State v. Rudy B., 27,589.

• Citation: 2009 NMCA 104,216 P.3d 810
• Decision Date: 30 July 2009
• Docket Number: No. 27,589.,27,589.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. RUDY B., Child-Appellant.
• Court: Court of Appeals of New Mexico

216 P.3d 810

2009 NMCA 104

STATE of New Mexico, Plaintiff-Appellee, v. RUDY B., Child-Appellant.

No. 27,589.

Court of Appeals of New Mexico.

July 30, 2009.

Certiorari Granted, No. 31,909, September 15, 2009.

Gary K. King, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Juvenile Law Center, Marsha Levick, Jessica Feierman, Philadelphia, PA, for Amicus Curiae.

OPINION

CASTILLO, Judge.

{1} The primary issue in this appeal concerns a challenge to the statutory procedure used to determine whether a youthful offender is sentenced as an adult or as a juvenile. Under the Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 2007) (Delinquency Act), the trial court determines whether to impose a juvenile or adult sentence after making findings based on evidence presented at an amenability hearing. Section 32A-2-20(B)(1), (2). In the case before us, the trial court found that Child was not amenable to treatment, and Child was sentenced as an adult to twenty-five years in prison. Child appeals his sentence and urges this Court to overrule State v. Gonzales, 2001-NMCA-025, ¶ 1, 130 N.M. 341, 24 P.3d 776, and urges this Court to hold that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires a jury determination of the facts necessary to impose an adult sentence. Child additionally asserts that there was insufficient evidence to support the findings necessary to sentence him as an adult and that his separate convictions for shooting from a motor vehicle resulting in great bodily harm and aggravated battery with a deadly weapon violate double jeopardy. After considering the line of cases decided since Apprendi and Gonzales, we conclude that Gonzales should be overruled and that Apprendi applies to the amenability hearings of youthful offenders. We need not reach the question of substantial evidence because we remand this case to the trial court for resentencing. We also hold that the resentencing should be based on all of the counts to which Child pleaded because there was no double jeopardy violation.

I. BACKGROUND

{2} Child was involved in a gang fight in a parking lot. Under the impression that one of the other gang members had a gun, Child pulled out his own weapon and began shooting. He hit three people, one of whom was rendered a quadriplegic.

{3} Child was charged by petition under the Delinquency Act for nine counts: (1) three counts of shooting at or from a motor vehicle; (2) three counts of aggravated battery with a deadly weapon or, in the alternative, aggravated battery resulting in great bodily harm; (3) two counts of negligent use of a deadly weapon; and (4) one count of unlawful possession of a handgun by a minor. The State provided notice of its intent to seek an adult sentence, pursuant to Section 32A-2-20(A). The trial court then issued an administrative closing order on the petition, and the case proceeded forward on a grand jury indictment on essentially the same counts.

{4} Before trial, Child pleaded as a youthful offender under the Delinquency Act to four of the counts: two counts of shooting from a motor vehicle resulting in great bodily harm and two counts of aggravated battery with a deadly weapon. After the plea agreement was accepted, the trial court held an amenability hearing in order to determine whether Child was amenable to treatment and rehabilitation or whether Child should be subject to an adult sentence. See § 32A-2-20(B). The trial court concluded that Child was not amenable to treatment, the case proceeded to sentencing, and Child was sentenced to twenty-five years in prison. Child appeals.

II. DISCUSSION

{5} Child makes three arguments on appeal. First, he urges this Court to overrule Gonzales and to hold that the Sixth Amendment and Apprendi require a jury to determine beyond a reasonable doubt whether a youthful offender is amenable to treatment as a juvenile in an amenability proceeding held pursuant to Section 32A-2-20(B). Second, Child argues that in any event, the trial court incorrectly determined that he was not amenable to treatment. Third, Child contends that the convictions for violations of NMSA 1978, Section 30-3-8 (1993) (shooting at or from a motor vehicle) and NMSA 1978, Section 30-3-5 (1969) (aggravated battery, enhanced by NMSA 1978, Section 31-18-16 (1993) for the use of a firearm) violate the constitutional prohibition against double jeopardy. We address each argument in turn.

