State v. Grenz, Cr. N
| Decision Date | 23 June 1976 |
| Docket Number | Cr. N |
| Citation | 243 N.W.2d 375 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Timothy GRENZ, Defendant and Appellant. o. 535. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The requirements of Section 27--20--34, N.D.C.C., concerning notice and right to counsel at the transfer hearing in juvenile court are jurisdictional, and are not waived by a subsequent plea of guilty in adult court.
2. Where proper notice of hearing in the juvenile court was not given, the juvenile court's order transferring jurisdiction was invalid.
3. Under the facts and circumstances of this case, the mere presence of the parents of the juvenile at the transfer hearing cannot be deemed to be representation of the juvenile, and the court had the duty to ascertain whether the juvenile knew of and understood his right to counsel, and his right to have appointed counsel if indigent, and whether he voluntarily waived those rights. Secs. 27--20--26 and 27--20--34, subsec. 1--b, N.D.C.C.
Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee State of North Dakota.
Burt L. Riskedahl, Bismarck, for defendant and appellant.
This appeal is from an order of the district court of Stutsman County on October 8, 1974, denying the defendant Timothy Grenz's petition for relief under the Uniform Post-Conviction Procedure Act, Chapter 29--32, N.D.C.C. The defendant is attacking his conviction and sentence in district The defendant contends that the district court's order of October 8, 1974, denying post-conviction relief should be reversed because the trial court was without jurisdiction to impose the sentence due to constitutional and statutory violations that occurred in the defendant's transfer hearing in juvenile court. He claims that the waiver hearing was ineffectual to transfer jurisdiction from juvenile court to adult court and that all subsequent criminal proceedings in the district court are null and void for lack of jurisdiction over the person of Timothy Grenz or the subject matter of the case. We agree that the notice to the juvenile defendant and to his parents was too short, that his right to an attorney in juvenile court was not knowingly and understandingly waived, and that the adult court therefore lacked jurisdiction over the offense and the person.
court for first-degree robbery obtained upon a plea of guilty on October 24, 1974.
The factual background of this case is not in dispute. At the time of his arrest in Jamestown, North Dakota, on February 23, 1974, the defendant was seventeen years old, a 'child,' within the definition of the Juvenile Court Act in North Dakota, Chapter 27--20, N.D.C.C. (the Uniform Juvenile Court Act). At the time of the defendant's arrest, Section 27--20--02, subsection 1, N.D.C.C., defined 'child' as 'an individual who is: 1
'a. Under the age of eighteen years, and not married or not a member of the armed services;
Following his arrest the defendant was held in custody in Stutsman County jail. On February 26, 1974, a juvenile court waiver hearing was scheduled for the following day.
The defendant and his mother received notice of the hearing the day before. The defendant's father was not served in advance with notice of the hearing. 2 Three days' notice is required by our transfer statute, Section 27--20--34, subsection 1--c. The defendant's mother was present at the hearing but did not actively participate in the proceedings. The defendant was not represented by counsel.
The waiver hearing consisted of:
1. Oral testimony by the juvenile supervisor concerning the defendant's juvenile record.
2. Oral testimony by a representative of the State Youth Authority concerning the defendant's placement within that agency and various efforts made to rehabilitate him, including the statement that the defendant was not amenable to rehabilitation in the juvenile facilities or committable to an institution for the mentally ill 3. Oral testimony by a police officer that probable cause existed for him to believe that the defendant may have committed a delinquent act.
4. Inquiry by the court whether there was any reason that the defendant should be handled within the juvenile court facilities, to which the defendant replied, 'No.' The same question was asked of both parents. Both agreed with the judge that juvenile court facilities had not 'worked out.' 3
The first issue on appeal is whether the defendant's plea of guilty in adult criminal court to the charge of robbery in the first degree waives his right to collaterally attack any defects in the transfer proceedings in juvenile court.
