State v. Ricky G.

• Decision Date: 30 August 1990
• Docket Number: No. 11351,11351
• Citation: 1990 NMCA 101,110 N.M. 646,798 P.2d 596
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. RICKY G., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 596

798 P.2d 596

110 N.M. 646

STATE of New Mexico, Plaintiff-Appellee, v. RICKY G., Defendant-Appellant.

No. 11351.

Court of Appeals of New Mexico.

Aug. 30, 1990.

[110 NM 646] Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

The child appeals from the disposition of his case in children's court. The only remedy requested on appeal is a new dispositional hearing. Background.

After this case was calendared, it became apparent that the tapes of the disposition hearing could not be located. By order of this court, the docketing statement, motions to amend the docketing statement, and memoranda in response provide the factual basis for the appeal. The same order allowed the state to provide its own statement of facts in the answer brief. There has been no dispute as to the relevant facts, and, in the absence of objections by the state, we accept the child's allegations of fact as correct.

The child admitted committing a delinquent act, consumption of alcohol by a minor. The children's court committed him to the Youth Diagnostic and Development Center (YDDC) for a sixty- to ninety-day evaluation. After the evaluation was completed, the children's court held a dispositional hearing.

The written recommendations received from the YDDC and the local juvenile probation officer both recommended a suspended commitment to the Boys' School, that the child be returned to his home, and that the family receive therapy. However, at the dispositional hearing, the juvenile probation officer orally changed his recommendation and recommended that the child be committed to the Boys' School for an indeterminate term not exceeding two years. The child's counsel, apparently surprised by the change, asked for a continuance to prepare an alternative sentencing plan. The children's court denied the continuance; according to the docketing statement as amended, the court indicated that no alternative plan was possible and that nothing defense counsel could present would persuade the court that the recommendations against incarceration were appropriate. The court, without asking the child if he personally wished to address the court prior to the disposition of the case, ordered that the child be committed to the legal custody of the corrections department for an indeterminate period not to exceed two years. The child did not ask to personally address the court prior to the court's announcement of its disposition of the case.

On appeal, the child argues that the failure of the children's court to ask him if he had anything to say prior to announcing its disposition of his case denied him his right to allocution, which he contends is a basic right under NMSA 1978, Section 32-1-27(A) (Repl.Pamp.1989), and that this court should remand the case for a new sentencing hearing before a different judge. We agree. Because of our disposition, we do not reach the other issues argued on appeal.

Preservation of Error.

At the outset, we must determine whether the issue raised on appeal was raised and preserved below. See SCRA 1986, 12-216. Assuming without deciding that the issue was not properly raised and preserved below, we exercise our discretion to consider the issue on appeal as an issue of general public interest. See R. 12-216(B)(1). Cf. State v. Doe, 90 N.M. 572, 566 P.2d 121 (Ct.App.1977) (dispositional powers of the children's court with respect to mentally ill delinquent child); State v. Doe, 90 N.M. 536, 565 P.2d 1053 (Ct.App.1977) (application of double jeopardy to multiple probation revocation proceedings).

Right to Allocution.

The Children's Code, NMSA 1978, Sections 32-1-1 to -59 (Repl.Pamp.1989), guarantees to children "the same basic rights as an adult, except as otherwise provided in the Children's Code." Sec. 32-1-27(A). In Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982), our supreme court held that NMSA 1978, Section 31-18-15.1 (Repl.Pamp.1987), requiring a sentencing hearing to determine whether aggravating or mitigating circumstances exist, also required the trial court to give a defendant an opportunity to speak before the trial court pronounces sentence. This court has explicitly interpreted Tomlinson to require that a defendant be invited to address the court directly. State v. Stenz, 109 N.M. 536, 787 P.2d 455 (Ct.App.1990). However, in Stenz, this court held that due process did not require that a defendant be afforded a right to address the court personally before being sentenced for a misdemeanor. Our holding in Stenz was based on the absence of a statute or rule providing for allocution and the lack of policy reasons to require allocution in misdemeanor cases.

