Heagerty v. State , 335 Ark. 520 ( 1998 )

Robert L. Brown, Justice.

This appeal concerns the order of the trial court denying appellant Joshua M. Heagerty’s motion to transfer his six drug cases to juvenile court. The matter was first appealed to the Court of Appeals, which reversed the trial court. See Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998). The State petitioned this court to review the matter, and we agreed. We reverse the Court of Appeals decision and affirm the trial court’s denial of the transfer.

On May 7, 1997, Joshua Heagerty was charged in circuit court with six counts of delivery of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997). These charged offenses occurred between August 24, 1996, and September 24, 1996. On June 3, 1997, Heagerty filed a Motion to Transfer the case from circuit court to juvenile court. He based his motion on the fact that he was presently seventeen years old (his date of birth is July 14, 1979), that he had no criminal record, and that there were sufficient rehabilitation programs available to him in juvenile court through the Division of Youth Services.

On July 8, 1997, a hearing was held on Heagerty’s motion. It was six days before his eighteenth birthday. At the hearing, Heagerty’s mother, Sheila Heagerty, testified that her son had no prior criminal record, and that it was only after she and her ex-husband got a divorce, that he began having trouble. He stopped participating in school activities, including sports, and his grades went down. Mrs. Heagerty testified that after a drug-possession charge in December 1996 or January 1997 in Pulaski County juvenile court which later was dismissed, she sent her son to Recovery Way, a private drug rehabilitation center in Oklahoma. After he returned from Recovery Way, he got A’s and B’s and graduated from high school. He began attending recovery meetings and regularly attended church. She further testified that Heagerty began working full time and enrolled for the fall semester at Arkansas State University in Jonesboro.

An undercover narcotics investigator for the Lonoke County Sheriffs Department, Jason Young, also testified at the hearing. Officer Young stated that he made the first drug buy from Heagerty on August 24, 1996, one month after Heagerty turned seventeen. Some, but not all, of the drug buys occurred on a Cabot public school parking lot. He added that the charges were not filed until nine months later in order to protect his identity as an undercover officer in the investigation, and not for purposes of taking away Heagerty’s rehabilitation potential in juvenile court.

After the hearing, the trial court denied Heagerty’s motion to transfer, finding that the six narcotics buys showed a “repetitive pattern.” His precise ruling fiom the bench follows:

All right, the court has heard the testimony and certainly this court always finds it a tragedy when young people get themselves in a position where they have to hire lawyers and their parents and other people have to come and plead for them and that sort of thing. I don’t know whether the charges are true or not. I don’t know anything about the details. I wasn’t sure about the testimony whether or not it was six charges arising out of four sales or four different times or whether it was actually six different times but it doesn’t matter. This court finds that the six buys shows a repetitive pattern. The motion will be denied.

The question for this court to resolve is whether the trial court clearly erred in denying Heagerty’s motion to transfer. When this court grants review of a decision made by the Court of Appeals, we review the case as if it had been originally filed in our court. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). We will not reverse a trial court’s determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998).

Under Arkansas law, the trial court must consider certain factors in making its decision of whether to transfer a case to juvenile court. See Ark. Code Ann. § 9-27-318(e) (Repl. 1998). Section 9-27-318(e) reads:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;

(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and

(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

This court has previously held that the party seeking the transfer has the burden of proving that a transfer is warranted under § 9-27-318(e). See, e.g., McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997).¹ If the movant meets that burden, a transfer will be made unless there is clear and convincing countervailing evidence to support a finding that the movant should remain in circuit court. Ark. Code Ann. § 9-27-318(f) (Repl. 1998); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). McClure v. State, supra. Clear and convincing evidence is “that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established.” McClure, 328 Ark. at 39, 942 S.W.2d at 245. A circuit court does not have to give equal weight to each of the three statutory factors; nor does evidence have to be presented regarding each factor. Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998).

Heagerty claims that he met the burden of proof necessary to transfer the matter to juvenile court. He claims that the testimony of his mother regarding his behavior before and after the alleged drug offenses occurred proves that he is an excellent candidate for rehabilitation in the juvenile system. He takes issue with the trial court’s finding that the six charged offenses are part of a repetitive pattern and argues that the alleged offenses occurred between August 24, 1996, and September 24, 1996, and could not be a repetitive pattern of adjudicated offenses as § 9-27-318 (e)(2) requires. Heagerty further emphasizes that the prosecutor did not produce any evidence other than the seriousness of the offenses to warrant keeping the case in circuit court, which, he maintains, runs counter to our decision in Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). Finally, he contends that Officer Jason Young waited almost nine months to arrest him so that he would be closer to age eighteen and, thus, not as susceptible to rehabilitation within the Division of Youth Services.

