Z.T. v. State ( 2015 )

Cite as 2015 Ark. App. 282
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-893
Opinion Delivered APRIL 29, 2015
APPEAL FROM THE PULASKI
Z.T. COUNTY CIRCUIT COURT,
APPELLANT SEVENTH DIVISION
[NO. 60CR-13-3443]
V.
HONORABLE BARRY SIMS, JUDGE
STATE OF ARKANSAS REMANDED FOR
APPELLEE RECONSIDERATION OF
JUVENILE-TRANSFER MOTION
KENNETH S. HIXSON, Judge
On October 21, 2013, appellant Z.T. was charged in the criminal division of circuit
court with aggravated robbery and theft of property. The information alleged that these
crimes were committed on September 19, 2013, which was three days prior to Z.T.’s
eighteenth birthday.
On March 13, 2014, Z.T. filed a motion to transfer the case to the juvenile division
of circuit court. After a juvenile-transfer hearing held on August 25, 2014, the trial court
announced that Z.T.’s transfer motion was denied. On September 15, 2014, Z.T. filed a
renewed motion to transfer or in the alternative for a written order detailing the reasons for
denial. The trial court entered an order on September 16, 2014, denying in writing Z.T.’s
motion to transfer and making written findings in support of its decision.
Cite as 2015 Ark. App. 282
Z.T. now appeals from the denial of his motion to transfer to juvenile court. Z.T. first
argues that the trial court lacked jurisdiction over the case because it failed to hold a hearing
on the motion within ninety days as required by the Arkansas Juvenile Code. Z.T. also argues
that the trial court’s denial of his transfer motion was clearly erroneous. We reject Z.T.’s first
argument, but we remand for reconsideration of the transfer motion.
A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or
older in the criminal division of circuit court if the juvenile has allegedly engaged in conduct
that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl.
2009). On the motion of the court or any party, the court in which the criminal charges have
been filed shall conduct a hearing to determine whether to transfer the case to another
division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e). The moving
party bears the burden of proving that the case should be transferred to the juvenile division
of circuit court. Miller v. State, 2015 Ark. App. 117, S.W.3d . The trial court shall order
the case transferred to another division of circuit court only upon a finding by clear and
convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2).
Clear and convincing evidence is the degree of proof that will produce in the trier of fact a
firm conviction as to the allegation sought to be established. Miller, supra. We will not
reverse a trial court’s determination of whether to transfer a case unless that decision is clearly
erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a firm conviction that a mistake has
been committed. Id.
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Cite as 2015 Ark. App. 282
At a juvenile-transfer hearing the trial court is required to consider all of the following
factors:
(1) The seriousness of the alleged offense and whether the protection of society
requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent,
premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight
being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and
participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had
been adjudicated a juvenile offender and, if so, whether the offenses were against
persons or property, and any other previous history of antisocial behavior or patterns
of physical violence;
(6) The sophistication or maturity of the juvenile as determined by
consideration of the juvenile’s home, environment, emotional attitude, pattern of
living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the
juvenile division of circuit court that are likely to rehabilitate the juvenile before the
expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission
of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental,
physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). The trial court shall make written findings on all of the
factors set forth above, Arkansas Code Annotated section 9-27-318(h)(1), but proof need not
be introduced against the juvenile on each factor, and the trial court is not required to give
equal weight to each of the statutory factors in arriving at its decision. Magana-Galdamez v.
State, 104 Ark. App. 280, 291 S.W.3d 203 (2009).
The victim, Melissa Springer, testified at the transfer hearing. Melissa stated that she
was driving her Jeep at about 6:00 p.m. on September 19, 2013, when a car pulled in front
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Cite as 2015 Ark. App. 282
of her at a traffic light and the driver slammed on the brakes, blocking her in the lane of
traffic. Appellant, Z.T., emerged from the passenger’s side of the car and approached Melissa.
According to Melissa, Z.T. first asked for directions and then tried to crawl over her as if he
was going for her purse, which was in the passenger’s seat. When Melissa tried to push him
back, Z.T. said, “Don’t fight, bitch,” and put a gun in her face. Z.T. then reached over
Melissa, grabbed her purse, and ran back to the car.
Melissa was able to get the license plate of the car as it sped away. She called the police
and reported the robbery and description of the car. Later that night, the car used in the
robbery was involved in an accident, and the police responded. Z.T. was one of the
occupants in the car, along with other individuals including Carlton Atkins. Upon being
interviewed by the police, Carlton stated that Z.T. was the person who had earlier stolen the
victim’s purse at gunpoint. Melissa was subsequently shown a photo lineup, and she positively
identified Z.T. as the perpetrator.
Z.T.’s mother testified that Z.T. had no history of violence and had never been
convicted of a crime. She acknowledged that Z.T. had previously been accused in juvenile
court of residential burglary, but she stated, and the State’s exhibits confirmed, that those
allegations had been dismissed on the State’s motion. Z.T.’s mother testified that Z.T. did
not complete high school, and she described him as childish and immature. She further stated
that Z.T.’s level of maturity was that of a fifteen- or sixteen-year-old, and she did not think
Z.T. understood the severity of the charges against him.
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Cite as 2015 Ark. App. 282
Scott Tanner, the ombudsman coordinator for the Public Defender Commission,
testified about rehabilitation options that would be available to Z.T. if the case were
transferred to juvenile court. These options include a maximum detention span of ninety
days, after which Z.T. would be released and monitored. Mr. Tanner also proposed the
possibility that the trial court could designate the case as Extended Juvenile Jurisdiction (EJJ).