There is a line of authority in Federal courts which holds that a plea of guilty, entered after adequate legal advice, is deemed a waiver of any infirmity in the transfer hearing. See Smith v. Yeager, 459 F.2d 124, 126--127 (3d Cir. 1972); Wilhite v. United States, 108 U.S.App.D.C. 279, 281 F.2d 642, 644 (1960). However, the generally accepted rule is that a voluntarily entered plea of guilty constitutes a waiver of only nonjurisdictional defects. Muse v. Slayton, 333 F.Supp. 1007, 1010 (D.W.Va.1971); White v. Pepersack, 352 F.2d 470 (4th Cir. 1965). Since in this case all of the defendant's claims arise from alleged irregularities in the waiver-of-jurisdiction procedure in the juvenile court, his claims attack jurisdiction and they are not waived. Ex parte Rixen, 74 N.D. 80, 19 N.W.2d 863 (1945); In re Kennedy, 110 N.W.2d 365 (N.D.1961); State v. Jackson, 249 Minn. 246, 82 N.W.2d 234 (1957).
In this case, the defendant is not asserting his innocence or a coerced guilty plea. The error he is challenging did not involve any element of trial in the adult court. By his plea of guilty in adult court the defendant relinquished the right to trial but did not, impliedly or otherwise, waive his right to an appropriate hearing in juvenile court. See State v. Jackson, supra.
The second issue in this case is whether the waiver-of-juvenile-jurisdiction hearing was sufficient under North Dakota statutes or under the Federal Constitution to transfer jurisdiction to the district court. Since the North Dakota statute setting forth requirements for a valid transfer of jurisdiction was not complied with in this case, it is not necessary to reach the constitutional question involved.
The defendant claims that the hearing failed to comply with the statutory requirements concerning transfer of jurisdiction in two respects: First, notice of the time, place, and purpose of the hearing was not given to the defendant and his parents at least three days before the hearing. Second, the provisions of Section 27--20--26, which are incorporated into Section 27--20--34, requiring the court to ascertain whether a party who appears without counsel knows of his right to counsel and of his right to have a court-appointed counsel if he is a needy person, were not followed.
It is apparent from the transcript of the juvenile court waiver hearing that the required three-day notice was not given to the defendant or his parents. The State concedes that the defendant and his mother The State makes the argument that the defective notice was not material in light of the subsequent developments in the case. The State contends that since the defendant had the benefit of court-appointed counsel after he was waived into adult court, counsel had the opportunity to appeal from the defective waiver hearing but made a tactical decision not to do so. The State is arguing essentially that the failure of the defendant to attack the defective notice in juvenile court before he pled guilty in district court to the charge of robbery operated as a waiver of his right to attack the improper notice at any time thereafter. We have already held that jurisdictional claims are not waived by a plea of guilty. We hold that the failure of the State to comply with the statutory notice requirements set forth in Section 27--20--34 constituted a material defect in the waiver-of-jurisdiction proceedings. Since the defective-notice claim goes to the matter of jurisdiction, notice was not waived. Mere presence of the parents at the hearing is not a waiver of notice. In re Roth, 158 Neb. 789, 64 N.W.2d 799 (1954).
were informed that a hearing was scheduled for the following day and that the defendant's father received no written notice prior to the hearing.
The failure of the State to provide adequate notice to the juvenile and his parents was material not only because of the explicit notice requirement in the statute but because due process of law requires notice to be given 'sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded.' In re Gault, 387 U.S. 1, 31--57, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967); McGuire v. Warden, 229 N.W.2d 211 (N.D.1975).
Timothy Grenz appeared at the waiver-of-jurisdiction hearing without counsel. The court made the following observation near the beginning of the brief hearing:
'The defendant and his mother are here, and the papers which were delivered to them advise them as to the right of counsel and they are here in court without counsel.
'Do you have any questions, Time, or Mrs. Grenz, about this? The only thing that we have to determine here is, in the first place, we know that Tim has been under the jurisdiction of Juvenile Court and that he has been dismissed from that jurisdiction. We also know that he is 17 years of age, and that it is a matter of record in this Court that we haven't been able to do anything with respect to Tim or accomplish anything, and if you have some reason to present to the Court why Juvenile Court jurisdiction should not be waived, I would like to hear it.
This quoted discussion is the only reference at the...
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