Tacy v. State
| Decision Date | 06 September 1983 |
| Docket Number | No. 382S103,382S103 |
| Citation | 452 N.E.2d 977 |
| Parties | Aaron TACY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Frances L. Watson, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Aaron Tacy, a juvenile, was charged by way of four informations filed in Elkhart Superior Court after waiver from juvenile court. The first information charged him with one count of Attempted Murder. The second information charged him with Resisting Law Enforcement With a Deadly Weapon. The third information was in two counts. Count I was for Burglary of a Dwelling, and Count II was for Criminal Mischief. The fourth information charged Theft. After consolidation of the charges and dismissal of some, appellant was tried before a jury for the offenses of Attempted Murder and Theft. Shortly thereafter he was tried before the bench on the burglary charge. He was found guilty of all offenses. He was sentenced to concurrent terms of imprisonment of thirty-four (34) years, two (2) years, and twelve (12) years respectfully on each of the convictions.
The facts are these. At about 9:30 P.M. on April 9, 1980, two officers from the Elkhart County Sheriff's Department were dispatched to an Elkhart grocery store parking lot to investigate a truck. The officers found appellant sitting in the truck. While one of the officers was questioning appellant the other ran a radio check on the truck and was told it had been reported stolen. In the meantime a third officer arrived on the scene. While appellant was on the ground and the officers were attempting to handcuff him, he managed to withdraw a concealed handgun and fire two shots. One shot struck one of the officers on the shoulder but caused no injury because the officer was wearing a bulletproof vest. Appellant fled into the grocery store. One of the officers fired twice at him as he was running. Both shots struck appellant in the arm. He soon surrendered along with a juvenile companion who had been inside the store during the incident.
At appellant's trial the companion, a cousin named Alan Stamper, testified the boys had run away from home three or four days earlier. He related that during this time the boys had stolen a motorcycle and broken into a residence. They spent a total of two nights and a day in the residence consuming food and liquor they found in the house, stole some guns and other items of personal property, and vandalized the house as well. For a time they separated and Stamper stole the truck from which appellant was apprehended. They had spent all day in the grocery store parking lot on April 9, having driven there in the morning to buy cigarettes and being forced to stay because the truck would not restart.
Appellant took an interlocutory appeal to the Court of Appeals regarding the denial of his Motion to Dismiss filed in the criminal court after the juvenile court had waived jurisdiction. In this appeal the Court of Appeals in In the Matter of Tacy, (1981) Ind.App., 427 N.E.2d 919 (transfer denied) held the juvenile court did not fail to properly acquire jurisdiction over appellant by failing to comply with the time requirements of I.C. Sec. 31-6-7-6(b) [Burns 1980 Repl.]. That subsection of the statute requires that if a juvenile is being held in detention and a petition alleging he is delinquent has been filed, a waiver hearing for the purpose of determining whether to waive him into a court with criminal jurisdiction must be commenced within twenty (20) working days of the filing of the petition alleging delinquency. The Court held this requirement was complied with in this case, as appellant was incorrectly identifying the date on which the petition alleging delinquency was filed. In the Matter of Tacy, supra. The Court also held the failure to hold a detention hearing within forty-eight hours after appellant was taken into custody, as required by I.C. Sec. 31-6-4-5(f) [Burns 1980 Repl.], was error but did not cause the juvenile court to lose jurisdiction over him. Rather, the Court held, the error only entitled appellant to be released from custody by way of a writ of habeas corpus. Id.
Now having been convicted in Elkhart Superior Court sitting as a court with criminal jurisdiction after waiver from the juvenile court, appellant claims the conviction may not stand because the juvenile court never properly acquired jurisdiction over him, hence there could be no waiver of jurisdiction to adult criminal court, and hence the convictions in the latter court were obtained by a court with no jurisdiction over him.
Specifically, appellant contends the juvenile court never acquired jurisdiction over him due to its alleged failure to comply with I.C. Sec. 31-6-4-7 [Burns 1980 Repl.]. The statute states in relevant part:
"Information indicating delinquent child--Preliminary inquiry--Notice to child and parent--Recommendations and consideration by prosecutor.--(a) Any person may give an intake officer written information indicating that a child is a delinquent child. If the intake officer has reason to believe the child has committed a delinquent act, he shall make a preliminary inquiry to determine whether the interests of the public or of the child require further action.
(b) A preliminary inquiry is an informal investigation into the facts and circumstances reported to the court. Whenever practicable, it should include information on the child's background, current status, and school performance.
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(e) The intake officer shall send the prosecutor a copy of the preliminary inquiry in all cases involving allegations that the child committed an act that would be a crime if committed by an adult. The intake officer shall send to the prosecutor or the attorney for the county department a copy of the preliminary inquiry in all cases involving allegations that the child committed a delinquent act that would not be a crime if committed by an adult. He shall recommend whether to file a petition, informally adjust the case, refer the child to another agency, or dismiss the case. This referral procedure may be altered by agreement of the prosecutor and the court.
(f) The person who represents the interests of the state and who receives the preliminary inquiry and recommendations shall decide whether to request authorization to file a petition. This decision is final only as to the office of the person making it."
Appellant cites Summers v. State, (1967) 248 Ind. 551, 230 N.E.2d 320 (opinion on rehearing) as principal support. In that case we construed the applicable portions of the juvenile code, I.C. Sec. 31-5-7-1 et seq. [Burns 1973] (repealed by Indiana Acts 1975, P.L. 296, Sec. 9, and Indiana Acts 1978, P.L. 136, Sec. 57). Upon seeing no evidence in the record in that case that a "preliminary inquiry" was ever conducted, as required under the statute, we held the juvenile court never acquired jurisdiction over the juvenile appellant. His subsequent conviction in criminal court after waiver to that court could not stand. In subsequent decisions of the Court of Appeals it was held the failure of the juvenile court to conduct a preliminary inquiry deprived that court of any jurisdiction over the juvenile and made the subsequent waiver of the juvenile to adult criminal court invalid. Jackson v. State, (1978) 177 Ind.App. 193, 378 N.E.2d 921; Duty v. State, (1976) 169 Ind.App. 621, 349 N.E.2d 729; Seay v. State, (1975) 167 Ind.App. 22, 337 N.E.2d 489; Ingram v. State, (1974) 160 Ind.App. 188, 310 N.E.2d 903.
The record in the case at bar shows the petition alleging delinquency was filed on April 18, 1980, by the Elkhart County prosecutor. However, apparently it came to the prosecutor's attention shortly thereafter that the petition alleging delinquency cannot be filed until the juvenile court has authorized the filing of such a petition. Thus, on April 28, 1980, the prosecutor filed the request for authorization which was granted by the court on that day. This sequence of procedural events formed the basic factual background for appellant's interlocutory appeal in this case. Because the preliminary inquiry is required before the petition alleging delinquency can be filed, in the case at bar, the inquiry must have been conducted prior to April 28, 1980. See I.C. Sec. 31-6-4-7.
The record in this case shows the preliminary inquiry was conducted prior to the filing of the petition alleging delinquency. In the April 28, 1980, order of the juvenile court authorizing the filing of the petition, we find the following:
We hold there was no...
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