Atkins v. State ( 1972 )

DeBruler, J.

This is an appeal from an order of the Juvenile Court of Marion County, Honorable Harold Fields, presiding, waiving jurisdiction of appellants to the Marion County Criminal Court for trial. On February 27, 1969, a group of twenty-one Shortridge High School students, including the seven appellants, were suspended from school for three days for participating in certain peaceful but disruptive protests, the details of which are not particularly relevant to this appeal. After the suspension the appellants, in apparent protest, proceeded to the front of the school building and sat on the steps near the flagpole where they began to chant. Mr. Green, the vice-principal, asked them to leave and go home because they were disturbing the school and warned them that if they did not leave the matter would be turned over to the police. Police Inspector Klein addressed the students telling them that if they did not leave the premises promptly they would be subject to arrest. The students did not leave but instead they locked arms and continued to chant. The appellants were arrested and charged with disorderly conduct in violation of I.C. 1971, 35-27-2-1, being Burns § 10-1510. On October 20, 1969, the hearing on the prosecutor’s petition for waiver of jurisdiction to criminal court was held and on November 8, 1969, the juvenile court entered the waiver order. Appellants contend that the order is invalid because it was not supported by sufficient evidence and was not set out with the required specificity.

The ultimate issue for the juvenile court at a waiver hearing is whether the juvenile should be waived to criminal court jurisdiction. The juvenile court has a choice—waive or retain the juvenile for disposition within the juvenile system. Indiana Code 1971, 31-5-7-14, being Burns § 9-3214. In the absence of statutory criteria, we derive the standards to be used in making this choice from the structure and purpose of the juvenile justice system itself. Schornhorst, “The Waiver of Juvenile Jurisdiction: Kent Revisited” (1968), 43 Ind. L. J. 583. The juvenile court had original exclusive jurisdiction over these appellants, I.C. 1971, 33-12-2-3, being Burns § 9-3103, and they could not be proceeded against in the first instance by criminal indictment or affidavit. State ex rel. Atkins v. Juvenile Court of Marion County (1969), 252 Ind. 237, 247 N. E. 2d 53. Only the juvenile court could, after hearing, relinquish jurisdiction over appellants. Indiana Code 1971, 31-5-7-1, being Burns § 9-3201, states the overall purpose of the juvenile justice system as follows:

“The purpose of this act is to secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child’s welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents.” (Emphasis added.)

This statutory context creates a presumption in favor of disposing of juvenile matters within the juvenile system and makes waiver to criminal court jurisdiction a last resort to be used only when the juvenile court after full hearing determines that the range of dispositions available within the juvenile system are not adequate in the particular case to serve “the child’s welfare and the best interests of the state.” Waiver to criminal court is then to be the exception and as such is to be explicitly justified in the waiver order. That is the central teaching of Summers v. State (1967), 248 Ind. 551, 230 N. E. 2d 320, where we said:

“that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We, as the reviewing court, hold that the statement while not necessarily including a conventional finding of facts, should be sufficient to demonstrate unequivocally that the strict statutory requirement of a full investigation and hearing has been met and that a conscientious determination of the question of waiver has been made. We require that the reasons for the order of waiver should be stated with sufficient specificity to permit a meaningful review.” 248 Ind. at 559-560.

The waiver order in this case reads in pertinent part:

“(Judge Harold N. Fields) CONDUCTED a full investigation of the matter and now finds:

1. The child is (was) over fifteen (15) years of age and under eighteen (18) years of age to wit: 17 years, at the time of the charged offense.

2. The offense charged would be a crime if committed by an adult, to wit: DISORDERLY CONDUCT.

3. The matter has specific prosecutive merit in the opinion of the Prosecutor if waived to a court of adult criminal jurisdiction.

4. That if the matter were to be retained in the juvenile jurisdiction and child adjudged to be delinquent, no disposition available to the Juvenile Court is reasonably calculated to effect rehabilitation in that: The case cannot be heard in Juvenile Court and disposition made until after the child has reached the age of eighteen (18) years, thus precluding commitment to a state institution.”

We agree with appellants that the findings are not clear enough to permit meaningful review.

The first two findings are necessary, statutory conditions for waiver and are not at issue in this case. Burns § 9-3214, supra. Number 3 is a finding that in the prosecutor’s opinion the case had “specific prosecutive merit.” If that is intended to mean that the prosecutor has indicated his willingness to prosecute and his estimate that he can do so successfully, then it could well be a necessary requirement for waiver. However, those two factors could never by themselves be sufficient for a waiver order. The fact that the prosecutor thinks the case can be successfully prosecuted in criminal court does not mean that it should be so prosecuted and that is the central issue before the juvenile court on a waiver hearing. If the finding is intended to mean something else then it should be made known by the juvenile court. The point here is that the juvenile court finding number 3 is a conclusion of unknown meaning and thus does not permit an intelligent review by this Court required by Summers, supra.

