N.D. v. State

2012 Ark. 265, 411 S.W.3d 205, 2012 WL 2150350, 2012 Ark. LEXIS 288
CourtSupreme Court of Arkansas
DecidedJune 14, 2012
DocketNo. 11-1157
StatusPublished
Cited by4 cases

This text of 2012 Ark. 265 (N.D. v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.D. v. State, 2012 Ark. 265, 411 S.W.3d 205, 2012 WL 2150350, 2012 Ark. LEXIS 288 (Ark. 2012).

Opinion

ROBERT L. BROWN, Justice.

| Appellant N.D. appeals the decision by the Jefferson County Circuit Court, Juvenile Division (juvenile court), that he be designated for extended juvenile jurisdiction (EJJ). He asserts that the Jefferson County Circuit Court, Criminal Division (criminal court) has already declined to make such a designation, and because this court did not reverse that refusal in N.D.’s first appeal, the issue is decided by law of the case. We disagree, and we affirm.

On November 23, 2009, fifteen year old N.D. was adjudicated delinquent for commission of aggravated robbery and possession of a weapon. He was sent to the Department of Youth Services (DYS) by the Phillips County Circuit Court and housed at the White County Regional Detention Facility in Batesville. Later, he was transferred to the Jack Jones Juvenile Justice Center in Pine Bluff. On January 30, 2010, N.D. and one other juvenile allegedly attacked Leonard Wall, a security guard at Jack Jones, who later died of 12cardiac arrest. N.D., along with two other juveniles, allegedly left the detention center, ran several blocks, and stole a car and a woman’s purse at a nearby gas station. On February 1, 2010, N.D. was arrested in Fort Smith.

On March 11, 2010, the State filed a felony information in the criminal court, charging N.D. as an adult with capital murder, escape in the first degree, three counts of aggravated robbery, two counts of theft of property, and second-degree battery. Prior to his trial, N.D. moved to dismiss the charges against him or, alternatively, to transfer his case to the juvenile court. In that motion, N.D. did not include a request that his case be transferred to the juvenile court with an EJJ designation. The State responded to the motion and contended that N.D.’s case should remain in criminal court due to the serious and violent nature of the offenses, the commission of the offenses in an aggressive and violent manner, the offenses being committed against people, the level of N.D.’s participation, and his prior juvenile history.

On August 12, 2010, the criminal court held a hearing on N.D.’s motion to dismiss his case or, alternatively, transfer it to juvenile court. Because of a discovery dispute, the hearing was rescheduled for August 26, 2010. On that date, the criminal court heard testimony from several witnesses regarding transfer. During that hearing, Scott Tanner, the coordinator for the Juvenile Ombudsman Division, testified about rehabilitation options that would be available to N.D. if the case were sent to juvenile court. Tanner mentioned, among those options, the possibility of EJJ. He testified that under EJJ, the length of detention becomes exponentially longer and that there is greater administrative oversight by|Rthe committing court. Tanner added that with an EJJ designation, N.D. could receive a sentence of life in prison, if convicted of capital or first degree-murder. During cross-examination by the State, Tanner stated that the criminal court could transfer the case with an EJJ designation or that an EJJ sentence could be imposed after the transfer to juvenile court.

During closing argument, N.D.’s counsel made the following statements:

We have submitted evidence that if the Court were to transfer this to juvenile court that juvenile court could keep him under the juvenile court’s jurisdiction for — until he’s 21 years old. If the Court were to transfer this as an EJJ case, [N.D.] would not only be under the jurisdiction of the juvenile court until he’s 21, if the court at some point determined he was rehabilitated, then he would be put on probation for a period of time.

On August 31, 2010, the criminal court entered an order denying N.D.’s motion to transfer. That order makes no mention of EJJ or of an EJJ designation. In the order, the criminal court concluded, “Having considered the 10 factors required by Ark.Code Ann. § 9-27-318(g), the Court finds that [N.D.] has failed to show by clear and convincing evidence that his case should be transferred to the juvenile division of circuit court.”

N.D. appealed the decision denying his transfer, and we reversed the criminal court’s denial. N.D. v. State, 2011 Ark. 282, 383 S.W.3d 396 (N.D. I). We said, "... we reverse with directions for the circuit court to enter an order transferring [N.D.’s] case to juvenile court.” N.D. I, 2011 Ark. 282, at 13, 383 S.W.3d 396. Our reversal was based on our conclusion that the State committed a discovery violation by failing to provide the names of witnesses in a timely fashion before the August 26, 2010 transfer hearing. This court’s opinion makes no mention of EJJ.

14After this court’s remand, the criminal court entered an order transferring N.D.’s case to juvenile court on July 29, 2011. The juvenile court accepted jurisdiction over N.D.’s case on the same date.1 On August 4, 2011, the State moved for an EJJ designation in connection with N.D. On August 11, 2011, N.D. responded to the State’s motion and claimed that the “points raised by the State have been previously raised in the criminal division of circuit court pursuant to [N.D.’s] request for transfer to juvenile court or for transfer as [EJJ] provided in Ark.Code Ann. § 9-27-318.... The law of the case doctrine prevents a second EJJ designation.”

On August 16, 2011, the juvenile court entered an order granting the State’s request to proceed with an EJJ hearing. In that order, the juvenile court concluded that under Arkansas Code Annotated section 9-27-306(g), it had jurisdiction over EJJ cases filed by the State under the authority granted by Arkansas Code Annotated section 9-27-501. The juvenile court also concluded that from its review of this court’s opinion and the pleadings filed in criminal court, no EJJ hearing had been held before the transfer.

On August 17, 2011, N.D. filed a motion objecting to proceeding with an EJJ hearing. He maintained that in the criminal court hearing held on August 26, 2010, he had requested that the case be transferred with an EJJ designation as an alternative to transfer to juvenile court with no such designation. He also contended that this court did not order that the case be transferred with an EJJ designation and that such a designation is not within the |smandate in his case. This means, he argued, that the EJJ matter was resolved. On August 29, 2011, the juvenile court granted the State’s motion for an EJJ designation.

N.D. continues to contend as his principal point on appeal that when the criminal court denied his petition to transfer his case to the juvenile court, it rejected the EJJ designation.2 Thus, he claims, when this court remanded the case to the criminal court with directions to transfer his case to the juvenile court, and did not mention an EJJ designation, the juvenile court was without authority to conduct a hearing on that issue because it was a matter already decided. N.D. relies primarily on Arkansas Code Annotated section 9-27-318 and section 9-27-501 as the basis for his law-of-the-case argument.

N.D. further contends that when a case originates in criminal court, the EJJ-designation hearing is conducted as part of the transfer hearing contemplated under section 9-27-318.

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Bluebook (online)
2012 Ark. 265, 411 S.W.3d 205, 2012 WL 2150350, 2012 Ark. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nd-v-state-ark-2012.