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Docket Number

No. 78-77

Attorney(S)

John A. Howard, Orleans County State's Attorney, Newport, for Plaintiff. James L. Morse, Defender General, Charles S. Martin, Appellate Defender, and Felicia Graham, Law Clerk (On the Brief), Montpelier, for Defendant.

Judges

Larrow, J.

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Smart Summary

State of Vermont v. Stephen M. Powers, No. 78-77 (Vt. Apr. 4, 1978)

Factual and Procedural Background

The respondent (Stephen M. Powers) was charged with taking a wild deer by artificial light in violation of 10 V.S.A. § 4747. At the time of the alleged offense he was 18 days past his sixteenth birthday. The case was tried to the court with many stipulations in lieu of direct evidence. The trial court made findings of fact but included a conclusionary finding that the respondent "took a wild deer in closed season within the meaning of 10 V.S.A. 4747." The judgment entered followed the form of the complaint (charging taking by artificial light) and adjudged the respondent guilty and fined on that original charge.

The respondent had filed a motion under 33 V.S.A. § 635 seeking transfer of the case to juvenile court (i.e., treatment as a delinquent child). That motion was denied by docket entry and the trial court refused to make findings on the transfer issue. The respondent contended that these denials constituted an abuse of discretion and a deprivation of due process under Kent v. United States and In re Gault. The respondent has since attained the age of eighteen.

The Supreme Court of Vermont reversed and remanded. The court identified a fatal defect in the record: the findings did not support the offense charged, and the respondent had been effectively found guilty of a different offense than that alleged in the complaint.

Legal Issues Presented

Whether the conviction must be vacated because the trial court's findings and conclusionary finding do not support the offense charged (taking by artificial light) and instead reflect a finding of taking a deer in closed season.
Whether the trial court abused its discretion or violated due process by denying the respondent a hearing and findings on his motion to transfer the case to juvenile court under 33 V.S.A. § 635(b).
Whether, on remand, the respondent is entitled to a hearing and adequate findings regarding transfer and whether a different judge should preside to avoid any appearance of bias or prejudice.

Arguments of the Parties

Respondent's Arguments

The denial of a hearing and the refusal to make findings on his motion to transfer to juvenile court constituted an abuse of discretion and violated the applicable juvenile statutes.
The denial deprived him of due process rights, as articulated in Kent v. United States, 383 U.S. 541 (1966), and In re Gault, 387 U.S. 1 (1967).

The opinion does not contain a detailed account of the State's (plaintiff's) specific legal arguments in opposition to these contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kent v. United States, 383 U.S. 541 (1966)	Due process protections in transfer/waiver determinations between juvenile and criminal courts.	Invoked as part of the due process principles governing determinations whether a youth should be treated as a juvenile; the Court found Kent's principles "governing" even though Kent addressed transfer the other direction.
In re Gault, 387 U.S. 1 (1967)	Fundamental due process rights in juvenile proceedings.	Referenced as supporting the respondent's claim that denial of hearing/findings implicated due process rights.
State v. Morrill, 127 Vt. 506, 253 A.2d 142 (1969)	Application of the "plain" or "egregious" error rule (V.R.Cr.P. 52(b)).	Used to support reversal despite the defendant's failure to raise the error below; the court found the record defect sufficiently egregious to vacate the conviction.
Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653 (1967)	Critique of findings that are merely recitals of testimony rather than substantive findings of fact.	The court relied on Krupp to conclude that portions of the trial court's findings were merely recital of testimony and inadequate to support the charged offense.
Russell v. Pilger, 113 Vt. 537, 37 A.2d 403 (1944)	Definition and requirement of sound judicial discretion.	Invoked to state that transfer determinations require the exercise of sound judicial discretion, not mere judicial whim.
In re F. E. B., 133 Vt. 463, 346 A.2d 191 (1975)	Requirement for adequate findings in juvenile transfer matters.	Cited to support the proposition that adequate findings of fact are required so appellate review can determine whether sound discretion was exercised.
In re J. M., 131 Vt. 604, 313 A.2d 30 (1973)	Similar requirement that findings be adequate in juvenile transfer contexts.	Used alongside In re F. E. B. to emphasize need for adequate findings to demonstrate exercise of discretion.
Isabelle v. Proctor Hospital, Inc., 132 Vt. 243, 315 A.2d 241 (1974)	Considerations supporting reassignment to avoid claims of bias or prejudice.	Applied to recommend that a different judge preside over the rehearing on remand to avoid any claim of bias or prejudice.
Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975)	Due process parity: adult criminal courts should afford similar procedural protections to youth who may qualify for juvenile treatment.	Quoted and adopted for the general proposition that adult criminal courts must follow similar due process requirements when dealing with youths who might qualify for juvenile treatment.