Under EJJ, there would be a review prior to Z.T.’s twenty-first birthday to determine
whether to impose an adult sentence.
Z.T.’s first argument on appeal is that the trial court lacked jurisdiction over the case
for failure to hold a timely transfer hearing. Arkansas Code Annotated section 9-27-318(f)
provides that “[t]he court shall conduct a transfer hearing within thirty (30) days if the
juvenile is detained and no longer than ninety (90) days from the date of the motion to
transfer the case.” In this case, Z.T. was not detained, and he filed his motion to transfer on
March 13, 2014. The 90-day statutory period expired on June 11, 2014. The transfer
hearing was not held until August 25, 2014, well after the expiration of the 90-day period.
Z.T. contends that, because the hearing was not conducted within ninety days as required by
statute, the trial court lacked jurisdiction to hold the hearing to transfer the case to juvenile
court. Thus, he maintains that the case must be transferred to the juvenile division of circuit
court. In support of this proposition, Z.T. cites C.H. v. State, 2010 Ark. 279, 365 S.W.3d
879, a case in which the supreme court held that the criminal division lost its exclusive
jurisdiction over the proceedings when it transferred the case to juvenile division.
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Contrary to Z.T.’s argument, the ninety-day requirement is not jurisdictional. This
issue was resolved by our supreme court in Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161
(1991). In Cobbins, the juvenile defendant argued that the circuit court lost jurisdiction
because it failed to hold a juvenile transfer hearing within ninety days after criminal charges
were filed,1 and instead the hearing was held fourteen months later. The supreme court held
that although the language of the statute was mandatory, it was silent on the effect of
noncompliance and there was nothing in the statute to indicate it was jurisdictional. The
Cobbins court further held that the appellant’s failure to demand a transfer hearing until well
beyond the ninety-day period waived the right to insist on a timely hearing.
In the present case, Z.T. filed a motion to transfer on March 13, 2014, but he did not
request a hearing or object to the trial court’s failure to hold a hearing within ninety days.
The first time Z.T. raised the issue of the ninety-day requirement was in his renewed motion
to transfer, which he filed three weeks after the August 25, 2014 hearing. As our supreme
court held in Cobbins, the trial court’s failure to hold a transfer hearing within ninety days did
not deprive the trial court of jurisdiction, and we hold that Z.T. waived his right to insist on
a timely hearing.
Z.T.’s remaining argument is that the trial court’s denial of his motion to transfer to
the juvenile division of circuit court was clearly erroneous. We cannot say on this record that
1
The applicable statute at that time was Arkansas Code Annotated section 9-27-
318(b)(2) (Repl. 1991), which provided that “[t]he circuit court shall hold a hearing
within ninety (90) days of the filing of charges to determine whether to retain jurisdiction
of the juvenile in circuit court.”
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the trial court’s ultimate decision denying the transfer motion was clearly erroneous. But
because we agree with Z.T. that some of the trial court’s written findings bearing on this issue
were unsupported by the evidence, we remand for the trial court to reconsider the transfer
motion.
As required by Arkansas Code Annotated section 9-27-318(h)(1), the trial court made
written findings on each of the factors set forth in subsection (g). But the trial court
erroneously determined that all of the relevant factors weighed in favor of prosecuting Z.T.
in the criminal division of circuit court. The trial court accurately found that the alleged
offense was a serious offense committed against a person and property in an aggressive,
violent, and premeditated or willful manner.2 The trial court also found that Z.T. acted as
part of a group and that he had a high level of culpability, which was supported in the
evidence. However, there are three factors that we have determined did not weigh against
a transfer as found by the trial court.
In particular, the trial court found that the previous history of the juvenile justified
prosecution in the criminal division of circuit court, even though the only previous juvenile
case filed against Z.T. had been dismissed. There was no evidence that Z.T. had previously
been adjudicated a juvenile offender. Moreover, the trial court found that Z.T.’s
sophistication or maturity level justified prosecution in criminal court when the only evidence
2
Although appellant challenges the trial court’s finding under subsection (g)(1)
based on the trial court’s statement that the seriousness of the offense and protection of
society justified prosecution in criminal court, as opposed to requiring prosecution in
criminal court, we see this as a distinction without a material difference.
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Cite as 2015 Ark. App. 282
presented on that factor was Z.T.’s mother’s testimony that he was childish and immature.
Finally, the trial court mistakenly concluded that written reports and other materials relating
to Z.T.’s mental, physical, educational, and social history justified prosecution in criminal
court because no such reports or other materials were introduced.
As the State points out in its brief, our supreme court has held that a juvenile may be
tried as an adult solely because of the serious and violent nature of the offense. See C.B. v.
State, 2012 Ark. 220, 406 S.W.3d 796. It is also true that the trial court is not required to
give equal weight to each of the factors. See Magana-Galdamez, supra. However, in the
present matter we are unable to tell how much weight the trial court gave to the seriousness
and violent nature of the offense, and how much weight it gave to its findings regarding the
three factors that were inconsistent with the evidence in arriving at its decision to deny the
transfer.
For this reason, we remand this case to the trial court with instructions to reconsider
the transfer motion, giving proper consideration to the proof, or lack thereof, bearing on each
of the statutory factors.
Remanded for reconsideration of juvenile-transfer motion.
KINARD and GLOVER, JJ., agree.
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca B. Kane, Ass’t Att’y Gen., for appellee.
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