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Matter of Appeal in Maricopa County6/18/1996
PATTERSON, Judge
This juvenile transfer case presents two issues to this court: First, whether sufficient evidence exists from which the juvenile court Judge could have concluded that transfer was appropriate; and second, whether the juvenile received ineffective assistance of counsel at the transfer hearing.
BACKGROUND
The juvenile was arrested on April 25, 1995 and charged with aggravated assault with a deadly weapon or dangerous instrument after he allegedly hit another youth with a small bat or club in the face and on the body. A detained advisory hearing was held on April 26, 1995, at which the State filed a request to transfer the juvenile to adult court. The transfer hearing was set for May 23. Defense counsel appears to have assured the parents of the juvenile that he would seek a continuance of the hearing because the father planned to be out of town on that date, the juvenile was in the middle of exams, and the attorney was trying a murder case during that time period. Counsel also expressed a desire to have a second independent psychological evaluation conducted on the juvenile, as well as additional time in which to conduct an investigation and interview witnesses. Despite these assurances, however, the attorney never sought a continuance, and the transfer hearing proceeded as originally scheduled.
The second psychological evaluation was completed on May 19. It was more detailed and favorable regarding the juvenile's rehabilitative potential. Whether due to oversight or for reasons not apparent from the record, the attorney neither presented that evaluation nor the independent psychologist's testimony at the transfer hearing. The court subsequently granted the State's transfer request.
Discussion
A. Sufficiency of the Evidence:
The juvenile argues that the evidence was insufficient to support a finding of transfer because the court failed to make findings essential to a determination of probable cause. He asserts that the Judge was required to make specific findings that the bat was a dangerous instrument in order to support a finding of probable cause pursuant to Ariz. Rev. Stat. Ann. ("A.R.S.") section 13-1204(A)(2). See, e.g., State v. Caldera, 141 Ariz. 634, 688 P.2d 642 (1984). He argues that the court instead appears to have improperly proceeded under a theory of aggravated assault "causing serious physical injury to another," pursuant to A.R.S. ยง 13-1204(A)(1). We find the juvenile's argument without merit. The Judge necessarily found that the bat was a "dangerous instrument" for purposes of section 1204(A)(2) by finding probable cause that the juvenile inflicted serious injury on the victim with the bat.
B. Ineffective Assistance of Counsel:
Although another division of this court has previously indicated that the right to counsel may not apply in juvenile proceedings, Matter of Pima County, Juvenile Act. No. J-47735-1, 26 Ariz. App. 46, 546 P.2d 23 (1976), the United States Supreme Court has held otherwise. Particularly where decisions involve transfer of a juvenile to the adult system for criminal prosecution, "there is no place in our system of law for reaching a result of such tremendous consequences without ceremony -- without hearing, without effective assistance of counsel. . ." Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 1053, 16 L. Ed. 2d 84 (1966)(emphasis added). See also Application of Gault, 387 U.S. 1, 30, 87 S. Ct. 1428, 1445, 18 L. Ed. 2d 527 (1967).
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court set forth a two-part test to determine whether errors by a
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