State v. Tyrone K. (In re Interest of Tyrone K.)

• Decision Date: 02 December 2016
• Docket Number: No. S–15–1057.,S–15–1057.
• Citation: 295 Neb. 193,887 N.W.2d 489
• Parties: In re Interest of Tyrone K., a child under 18 years of age. State of Nebraska, appellee, v. Tyrone K., appellant.
• Court: Nebraska Supreme Court

295 Neb. 193

887 N.W.2d 489

In re Interest of Tyrone K., a child under 18 years of age.

State of Nebraska, appellee,

v.Tyrone K., appellant.

No. S–15–1057.

Supreme Court of Nebraska.

Filed December 2, 2016.

Joe Nigro, Lancaster County Public Defender, and Sarah J. Safarik for appellant.

Joe Kelly, Lancaster County Attorney, and Ashley J. Bohnet for appellee.

Juliet Summers for amicus curiae Voices for Children in Nebraska and Christine Henningsen, of Center on Children, Families and the Law at the University of Nebraska–Lincoln, for amicus curiae Nebraska Youth Advocates.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

This case presents the issue of whether an order granting a motion to transfer a juvenile case to criminal court is final and appealable. We conclude it is not, and dismiss the appeal as premature.

I. FACTS

A petition filed in juvenile court on September 4, 2015, alleged 16-year-old Tyrone K. committed four counts of theft by receiving stolen property and one count of operating a motor vehicle to avoid arrest. The charges arose from a series of vehicle thefts which occurred after Tyrone escaped from a youth rehabilitation and treatment center. The alleged law violations were classified as two Class III felonies, a Class IV felony, and two Class I misdemeanors.¹ Due in part to Tyrone's extensive history in the juvenile court system, the prosecutor immediately moved to transfer the proceedings to county court for arraignment and further proceedings under the criminal code.² After conducting an evidentiary hearing, the juvenile court granted the motion to transfer. Tyrone filed this appeal. We moved the case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.³

II. STANDARD OF REVIEW

A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.⁴

III. ASSIGNMENTS OF ERROR

Tyrone assigns there was insufficient evidence for the juvenile court to transfer his case to county court.

IV. ANALYSIS

In a juvenile case, as in any other appeal, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.⁵ Neb. Rev. Stat. § 43–2,106.01 (Reissue 2016) gives an appellate court jurisdiction to review “[a]ny final order or judgment entered by a juvenile court ....” Whether we have jurisdiction to review the juvenile court's transfer order at this point in the proceedings depends on whether Tyrone has appealed from either a judgment or a final order.

A transfer order is not a judgment, and no party argues otherwise. The transfer order did not address or decide the merits of the alleged law violations and made no final determination of the parties' rights;⁶ it merely determined the state court forum in which the case would proceed. Therefore, the threshold question presented here is whether Tyrone has appealed from a final order.

Tyrone makes two arguments in support of his position that a transfer order is a final order. First, he argues the Legislature redefined transfer orders as final orders when it enacted 2014 Neb. Laws, L.B. 464. Second, he argues the transfer order is a final order under Neb. Rev. Stat. § 25–1902 (Reissue 2016), because it was made in a special proceeding and affects a substantial right. We address each argument in turn. Before doing so, however, it is necessary to provide an overview of the relevant statutes.

1. OVERVIEW OF NEW JUVENILE STATUTES

From 1974 to 2014, when a juvenile committed a law violation, the relevant juvenile delinquency statutes gave the prosecuting attorney substantial discretion regarding whether to file charges in criminal court, file delinquency proceedings in juvenile court, or offer juvenile pretrial diversion or mediation.⁷ If the prosecutor elected to file in criminal court, the juvenile could file a motion asking that the case be transferred to the juvenile court for further proceedings under the Nebraska Juvenile Code.⁸

In 2014, through L.B. 464, the Legislature made significant changes to this statutory scheme. According to the Introducer's Statement of Intent:

Nebraska is one of the few states that allows prosecutors broad authority in deciding whether or not to file charges in adult or juvenile court.... In 2010 in Nebraska, 45 percent of filings against youth were in adult court, despite the fact that nearly 90 percent of charges against youth in adult court were misdemeanors. Requiring more cases to originate in juvenile court will give more youth a chance at rehabilitation and reduce their chance of having a criminal record.⁹

