Charles A. Helton v. William A. Fauver, Robert J. Del Tufo

930 F.2d 1040

• Court: Court of Appeals for the Third Circuit
• Decided: May 15, 1991
• Docket: 89-5611
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal arises from the denial of a petition for a writ of habeas corpus by the district court for the District of New Jersey. 1989 WL 201025. The appellant, Charles A. Helton, was convicted in New Jersey state court after trial as an adult for felony-murder and related offenses. Helton was 16 years old at the time of the crimes. The juvenile court determined it could not waive jurisdiction over Helton to permit him to be tried as an adult. The New Jersey Supreme Court, however, ultimately reversed that decision, interpreting the state juvenile jurisdiction statute to permit such a waiver. After trial as an adult, Helton was sentenced to a term of imprisonment in excess of the maximum term that could have been imposed by the juvenile court.

The primary question on appeal is whether the New Jersey Supreme Court’s construction of that state’s juvenile jurisdiction statute constituted an unforeseeable statutory interpretation. If so, then its retroactive application to Helton would constitute an after-the-fact increase in criminal penalties in violation of the due process clause of the Fourteenth Amendment. For the reasons that follow, we believe that the New Jersey Supreme Court’s reinterpretation of the standards governing juvenile court jurisdiction may not be applied retroactively to remove defenses from, or increase the penalty imposed on, a criminal defendant. We will therefore reverse the district court’s denial of habeas corpus relief.

I.

Helton was convicted in the Superior Court of New Jersey for felony-murder and other offenses committed on May 3, 1979. At that time, Helton was 16 years and 10 months old. The facts of the crimes, as established at Helton’s trial, are essentially undisputed. Briefly stated, these facts are as follows. Helton and his two co-defendants, Bruce Risley and Edward Margie¹ went on a crime spree on the evening of May 3, 1979. During the course of that evening, the three defendants procured a gun and ammunition, and stole an automobile which they used for transportation. They then went to a convenience store, where Margie committed the first robbery. The three then proceeded to a second convenience store, where Risley entered to commit a second robbery, while Helton and Margie waited in the car. Armed with Helton’s loaded revolver, Risley confronted the store clerk, Neal Conklin, and shot him at short range when Conklin appeared to be resisting the robbery attempt. Risley then took the money from the cash register, left Conklin lying dead, and ran back to Margie and Helton, who were waiting in the car. All three left the scene, with Helton driving, and later set the stolen car on fire.

Although he stands convicted of felony murder, other than the weapon used by Risley Helton’s only connection to the apparently unpremeditated killing of Conklin was that he drove the getaway car from the robbery. See Dist.Ct.Op., App. at 9a.² Helton and his companions were apprehended about fourteen months after the date of the crimes. Juvenile complaints were filed against Helton charging offenses which would constitute the adult crimes of automobile theft, receiving stolen property, arson, armed robbery, and felony murder.

At a hearing before New Jersey’s Juvenile and Domestic Relations Court, the state sought to have Helton tried as an adult. The then-applicable juvenile jurisdiction waiver statute, N.J.S.A. 2A:4-48 (repealed 1983), provided that:

The juvenile and domestic relations court may, without the consent of the juvenile, waive jurisdiction over a case and refer that case to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing that:

a. The juvenile was 14 years of age or older at the time of the charged delinquent act;

b. There is probable cause to believe that the juvenile committed a delinquent act which would constitute homicide ... and

c. The court is satisfied that adequate protection of the public requires waiver and is satisfied there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority by use of the procedures, services, and facilities available to the court.

Quoted in State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93, 96 (1982) (emphasis added).³ The juvenile court concluded that juvenile jurisdiction could not be waived because Helton was a good candidate for rehabilitation prior to the age of majority. The Superior Court Appellate Division ultimately affirmed, after remanding to the juvenile court for a written clarification of the findings of fact and the law that supported its previous ruling.

