In the Interest of A.M.S. v. Juvenile Officer

• Court: Missouri Court of Appeals
• Decided: May 7, 2024
• Docket: WD86022
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

IN THE INTEREST OF A.M.S., ) ) Appellant, ) WD86022 ) V. ) OPINION FILED: ) MAY 7, 2024 JUVENILE OFFICER, ) ) Respondent. )

Appeal from the Circuit Court of Boone County, Missouri The Honorable Tracy Zerman Gonzalez, Judge

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Jane Sutton, Judge and Daniel White, Special Judge

A.M.S. appeals from an order entered by the juvenile division of the Circuit Court

of Boone County, Missouri ("juvenile court") dismissing his juvenile proceedings and

transferring him to a court of general jurisdiction for criminal prosecution as an adult

pursuant to section 211.071.1 On appeal, A.M.S. asserts the juvenile court erred in

dismissing his juvenile proceedings and transferring A.M.S. to a court of general

jurisdiction because A.M.S. was deprived of his rights to effective assistance of counsel

1 Pursuant to section 509.520, this opinion does not include any personal identifying information for the juvenile or any witnesses. All statutory references are to the Revised Statutes of Missouri (2016) as currently updated by supplement unless otherwise noted. and due process of law during his certification proceedings. We affirm the judgment of

the juvenile court.

Factual and Procedural Background

On October 26, 2022, Juvenile Officer filed a petition with the juvenile court

asserting seventeen-year old A.M.S. was in need of care and treatment, pursuant to

section 211.031.1(3). The petition alleged that A.M.S. committed, what would be if he

were an adult, the class A felony of assault in the first degree, section 565.050;2 the class

A felony of unlawful use of a weapon, section 571.030; and, the unclassified felony of

armed criminal action, section 571.015.

On November 22, 2022, the Juvenile Officer filed an amended petition, including

a new allegation that A.M.S. committed, if he were an adult, the class D felony of

receiving stolen property, section 570.030.1(3). On December 16, 2022, the Juvenile

Officer filed its Waiver of Jurisdiction Investigation Report ("report"), pursuant to section

211.071.6.3 The report contained information to be considered by the juvenile court in

2 Under section 211.071.1, a certification hearing was required for this alleged offense. 3 The following non-exhaustive list must be considered by juvenile courts when determining whether a juvenile should be certified as an adult:

(1) The seriousness of the offense alleged and whether the protection of the community requires transfer to the court of general jurisdiction; (2) Whether the offense alleged involved viciousness, force and violence; (3) Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted; (4) Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code; (5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements; 2 determining whether to certify A.M.S. as an adult. The sources of information for the

report included: A.M.S., A.M.S.'s father, Division of Youth Services ("DYS") staff and

records, Columbia Police Department records, Missouri Case.net records, juvenile court

staff and records, and the Juvenile Justice Center ("JJC") staff and records. The report

included the following information:

A.M.S. was alleged to have committed what would have been four felonies if he

had been an adult. A.M.S.'s alleged offenses involved viciousness and violence. A.M.S.

was alleged to have shot the victim in the chest during a drug transaction. The charges

arising from this constituted: assault in the first degree, unlawful use of a weapon, and

armed criminal action. A.M.S. was also alleged to have possessed stolen property.4

Additionally, other individuals were placed in immediate risk of serious or physical

injury, as the alleged shooting occurred in a residential area near a community park with

a playground.

Prior to the current offenses, A.M.S. had received fifteen separate referrals to the

Juvenile Officer; fourteen were for delinquency, and one was for abuse and neglect.

(6) The sophistication and maturity of the child as determined by consideration of his or her home and environmental situation, emotional condition and pattern of living; (7) The age of the child; (8) The program and facilities available to the juvenile court in considering disposition; (9) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court; and (10) Racial disparity in certification.

Section 211.071.6. 4 In the First Amended Petition, the Juvenile Officer asserts A.M.S. was in possession of a 9mm Smith and Wesson handgun. 3 A.M.S. had been offered an extensive array of services and programs through the juvenile

office, Compass Health and the Navig8 program,5 Boone County Children's Division,

and DYS. A.M.S. was generally uncooperative with treatment and only minimally

participated in most of the programs he was offered. A.M.S refused to work in the

programs, refused to do school work, refused to follow rules and conditions of

supervision such as curfew, and had frequent attendance issues in school and treatment

programs. Additionally, A.M.S did not maintain contact with juvenile authorities, he was

discharged from various programs due to his behavior and for the safety of other children

in the programs, he left his placements and primarily lived with his girlfriend, and he

failed to appear at court hearings. The juvenile office had no major services that had not

been offered to A.M.S. to address his issues. Growing up, A.M.S. attended a variety of

schools and he frequently exhibited disruptive behaviors. Throughout A.M.S.'s

schooling, he gravitated towards strong negative peers who also had referrals to the

juvenile office. When A.M.S. was at the JJC, he struggled with his attitude and struggled

to take accountability for his actions. A.M.S. was "able to find success when the staff

[maintained] consistent boundaries and guidelines for the residents to follow." Based on

the allegation of A.M.S. shooting the victim, if such allegation were true, it "would

indicate a level of severity that juvenile court services would not be able to effectively

address." As such, the Juvenile Officer believed it had exhausted all the resources of the

juvenile court.

