STATE V. DOE, 1978-NMCA-025, 91 N.M. 506,
576 P.2d 1137 (Ct. App. 1978)
STATE of New Mexico, Plaintiff-Appellee,
vs.
John DOE, a child, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137
Petition for Writ of Certiorari Denied
March 30, 1978
Charles R. Finley, Albuquerque, for
defendant-appellant.
Toney Anaya, Atty. Gen., Suzanne Tanner,
Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
WOOD, C.J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concur.
{*507} WOOD, Chief
Judge.
{1} The Children's Court
petition alleged the child committed the delinquent act of murder. The child
has been transferred to the jurisdiction of the district court for further
proceedings on a charge of murder. The appeal attacks the validity of the
transfer. Involved are §§ 13-14-2, 13-14-3, 13-14-25, 13-14-27, 13-14-27.1,
13-14-28, 13-14-30 and 13-14-32, N.M.S.A. 1953 (Repl. Vol. 3, pt. 1). Reference
to a "rule" means a Children's Court Rule. Reference to the court
means the Children's Court. We discuss:
{*508}
(1) constitutionality of § 13-14-27.1, supra; (2) an admission assertedly
prohibiting a transfer; (3) compliance with § 13-14-27.1, supra; and (4) mental
illness.
{2} The constitutional claims
relate to age, type of offense, and vagueness.
{3} Section 13-14-27.1(A)(1),
supra, authorizes a transfer of a child, 15 years of age or older, on a murder
charge and transfer of a child, 16 years of age or older, on charges involving
the other specified offenses. The child asserts the age and offense
classifications are irrational and violate equal protection of the law. He
questions the exclusion of 14-year-olds from the transfer statute, the age of
15 to transfer for murder, and the age of 16 to transfer for the other crimes
named in the statute. He asserts that if transfer is based on the seriousness
of the crime, then there is no reason for age limit. He asserts that if
transfer is based on age, then there is no reason to specify the type of crime.
{4} If the legislative
classification is reasonable, the classification is valid. The test of
reasonableness is not whether this Court deems the legislation reasonable;
rather, it is whether the Legislature had a reasonable basis for the
classification.
Espanola Housing Authority v. Atencio,
90 N.M. 787,
568
P.2d 1233 (1977). In determining whether the legislative classification is
reasonable, we consider the purpose of the statute.
Howell v. Burk,
90
N.M. 688,
568 P.2d 214 (Ct. App.1977).
{5} The claimed improper
classification on the basis of offenses is frivolous. Any transfer of a child
to district court for a criminal trial requires a felony offense. See §
13-14-27, supra. The offenses necessary for a transfer under § 13-14-27.1,
supra, are all serious felonies. This classification does not offend against
equal protection of the law.
In re Welfare of Burtts, 12 Wash. App. 564,
530 P.2d 709 (1975); see
Woodard v. Wainwright, 556 F.2d 781 (5th Cir.
1977).
{6} Nor is there any denial
of equal protection on the basis of age. Under a previous juvenile statute,
provisions permitting the transfer of persons of any age, if charged with a
felony, were upheld against general claims of denial of equal protection.
State
v. Doyal,
59 N.M. 454,
286 P.2d 306 (1955); see also
State v. Jimenez,
84 N.M. 335,
503 P.2d 315 (1972). Our current statutes, §§ 13-14-27 and
13-14-27.1, supra, limit the transfer age to 16 years or older except for the
crime of murder, where the age is 15 years or older.
{7} Treatment as a child is
not an inherent right, but a right granted by the Legislature.
Woodard v.
Wainwright, supra. The Legislature could have provided that any felony
charge was subject to prosecution in district court.
State v. Doyal,
supra. It did not do so; rather, it provided age requirements for a transfer.
The age requirements provided depend upon the offense involved. The Legislature
could properly determine that this combination of age and offense requirements
is reasonably related to the public interest. See § 13-14-2(B), supra. In
addition, the Legislature could properly select the combination of age and
offense requirements as situations where the special treatment afforded under
the Children's Code should no longer be applicable.
Woodard v. Wainwright,
supra;
United States ex rel. Murray v. Owens, 465 F.2d 289 (2d Cir.