The state then moved for leave to appeal before the New Jersey Supreme Court. Leave to appeal was granted and the New Jersey Supreme Court summarily reversed the Appellate Division’s decision. Upon Helton’s motion for reconsideration, the court allowed oral argument and issued a full written opinion. See State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93 (1982). In that opinion, the state supreme court did not disturb the juvenile court’s finding that Helton was a good candidate for rehabilitation. Rather, it held that the explicit statutory requirement that a defendant be treated as a juvenile if there were substantial prospects for rehabilitation during minority was not absolute, but had to be balanced against society’s need for deterrence. The court also held that the need for “general deterrence” (i.e. deterrence of others from committing similar crimes, not just deterrence of the individual defendant from recidivism) is a component of the “adequate protection of the public” criterion found in the statute. Applying these standards to Hel-ton, the New Jersey Supreme Court remanded to the juvenile court for entry of an order waiving juvenile court jurisdiction over Helton so that he could be tried as an adult. See 446 A.2d at 104.

On June 18, 1982, the Middlesex County Grand Jury returned an indictment charging Helton with various crimes that corresponded to the events put in issue by the juvenile complaints. After trial by a jury as an adult, and conviction,⁴ Helton was sentenced on December 15, 1985 to a total term of imprisonment of life plus 12 to 18 years. This exceeds the maximum sentence that could have been imposed by the juvenile court. Under the juvenile court’s jurisdiction, the maximum sentence Helton could have received would have been an indeterminate sentence, to continue until parole. See former N.J.S.A. 2A:4-61(h) (repealed 1983).⁵

The Superior Court Appellate Division affirmed Helton’s conviction, and Helton’s petition to the New Jersey Supreme Court for certification was denied. He then moved for postconviction relief in the Superior Court of New Jersey, which was denied on January 5, 1987. In its opinion denying postconviction relief, the court stated that the “consideration given to general deterrence in trying Charles Helton as an adult was appropriate and not a violation of the ex post facto principle.” Supp. App. at 29. The Appellate Division affirmed, on the merits of the ex post facto issue, not on the basis of any alleged procedural bar.⁶ See Supp.App. at 259. Helton appealed to the New Jersey Supreme Court, which granted the state’s motion to dismiss the appeal.

Having exhausted his state remedies,⁷ Helton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the District of New Jersey. On June 21, 1989, the district court denied the petition.

II.

The federal district court had jurisdiction of Helton’s habeas corpus petition pursuant to 28 U.S.C. § 2254. Although the district court judge, on July 27, 1989, denied Helton a certificate of probable cause, see 28 U.S.C. § 2253, we certified probable cause to appeal on June 26,1990. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

Helton’s appeal presents questions of constitutional law reviewable under a plenary standard. See Dent v. Cunningham, 786 F.2d 173, 175 (3rd Cir.1986). We are bound by a state supreme court’s construction of a state penal statute. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). We are not, however, bound by the state court’s determination as to whether its construction offends the federal Constitution. Id.

III.

The issue to be resolved in this case is fairly narrow. Three principles that are relevant to the outcome are essentially uncontested, however, and will be addressed initially. First of all, there is no dispute that the state supreme court has final authority to interpret state statutes. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); Dist.Ct.Op., App. at 12a.

Secondly, as earlier noted, N.J.S.A. 2A:4-48 (repealed 1983) provided conjunctively that in order to waive jurisdiction, the juvenile court must be “satisfied that adequate protection of the public requires waiver and [that] there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority.” (Emphasis added.) There is no dispute that the New Jersey Supreme Court held, in apparent contradiction to the statutory language, that Helton could be tried in adult court “regardless of his rehabilitative prospects” (as the district court characterized it). Dist.Ct.Op., App. at 16a. The New Jersey Supreme Court’s language was that

even if the juvenile court finds that there are reasonable prospects for rehabilitation, the court must then determine whether the prospects for rehabilitation overcome the public’s need for deterrence in the given case.

State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93, 100 (1982). Thus, the New Jersey Supreme Court construed the word “and,” in N.J.S.A. 2A:4-48, to mean “or.” Despite the statute’s conjunctive phrasing, the court apparently read the statute disjunctively, holding that the two legislatively established criteria, rehabilitation and deterrence, required only the application of a balancing test.