5 This is an adolescent treatment program for those with substance abuse problems. 4 On December 20, 2022, the Juvenile Officer filed a motion to dismiss the first

amended petition, because A.M.S. was "beyond the rehabilitation care, treatment, and

services available to this [juvenile court], and cannot benefit further therefrom." On

December 30, 2022, the juvenile court held a hearing on waiver of jurisdiction. At the

hearing, the Juvenile Officer presented one witness; A.M.S. did not present any evidence.

Deputy Juvenile Officer J.K., wrote the report and testified about its contents.

Pursuant to the factors set forth in section 211.071.6, J.K. testified that the alleged

offenses involved viciousness, force, and violence as the alleged victim in A.M.S.'s case

was shot in the chest with a firearm. A.M.S. had a very extensive history with the

juvenile office, and he had formal adjudications in juvenile court. J.K. opined that there

was a pattern with A.M.S.'s behavior as one previous incident involved A.M.S. shooting

people with a BB gun. Some of the services offered by the juvenile office that A.M.S.

participated in were: informal adjustments with and without supervision, formal

supervision with drug testing and community service, day treatment through the juvenile

office, cognitive behavioral intervention programming, in-home detention, and the

Intensive Intervention Model Program. J.K. testified A.M.S.'s participation with the

Intensive Intervention Model Program was unsuccessful as there were periods of times

where A.M.S. lost contact with the juvenile office. Further, A.M.S. would not follow

curfew rules, and he would not attend substance abuse services. A.M.S. struggled with

"keeping in contact, going to school like he was supposed to, following the conditions of

not having firearms, [and] submitting to drug testing."

5 A.M.S. had also been committed to DYS. While A.M.S. was in DYS placement,

his mother passed away. A.M.S. was allowed to be with her prior to her death and was

able to attend her funeral services. J.K. testified A.M.S. "had a lot of instability with his

home life growing up." A.M.S. bounced around among family members, and he went to

a variety of schools "due to behaviors and the choices that he was making while he was

[at school]." A.M.S. had a lot of history with grief in his life as his mother passed away

and his father was not around when A.M.S. was younger. J.K. did not think there were

any more services the juvenile office could provide. J.K. testified that, "[t]here are

multiple things that were tried, and none of it just -- none of it worked. And I don't think

that keeping him within the juvenile system is going to be appropriate for him. I think he

could get better help in the adult world."

The juvenile court granted the Juvenile Officer's motion to dismiss and to transfer

A.M.S. to a court of general jurisdiction for criminal prosecution. In its judgment, the

juvenile court addressed each factor listed under section 211.071.6. With respect to each

factor, the juvenile court concluded the following:

(1) Each of A.M.S.'s alleged offenses "are serious offenses which potentially

carry lengthy adult prison sentences if convicted in a court of general jurisdiction."

(2) A.M.S.'s alleged offenses involved "viciousness, force, and violence in that

the alleged victim was shot in the chest with a firearm." Other people in the surrounding

neighborhood were also placed in immediate risk of serious or fatal injury as the alleged

shooting happened in a residential area that backs up to a community park with a

playground.

6 (3) A.M.S.'s alleged offenses of assault in the first degree, armed criminal action,

and unlawful use of a weapon are all offenses against a person. The offense of receiving

stolen property is a property offense.

(4) A.M.S. had an extensive history of prior delinquency referrals to the Juvenile

Officer.

(5) A.M.S. had fourteen prior delinquency referrals. A.M.S. had been offered all

of the major services with the Juvenile Officer and had also been offered services through

DYS and the Children's Division.

(6) A.M.S., at the time of his most recent detention, exhibited "a level of maturity

and sophistication in his pattern of living . . . ." A.M.S.'s living situation had been

somewhat unstable. A.M.S. was supposed to be participating in online schooling through

Columbia Public Schools, but he was not enrolled as a traditional student at the time of

his detention. At the time of A.M.S.'s detention, he was "leading a lifestyle more

consistent with that of an independent adult."

(7) A.M.S. was seventeen years old.

