Gilliam v. State

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                ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                      No. CR-15-985

                                                  Opinion Delivered   June 1, 2016

 MALIK GILLIAM                           APPEAL FROM THE PULASKI
                               APPELLANT COUNTY CIRCUIT COURT,
                                         FIRST DIVISION
 V.                                      [NO. CR-2015-1135]

 STATE OF ARKANSAS                        HONORABLE LEON JOHNSON,
                                 APPELLEE JUDGE

                                                  REMANDED WITH INSTRUCTIONS


                           BRANDON J. HARRISON, Judge

       Malik Gilliam appeals the denial of his motion to transfer to the juvenile division of

the circuit court. He argues that evidence of his prior history should have been excluded

pursuant to 

(k) (Repl. 2015). We are unable to reach the

merits of his argument because we must remand for proper written findings.

       A circuit court’s decision to retain jurisdiction of criminal charges against a juvenile

must be supported by clear and convincing evidence. 

(h)(2).

Clear and convincing evidence is that degree of proof that will produce in the trier of fact

a firm conviction as to the allegation sought to be established. McClure v. State, 

, 

 (1997). We will not reverse a circuit court’s decision on whether to

transfer a case unless it is clearly erroneous. Nichols v. State, 

, 

. A finding is clearly erroneous when, although there is evidence to support




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it, the reviewing court on the entire evidence is left with a definite and firm conviction

that a mistake has been committed. 

       In deciding the motion to transfer, the circuit court is to consider the following

factors:

       (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;

       (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.

(g). The circuit court is required to make written findings on

all of the above factors.   

(h)(1).         However, there is no
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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. D.D.R. v. State, 

, 

.

       Here, the order entered by the circuit court is essentially a list of the statutory

factors with certain subdivisions either checkmarked or not checkmarked. For example:

       1. The seriousness of the alleged offense and the protection of society
              justifies prosecution
       _√_ in the Criminal Division of Circuit Court
       ___ in the Juvenile Division of Circuit Court as an extended juvenile
              jurisdiction
       ___ in the Juvenile Division of the Circuit Court

We hold that this order fails to comply with the statutory requirement for written findings

on all the statutory factors. We therefore remand with instructions to enter an order

consistent with the statute.

       Remanded with instructions.

       WHITEAKER and BROWN, JJ., agree.

      Llewellyn J. Marczuk, Deputy Pub. Defender, by: Clint Miller, Deputy Pub.
Defender, for appellant.

       Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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