State v. K.H
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Cite as 2010 Ark. 172
SUPREME COURT OF ARKANSAS
No.
09-1197
Opinion Delivered 4-15-10
STATE OF ARKANSAS,
APPELLANT,
VS.
K.H.,
APPELLEE,
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, NO.
JD2006-2351, HON. JOYCE WILLIAMS
WARREN, JUDGE,
APPEAL DISMISSED.
ROBERT L. BROWN, Associate Justice
The State of Arkansas brings this appeal from two orders of the Pulaski County Circuit
Court. The first order denied the State’s petition to impose an adult sentence on appellee
K.H., an extended-juvenile-jurisdiction offender. The second order denied the State’s
motion for an extended-juvenile-jurisdiction review hearing.1 We dismiss the appeal.
On October 25, 2006, K.H., a seventeen-year-old male, was charged by felony
information with two counts of aggravated robbery and one count of theft of property in
connection with the robbery of a gas station with a shotgun. On December 4, 2006, K.H.
was designated as an extended-juvenile-jurisdiction offender pursuant to Arkansas Code
1
K.H. did not file a brief in response to the State’s brief on appeal.
Cite as 2010 Ark. 172
Annotated section 9-27-503, and his case was transferred to the Juvenile Division of the
circuit court in accordance with Arkansas Code Annotated section 9-27-318(i).
In the Juvenile Division, the State filed a petition for delinquency, again charging K.H.
with two counts of aggravated robbery and one count of theft of property. K.H. admitted
to the allegations in the petition and was adjudicated delinquent as an extended-juvenilejurisdiction offender under Arkansas Code Annotated section 9-27-505. Following a
disposition hearing on July 24, 2007, the circuit judge imposed a juvenile disposition and
suspended the imposition of an adult sentence pending court review. Specifically, K.H. was
placed on probation for two years, assessed a $250 fine and a $20 per month probation fee,
and ordered to complete 160 hours of community service and to make progress towards a
Graduate Education Degree (GED).
On December 4, 2007, the State petitioned to revoke K.H.’s probation and alleged
that he had failed to report to his probation officer each week as required by the terms of his
probation. The State filed a second petition for revocation on December 14, 2007, and
alleged additionally that K.H. had failed to attend a GED program and had not performed any
community service. After K.H. admitted to violating the terms of his probation at a hearing
on the matter, the circuit judge revoked his probation, sentenced him to detention for 90
days, ordered him to make satisfactory progress towards a GED, and ruled that he would be
placed on probation for an indefinite period after his release from detention. In a letter
following the hearing, the circuit judge warned K.H. and his attorney that she had the
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authority to impose an adult sentence on K.H. if he violated his disposition order, was found
guilty of another offense, or was found to deserve an adult sentence after a review hearing.
On May 5, 2008, K.H. was released from detention following a detention-review
hearing. At that hearing, information was presented showing that K.H. had obtained his
GED while in detention and had had no major disciplinary infractions. In the detentionreview order, the circuit judge ordered that K.H. would remain on probation as originally
scheduled but noted that K.H. planned to enlist in the Air Force and that, if accepted, his
probation would be terminated. A status-review hearing was scheduled for July 14, 2008.
At the status-review hearing, the judge learned that K.H. had been unable to join the
military. Nevertheless, the circuit judge entered an order terminating K.H.’s probation and
closing the case on July 14, 2008. The order was approved by the deputy prosecuting
attorney.
Over a year later, on July 21, 2009, the State petitioned to impose an adult sentence
on K.H., alleging that he had committed the offenses of forgery, theft by receiving, residential
burglary, and first-degree murder while under the suspension of an adult sentence.2 The
circuit judge denied the petition on August 3, 2009, because K.H.’s case had been closed on
July 14, 2008. Also on August 3, 2009, the State moved for an extended-juvenile-jurisdiction
2
All of the offenses were alleged to have occurred after the circuit judge’s order closing
K.H.’s case on July 14, 2008. The forgery offense was alleged to have occurred on July 22,
2008; the murder offense on August 6, 2008; the theft-by-receiving offense on March 9,
2009; and the residential-burglary offense on April 17, 2009.
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review hearing.3 The State recognized that the case had been closed but asserted that the
circuit court, nevertheless, retained jurisdiction over K.H. until his twenty-first birthday
under Arkansas Code Annotated sections 9-27-306(a)(1)(A)(ii) and 9-27-507(e)(1) and that
the circuit court was required to hold an extended-juvenile-jurisdiction review hearing no
later than 6 months before K.H.’s twenty-first birthday under section 9-27-507(e)(1).
