State v. Superior Court of Pima County

• Decision Date: 07 February 1968
• Docket Number: CA-CIV,No. 2,2
• Citation: 436 P.2d 948,7 Ariz.App. 170
• Parties: The STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF PIMA COUNTY, Respondent, and Albert C. Clough, Real Party in Interest. 496.
• Court: Arizona Court of Appeals

Page 948

436 P.2d 948

7 Ariz.App. 170

The STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF PIMA COUNTY, Respondent and Albert C. Clough, Real Party in Interest.

No. 2 CA-CIV 496.

Court of Appeals of Arizona.

Feb. 7, 1968.

Darrell F. Smith, Atty. Gen., William J. Schafer III, County Atty., Pima County, William J. Augustine, Deputy County Atty., Tucson, for petitioner.

Charles M. Giles, Tucson, for real party in interest.

MOLLOY, Judge.

This certiorari proceeding, instituted on behalf of the State, raises the question of whether the superior court had 'jurisdiction' over a 17-year old defendant as to a felony charge when the juvenile court had not refused to suspend criminal prosecution as to this defendant and the defendant did not raise the question of his age until after pleading guilty to the charge.

Prior to entry of the order quashing the information, which is the subject of this review, the following events transpired. A complaint and warrant were issued from Justice Court, Precinct No. 2, Pima County, charging defendants, Nagle and Clough, with the crimes of kidnapping, assault with a deadly weapon and attempted grand theft. Both were arraigned on these charges on September 21, 1967, at which time they executed a formal, written waiver of a preliminary hearing. On the same date, the justice of the peace ordered that both defendants be held to answer the charges.

An information charging the same crimes as charged in the complaint was subsequently filed in Pima County Superior Court. At the time of their arraignment, a lawyer ¹ was appointed to represent the defendants and they entered a plea of 'not guilty' as to all three counts of the information. The defendants having declined to waive the 60-day trial period, the case was ordered set for trial before a jury on November 1, 1967. Numerous pretrial motions and petitions were presented to the trial court on behalf of both defendants. These included a motion to reduce bail, a petition for a writ of habeas corpus, a motion to dismiss or remand for a preliminary hearing, ² a motion to sever, a motion for a bill of particulars, and a motion for discovery. The petition for a writ of habeas corpus was denied as well as all the other defense motions with the exception of a motion to inspect certain evidence.

On November 1, 1967, the date set for trial, only legal matters were presented to the court and the trial commenced the following day. The morning was consumed with selection of the jury. Thereafter, following opening statements to the jury and prior to presentation of the State's case, the defendant Clough, in the absence of the jury, withdrew his plea of 'not guilty' and entered a plea of 'guilty' to count two of the information charging the crime of assault with a deadly weapon. The court accepted the plea and on motion of the State, ordered that counts one and three of the information be dismissed as to defendant Clough. The court instructed the jury that defendant Clough was no longer in the case and the trial proceeded as to defendant Nagle. November 9, 1967, was set as the date for sentencing of Clough, but when this day arrived, the matter was continued to November 16, 1967. On the latter date, however, the matter was once again continued to December 4, 1967, upon motion of defense counsel.

On November 22, 1967, the defendant Clough moved to quash the information for the reason that the court '* * * was without jurisdiction to hear or make disposition of the criminal charges filed.' The memorandum in support thereof stated that at or shortly before the date set for sentencing, November 9, 1967:

'* * * it was discovered and determined that the Defendant, ALBERT C. CLOUGH, was seventeen (17) years of age and would not attain his eighteenth (18th) birthday until November 11, 1967. In other words, at the time the Information was filed, the arraignment held, the trial begun, and the plea entered, ALBERT C. CLOUGH was a juvenile.'

The State, in its response to the motion to quash, filed a memorandum stating, Inter alia, that:

'Further, when defendant ALBERT C. CLOUGH refused to reveal that he was under eighteen years of age he thereby waived any privileges to be treated as a juvenile he may have had and thereby is estopped from now asserting any claim to privileges that may have been afforded him under provisions of A.R.S. § 8-- 202 et seq.'

Neither the motion nor the response thereto was supported by affidavit or other evidence relating to the defendant's age. The December 4, 1967, minute entry order ³ granting the defendant's motion to quash the information indicates only that the defendant was present and that both counsel for the State and for the defendant made statements to the court. Since the minutes of the trial court are presumed to speak the truth, State v. Anders, 1 Ariz.App. 181, 400 P.2d 852 (1965), we must perforce conclude that no evidence was presented to the trial court bearing on the defendant's age or any misrepresentation in regard thereto.

