STATE OF ARKANSAS APPELLEE
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-16-306]
HONORABLE STEPHEN CHOATE, JUDGE
Hancock Law Firm, by: Alex R. Burgos, for appellant.
RAYMOND R. ABRAMSON, Judge
R.J.W. was charged in juvenile court with aggravated
residential burglary and theft of property. The State moved
to transfer the case to the criminal division of the circuit
court so that R.J.W. could be tried as an adult. Following a
hearing, the juvenile division of the circuit court
transferred the case to the criminal division. In its order,
the circuit court made written findings on the enumerated
factors from Arkansas Code Annotated section 9-27-318(g)
to Arkansas Supreme Court Rule 4-3(k)(1) (2016) and
Anders v. California, 386 U.S. 738 (1967),
R.J.W.'s counsel has filed a motion to withdraw as
counsel on the ground that the appeal is without merit. The
motion is accompanied by a no-merit brief containing an
abstract and addendum of the proceedings below. The abstract
and addendum in counsel's brief include all adverse
decisions affecting appellant, and counsel explains in the
argument portion of his brief why there is nothing in the
record that would arguably support an appeal. The clerk of
this court sent R.J.W. a copy of his counsel's brief and
notified him of his right to file pro se points for reversal.
R.J.W. has not filed pro se points; thus, the State has not
filed a response.
counsel sets out three adverse rulings the circuit court made
against R.J.W.: (1) the transfer of the case to the criminal
division; (2) the exclusion of R.J.W.'s counsel's
remarks in closing statements that R.J.W. was not the
"ringleader" of the crime; and (3) the
consideration of a video of a custodial interrogation of
R.J.W. Pursuant to Anders, we are required to
determine whether an appeal is wholly frivolous after a full
examination of all the proceedings. Anders, 386 U.S.
738; Eads v. State, 74 Ark.App. 363, 47 S.W.3d 918
(2001). The test is not whether counsel thinks the circuit
court committed no reversible error but whether the points to
be raised on appeal would be wholly frivolous.
Anders, 386 U.S. 738; Eads, 74 Ark.App.
363, 47 S.W.3d 918. We first address the circuit court's
transfer of the case to the criminal division.
Arkansas law, a prosecuting attorney has discretion to charge
a juvenile sixteen years of age or older in the criminal
division of circuit court if the juvenile has engaged in
conduct that, if committed by an adult, would be a felony.
Ark. Code Ann. § 9-27-318(c)(1). On motion of the court
or any party, the court in which the criminal charges have
been filed shall conduct a hearing to determine whether to
transfer the case to another division of circuit court having
jurisdiction. Ark. Code Ann. § 9-27-318(e). The moving
party bears the burden of proving that the case should be
transferred. Z.T. v. State, 2015 Ark.App. 282. The
circuit 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. Ark.
Code Ann. § 9-27-318(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. Z.T., 2015 Ark.App. 282.
We will not reverse a circuit court's determination of
whether to transfer a case unless the decision is clearly
erroneous. Id. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court
on the entire evidence is left with a firm conviction that a
mistake has been committed. Id.
juvenile-transfer hearing, the circuit court must consider
all 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 ...