Brown v. State

                                  Cite as 

                  ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CR-15-369


TRACY BROWN                                         Opinion Delivered   October 21, 2015
                                APPELLANT
                                                    APPEAL FROM THE PULASKI
V.                                                  COUNTY CIRCUIT COURT,
                                                    SEVENTH DIVISION
                                                    [NO. 60CR-14-765]
STATE OF ARKANSAS
                                   APPELLEE         HONORABLE BARRY SIMS,
                                                    JUDGE

                                                    REMANDED WITH
                                                    INSTRUCTIONS



                          RAYMOND R. ABRAMSON, Judge

     Appellant Tracy Brown appeals from the trial court’s denial of his motion to transfer his

case to the juvenile division of circuit court. He argues that the trial court’s denial of his

motion to transfer was not in compliance with Arkansas Code Annotated section 9-27-318

(h)(1). We remand.

       It is within a prosecuting attorney’s discretion to charge a juvenile in either the juvenile

or criminal division of circuit court if a juvenile is at least sixteen years old when he allegedly

engages in conduct that, if committed by an adult, would be a felony. 

-

27-318(c)(1) (Repl. 2009). On the motion of the court or any party, the court in which the

charges have been filed shall conduct a transfer hearing to determine whether to transfer the

case to another division of circuit court. 

(e). The moving party
                                  Cite as 

bears the burden of proving that the case should be transferred to the juvenile division of

circuit court. Miller v. State, 

, 

.

       The court shall order the case transferred to another division of circuit court only upon

a finding by clear and convincing evidence that the case should be transferred. 

(h)(2). Clear and convincing evidence is the degree of proof that will

produce in the trier of fact a firm conviction as to the allegation sought to be established.

R.W.G. v. State, 

, 

. We will not reverse a circuit court’s

determination of whether to transfer a case unless that decision is clearly erroneous. 

       Arkansas Code Annotated section 9-27-318(g) sets forth all the factors the court shall

consider in a transfer hearing:


       (1) The seriousness of the alleged offense and whether the protection of society
       requires prosecution in the criminal division of circuit court;

       (2) Whether the alleged offense was committed in an aggressive, violent, premeditated,
       or willful manner;

       (3) Whether the offense was against a person or property, with greater weight being
       given to offenses against persons, especially if personal injury resulted;

       (4) The culpability of the juvenile, including the level of planning and participation in
       the alleged offense;

       (5) The previous history of the juvenile, including whether the juvenile had been
       adjudicated a juvenile offender and, if so, whether the offenses were against persons
       or property, and any other previous history of antisocial behavior or patterns of
       physical violence;
       (6) The sophistication or maturity of the juvenile as determined by consideration of
       the juvenile’s home, environment, emotional attitude, pattern of living, or desire to
       be treated as an adult;


                                               2
                                  Cite as 

       (7) Whether there are facilities or programs available to the judge of the juvenile
       division of circuit court that are likely to rehabilitate the juvenile before the expiration
       of the juvenile’s twenty-first birthday;

       (8) Whether the juvenile acted alone or was part of a group in the commission of the
       alleged offense;
       (9) Written reports and other materials relating to the juvenile’s mental, physical,
       educational, and social history; and

       (10) Any other factors deemed relevant by the judge.
       The trial court is required to make written findings on all the above factors. 

(h)(1). However, there is no requirement that proof be introduced against

the juvenile on each factor, and the circuit court is not obligated to give equal weight to each

of these factors in determining whether a case should be transferred. Neal v. State, 

, 

.

       Here, the court failed to make written findings on any of the factors identified in

Arkansas Code Annotated section 9-27-318(g). Just as was the case in our recent decision in

Harris v. State, 

, the order entered by the trial court is nothing more than

a form of the statutory factors listed above. To the left of seven of the ten factors, the court

has, without any elaboration, simply put a check mark. This does not constitute written

findings. Accordingly, we remand the case with instructions to enter an order consistent with

the statute.



       Remanded with instructions.

       HARRISON and BROWN, JJ., agree.

       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
       Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
                                                 3