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R.J.W. v. State

Court of Appeals of Arkansas, Division III

June 21, 2017

R.J.W. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-16-306] HONORABLE STEPHEN CHOATE, JUDGE

          Hancock Law Firm, by: Alex R. Burgos, for appellant.

          No response.

          RAYMOND R. ABRAMSON, Judge

         Appellant 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) (Repl. 2015).

         Pursuant 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.

         R.J.W.'s 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.

         Under 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.

         At a 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 ...

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