10–104 (Supp.2009). The basis of the charges related to an incident that occurred on June 19, 2008. On that date, Appellee is alleged to have started a fire in the home he was sharing with his grandmother, Mary. Mary died in the fire as a result of burns to her body and heavy soot disposition in her airways. Appellee was taken to Arkansas Children's Hospital for burns to his hands and face and smoke inhalation.

Investigators determined that the fire originated in the den at the back of the house, but the exact cause of the fire was never determined. Almost a year after the incident, the State charged Appellee as set forth above. Appellee underwent a forensic evaluation, and in a report dated December 18, 2009, Dr. Ed Stafford concluded that Appellee suffered from several mood and behavior disorders but was capable of conforming his conduct to the law and was competent to stand trial.

On September 16, 2010, Appellee filed a motion to transfer his case to juvenile court. At that time he was nineteen years old. The circuit court held the required hearing on the motion to transfer. The State introduced the testimony of Officer Joshua Adams with the Sherwood Police Department. Officer Adams testified that he was involved in investigating the fire and the death of Mary. According to Officer Adams, a cigarette lighter was found on Appellee's bed, and the fire department determined that the fire started in the middle of the living room floor. Adams also stated that during the course of the investigation, he made contact with John Hughes, the brother of Mary, and great uncle of Appellee. Hughes relayed to Officer Adams that Appellee had previous behavioral issues, including issues with fires, and had been in and out of Bridgeway Hospital and Pinnacle Pointe Hospital. One time, while at Hughes's home, Appellee was burning tassels on an afghan that caused a fire. Hughes also told the officer that Appellee and Mary did not get along and once Appellee told Hughes that he hated his grandmother and wished she was dead. According to reports obtained by Officer Adams, Appellee would engage in destructive behavior without regard to his or others' safety. In a report from Bridgeway, it was noted that Appellee was a homicide risk, having made statements that he wished Mary was dead. Officer Adams stated that following his release on bond, Appellee has had several other run-ins with the Sherwood Police Department, including an incident where he was alleged to have stolen a laptop computer from an area church and another incident involving criminal trespass, commercial burglary, and loitering.

At the conclusion of the hearing, Appellee asserted that his case should be transferred to the juvenile division of circuit court so that rehabilitation efforts could be made. The State objected, noting that Appellee was nineteen years old and could not be designated an extended-juvenile-jurisdiction offender, meaning that any juvenile-court jurisdiction would end when Appellee turned twenty-one.

In an order dated September 27, 2010, the circuit court granted Appellee's motion to transfer his case to the juvenile division of circuit court. In granting the motion, the circuit court found the following:

1. The offenses charged, arson and manslaughter, are serious offenses.

2. The testimony presented does not demonstrate that the offenses were committed in an aggressive, violent, and premeditated or willful manner.

[2011 Ark. 4]3. The offenses charged were committed against a person and property, resulting in the death of the victim.

4. According to the testimony presented, if culpability exists on the part of the defendant, he would be solely culpable as the only participant. There does not appear to be any level of planning involved.

5. The defendant has no prior history of being adjudicated a juvenile offender.

6. The defendant is currently nineteen years eight months of age, and was seventeen years five months of age at the time the offenses were committed. From the evidence and testimony presented, the defendant appears to the Court to possess a low level of sophistication and maturity for his age.

7. There are facilities available to the judge of the juvenile division of Circuit Court for a person of the defendant's age which the Court believes would be likely to rehabilitate the juvenile and before the expiration of his twenty-first birthday.

8. The testimony presented at the transfer hearing indicates that the defendant acted alone.

9. All evidence relating to the juvenile's mental, physical, education and social history, including the forensic evaluation and past admission reports of Bridgeway Hospital, have been considered by the Court in reaching its decision on the motion to transfer to Juvenile Court.

10. The Court does not find any other factors present in this case which it deems relevant in making its decision.

Following the circuit court's grant of the motion to transfer, the State brought the instant appeal.

As a threshold matter, this court is required to determine if an appeal brought by the State is proper. See State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005) (This court has a duty to raise the issue of the propriety of the State's appeal, even when neither party raises the issue, because it is a matter of subject-matter jurisdiction.)¹ This court has consistently noted the significant differences between appeals brought by criminal defendants and those brought by the State. See, e.g., State v. K.H., 2010 Ark. 172, 368 S.W.3d 46. The former is a matter of right; whereas, the latter is not derived from either the state or federal constitution but is granted pursuant to Rule 3. Id. Accordingly, the State's ability to appeal is strictly limited to those circumstances described in Rule 3. Id. Pursuant to Rule 3, the State may appeal by filing a notice of appeal from a final order following a misdemeanor or felony prosecution or may take an interlocutory appeal in a felony prosecutionwhere the circuit court (1) grants a motion to suppress evidence under Arkansas Rule of Criminal Procedure 16.2, (2) suppresses a defendant's confession, or (3) grants a motion under Arkansas Code Annotated section 16–42–101(c) to admit evidence of a victim's prior sexual conduct. Ark. R.App. P.-Crim. 3(a),(b).

Clearly, in the instant matter, Rule 3 does not provide that the State may bring an interlocutory appeal from a juvenile-transfer order. ² Nevertheless, the State contends that this is a proper appeal because it is not required to satisfy the requirements of Rule 3, as its right to appeal is specifically derived from section 9–27–318( l ), which provides that “[a]ny party” may appeal from a transfer order. This statutory provision is in direct conflict with this court's Rule 3 that provides the specific type of interlocutory appeals that may be brought by the State, in that an interlocutory appeal from a transfer order is not one of them. This court has held that where there is a conflict between our procedural rules and a statute, statutes are given deference only to the extent to which they are compatible with our rules; conflicts which compromise those rules are resolved with our rules remaining supreme. Shoemate v. State, 339 Ark. 403, 5 S.W.3d 446 (1999) (per curiam); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

We are not persuaded by the State's assertion that Rule 3 and section 9–27–318( l ) are compatible. According to the State, there is no conflict between the two because the appeal does not involve the correct and uniform administration of justice, but concerns the statutorily permitted review of a transfer order. The State ignores, however, the basic notion that Rule 3 applies to any appeal by the State, unless such appeal is deemed to be civil in nature.³ As previously stated, and as long recognized by this court, the State's right to appeal is conferred by Rule 3. See, e.g., K.H., 2010 Ark. 172, 368 S.W.3d 46;State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007); State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006). Accordingly, the State is incorrect that Rule 3 and section 9–27–318( l ) are compatible.

In sum, Rule 3 governs this appeal by the State and because this is not one of the types of specifically permitted interlocutory appeals allowed by the rule, we must dismiss the State's appeal.

Appeal dismissed.

BAKER, J., concurs in part; dissents in part.

BROWN, J., dissents.

KAREN R. BAKER, Justice, concurring in part and dissenting in part.

I agree with the majority opinion that the State's appeal must be dismissed. I disagree, however, with its conclusion that Arkansas Rule of Appellate Procedure–Criminal 3 (201...