Court's Reasoning and Analysis

The court's analysis proceeded in two linked strands.

First, the court identified a fatal record defect: although the complaint charged taking a wild deer by artificial light (10 V.S.A. § 4747), the trial court's findings included a conclusionary finding that the respondent "took a wild deer in closed season within the meaning of 10 V.S.A. 4747." The Supreme Court examined the findings to see if they could reasonably be read to establish the elements of taking by artificial light. They could not. Some findings touched on elements of the artificial-light offense but were framed as recitals of testimony (a practice condemned in Krupp). Because the respondent was charged with one offense, found guilty of another, and then adjudged guilty and fined on the original charge, the court concluded the error was "plain" or "egregious" and warranted reversal under V.R.Cr.P. 52(b) and the rule articulated in State v. Morrill.

Second, anticipating a likely retrial and reconsideration of the respondent's motion to transfer to juvenile court, the court addressed the transfer issue. It reasoned that 33 V.S.A. § 635(b) vests discretionary authority in the trial court to transfer a case to juvenile court, but that such discretion must be soundly exercised, not applied as mere whim (citing Russell v. Pilger). Adequate findings of fact are required so an appellate court can determine whether that sound discretion was in fact exercised (citing In re F. E. B. and In re J. M.). The court held that the denial of a hearing and the refusal to make findings on the transfer motion were summary and arbitrary, implicating due process concerns articulated in Kent and Gault. Accordingly, on remand the respondent must be afforded a hearing and findings on the transfer issue. Because the original denial was summary and arbitrary, and to avoid any claim of bias or prejudice, the court advised that a different judge preside over the remand hearings (citing Isabelle v. Proctor Hospital). The court also cited Commonwealth v. Pyle for the general proposition that adult courts must afford procedural protections when dealing with youths who might qualify for juvenile treatment.

Holding and Implications

Holding: The Supreme Court of Vermont reversed the judgment below and remanded the cause. The core ruling is emphasized as follows:

Judgment reversed and cause remanded.

Direct implications stated by the court:

The conviction is vacated because the trial court's findings did not support the offense charged and reflected plain/egregious error.
On remand the respondent must be afforded a hearing and adequate findings regarding his motion to transfer to juvenile court under 33 V.S.A. § 635(b), so an appellate court can determine whether the trial court exercised sound discretion.
Because the original denial was summary and arbitrary, the court advised that a different judge should preside over the remand hearings to avoid any claim of bias or prejudice.
There are two expressly contemplated outcomes on remand as described by the court:
- If the court determines that transfer to juvenile court should have been granted in the first instance, the charges must be dismissed because the respondent has since turned eighteen and cannot be retroactively afforded the juvenile treatment he should have received.
- If the court determines that transfer should not be granted, the State may retry the respondent.

The opinion does not proclaim a broad new legal rule beyond its application to the record defect and the reaffirmation of the need for adequate findings and procedural protections in transfer determinations; it applies existing precedents to require reversal and a properly conducted remand.

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State of Vermont v. Stephen M. Powers

1. Criminal Law — Post-Conviction Relief — Vacation of Conviction

Where offender was charged with offense of taking a wild deer by artificial light, but, on basis of erroneous conclusionary finding, found guilty of offense of taking a deer in closed season, and adjudged guilty and fined upon original charge, conviction would be vacated. 10 V.S.A. § 4747.

2. Infants — Delinquency Proceedings — Transfer From Other Courts

Under statute making transfer to juvenile court, and subsequent treatment of offender as delinquent child rather than as criminal, discretionary with trial court, determination is critical one, and literal compliance with statute is not enough; adequate findings of fact are required, so that it may be determined whether sound discretion implicitly mandated by statute was in fact exercised. 33 V.S.A. § 635(b).

3. Infants — Delinquency Proceedings — Transfer From Other Courts

Where determination is to be made whether to transfer offender to juvenile court to be treated as delinquent child rather than as criminal, hearing, and findings of fact resulting therefrom, must be accorded offender on remand, and, because of summary and arbitrary nature of ruling that denied these rights in first instance, to avoid any claim of bias or prejudice on rehearing it is advisable that different judge preside over hearings on remand. 33 V.S.A. § 635(b).

Larrow, J.