1972);
Pendergrast v. United States, 332 A.2d 919 (D.C.1975);
Imel v.
State, 342 N.E.2d 897 (Ind. App.1976).
{8} Section 13-14-27.1(A)(4),
supra, requires the court, in ordering a transfer, to "consider"
whether the child is amenable to treatment as a child through "available
facilities". The child asserts that this provision violates due process in
that it is void for vagueness. The vagueness, according to the child, involves
"consider" and "available facilities".
{9} The child states
"[t]o say that the judge may 'consider' is to say that he may decide
without a basis in reason." We disagree. "Consider" means to
reflect on, to think about with a degree of care and caution. Webster's Third
New International Dictionary (1966).
{*509} "Consider"
is not unconstitutionally vague; persons of common intelligence do not have to
guess at the meaning of the word.
State v. Najera, 89 N.M. 522,
554 P.2d
983 (Ct. App.1976). We believe the child's argument is really directed at a
claimed absence of a definite standard in determining the question of
"amenability". That determination necessarily involves the court's
discretion, which is reviewable for abuse.
Matter of Doe, 88 N.M. 505,
542 P.2d 1195 (Ct. App.1975); see
State v. Doyal, supra.
{10} The child also claims
that "available facilities" is void for vagueness. He contends there
is no rational basis for limiting "available facilities" to
facilities within New Mexico. The statute does not limit facilities to a
geographic area. The statute refers to facilities that are available. Within
the context of the statutory language,
State v. Najera, supra, a
facility is not available if it may not be utilized (for whatever reason) for
the treatment or rehabilitation of the child. "Available facilities"
is not void for vagueness.
Admission to Prevent a Transfer
{11} Section 13-14-27.1,
supra, states that the court "may, before hearing the petition on its
merits, transfer the matter for prosecution in the district court". Rule
30 states that the transfer motion shall be heard prior to the adjudicatory
hearing on the petition.
{12} Prior to the hearing on
the transfer motion, the child sought to admit the factual allegations in the
petition; thus, he sought to admit that he killed the victim with malice
aforethought and did so with a rifle. The court refused to accept this
admission. This refusal is asserted to be error.
{13} If the admission had
been accepted, criminal proceedings would have been barred. Why?
{14} Section 13-14-25(I),
supra, states:
I. Criminal proceedings... based upon an offense alleged in a
petition under the Children's Code... are barred if the court... has accepted a
child's admission of the allegations of a petition in the proceeding, except
that nothing in this subsection bars criminal proceedings in a tribunal upon
proper transfer to that tribunal under the Children's Code.
{15} Once the court accepts
the admission, there could no longer be a "proper transfer".
Acceptance of the admission involves accepting that the child has committed a
delinquent act and accepting that the child is a delinquent child. Section
13-14-3(N) and (O), supra. Such an acceptance involves the adjudicatory aspect
of Children's Court proceedings. Section 13-14-28(E) and (F), supra. Once the
child is found to have committed a delinquent act, Rule 38(a) requires entry of
judgment. Thus, a transfer cannot occur once the admission is accepted.
{16} The child sought to
prevent a transfer by his admission. He claims he has a right to thwart the
transfer. Alternatively, he asserts that the trial court abused its discretion
in refusing to accept his admission.
{17} Section 13-14-25(J),
supra, states that "[I]n a proceeding on a petition," a party is
entitled to admit or deny the allegations against the party in the petition.
The transfer hearing was a proceeding on a petition.
Matter of Doe, 89
N.M. 700,
556 P.2d 1176 (Ct. App.1976). Thus, under § 13-14-25(J), supra, the
child could admit the allegations. Rule 32(a) states that the child may admit
the factual allegations of the petition at any time after the petition alleging
delinquency has been filed.
