State Ex Rel. Coats v. Rakestraw

OPINION

BUSSEY, Judge:

Following the motions challenging the constitutionality of Laws 1979, c. 257, §§ 1, 2, and 3 — 10 O.S.Supp.1979, § 1101(a), § 1104.2, and § 1109(a) — filed by three defendants between 16 and 18 years of age charged separately with Kidnapping, Rape and/or Robbery with Firearms in Oklahoma County District Court Cases CRF-79-4115, CRF-80-0075, and CRF-79-5101, the Honorable Arthur Lory Rakestraw held the certification procedure contained therein unconstitutional. This matter was set for oral argument on the State’s application filed in this Court to assume original jurisdiction and prohibit the enforcement of Judge Rak-estraw’s order. After hearing oral arguments of the respective parties and upon consideration of the briefs submitted, this Court assumes original jurisdiction to determine whether the 1979 amendments to the reverse certification procedure are violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution and whether they are unconstitutionally vague.

I — Equal Protection

It is contended that the reverse certification procedure embodied in the provisions of 10 O.S.Supp.1979, § 1101(a), § 1104.2, and § 1109(a), carve out a subclass of the group of all 16 and 17-year-old persons charged with felony offenses and invidiously discriminates against this subclass in violation of the Equal Protection Clause of the Fourteenth Amendment by presuming them to be adults when charged with any of the crimes enumerated in Section 1104.2 and requiring them to file a motion to be certified as juveniles. It is further contended that the movant has the burden of proof on the question, and under different criteria than that prescribed in the regular, or straight, certification under 10 O.S.Supp. 1979, § 1112(b), where the State bears the burden of proof.

It is clear from the statute that the Legislature intended most 16 and 17-year-old persons charged with any of the enumerated offenses should be tried as adults. This is apparent from the different criteria used in making the reverse certification decision — greater weight to be given by the judge to the gravity of the offense charged, and notably absent is consideration of the sophistication and maturity and capability of distinguishing right from wrong and the likelihood of reasonable rehabilitation, both required for regular certification by 10 O.S. Supp.1979, § 1112(b), ¶ 3 and 5. Contrary to the respondent’s holding that consideration of these omitted guidelines is required by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), an examination of Kent fails to support this holding, and we expressly reject it.¹

It is equally clear that in most instances the court will decline to certify the person as a juvenile. The statute is similar to those of some of our sister states in its prescription of adult treatment for juveniles of certain age and offense classifications,² but is less conclusive than some of those, and, hence, more favorable to the accused by affording the possibility of removal from adult to juvenile court. No ease has been called to our attention wherein this type of statute has been held unconstitutional but, rather, they have survived equal protection challenges whenever the issue has been raised.³

Probably, the Legislature reasoned that the application of 10 O.S.Supp.1979, § 1104.-2, would result in most if not all 16 or 17-year-old persons being tried in criminal court and incarcerated for substantial lengths of time to protect the public. Certainly, implementation should act as a deterrent to those who believe that 16 and 17-year-old persons may violate the law with impunity.

In McGowan v. Maryland, 366 U.S. 420, 425, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), the Supreme Court of the United States stated the standard for testing equal protection violation claims:

. . Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts, reasonably may be conceived to justify it. . ” (Citations omitted, footnote omitted)

Applying this standard to the statute here involved, we believe that the classification created by the Legislature bears a rational relationship to an important legislative objective, i. e., protection of the public.