This is also true of number 4. One minor point is that the juvenile court is in error in stating that appellants’ being over eighteen years of age precludes him from committing them to “a state institution”. The juvenile court is only precluded from committing persons over eighteen to the Boys School. Indiana Code 1971, 11-3-2-3, being Burns § 13-914a. Under I.C. 1971, 31-5-7-15, being Burns § 9-3215, he could still commit them to “any suitable public institution or agency, which shall include, but is not limited to, the state institutions for feeble minded, epileptic, insane.” Apparently those were not considered appropriate institutions in this case. The more important question is why the unavailability of commitment to the Boys School requires that the appellants should not be handled at all within the juvenile system. There are at least two different reasons the juvenile court could offer: (1) Although the juvenile court had not yet made a determination as to what disposition the facts of this case demanded, since the ultimate sanction within the juvenile system was not available this alone rendered all the other possible dispositions useless leaving waiver to criminal court as the only alternative. (2) The juvenile court had determined that the facts of this case required these appellants be committed to the Boys School and since that disposition was unavailable, waiver to criminal court jurisdiction was the only alternative. Under Summers, waiver order is to be such that this Court in reviewing the order is not to be “remitted to assumptions” concerning the reasons for the order. That is precisely what we are doing in this case—assuming what were the juvenile court reasons for the waiver.

Even if we were to depart from the Summers case and assume the waiver order rests on one of the above reasons then the order is invalid because there is absolutely no evidence in the record to support waiver in this case on either of the two theories.

There is no reason offered by the juvenile court or the appellee for a conclusion that the other dispositions available to a juvenile court are worthless without the ultimate threat of commitment to the Boys School. Burns § 9-3215, supra, provides several alternative dispositions:

“ (1) Place the child on a probation or under supervision in his own home or in the custody of a relative or other fit person, upon such terms as the court may determine;

(2) Commit the child to any suitable public institution or agency, which shall include, but is not limited to, the state institutions for the feeble-minded, epileptic, insane, or any other hospital or institution for the mentally ill, or commit the child to a suitable private institution or agency incorporated or organized under the laws of the state, and authorized to care for children or to place them in suitable approved homes;

(3) The court may make such child a ward of the court, a ward of the department of public welfare of the county, or a ward of any licensed child placing agency in the state willing to receive such wardship;

(4) May take cause under advisement or postpone findings and judgment for a period not to exceed two years unless sooner requested by the party proceeded against in which event not to exceed ninety days;

(5) Make such further disposition as may be deemed to be to the best interests of the child, except as herein otherwise provided.”

See also 1971 O.A.G. 14. In addition I.C. 1971, 31-5-7-24, being Burns § 9-3223, in reference to juvenile proceedings, provides:

“Any person who wilfully violates, neglects or refuses to obey or perform any order of the court may be proceeded against for contempt.”

See also I.C. 1971, 33-12-3-7, being Burns § 9-3107, to the same effect. Several of these possible dispositions would appear to be sufficiently grave to take the place of commitment to the Boys School as an ultimate threat, e.g., commitment to a private boys home for juveniles of which there are several in this State.

In addition the juvenile court position is refuted by copsidering the case of a juvenile accused of an act of delinquency not amounting to a crime if committed by an adult, which juvenile is seventeen years, eleven months when the act is committed and over eighteen when the juvenile court obtains jurisdiction. Commitment to the Boys School would be unavailable, as in this case, but that juvenile cannot be waived to criminal court. Would the juvenile court merely release the juvenile because the use of the lesser sanction would be futile. We think not. The court would use the tools available to it. The point is that this Court should not indulge a general assumption that the other dispositions available to a juvenile court are worthless in the absence of the ultimate threat of commitment to a state institution and there is nothing in this particular case to support such a conclusion.

The above cited statutory context, Burns § 9-3201, supra, in addition to creating a presumption in favor of disposing of juvenile matters within the juvenile system, also creates a presumption in favor of using the least severe disposition available to the juvenile court which will serve the needs of the case. Therefore commitment to the Boys School is to be resorted to only if the less severe dispositions are inadequate.

All seven of these appellants were duly enrolled in high school at the time of this incident. All seven appellants lived with at least one of their parents; three of them lived with mother and father; three lived with their mother and the father was deceased. All seven appellants voluntarily appeared with counsel at the initial hearing without summons and all but one appellant appeared with one or more of their parents. All the appellants had at least one parent who attended the waiver hearing and co-operated with the juvenile court by identifying their children for the record. Appellants are charged with a misdemeanor of disorderly conduct which was a completely non-violent demonstration against the school for felt grievances. The appellants Atkins, Holt, Lewis, Marshall and Yowell had no previous record of trouble leading to involvement in the juvenile justice system. In the case of these five appellants there is no evidence that the less severe dispositions available within the juvenile system would be inadequate especially since the system had never been tried at all. Accordingly we hold the juvenile court erred in waiving these five appellants to the jurisdiction of the criminal court.

It appears that appellants Brown and Edmondson have a record of past juvenile offenses and therefore we remand those two appellants to the juvenile court for a redetermination of the waiver issue and to permit the juvenile court to weigh the significance of the prior offenses in light of the legal standards set forth in this opinion.

Hunter and Prentice, JJ., concur; Arterburn, C.J., dissents with opinion in which Givan, J., concurs.