Thirdly, there is no dispute that if a judicial construction of a criminal statute is unexpected, and thus does not give fair warning, then for a state court to apply such an unforeseeable standard to the defendant in the case in which the new standard is announced would violate the due process clause. Thus, in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the Supreme Court held that

an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10 of the Constitution forbids.... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.

378 U.S. at 353-54, 84 S.Ct. at 1702-03. See also Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (reiterating the Bouie principle).

Bouie and Marks were concerned with the ex post facto construction of substantive criminal statutes. Ensuing decisions in the courts of appeals, however, established that the Bouie principle applies equally to after-the-fact increases in the degree of punishment. See Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir.1989) (“We hold that the constitutional due process protections, like ex post facto protections, do extend to proscribe judicially enforced changes in interpretations of the law that unforeseeably expand the punishment accompanying a conviction beyond that which an actor could have anticipated at the time of committing a criminal act.”), cert. denied, - U.S. -, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990); Devine v. New Mexico Dep’t of Corrections, 866 F.2d 339 (10th Cir.1989). The United States Supreme Court, moreover, has now reaffirmed that the ex post facto prohibition applies equally to increases in punishment for conduct that was already criminal. See Collins v. Youngblood, - U.S. -, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).

Of course, not every retroactive change in the law amounts to a constitutional violation. In its recent analysis of the ex post facto principle in Collins v. Youngblood, — U.S. -, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), the Supreme Court adopted the analysis found in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), which established three tests for determining violations of the Ex Post Facto Clause. Under Beazell, a law is unconstitutional if it: (1) punishes as a crime an act that was innocent when done, or (2) makes more burdensome the punishment for a crime after its commission, or (3) deprives one charged with a crime of any defense available according to law at the time the act was committed.

If any one of the three Beazell prongs applies, the law or judicial decision in question is unconstitutional. In Helton’s case, the first Beazell prong is clearly inapplicable. The second prong, however, applies, as it is indisputable that Helton’s punishment was increased as a result of the waiver of juvenile court jurisdiction. The third prong would also be met, if Helton was unforeseeably deprived of the right not to have juvenile jurisdiction waived without a finding that he lacked rehabilitative potential. If that is the case, then Helton was deprived of the defense that the superior court lacked jurisdiction over him.⁸

The disputed issue in this case, then, is simply whether or not the New Jersey Supreme Court’s construction of the juvenile waiver statute, N.J.S.A. 2A:4-48, in State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93 (1982), constituted an unforeseeable change in the juvenile waiver of jurisdiction law. The district court concluded that there was no such unforeseeable change, and thus denied Helton’s petition. We disagree.

IV.

Prior to the New Jersey Supreme Court’s opinion in C.A.H., a finding of reasonable prospects for rehabilitation prior to age 21 was, without more, an absolute bar to waiver of juvenile court jurisdiction for purposes of trial as an adult. Several authorities support this proposition. First, there is the clear language of the statute itself, which states that the juvenile court may waive jurisdiction only if

[t]he court is satisfied that adequate protection of the public requires waiver and is satisfied there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority by use of the procedures, services, and facilities available to the court.

Former N.J.S.A. 2A:4-48 (emphasis added).

One of the eases cited by the state, and relied on by the district court in its denial of habeas corpus relief, was State in the Interest of J.F., 141 N.J.Super. 328, 358 A.2d 217 (1976). But in J.F., the New Jersey court listed the two criteria quoted above (protection of the public and prospects for rehabilitation) as separate criteria, each of which must be met before juvenile court jurisdiction may be waived. That court then specifically found “in the light of the record, that the adequate protection of the public requires such waiver and that there are no reasonable prospects for rehabilitation of the juvenile, if he was the one who committed the crimes, by use of the proceedings, services and facilities available to the Juvenile Court.” 358 A.2d at 219 (emphasis added) (internal numbering omitted). Only after making these explicit findings that met the two independent statutory criteria, did the court order that the juvenile be tried as an adult. Thus, J.F. provides no support for the state’s thesis that Helton was on notice that the state supreme court would abandon the requirement that each of the above criteria be met before juvenile court jurisdiction could be waived.