The facts relevant to disposition of this criminal appeal may be stated briefly. After trial by court, respondent was convicted of taking a wild deer by artificial light, in violation of 10 V.S.A. § 4747. At the time of the alleged offense, respondent was only 18 days over the age of 16; he filed a motion for transfer of the case to juvenile court under 33 V.S.A. § 635, asking for hearing on the merits, which was denied by docket entry and refusal to make findings on the issue. These denials, he claims, constituted abuse of discretion, violated the principles of the applicable juvenile statutes, and deprived him of due process under Kent v. United States, 383 U.S. 541 (1966), and In re Gault, 387 U.S. 1 (1967). He has attained the age of 18 since the conviction.

Unnoticed by counsel and, apparently, by the court itself, is a defect in the record fatal to the judgment below. The complaint alleged the taking of a wild deer by artificial light, in violation of 10 V.S.A. § 4747. Trial was by court, with many stipulations in lieu of direct evidence, and findings of fact were made, with a conclusionary finding that the appellant "took a wild deer in closed season within the meaning of 10 V.S.A. 4747." The judgment order, when eventually entered, followed the form of the complaint.

Even though this error was not raised by the respondent, we deem it grounds for reversal under the rule of "plain" or "egregious" error. V.R.Cr.P. 52(b); State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969). We have examined the findings as made, in an effort to ascertain whether, in spite of the recited conclusionary finding, they could be read as finding facts sufficient to bring the cause within the statute cited in the complaint and the judgment. They cannot be so read. In places, they touch upon the elements of taking a wild deer by artificial light, as prohibited by 10 V.S.A. § 4747, but those findings which do so are couched in the terminology that we condemned in Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653 (1967); they are merely recitals of testimony. So, we are confronted with a respondent charged with one offense, found guilty of another, and adjudged guilty and fined upon the original charge. For these reasons alone, the conviction below must be vacated.

Since, however, the aspect of unusual gravity that prosecutors seem to assign to fish and game violations indicates a high possibility of another trial, with reconsideration of respondent's motion to transfer to juvenile court, we deem it appropriate to comment upon the assigned errors that were briefed for argument here. Although Kent and Gault, supra, are not precisely in point, in that they involve a determination for transfer from juvenile court to criminal court rather than the reverse determination here in issue, we think the principles that they express are governing. 33 V.S.A. § 635(b) makes transfer to juvenile court, and subsequent treatment of the offender as a delinquent child rather than as a criminal, discretionary with the trial court. But we think more is involved than judicial whim, and that attainment of the salutary purposes of the juvenile statutes calls for the exercise of sound judicial discretion, as defined in Russell v. Pilger, 113 Vt. 537, 543-44, 37 A.2d 403, 408 (1944). The determination is a critical one, and literal compliance with the statute is not enough. Adequate findings of fact are required, so that we may determine whether the sound discretion implicitly mandated by the statute was in fact exercised. In re F. E. B., 133 Vt. 463, 346 A.2d 191 (1975); In re J. M., 131 Vt. 604, 608, 313 A.2d 30, 32 (1973). Not only does this make for the convenience of the appellate court, but it serves the more important purpose of evoking care on the part of the trial judge in ascertaining the facts. A hearing, and findings of fact resulting therefrom, must be accorded the respondent on remand, so that the purposes of the statute may be met. And, because of the summary and arbitrary nature of the ruling that denied these rights in the first instance, to avoid any claim of bias or prejudice on rehearing it is advisable that a different judge preside over these hearings on remand. Isabelle v. Proctor Hospital, Inc., 132 Vt. 243, 246, 315 A.2d 241, 243 (1974).

We are well aware that the precise terms of the juvenile statutes vary from state to state, and that the decisions of a sister state are not usually "on all fours" with our own statutory requirements. But the general considerations underlying juvenile legislation have substantial similarity, and we subscribe to the following recent pronouncement of the Pennsylvania Supreme Court:

Although the Kent decision and subsection 28(a) involve the "waiver of the original and exclusive jurisdiction of the juvenile court," we believe an adult criminal court, when dealing with a person who might potentially qualify for treatment as a juvenile, must follow the same due process requirements. The privileges of juvenile jurisdiction, although not conferred in the first instance, are potentially as important to the youth accused of murder as the youth accused of delinquency. Assuming there are those who would initially be within the jurisdiction of the criminal court and who would be deserving of transfer, the only way to insure that such juveniles are not arbitrarily denied access to juvenile treatment is to insist that they be given the same procedural rights.

Commonwealth v. Pyle, 462 Pa. 613, 621, 342 A.2d 101, 106 (1975).

There are two possible outcomes on remand. A determination that transfer to juvenile court should have been accorded in the first instance can only result in dismissal of the charges; now that the respondent has passed eighteen, the rights he should have had cannot be given him. A contrary determination will mean retrial, should the state be so advised.

Judgment reversed and cause remanded.

STATE v. POWERS