{18} Although these
provisions authorize the admission, they do not state the court must accept the
admission. Nor are these provisions to be interpreted to require the court to
accept the admission. Such an interpretation would place the child in a
position to prevent a transfer because acceptance of the admission moves the
proceedings into the adjudicatory stage, preventing a transfer. Such a result
was not intended, either by the Legislature in enacting the Children's Code, or
by the Supreme Court in adopting the rules. The clear intent of the statutes and
rules is that a transfer may be
{*510} accomplished
if transfer requirements are met, and without regard to the wishes of the
child. Neither § 13-14-25(J), supra, nor Rule 32(a) require the court to accept
the child's admission.
{19} The child seems to
assert that he had a constitutional right to admit the facts of the petition;
in effect, to plead guilty, and the court's rejection of his admission violated
this constitutional right. The claim is frivolous. Whatever defendant's rights
may be in offering to plead, a court is not required to "accept every
constitutionally valid guilty plea merely because a defendant wishes so to
plead. A criminal defendant does not have an absolute right under the
Constitution to have his guilty plea accepted...."
North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), footnote 11.
{20} Similarly, a child does
not have a constitutional right to have his admission accepted and thus prevent
being transferred to district court for criminal proceedings. The right to be
treated as a child is a statutory, not a constitutional, right.
Woodard v.
Wainwright, supra. Having provided that certain children could be
prosecuted criminally, the Legislature did not intend that such a prosecution,
initiated by the motion to transfer, could be terminated by the child's offer
to admit the allegations of the Children's Court petition, a noncriminal
matter.
United States v. Rombom, 421 F. Supp. 1295 (D.C.N.Y.1976); see §
13-14-30, supra.
{21} The child reminds us of
the purpose of the Children's Code, see 13-14-2, supra. He contends the court's
refusal to accept his admission was contrary to the purposes of the Children's
Code and thus an abuse of discretion. The court has discretionary power to
accept or refuse the admission.
State v. Jimenez, 89 N.M. 652,
556 P.2d
60 (Ct. App.1976);
State v. Leyba, 80 N.M. 190,
453 P.2d 211 (Ct.
App.1969). It was not an abuse of discretion to refuse to accept the admission
when the consequence of such an acceptance would have foreclosed the transfer
specifically authorized by statute.
Compliance with Section 13-14-27.1, supra
{22} Section 13-14-27.1(A),
supra, lists five requirements for transferring the matter to district court
for prosecution of the child under the criminal law. Compliance with four of
the requirements is challenged; we identify the challenges by the statutory
subsections.
{23} (a) Subsection 1
requires the child to be fifteen years of age or more at the time of the
alleged delinquent act if the alleged delinquent act is murder. The child
asserts there was no evidence of the child's age at the transfer hearing. We
agree. However the petition set forth the child's birthdate and the date of the
offense; no issue was raised as to their correctness. Inasmuch as the record
established the age, the requirement of subsection one was met regardless of
whether evidence of age was introduced at the transfer hearing.
Matter of
Doe, 89 N.M. 507,
554 P.2d 669 (Ct. App.1976).
{24} (b) Subsection three
requires "notice in writing of the time, place and purpose of the hearing
is given the child, his attorney, parents, guardian or custodian at least five
[5] days before the hearing". The child does not contend that the required
notices were not given. His claim is that the notices were oral, not written,
and therefore the transfer hearing was not conducted in accordance with the
statute. The record shows written notice was sent more than five days prior to
the hearing and the court so found. However, even if written notice had not
been sent, its absence, under the circumstances of this case would not have
invalidated the transfer hearing. The circumstances are: oral notice was
conceded, the trial court offered a continuance which the child rejected, all
the noticed parties appeared and there is no claim of prejudice resulting from
the allegedly missing written notice. See
Matter of Doe, 88 N.M. 481,
542 P.2d 61 (Ct. App.1975).
{25} (c) Subsection four
requires the court to consider whether the child is amenable to treatment or
rehabilitation as a
{*511} child through
available facilities. There was evidence that the child needed treatment
because of mental illness. Unless, however, the evidence of a need for
treatment permitted the inference that the child would respond to such
treatment, there was no evidence of the child's amenability. See § 34-2A-15(G),
N.M.S.A. 1953 (1976-77 Interim Supp.). We do not consider
"amenability" further. The statutory requirement refers to treatment
as a child through available facilities. The evidence was conflicting as to
whether there were facilities for treating the child,
as a child, in New
Mexico. Defendant asserts the evidence showed there were facilities for
treating the child, as a child, outside New Mexico. We disagree. There was evidence
that adequate facilities existed outside the state, but no evidence that those
facilities were
available. The court did not err in finding that the
child was not amenable to treatment as a child through available facilities.