A second case the state points to in purported support of the district court’s holding is State in the Interest of B.T., 145 N.J.Super. 268, 367 A.2d 887 (1976), certif. denied, 73 N.J. 49, 372 A.2d 314 (1977). Yet in B.T., before ordering waiver to adult court, the juvenile court judge had specifically made the requisite finding that there were “no reasonable prospects for rehabilitation of the juveniles prior to attaining the age of majority.” See 367 A.2d at 892. The Superior Court Appellate Division affirmed that finding. Although it noted that the juvenile court judge had considered the wrong age of majority (18 instead of 21), the appellate court deemed it appropriate to resolve the merits of the appeal based on its own reading of the record, rather than to remand the case. It then affirmed the juvenile court judge, stating that on its reading of the record there was a

strong probability that rehabilitation within the framework of the lenient processes and facilities of juvenile-oriented institutions will be fruitless.

367 A.2d at 892. Thus, the appellate court found it necessary to resolve the “rehabilitative potential” factor before determining that waiver was permissible.

The state emphasized in its brief additional language that appears in the B.T. opinion, to the effect that

the court, in an appropriate case, may consider that deterrence and punishment may be more salutary than the slight possibility of successful rehabilitation both from the viewpoint of the juvenile and his future potential victims.

367 A.2d at 892. The B.T. court took this view, however, only after finding that all four statutory criteria for waiver were met, including the absence of rehabilitative potential. Indeed, the court clearly held that, on its reading of the record, it agreed with the juvenile court judge that there were no reasonable prospects for rehabilitation. In Helton’s case, by contrast, the juvenile court judge specifically found that there were good prospects for Helton’s rehabilitation. Moreover, and significantly, that finding has never been disturbed.

The district court’s citation of State in the Interest of B.C.L., 82 N.J. 362, 413 A.2d 335 (1980), although arguably a foreshadowing of the C.A.H. opinion,⁹ is irrelevant to the constitutional issue here. B.C.L. was decided in 1980, whereas the underlying crimes in Helton’s case were committed in 1979. As Bouie held, the Constitution requires prior notice of an expansion in the degree of punishment. See also Collins v. Youngblood, - U.S. -, 110 S.Ct. 2715, 2719, 2721, 111 L.Ed.2d 30 (1990) (an increase in punishment after the time the crime was committed violates the ex post facto prohibition). Obviously, a 1980 opinion could not provide prior notice for a 1979 crime.¹⁰

In short, the language of the statute, together with the line of cases interpreting it in the New Jersey state courts, could not have put Helton on notice of, or made reasonably foreseeable, the shift in direction and the change in law effected by the New Jersey Supreme Court in C.A.H.¹¹

Furthermore, the New Jersey Supreme Court itself made it clear in its opinion in C.A.H. that it was breaking new ground, when it held as follows:

Viewed within this analytical framework — perhaps not starkly evident before today’s decision — we determine that the trial court reached an incorrect decision concerning the waiver of these juveniles.

446 A.2d at 103 (emphasis added). As the U.S. Supreme Court has noted, courts are often reluctant to admit that their decisions announce new and unprecedented rules. See Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990) (“Courts frequently view their decisions as being ‘controlled’ or ‘governed’ by prior opinions even when aware of reasonable contrary conclusions reached by other courts.”) The New Jersey Supreme Court’s concession that the rule it announced in C.A.H. was “perhaps not starkly evident before,” 446 A.2d at 103, is a telling indication that its holding in C.A.H. was an unforeseeable change in the law.

The C.A.H. opinion, for the above reasons, was an unforeseeable departure from precedent. It established a balancing test between two factors which theretofore had been considered independent requirements, both of which had to be met before juvenile court jurisdiction could be waived. Therefore, under Bouie, it was a violation of the due process clause of the Fourteenth Amendment to apply the new C.A.H. test without prior notice to Helton, inasmuch as C.A.H. increased the punishment Helton received for his crimes and deprived him of a jurisdictional defense.

V.