The state attempts to distinguish Tomlinson and bring this case within the ambit of Stenz by arguing, in effect, that dispositional hearings are not required in children's court. In support of this argument, the state points to Section 32-1-31(F), allowing the court to make disposition immediately after it finds the child to be delinquent, and Section 32-1-31(G), concerning evidence that can be considered at dispositional proceedings. Neither of these statutes supports the state's position.

The Children's Code contemplates a multi-stage process. The Code separates the issues of whether the child committed the delinquent act, whether the child is in need of care and rehabilitation, or what disposition should be ordered. See Sec. 32-1-31(D), (E), (F); see Doe v. State, 92 N.M. 74, 582 P.2d 1287 (1978). Within this context, the statutory provision allowing the children's court to proceed immediately to disposition provides flexibility in scheduling; it does not eliminate the need for a hearing. Similarly, Section 32-1-31(G), which allows the children's court to consider at the dispositional hearing evidence that would not have been competent had it been offered during the hearings on adjudicatory issues and the issue of need for care and rehabilitation, authorizes the children's court judge to exercise broad discretion in considering evidence as to the appropriate disposition. Doe v. State. In authorizing the children's court judge to consider a wide range of evidence, the legislature cannot be understood to have authorized the children's court to omit the dispositional phase.

Moreover, we believe there are strong policy considerations that compel the recognition of allocution in children's court and that distinguish this case from our holding in Stenz. The legislature has required that the Children's Code be interpreted and construed to effectuate certain express legislative purposes. Sec. 32-1-2; State v. Jonathan M., 109 N.M. 789, 791 P.2d 64 (1990). With respect to delinquent children, the purposes of the Children's Code are to remove from the child the adult consequences of criminal behavior while still holding the child accountable for his actions, and to provide an appropriate program of supervision, care, and rehabilitation. Sec. 32-1-2(B) & (D). Indeed, the statutory provision for commitment to treatment and rehabilitation distinguishes the Children's Code from comparable statutes governing crimes committed by adults. "Once a child is deemed 'within the Children's Code' the court must fashion a remedy beneficial to both the child and society." State v. Jonathan M., 109 N.M. at 790, 791 P.2d at 65.

In reference to adults, our supreme court has observed that " '[T]here is no substitute for the impact on sentencing which a defendant's own words might have if he chooses to make a statement.' " Tomlinson v. State, 98 N.M. at 215, 647 P.2d at 417 (quoting Mohn v. State, 584 P.2d 40, 44 (Alaska 1978)). We believe that the child's statements are even more important in a children's court proceeding. The child's own view of the situation, his willingness to accept responsibility for it, and his remorse or lack thereof is, or at least should be, an important consideration in determining an appropriate program of care, supervision, and rehabilitation. Moreover, by inviting the child to participate directly in the dispositional hearing, the children's court indicates that the child's views are relevant and material. That message may have rehabilitative value. See ABA Juvenile Justice Standards, Standards Relating to Dispositional Procedures, Part VI, Sec. 6.3(C), commentary, at 50 (1980) (hereinafter Standards).

Finally, we believe the state's argument analogizing children's court cases to misdemeanor proceedings ignores the realities of the situation. As a matter of law, a child who is found to have committed a delinquent act, whatever its nature, may be committed to an appropriate institution for up to two years. See Secs. 32-1-34(E) & -38(A). An adult may receive a sentence of two years only for a crime the law declares to be a felony. NMSA 1978, Sec. 31-18-15 (Repl.Pamp.1987). We believe the potential length of confinement is a significant factor in determining whether children's court proceedings should be analogized to felony rather than misdemeanor proceedings. Cf. State v. Sanchez, 109 N.M. 428, 786 P.2d 42 (1990) (availability of right to a jury trial should be determined by objective standard based on the legislative maximum, rather than by any limitation imposed by the trial court prior to trial). Further, two years may be an even more significant period of time for a child than for an adult. In short, objectively and subjectively, a child charged with a delinquent act faces charges that are comparable in seriousness to a felony prosecution.

For these reasons, we conclude that a child has the right to address the children's court before disposition. See Standards, Sec. 6.3(C). We also conclude that the children's court should offer a child the opportunity to address the court before pronouncing sentence.

Reassignment to a Different...