K.H. responded that he had completed his probation, his case had been closed with
the State’s approval, and the circuit court no longer had jurisdiction. In addition, he argued
that if the State had objected to the closing of his case, it should not have approved the caseclosing order or, in the alternative, it should have brought an appeal from that order. K.H.
further asserted that the reopening of his closed case would violate several of his constitutional
rights.
Following a hearing on the matter, the circuit judge denied the State’s motion for an
extended-juvenile-jurisdiction review hearing in an order dated September 1, 2009, and
found in pertinent part as follows:
The Court denies the State’s Motion for an extended juvenile jurisdiction
review because the Court closed the case on July 14, 2008 and will not reopen the
case to hold the mandatory extended juvenile jurisdiction review. The Court finds
such action would be violative of the juvenile’s right to due process and to not be
subjected to additional sanctions after his case has been closed, the time for any appeal
3
That same day, K.H. was convicted of felony residential burglary, attempted
residential burglary, and theft by receiving in the circuit court and sentenced to 10 years in
the Arkansas Department of Correction, with 2 years suspended.
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or post adjudication motions has run, and he has been assured that he is free from
additional court jurisdiction on the particular case that has been closed.
The Court notes that it erred in closing the case on July 14, 2008 before holding the
mandatory review for extended juvenile jurisdiction cases, as required by A.C.A. § 9-27507(e)(1). The Court notes, since neither the juvenile nor the State filed a petition to review
and modify the court disposition, it was the Court’s responsibility to set the mandatory review
hearing no later than six (6 months) before the juvenile’s 21st birthday, since the juvenile was
17 at the time the extended juvenile jurisdiction petition was filed.
....
Not only did the Court err, the State erred. The State did not object to the
Court closing the case, the State did not appeal the order closing the case, and the
State did not file a motion for reconsideration of the order closing the case. The
jurisdiction statutes the State cited in its motion and in its oral arguments today are
ones that would be applicable if the Court had kept jurisdiction as it was required to
so do. The mandatory provisions of the statutes regarding jurisdiction presume there
is an open case. Here, there is no open case, and the Court’s opportunity and ability,
legally, to take up the matters requested in the State’s motion have long passed.
....
When the Court closed the case, it did so with the understanding and intent that it
would no longer have any jurisdiction over this juvenile on this particular case. Per
A.C.A. § 9-27-306, this Court—the juvenile division of Circuit Court—has exclusive
original jurisdiction of and shall be the sole court for (among other matters)
proceedings in which a juvenile is alleged delinquent . . . The Court may retain
jurisdiction of a juvenile delinquent up to 21 years of age if the juvenile committed
the delinquent act prior to eighteen (18) years of age. The word “may” is the
determining factor. The Court chose to close the case and did so.
(emphasis added).
The State now appeals the denial of its petition to impose an adult sentence and the
denial of its motion for an extended-juvenile-jurisdiction review hearing. It contends that
the circuit judge did not have the authority or the discretion to divest itself of jurisdiction
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under the Extended Juvenile Jurisdiction Act until a final review hearing was held pursuant
to section 9-27-507. Instead, the State asserts that the circuit judge retained subject-matter
jurisdiction to modify the suspended sentence until K.H. reached the age of twenty-one.
Before addressing the merits of this case, this court must first determine whether this
is a proper issue for resolution in a State appeal.4 In delinquency cases, the state may appeal
under those circumstances that would permit the state to appeal in criminal proceedings. Ark.
R. App. P.–Civil 2(c)(1). We have frequently observed the significant and inherent difference
between appeals brought by criminal defendants and those brought on behalf of the State.
State v. Mancia-Sandoval, 2010 Ark. 134, __ S.W.3d __. The former is a matter of right,
whereas the latter is not derived from the constitution; nor is it a matter of right but is granted
pursuant to Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal. Id. Accordingly,
the State’s ability to appeal in criminal cases is strictly limited to those cases described under
Rule 3. See State v. Johnson, 2010 Ark. 77, __ S.W.3d __.
Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal provides in pertinent
part as follows:
(a) An interlocutory appeal on behalf of the state may be taken only from a pretrial
order in a felony prosecution which (1) grants a motion under Ark. R. Crim. P. 16.2
4
Although K.H. did not file a responsive brief in this matter and, thus, did not raise the
issue of the propriety of the State’s appeal, this court nevertheless has a duty to raise the
question as it is a matter of subject-matter jurisdiction. See, e.g., Nichols v. State, 364 Ark. 1,
216 S.W.3d 114 (2005).
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to suppress seized evidence, (2) suppresses a defendant’s confession, or (3) grants a
motion under Ark. Code Ann. § 16-42-101(c) to allow evidence of the victim’s prior
sexual conduct. The prosecuting attorney shall file, within ten (10) days after the
entering of the order, a notice of appeal together with a certificate that the appeal is
not taken for the purposes of delay and that the order substantially prejudices the
prosecution of the case. Further proceedings in the trial court shall be stayed pending
determination of the appeal.