A. Amenability Hearings and Apprendi

{6} We begin our discussion by briefly considering the history of juvenile criminal disposition. At common law, children younger than seven were not held criminally responsible, children over fourteen were held to the same standards as adults, and children between seven and fourteen were presumed to lack criminal capacity, although the presumption was rebuttable. Courtney P. Fain, Note, What's in a Name? The Worrisome Interchange of Juvenile "Adjudications" with Criminal "Convictions," 49 B.C. L.Rev. 495, 496-99 (2008). At the end of the nineteenth century, reformers began to develop a separate criminal justice system for juvenile offenders. See id. at 498; Paul Piersma et al., Law and Tactics in Juvenile Cases, 1997 A.L.I.3d ed. § 1.1, at 5. These courts were intended to focus on "the needs of the offender with a goal of rehabilitation," and "[t]he objective of the juvenile court was to rehabilitate the child and protect society rather than to adjudge guilt[.]" Fain, supra, at 499.

{7} Many of the constitutional protections afforded to adult criminal proceedings were not provided to children who were charged with criminal offenses. Piersma, supra, at 13. This changed in 1966, when the Supreme Court of the United States decided Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Kent held that a juvenile court may not waive jurisdiction over a juvenile offender and transfer the offender to face prosecution as an adult without a hearing, effective assistance of counsel, and a statement of reasons. Id. at 554, 86 S.Ct. 1045. One year later, the Court considered the constitutional protections afforded to juveniles during the adjudication proceeding and determined that a juvenile offender is entitled to adequate notice of the pending charges, to counsel who is either retained by the offender or provided by the state, to the privilege against self-incrimination, and to confront witnesses who testify against him. See In re Gault, 387 U.S. 1, 13, 33, 41, 55, 57, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Since then, juveniles have been granted the additional safeguard of proof beyond a reasonable doubt in a juvenile adjudication, In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as well as protection from double jeopardy. See Breed v. Jones, 421 U.S. 519, 532, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (holding that double jeopardy is violated when a juvenile is subject to adjudication in the juvenile system, determined to be unamenable to treatment at the juvenile disposition, and then transferred and retried in the adult system). Notably, the Supreme Court of the United States has explicitly refused to require the states to extend the right to a jury trial to juvenile adjudications. See McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

{8} During the 1980s, "substantial [public] misperception regarding increases in juvenile crime led many states to begin passing legislation that took a more punitive approach to juvenile justice." Kelly K. Waterfall, Note, State v. Muniz: Authorizing Adult Sentencing of Juveniles Absent a Conviction that Authorizes an Adult Sentence, 35 N.M. L.Rev. 229, 231 (2005) (alteration in original) (internal quotation marks and footnote omitted). These approaches were "designed to crack down on juvenile crime, and generally involved expanded eligibility for criminal court processing and adult correctional sanctioning." Id. (internal quotation marks and footnote omitted). With this history in mind, we turn to examine the relevant statutory backdrop of New Mexico's juvenile system.

1. New Mexico's Juvenile System

{9} New Mexico's early treatment of juveniles mirrored that of other states. At the time of statehood in 1912, juveniles accused of criminal acts were treated no differently from adults. Peyton v. Nord, 78 N.M. 717, 723, 437 P.2d 716, 722 (1968). In 1917, the Legislature adopted the first juvenile code. Id. When faced with the question of whether a juvenile has a right to a jury trial, the New Mexico Supreme Court relied on the right to a jury trial as enunciated in Article II, Section 12 of the New Mexico Constitution: "The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate." Based on the fact that juveniles charged with a felony were entitled to a jury trial at the time the constitution was adopted in 1912, the Peyton court held that such juveniles are guaranteed a jury trial in New Mexico. 78 N.M. at 723, 437 P.2d at 722.

{10} The next development relevant to our analysis took place in 1993 when New Mexico joined other states in an effort to establish "statutory authority to impose adult sanctions on children convicted of certain criminal offenses." Waterfall, supra, at 231. The 1993 amendments to the children's code comprised what is now known as the Delinquency Act, Sections 32A-2-1 to -33. See Waterfall, supra, at 231. Under the Delinquency Act, there are three classes of juvenile offenders: delinquent offenders, serious youthful offenders, and youthful offenders. See § 32A-2-3(C), (H), (I). As this Court explained in Gonzales: "These classifications reflect the rehabilitative purpose of the Delinquency Act, coupled with the realization that some juvenile...