We turn now to the question of the appropriate remedy. Helton asks us to vacate his conviction and dismiss the indictment. The state has not addressed the issue of remedy, relying instead on its arguments that there was no constitutional violation. The district court, in a footnote, expressed the view that if a due process violation were found,

the fact of an increased sentence alone would not necessarily render petitioner’s conviction void, since the Court could presumably convert petitioner’s sentence to an indeterminate life sentence [i.e. the maximum to which Helton could have been sentenced in juvenile court]. In that event the Court would have to determine whether the loss of procedural safeguards would warrant voiding the entire proceeding.

Dist Ct.Op., App. at 13a n. 3.

If it was a violation of due process — as indeed we have determined that it was — to try Helton as an adult, then his conviction was unconstitutional. Moreover, as the juvenile court could not constitutionally waive jurisdiction under the retroactively applied C.A.H. decision, the superior court that tried Helton as an adult lacked jurisdiction over him. Helton’s conviction must therefore be vacated, and his indictment dismissed. This disposition, of course, will be without prejudice to the state’s right to pursue juvenile proceedings, under which Helton will be subject to a different set of procedures and protections.

VI.

For the foregoing reasons, we conclude that the application to Helton of the New Jersey Supreme Court’s newly-announced standard for waiver of juvenile court jurisdiction violated the ex post facto prohibition established by the Fourteenth Amendment, as stated by the United States Supreme Court in Bouie. The State of New Jersey, whether through its legislature or its Supreme Court, may choose to shift the focus of its juvenile justice system away from rehabilitation and toward deterrence. Under the due process clause of the Fourteenth Amendment, however, it may not do so retroactively, if it thereby increases the penalty or deprives a defendant of a defense that existed at the time of the underlying events.

Accordingly, we will reverse the district court’s denial of relief under 28 U.S.C. § 2254. We will remand this case to the district court with instructions that the district court issue the writ within no more than ninety (90) days, unless within that time the state has vacated Helton’s conviction and dismissed the indictment. During that time, the state may of course take steps to institute juvenile proceedings against Helton.

1 . Risley was a juvenile and Margie was a young adult. Neither of Helton’s co-defendants is a party to the instant habeas petition or appeal.

2 . Helton further points out that Risley, who actually shot the clerk, is nearing parole eligibility, and that Margie, who was an adult at the time of the crime, has already been released from jail, while Helton is still eight or nine years away from parole eligibility.

3 .The "age of majority" referred to in part (c) of the statute has been held to be age 21. See State in the Interest of G.T., 143 N.J.Super. 73, 362 A.2d 1171, 1174 (App.Div.), aff’d, 75 N.J. 378, 382 A.2d 1124 (1978).

4 . Helton was convicted under N.J.S.A. 2A-.151-41a (possession of a weapon without a permit); N.J.S.A. 2A:85-14, 2A:119-2, 2A:151-5 (larceny while armed); N.J.S.A. 2A:85-14, 2A:141-1, 2A:151-5 (armed robbery, two counts); N.J.S.A. 2A:85-14, 2A:113-1, 2A:113-2, 2A:151-5 (felony murder while armed); and N.J.S.A. 2A:85-14, 2A:89-2, 2A:151-5 (arson of an automobile while armed).

5 . The then-applicable statute read (in part) as follows:

If a juvenile is adjudged delinquent the juvenile and domestic relations court may order any of the following dispositions:

h. Commit the juvenile to a suitable institution maintained for the rehabilitation of delinquents for an indeterminate term not to exceed 3 years; except, that any time an adjudication of juvenile delinquency is predicated upon an offense which, if committed by a person of the age of 18 years or over would constitute any form of homicide ... then the period of confinement shall be indeterminate and shall continue until the appropriate paroling authority determines that such person should be paroled....

1973 N.J. Laws c. 306 § 20 at 835-36.

6 .At the postconviction proceedings, the state had argued that Helton’s failure to raise his constitutional claim on direct appeal created a procedural bar to a postconviction collateral challenge. Helton pointed out in response that it was only the New Jersey Supreme Court’s final decision in State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93 (1982) that gave rise to the constitutional claim he now presents. Since Helton could not be expected to raise on direct appeal an issue that did not materialize until the final holding of the state supreme court, there could be no procedural bar in his failure to raise the issue sooner. Indeed, the state has not pressed the issue on appeal.

