C.H. v. State

2010 Ark. 279, 365 S.W.3d 879, 2010 Ark. LEXIS 321
Supreme Court of Arkansas·Decided June 3, 2010·No. No. CR 10-255·Published·Cited by 5 cases

Opinions

RONALD L. SHEFFIELD, Justice.

[[Appellant C.H. has filed an interlocutory appeal of an order entered by the Crawford County Circuit Court, Criminal Division, on January 11, 2010, setting aside that court’s December 2, 2009 order transferring C.H.’s case to the juvenile division of the circuit court. On appeal, C.H. contends that the criminal division of the circuit court could not revest itself with jurisdiction once it had transferred the case to the juvenile division. We have jurisdiction pursuant to Ark. R. Sup.Ct. 1 — 2(b)(1) and (4) (2010), as this case presents an issue of first impression needing clarification and development of the law.

On November 12, 2009, C.H. was charged with one count of rape, a Class Y felony, in violation of Ark.Code Ann. § 5-14-103 (Supp.2009), in the criminal division of the Crawford County Circuit Court. He was accused of unlawfully and felo-niously engaging in deviate sexual activity with his five-year-old half-sister, between November 2, 2009, and |2November 10, 2009. On November 16, 2009, C.H. filed a motion to transfer the case to the juvenile division of the circuit court, pursuant to Ark.Code Ann. § 9-27-318 (Repl.2009). C.H. was born on January 10, 1992, and was seventeen years old at the time of the alleged rape.

The criminal division of the circuit court held a hearing on December 2, 2009, to determine whether to transfer the case, pursuant to Ark.Code Ann. § 9-27-318(e). At the hearing, C.H. argued that the ease should be transferred to the juvenile division because he was only seventeen when he allegedly committed the crime; his alleged crime was neither aggressive nor violent, and it did not cause physical injury; he “comes from a broken home”; he had no criminal history; and he had a high chance of being rehabilitated and not offending again, unless he were to serve a sentence in the Arkansas Department of Correction. The State argued against transferring the case because C.H. was only two months shy of his eighteenth birthday when he allegedly committed the rape; the offense was heinous; the fact that C.H. was preparing to enter the military indicated that he had an adult level of sophistication and maturity; the criminal division of the circuit court could retain jurisdiction longer than the juvenile division; and, though he may have been remorseful, C.H. had not yet admitted that he committed the offense.

Several witnesses testified at the hearing. Sean Pittman, a mobile-assessment specialist and clinical social worker at the Piney Ridge Center in Fayetteville, Arkansas, a treatment center for juveniles with emotional and behavioral disorders, testified that he had examined |aC.H. and he believed C.H. would be a good candidate for Piney Ridge. However, to qualify, C.H. would have to be admitted to Piney Ridge before his eighteenth birthday. Erin Mata, a juvenile intake officer and department supervisor at the Crawford County Juvenile Probation Office, testified about the office’s policies on overseeing the probation of extended-juvenile-jurisdiction defendants who have been charged with sexual crimes, and how juveniles who do not cooperate can receive adult sentences from the court. C.H.’s father testified that C.H. did well in school and did not have any disciplinary problems; that C.H. kept to himself as much as possible at home; that he was intelligent; that the family encouraged C.H. to join the military in order to gain some maturity; and that C.H. was obsessed with video games. C.H.’s mother testified that there was a history of mental illness in her family. She also explained that at one point when C.H. was thirteen he grabbed her arm and twisted it behind her back. As a result of this assault, C.H. was evaluated by a counselor through the juvenile court system, though no charges were filed.

At the conclusion of the hearing, the criminal division of the circuit court indicated that it wanted C.H. to undergo a psychological evaluation to verify his IQ and social-functioning capacity, and to determine if he had any psychological diseases. On December 11, 2009, he was evaluated by a psychologist, Donna Van Kirk, Ed.D., who diagnosed him with As-perger Disorder and Disruptive Disorder Not Otherwise Specified. Accordingly, C.H. filed an amended motion to transfer his case to the juvenile division on December 21, 2009. On December 23, 2009, the State filed a response objecting to the motion to transfer. The State | ¿argued that Van Kirk’s evaluation did not conclusively show that C.H. had Asperger Disorder, and therefore C.H. had not shown that a transfer was warranted under Ark. Code Ann. § 9-27-318(g)(6). Section 9-27-318(g)(6) provides that, in determining whether to transfer a case to the juvenile division, the circuit court may consider 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.” Instead, the State argued that, given his age, the nature of the crime he was charged with, his history of antisocial behavior and physical violence, and his high level of intelligence, C.H. should be tried as an adult.

On December 30, 2009, the criminal division entered an order transferring the case to the juvenile division. As a basis for its order, the court made the following findings:

(1) The protection of society requires prosecution as an extended juvenile jurisdiction offender or in the juvenile division of the circuit court;
(2) The alleged offense was violent, but not committed in an aggressive, premeditated or willful manner;
(3) The offense was against a person;
(4) The culpability of the juvenile is offset based on the diagnosis of Asperger’s Disorder by Donna Van Kirk Ed.D.;
(5) The juvenile has not previously been adjudicated a juvenile offender;
(6) The juvenile is not mature or sophisticated based on evidence submitted at hearing of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) There are facilities or programs available to the judge of the juvenile division of the circuit court which are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of the circuit court’s jurisdiction;
(8) The juvenile acted alone;
(9) There are written reports submitted by Donna Van Kirk Ed.D. relating to the juvenile’s mental, physical, educational, and social history. Specifically Donna Van Kirk Ed.D. diagnosed the juvenile with Asperger’s Disorder.

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C.H. v. State, 2010 Ark. 279, 365 S.W.3d 879, 2010 Ark. LEXIS 321 (Ark. 2010).

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