(8) A.M.S. received informal supervision, formal supervision, the Intensive

Intervention Model Program, and prior commitment to DYS. A.M.S. had been offered

every major service available through the juvenile court system, and the programs and

facilities "have been exhausted in this case."

(9) A.M.S. would not likely benefit from the services available to the juvenile

court as he had already been offered all major services available prior to his commitment

7 to DYS. Further, A.M.S. "had only been released from residential treatment for less than

two months prior to being referred to the current alleged offenses."

(10) A.M.S.'s race was not a factor in the charge or recommendation for

dismissal.

This appeal follows.

Standard of Review

Juveniles' claims of ineffective assistance of counsel can be addressed on direct

appeal if the record is sufficient. See D.C.M. v. Pemiscot Cnty. Juv. Off., 578 S.W.3d

776, 782 (Mo. banc 2019). "So long as the juvenile receives a hearing, access to counsel,

and access to his or her records, and so long as the juvenile court's decision adequately

sets forth the grounds for its decision to certify such that we can review it adequately, the

process is sufficient constitutionally." C.R.B. v. Juv. Officer, 673 S.W.3d 135, 139 (Mo.

App. W.D. 2023). "[I]f the record is not sufficiently developed to allow for proper

review of the issue raised the cause may need to be remanded to develop the factual basis

for review of the claim." Id.

Analysis

First, we note that A.M.S.'s brief fails to comply with Rule 84.04.6 "Compliance

with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate

courts do not become advocates by speculating on facts and on arguments that have not

6 All rule references are to the Missouri Supreme Court Rules (2023). 8 been made." Duncan-Anderson v. Duncan, 321 S.W.3d 498, 500 (Mo. App. E.D. 2010).

A.M.S.'s point relied on provides:

The juvenile division of the circuit court erred in dismissing Respondent’s first amended petition and transferring Appellant to the court of general jurisdiction for prosecution under the general law because Appellant was deprived of his rights to effective assistance of counsel and due process of law during the juvenile certification proceedings— guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 10 and 18(a) of the Missouri Constitution, Section 211.211, RSMo, and Missouri Supreme Court Rule 115.01—in that (1) the standard for determining whether counsel was ineffective in a certification proceeding should be the same standard applied in criminal cases; and (2) under the proper standard, the record is not clear whether Appellant’s counsel was ineffective but there is a reasonable probability such that further factfinding is warranted.

In his single point relied on, A.M.S. asserts his counsel ("Counsel") was

ineffective without providing how Counsel was alleged to be ineffective or explaining his

legal reasoning, and thus, A.M.S. fails to comply with Rule 84.04. See Rule 84.04(d)(1)

("[E]ach point shall: . . . [s]tate concisely the legal reasons for the appellant's claim of

reversible error; and [e]xplain in summary fashion why, in the context of the case, those

legal reasons support the claim of reversible error."). However, we exercise our

discretion to review this case on the merits as A.M.S.'s argument is readily

understandable. See State v. Glaze, 611 S.W.3d 789, 794 n.6 (Mo. App. W.D. 2020).

A.M.S. asserts he was deprived of his right to the effective assistance of counsel at

his certification hearing and argues "because the record neither clearly supports nor

clearly refutes this claim, further fact finding is required." A.M.S. urges this Court to

appoint a special master or remand the case, similar to what was done in D.C.M., 578

9 S.W.3d at 783-85.7 The unique situation presented in D.C.M. is not present here, and

thus, we find the record is sufficient to address A.M.S.'s claim of ineffective assistance of

counsel.

A.M.S. asks this Court to adopt the Strickland v. Washington, 466 U.S. 668

(1984), standard for analyzing claims of ineffective assistance of counsel arising out of

juvenile certification proceedings. "Missouri courts have not yet decided whether claims

of ineffective assistance of counsel at certification hearings are determined by applying

the meaningful hearing standard or the Strickland standard." C.R.B., 673 S.W.3d at 139

(internal citation omitted). Either standard may be applicable. See In re K.M.F., 668

S.W.3d 302, 308 (Mo. App. E.D. 2023). Here, like in prior cases, the result is similar

under either standard.