{26} (d) Subsection five
requires the court to make a specific finding that there are reasonable grounds
to believe the child committed the alleged delinquent act. Such a finding was
made; substantial evidence supports the finding. Defendant complains of the
time when the finding was made. Evidence on the "reasonable grounds to
believe" issue was presented, and the court ruled on this issue, before
the State proceeded with evidence on the "amenability" issue.
Defendant asserts this procedure was erroneous, contending that the State
should have presented all its evidence, on all issues, before the court made
its rulings. Section 13-14-27, supra, specifically authorizes the procedure
followed in this case in transfer hearings under that section. Although the
procedure is not specifically authorized in § 13-14-27.1, authority for the
procedure exists in Evidence Rule 611(a). Compare
State v. Armijo, 90
N.M. 12,
558 P.2d 1151 (Ct. App.1976). In addition, there is no claim of
prejudice.
Matter of Doe, 88 N.M. 481,
542 P.2d 61, supra.
{27} Most of the evidence
during the "amenability" hearing was to the effect that the child had
severe emotional problems and was mentally ill. The child moved that the court
transfer legal custody of the child to an appropriate agency for further study
and report on the child's condition. The child asserts the court erred in
denying the motion. We disagree. The motion was made under § 13-14-32(B),
supra, which leaves a transfer for further study to the court's discretion.
State
v. Doe, 90 N.M. 572,
566 P.2d 121 (Ct. App.1977). The court did not abuse
its discretion; there was evidence that the only additional testing needed was
an E.E.G. and a neurological study which could be performed without the
requested transfer.
{28} A basic problem involved
in this issue, however, is how the mentally ill child is to be handled when
uncontradicted evidence, as in this case, is that the child was mentally ill.
This problem does not involve legal insanity. See
State v. Hartley, 90
N.M. 488,
565 P.2d 658 (1977). The problem involves mental illness. The
Children's Code refers to "mentally ill", but does not define the
term. Sections 13-14-27 and 13-14-32, supra. The definition of "mentally
ill individual" in § 34-2-1, N.M.S.A. 1953 (Supp.1975) has been repealed.
Laws 1977, ch. 279, § 24. We assume, but do not decide, that the applicable
definition is of "mental disorder" appearing in § 34-2A-2(N),
N.M.S.A. 1953 (1976-77 Interim Supp.).
{29} Under the evidence, the
court had discretionary authority to initiate proceedings for the child's
commitment. Section 13-14-32(A), supra. If the child had been committed as
mentally ill, the delinquency petition would have been dismissed. Section
13-14-32(C), supra.
{30} Did the court abuse its
discretion in not initiating commitment proceedings? No.
{31} Under § 13-14-27, supra,
the court is required to find there are reasonable grounds to believe that the
child is not committable to an institution for the mentally ill. Section
13-14-27(A)(4)(c), supra. Absent such a finding, the transfer to district court
for a criminal trial would not be valid. The consequence would be that the
child would be
{*512} handled under the
Children's Code and the disposition would be under that code. The possible
disposition would include proceedings under § 13-14-32, supra.
{32} Under § 13-14-27.1,
supra, no findings are required as to the child's mental illness. Rather, the
child may be transferred to district court for a criminal trial without regard
to the child's mental illness. The rationale for the different treatment of
mental illness in §§ 13-14-27 and 13-14-27.1, supra, is that transfers under §
13-14-27.1, supra, are limited to the serious offenses specified therein.
{33} The transfer proceeding
in this case was under § 13-14-27.1, supra. Inasmuch as the child's mental
illness is not a factor in transfers under this section, the failure of the
court to institute commitment proceedings under § 13-14-32(A), supra, was not
an abuse of discretion.
{34} The transfer order is
affirmed.
HERNANDEZ and LOPEZ, JJ., concur.