(b)Where an appeal, other than an interlocutory appeal, is desired on behalf of the
state following either a misdemeanor or felony prosecution, the prosecuting attorney
shall file a notice of appeal within thirty (30) days after entry of a final order by the
trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this
rule, the clerk of the court in which the prosecution sought to be appealed took place
shall immediately cause a transcript of the trial record to be made and transmitted to
the attorney general, or delivered to the prosecuting attorney, to be by him delivered
to the attorney general. If the attorney general, on inspecting the trial record, is
satisfied that error has been committed to the prejudice of the state, and that the
correct and uniform administration of the criminal law requires review by the
Supreme Court, he may take the appeal by filing the transcript of the trial record with
the clerk of the Supreme Court within sixty (60) days after the filing of the notice of
appeal.
As a matter of practice, this court only takes State appeals that are narrow in scope and
involve the interpretation of the law. E.g., Mancia-Sandoval, 2010 Ark. 134, at 5, __ S.W.3d
__. We will not allow the State to bring an appeal merely to show that the circuit judge
erred. Id. If a decision on the merits of the State’s appeal would not be important to the
correct and uniform administration of the criminal law, we will dismiss the State’s appeal.
See, e.g., State v. Short, 2009 Ark. 630, __ S.W.3d __.
We have said, in addition, that an appeal that does not present an issue of
interpretation of the criminal law that would have widespread ramifications or establish
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important precedent is one that does not involve the correct and uniform administration of
the criminal law. See, e.g., State v. Moreno, 371 Ark. 336, 265 S.W.3d 751 (2007); State v.
Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Nor does an appeal that turns on facts unique
to the case or involves a mixed question of law and fact involve the correct and uniform
administration of the criminal law. E.g, Short, 2009 Ark. 630, at 3–4, __ S.W.3d __.
Moreover, where an appeal involves the circuit judge’s application of the law rather than its
interpretation, we have held that the appeal is not one that is important to the correct and
uniform administration of the criminal law. Id.
The State has presented the following issue in this appeal: whether the circuit judge
erred by finding that it had the authority to relinquish subject-matter jurisdiction over an
extended-juvenile-jurisdiction offender without first holding a final review hearing pursuant
to Arkansas Code Annotated section 9-27-507. Because this issue arose after the circuit
judge admittedly erred by closing K.H.’s case without holding a final review hearing as clearly
required by section 9-27-507, we cannot say that it is an issue likely to rearise. The reason
for our conclusion is that what precipitated the State’s issue regarding jurisdiction is the
judge’s admitted error. That unique circumstance giving rise to the State’s issue on appeal
necessarily reduces any hint of widespread ramifications by our decision on this point.
Hence, it is not important to the correct and uniform administration of the law.
Moreover, this appeal must be dismissed because it is not an appeal “following either
a misdemeanor or felony prosecution” as required by Rule 3. In State v. Hurst, 296 Ark. 132,
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752 S.W.2d 749 (1988), this court held that the State was not empowered by Rule 36.10(b),
the predecessor to Rule 3, to appeal from a dismissal by a circuit court of a petition to revoke
a felon’s probation because the appeal “did not follow a misdemeanor or felony prosecution,
but rather a revocation of probation proceeding.”5 We reaffirmed this holding with respect
to Rule 3 in State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997) (State may not appeal the
dismissal of a revocation petition because it is not an appeal following a misdemeanor or
felony prosecution in accordance with Rule 3).
In the instant case, the State attempts to appeal from an order denying a petition to
impose an adult sentence and from an order denying a motion for an extended-juvenilejurisdiction review. The State claims that K.H. committed felony offenses while on a
suspended sentence as a juvenile and that the judge closed the case without holding the
required extended-juvenile-jurisdiction hearing. We conclude that these appeals are not
appeals following a misdemeanor or felony prosecution but are more analogous to an appeal
from the revocation of a suspended sentence, which we have held is an improper state appeal.
5
Arkansas Rule of Criminal Procedure 36.10(b) provided as follows:
Where an appeal, other than an interlocutory appeal, is desired on behalf of the state
following either a misdemeanor or felony prosecution, the prosecuting attorney shall
file a notice of appeal within thirty (30) days after entry of a final order by the trial
judge.
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Accordingly, this appeal must be dismissed because it does not fall within the ambit of Rule
3. See Hurst, supra; Rice, supra.
Appeal dismissed.
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