Under the "meaningful hearing" standard, we examine "whether the attorney was

effective in providing his client with a meaningful hearing based on the record." C.R.B.,

673 S.W.3d at 139 (internal quotation omitted). In this case, Counsel cross-examined the

only witness and argued during the closing for the juvenile court to retain jurisdiction

7 In D.C.M., the Missouri Supreme Court declined to address D.C.M.'s ineffective assistance of counsel claim because the record was insufficient. D.C.M., 578 S.W.3d at 779. D.C.M. claimed his counsel was ineffective for failing to investigate and call a key witness to testify at D.C.M.'s adjudication hearing. Id. at 779. The record was clear that the key witness was next to D.C.M. when D.C.M. allegedly made the threatening statement that was the factual basis for his underlying charge. Id. at 783. The record, however, was silent about what the key witness's testimony would have been or whether D.C.M.'s attorney would have been able to locate the witness. Id. It was possible the key witness's testimony could have unequivocally supported D.C.M.'s defense, while it was also possible his testimony could have cast doubt on the defense. Evidently, the key witness's testimony could impact the outcome of D.C.M.'s delinquency proceeding, as such, the court remanded the case for an evidentiary hearing on the issue. Id. 10 over A.M.S. as there are programs available to address A.M.S.'s issues. We conclude this

provided A.M.S. with a meaningful hearing. Compare C.R.B., 673 S.W.3d at 139

(holding there was a meaningful hearing where counsel cross-examined a witness,

objected to testimony, and argued in its closing that the juvenile would be better served in

the juvenile system), with In re J.M.B., 939 S.W.2d 53, 56 (Mo. App. E.D. 1997)

(holding there was not a meaningful hearing where counsel did little "beyond appear for

the hearing.").

The Strickland standard is more stringent. Under the Strickland standard, A.M.S.

must demonstrate by a preponderance of the evidence that: (1) counsel failed to exercise

the level of skill and diligence that a reasonably competent attorney would have under

similar circumstances; and (2) A.M.S. suffered prejudice as a result. See D.C.M., 578

S.W.3d at 784 n.11 (citing Strickland, 466 U.S. at 668). "In certification cases, prejudice

amounts to a reasonable probability that he would not have been certified to be

prosecuted as an adult but for counsel's ineffectiveness." C.R.B., 673 S.W.3d at 140

(internal quotation omitted).

A.M.S. asserts Counsel was ineffective for failing to present evidence from an

expert on adolescent brain development. A.M.S. asserts this expert could have explained

how various events in A.M.S.'s life —his mother's death, his father's incarceration, his

unstable home life, and his drug use—affected him. According to A.M.S., if this

evidence was presented, "there would have been a strong basis in the record for the

[juvenile court] to conclude that [A.M.S.] could be rehabilitated under the juvenile code .

. . ." We disagree.

11 "Although the criteria listed in section 211.071.6 are not exclusive and the juvenile

court need not give equal weight to each one, the first three factors contain some of the

most critical considerations in certification and the seriousness of the offense dominates

our inquiry." In re K.M.F., 668 S.W.3d at 310 (emphasis added) (internal citations and

quotations omitted). Here, the juvenile court found the first three factors favor

certification. Specifically, the juvenile court found the allegations against A.M.S.

involved serious offenses. Section 211.071.6(1). The alleged offenses involved

"viciousness, force, and violence" as the alleged victim was shot in the chest with a

firearm during a drug transaction, and other individuals "were placed in immediate risk of

serious physical or fatal injury, as the shooting allegedly occurred in a residential area

that backs up to a community park with a playground in direct proximity of the

shooting." Section 211.071.6(2). A.M.S.'s alleged offense of receiving stolen property,

as he possessed a stolen handgun, would be considered a property offense. However,

A.M.S.'s alleged offenses of assault in the first degree, armed criminal action, and

unlawful use of a weapon are all offenses against a person and are to be given greater

weight because they resulted in the serious injury of a victim. Section 211.071.6(3).

Although A.M.S. argues expert testimony about how various events in A.M.S.'s life

impacted him would have changed the outcome of the certification proceedings, "[n]one

of the first three factors consider the juvenile's background." In re K.M.F., 668 S.W.3d at

310. The juvenile court concluded it was unlikely A.M.S. "would benefit from the

services available to the juvenile court." Further, the evidence established that A.M.S.

had a repetitive pattern of offenses that, together with A.M.S.'s extensive history with the

12 juvenile justice system and failure to positively respond to the extensive myriad of

services offered to him, supported a finding that he was beyond rehabilitation under the

juvenile code. A.M.S. has failed to show he was prejudiced by Counsel's alleged error,8

and thus, his claim of ineffective assistance of counsel must fail.

Conclusion

We affirm the judgment of the juvenile court.

__________________________________ Gary D. Witt, Chief Judge, Presiding

All concur

8 A.M.S. incorrectly asserts that he cannot be required to "fully and finally establish prejudice at this juncture, as evidence of deficient performance is a necessary predicate to a showing of prejudice." It is well established that we do not need to consider both prongs of the Strickland test if one of them fails. See Jindra v. State, 580 S.W.3d 635, 641 (Mo. App. W.D. 2019) ("If either the performance prong or the prejudice prong is not met, then the court need not consider the other, and the movant's claim must fail."). 13