In any case, as noted, the state courts did not base their denial of Helton's request for post-conviction relief on a procedural bar. Without a plain statement that their decision rested on a state procedural bar, there is no obstacle to Helton’s pursuing his federal habeas remedy. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (“[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case “‘clearly and expressly’” states that its judgment rests on a state procedural bar.’’); Smith v. Freeman, 892 F.2d 331 (3rd Cir.1989) (following Harris).

7 . At oral argument, we questioned counsel as to whether Helton had exhausted his state remedies. Counsel for the state conceded that the New Jersey Supreme Court had had the opportunity to consider the due process claim, and that no issue of exhaustion precluded Helton’s federal action.

8 . The state mistakenly asserts that under Collins v. Youngblood, - U.S. -, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (holding that procedural statutes are exempt from the ex post facto prohibition), the juvenile jurisdiction statute at issue here "is not a penal statute but rather is a procedural mechanism ... [and as such] is not subject to the ex post facto prohibition." Brief for Appellee at 29. First of all, the Supreme Court in Collins warned that "by simply label-ling a law 'procedural,' a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause.” 110 S.Ct. at 2721. Secondly, the state concedes that the Collins exemption applies only when the procedural rule "does not increase the punishment for [the] offense.” Brief for Appellee at 29. As discussed above, trying and convicting Helton as an adult increased the punishment for his offense.

9 . The B.C.L. court stated that "the ‘best interest of the public’ embraces 'not only the public’s right to know the facts but also the possible salutary effect of publicity in deterrence of the affected juvenile and others.’ ” 413 A.2d at 342. The state argues that this holding foreshadowed the balancing test laid down in C.A.H. (although B.C.L. was not about the jurisdictional waiver statute, but rather construed an entirely distinct statute, NJ.S.A. 2A:4-65(c), involving the disclosure of the name of a juvenile).

10 . Helton also makes a separate argument that under State v. Loray, 46 N.J. 179, 215 A.2d 539 (1965) (construing NJ.S.A. 2A-.4-15, the predecessor statute to the one at issue here), the New Jersey Supreme Court had specifically rejected the use of "general deterrence” as a factor in decisions about waiver of juvenile court jurisdiction. The Loray court stated that “the heinous nature of the offense ... is not enough in itself to justify referral [to adult court].” 215 A.2d at 546. Helton argues that C.A.H. took the opposite view, holding that “the gravity of the crime [is] perhaps the most obvious and potent factor in favor of deterrence.” 446 A.2d at 103. This argument is weakened, however, by the fact that the Loray court did include as a factor "the deterring effect which the [adult court] process” could accomplish. See 215 A.2d at 546.

11 . In a different context, the U.S. Supreme Court has addressed the question of what constitutes an unforeseeable "new rule.” See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that a new constitutional rule of criminal procedure will generally not be applicable on collateral review to cases which have become final before the new rule is announced). The Teague Court defined a rule as "new” if it was not clearly "dictated” by precedent or if reasonable minds could differ as to whether it was clearly commanded by existing law. See Teague, 489 U.S. at 301, 109 S.Ct. at 1070.

Although the Teague standard does not apply directly to Helton’s case, because the ex post facto principle at issue here and in Bouie does not implicate the policy favoring the finality of judgments that was at issue in Teague, it is evident that reasonable minds have differed as to the meaning of the juvenile waiver requirement. In particular, the juvenile court and the Superior Court Appellate Division both felt compelled to interpret the juvenile waiver factors conjunctively, as distinct from the disjunctive interpretation announced by the New Jersey Supreme Court in C.A.H. Moreover, the earlier juvenile jurisdiction cases discussed in text above also read the waiver factors in the statute conjunctively, as the terms of the statute state.

Judge Stapleton regards Teague as inapposite to the question whether a court’s construction of a criminal statute violates the Due Process Clause and Bouie v. City of Columbia.