Generally speaking, on a motion to quash, the accused must prove the grounds alleged for setting aside the accusation. Cochran v. United States, 310 F.2d 585 (8th Cir.1962); State v. Pennick, 364 S.W.2d 556 (Mo.1963); Bates v. State, 166 Tex.Cr.R. 177, 312 S.W.2d 675 (1958); 42 C.J.S. Indictments and Informations § 214b(1). Contrariwise, we would regard the burden of producing evidence of any misrepresentation as to defendant's age to be upon the State which asserts such fact. Yeazell v. Copins, 98 Ariz. 109, 402 P.2d 541 (1965). There being factual issues critical to the legal problems presented disposition of the motion to quash required the taking of evidence on these issues. See Thompson v. Mossburg,193 Ind. 566, 139 N.E. 307, 141 N.E. 241 (1923); 60 C.J.S. Motions and Orders §§ 37a and d, and 38. Such not having been done, the order entered below must be set aside.

Because it is quite apparent that the same fundamental question of 'jurisdiction' will undoubtedly plague the trial court again, we shall address ourselves to resolution of this legal question. In his motion to quash, the defendant argued that the superior court had never acquired jurisdiction for the reason that compliance with A.R.S. § 8--223 was a prerequisite to the acquisition of such jurisdiction. A.R.S. § 8--223 provides:

'When a child under the age of eighteen years is charged with the commission of a crime or violation of an ordinance before a magistrate or justice of the peace, the magistrate or justice of the peace shall certify that the child is so charged, and shall transmit the records of the case to the clerk of the superior court, and thereupon the juvenile court shall exercise jurisdiction.'

Article 6, section 15, of the Arizona Constitution, A.R.S., provides:

'The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting dependent, neglected, incorrigible or delinquent children, or children accused of crime, under the age of eighteen years. The judges shall hold examinations in chambers for all such children concerning whom proceedings are brought, in advance of any criminal prosecution of such children, and may, in their discretion, suspend criminal prosecution of such children. The powers of the judges to control such children shall be as provided by law.'

We agree with the defendant that the authority to conduct the examination prescribed in article 6, section 15, of the Arizona Constitution, and to either order suspension of criminal prosecution of children accused of crime under the age of eighteen years, or, in the alternative, to waive juvenile court jurisdiction, is vested solely in the superior court while acting as a juvenile court. A.R.S. § 8--202.

In the recent case of McClendon v. Superior Court, 6 Ariz.App. 497, 433 P.2d 989 (1967), we had occasion to consider whether the continuing jurisdiction of the superior court in a divorce proceeding as to the custody of a minor child was terminated because the juvenile court had acquired jurisdiction of the minor child. We held:

'We believe in Arizona that when the juvenile court rightfully assumes jurisdiction over a child, such jurisdiction is sufficiently 'exclusive' so that hearings and orders as to the custody of that child in other judicial proceedings are unauthorized.'

433 P.2d at 992.

The McClendon holding is inapposite here since there was no assumption of jurisdiction over the defendant by the juvenile court. On the contrary, the defendant contends the jurisdictional flaw in the criminal procedings consists of the juvenile court's non-assumption of jurisdiction to determine whether it would refuse to suspend criminal prosecution.

The defendant relies upon decisions invalidating criminal prosecutions when no juvenile referral was had: Robinson v. Kieren, 309 Ky. 171, 216 S.W.2d 925 (1949); Wade v. Warden of State Prison, 145 Me. 120, 73 A.2d 128 (1950); State ex rel. Knutson v. Jackson, 249 Minn. 246, 82 N.W.2d 234 (1957); Wilson v. State, 65 Okl.Cr. 10, 82 P.2d 308 (1938); and see Flynn v. Superior Court, 3 Ariz.App. 354, 414 P.2d 438 (1966); Ex parte Tassey, 81 Cal.App. 287, 253 P. 948 (1927); and Trujillo v. Cox, 75 N.M. 257, 403 P.2d 696 (1965) (the latter three cases are not cited by the defendant but reach similar conclusions). But, in each of these cases, the juvenility of the defendant was known to the prosecuting authorities and/or to the court at the time the criminal proceedings commenced. In holding that the exercise of juvenile court jurisdiction was a 'jurisdictional' prerequisite to the trial court's jurisdiction, these courts came to such conclusions after finding the procedure prescribed by statute for transfer by the jurvenile court had been violated without any fault or waiver on the accused's part appearing in the record.

All cases which have come to our attention dealing with a misrepresentation or nondisclosure of age have held that referral to the...