We conclude, nonetheless, that the trial court ruled correctly in this matter. The clear and convincing evidence found by the trial court obviously related to the repetition of the charged offenses. Heagerty is correct that the second criterion under the juvenile-transfer statute refers to “a repetitive pattern of adjudicated offenses,” and not merely to charged offenses. Ark. Code Ann. § 9-27-318 (e)(2) (Repl. 1998). This court, however, has looked to the multiplicity of serious charges as a legitimate factor to consider in connection with juvenile transfers. See Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). In addition, we are not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). And regarding the specificity of the trial court’s findings, this court has observed in the past that the juvenile-transfer statute does not require the trial judge to make findings of fact to support its decision, even though it would be preferable for the judge to do so. See Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Blevins v. State, supra; Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).

We do not believe that the case of Blevins v. State, supra, is controlling in this matter. In Blevins, we deemed a trial court’s decision to try a sixteen-year-old as an adult for possession of fifteen rocks of crack cocaine to be clearly erroneous. The facts of the instant case, though, are closer to those in Hogan v. State, supra. In Hogan, the defendant was charged as an adult with two delivery-of-marijuana offenses and two delivery-of-cocaine offenses. He was arrested at school, and following his arrest, he was also charged with possession of crack cocaine with intent to deliver. He filed a motion to transfer his case to juvenile court on the basis that even though he was now eighteen, he had been seventeen at the time of the alleged offenses. At the hearing, he introduced evidence of no prior record, a 3.0 grade point, school leadership and sports participation, plans to attend college, and the absence of violence employed in the alleged crimes. The trial court denied the motion, distinguishing the facts of the case from those in Blevins. We affirmed and said:

The fact that no commitment under juvenile jurisdiction could result from a transfer due to Hogan’s age and the fact there are multiple charges of a serious nature, one of which involves possession of a significant amount of crack cocaine on school grounds, compel us to conclude that the trial court’s decision was not clearly erroneous.

Hogan, 311 Ark. at 265, 843 S.W.2d at 831 (citation omitted).

Here, as in Hogan, Heagerty was seventeen at the time of the charged offenses. Though Hogan was eighteen at the time of his juvenile-transfer hearing, Heagerty was six days short of eighteen when his hearing was held. Heagerty is nineteen at this writing. He argues that this fact does not mean that his chance for rehabilitation within the Division of Youth Services is non-existent. However, there is no question but that his age adversely reflects upon his prospects for rehabilitation. See Ark. Code Ann.. § 9-27-318 (e)(3) (Repl. 1998). Ark. Code. Ann. § 9-28-208 (d) reads:

Commitment shall not exceed the eighteenth birthday of a youth, unless the Department of Human Services’ State Institutional System Board determines that an adequate facility or facilities are available for youths eighteen (18) years of age or older.

This court has said that “although § 9-28-208 (d) extends the commitment time beyond eighteen in certain circumstances, it presupposes that the youth has already been committed to the State Division of Youth Services prior to reaching eighteen.” Rice v. State, 330 Ark. 257, 260, 954 S.W.2d 216, 218 (1997). We certainly disagree with Heagerty that his voluntary treatment at Recovery Way in Oklahoma equates to commitment to a youth services facility.

There are, of course, alternatives within the juvenile program to commitment to a youth services facility for those between the age of eighteen and twenty-one, including probation, fines, voluntary community service, suspension of driving privileges, and residential detention with electronic monitoring. See Ark. Code Ann. § 9-27-330 (Repl. 1998). But commitment itself is lacking as a rehabilitative prospect for Heagerty. And though Heagerty makes the claim that the almost nine-month delay in arresting him was a ruse to place him outside the jurisdiction of the juvenile court, he offers no proof to sustain his suspicion. We view Officer Young’s explanation that he had to remain undercover during that period of time owing to other ongoing investigations as entirely reasonable.

Accordingly, as in Hogan we hold that because of Heagerty’s multiple charges, the fact that some drug deliveries occurred on school grounds, and the diminished rehabilitation prospects in Youth Services due to his age, the trial court was not clearly erroneous in denying transfer of this matter to juvenile court. We affirm the decision of the trial court and reverse the decision of the Court of Appeals in Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998).

Affirmed.

Glaze and Imber, JJ., concur. Newbern and Thornton, JJ., dissent.

1 The issue of whether the juvenile or prosecutor has the burden of proof in juvenile-transfer cases has been called into question in concurring and dissenting opinions by justices of this court. See Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1997) (Newbern, J., concurring) (Brown, J., concurring in part; dissenting in part).