II — Due Process

It is next contended that from it's inception the juvenile code 10 O.S.Supp. 1979, § 1101, et seq., has conferred a presumption of incompetence to stand trial as an adult on juveniles, whereas 10 O.S.Supp. 1979, § 1101(a), § 1104.2, and § 1109(a), reversed that presumption with regard to 16 and 17-year-olds charged with enumerated crimes, in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. However, this contention was laid to rest in State ex rel. Coats v. Johnson, Okl.Cr., 597 P.2d 328 (1979). In dealing with an identical argument concerning a similar statute, Judge Brett had this to say:

“The respondent next ruled that Section 1112(b) created a constitutionally impermissible presumption that 16 and 17-year-olds accused of serious crimes should be treated as adults. The panel of judges held that the amendment created an invalid presumption of competence. The amicus curiae brief stresses that Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and 10 O.S.Supp. 1978, § 1112, with the exception of subsection (b), create a presumption of incompetence to stand trial on persons under 18. We fail to find that presumption in the statute, in Kent, or in any of our cases. In fact, the only Oklahoma statute we can find dealing with the incompetence of children to commit crimes is 21 O.S.1971, § 152, which provides that children under 7 years are incapable of committing crimes and that children over 7 and under 14 are incapable of committing crimes in the absence of proof that at the time of committing the act or neglect charged against them, they knew of its wrongfulness. Nor do we find that the amendments create a presumption of a fact which by law must be proven before a 16 [or] 17-year-old can be tried as an adult. We do not need at this point to determine whether somewhere implicit in the United States Constitution is the requirement that for purposes of criminal prosecution, a person must be treated as a juvenile until he is 18, as both sides submit that had the Legislature wished it, it simply could have chosen to define juveniles as anyone under 16.”

Ill — -Vagueness

This leads us to a consideration of the allegation that the statutory amendments are unconstitutionally vague. The test for unconstitutional vagueness is found in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), and was expressed as follows:

“. . . No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322, 328]: ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ” (Citations omitted, footnote omitted)

Our examination of the statute in question does not reveal that degree of vagueness which necessitated our decision in State ex rel. Coats v. Johnson, supra. But, to the contrary, the terms are clear and explicit and any supposed inconsistency may be judicially determined when the necessity for judicial construction arises.

For all the above and foregoing reasons, the Honorable Arthur Lory Rakestraw is directed to vacate her order of the 6th day of March, 1980.

CORNISH, P. J., dissents. BRETT, J., concurs specially.

1 . Most of the criteria appearing in the regular certification procedure in 10 O.S.Supp.1979, § 1112(b), were taken from those appearing in the appendix to Kent v. United States, 383 U.S. at 565, 86 S.Ct. at 1059, which had been adopted by the District of Columbia juvenile court judge because the District of Columbia Juvenile Act did not contain any guidelines, but were later rescinded by the juvenile court. See note 4, 383 U.S. at 546, 86 S.Ct. at 1049.

In Sherfield v. State, Okl.Cr., 511 P.2d 598, 600 (1973), we summarized the holding of Kent as follows:

“As we read Kent v. United States, supra, the United States Supreme Court held that under the District of Columbia Juvenile Court Act providing for the Juvenile Court to waive jurisdiction over a juvenile after full investigation, as a condition to a valid waiver order, the juvenile was entitled as a matter of due process to a hearing, with counsel, including access by his counsel, to the social records and similar reports which might be considered by the court, and to a statement of reasons for the Juvenile Court’s decision.

Our statement in S. H. v. State, Okl.Cr., 555 P.2d 1050, 1052 (1976), relied on by respondent, to wit: “The guidelines set out in Sherfield, supra, were mandated by the United States Supreme Court in the case of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966),” was dictum not supported by Kent, and we expressly overrule it.

2 . Louisiana, La.R.S. 13:1570 A(5); New York, New York Penal Law §§ 10.00(18), 30.00(2); Pennsylvania, 42 Pa.C.S.A. §§ 6322, 6355(e); Maryland, Maryland Code 1957 Courts and Judicial Proceedings Art. 27, § 594A and Code, Courts and Judicial Proceedings § 3-804(d)(l) and (4); District of Columbia, D.C.C.E. § 16-2301(3)(A); Delaware, 10 Del.C. §§ 938, 939; Florida, Fla.Stat. § 39.02(5)(C).

3 . See State v. Sheppard, La., 371 So.2d 1135 (1979); People v. Mason, 99 Misc.2d 583, 416 N.Y.S.2d 981 (Sup.Ct., Richmond County Criminal term, 1979).