Generally speaking, L.B. 464 limited the discretion of prosecutors to decide whether a case should be filed in juvenile or criminal court, and replaced it with a three-tiered jurisdictional structure that specifies the court in which a case should be filed, depending on the age of the juvenile and the nature of the alleged law violation. The new jurisdictional structure is first set out in Neb. Rev. Stat. § 43–246.01 (Reissue 2016). The relevant sections of L.B. 464 became operative January 1, 2015.¹⁰

(a) Exclusive Original Jurisdiction

Section 43–246.01(1) grants exclusive original jurisdiction to the juvenile court over offenders who (1) are under 16 years of age and committed a misdemeanor or infraction, other than a traffic offense, or (2) are under 14 years of age and committed a felony.¹¹ Proceedings against these juvenile offenders must always be filed via a juvenile petition and must always proceed to completion in juvenile court.¹² Tyrone does not fall into this category of juvenile offenders.

(b) Original Jurisdiction Subject to Transfer

Section 43–246.01(2) grants original jurisdiction to the juvenile court over juvenile offenders who are (1) 16 years of age and committed a misdemeanor¹³ or (2) 14 years of age or older and committed a felony lesser in grade than a Class IIA.¹⁴ Actions against these juvenile offenders must always be initiated in juvenile court by filing a juvenile petition, but are subject to transfer to county or district court for further proceedings under the criminal code.¹⁵ All of the allegations against Tyrone, except the allegation of operating a motor vehicle to avoid arrest, put him in this category of juvenile offenders.

(c) Concurrent Jurisdiction

Section 43–246.01(3) grants to the juvenile court and the county or district courts concurrent jurisdiction over juvenile offenders who (1) commit a traffic offense that is not a felony or (2) are 14 years of age or older and commit a Class I, IA, IB, IC, ID, II, or IIA felony.¹⁶ Actions against these juveniles may be initiated either in juvenile court or in the county or district court.¹⁷ The allegation against Tyrone of operating a motor vehicle to avoid arrest put him within this category of juvenile offenders.

All of the offenses allegedly committed by Tyrone are offenses over which both the juvenile court and the criminal court can exercise jurisdiction under the new statutory scheme. With respect to such offenses, if the action is initiated in juvenile court, a party can move to transfer it to county or district court via § 43–274(5) (Reissue 2016), a new statutory provision created by L.B. 464.¹⁸ And if the action is initiated in county or district court, a party can move to transfer it to juvenile court via § 29–1816 (Reissue 2016).¹⁹ Section 29–1816 existed prior to the enactment of L.B. 464, but was amended by it.

(d) Transfers Under § 43–274(5)

All of the allegations against Tyrone were initiated via a petition filed in juvenile court, and the prosecutor simultaneously filed a motion to transfer the proceedings to criminal court. Section 43–274(5) controls in this circumstance. That section authorizes a city or county attorney to seek a transfer to criminal court when both the juvenile court and the criminal court have statutory jurisdiction.²⁰ It specifies that the transfer motion must be filed with the juvenile court petition, and requires the juvenile court to schedule a hearing on the motion within 15 days.²¹ The city or county attorney has the burden to prove by a preponderance of the evidence that the case should be transferred.²² The juvenile court must make a decision within 30 days of the hearing, and must “set forth findings for the reason for its decision.”²³

(e) Transfers Under § 29–1816

Both before and after L.B. 464, § 29–1816 provided that if the case is filed in county or district court, at the time of arraignment, the court must advise the juvenile that he or she may move at any time not later than 30 days after arraignment to transfer the case to the juvenile court for further proceedings under the Nebraska Juvenile Code. If the juvenile so moves, a hearing must be held within 15 days, and the court “shall” transfer the case “unless a sound basis exists for retaining the case.”²⁴ The county or district court must “set forth findings for the reason for its decision.”²⁵

Prior to L.B. 464, § 29–1816 specifically provided that the county or district court's ruling on a motion to transfer an action to juvenile court “shall not be a final order for the purpose of enabling an appeal.”²⁶ But L.B. 464 removed this language, and § 29–1816 (Reissue 2016) is now silent as to the finality of an order ruling on a motion to transfer a case from criminal court to juvenile court. Similarly, § 43–274(5), the new statute enacted by L.B. 464, is silent regarding whether a juvenile court's ruling on a motion to transfer an action to a county or district court is a final order.

2. L.B. 464 DID NOT DETERMINE FINALITY OF TRANSFER ORDERS

Tyrone argues the transfer order is a final, appealable order. In doing so, he places much significance on the effect of L.B. 464 on §§ 29–1816 and 43–274(5). He argues that by deleting the nonfinal order language from § 29–1816, the Legislature intended to authorize interlocutory appeals from...