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I.K. v. State

Court of Appeals of Arkansas, Division I

December 5, 2018

I.K. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE POLK COUNTY CIRCUIT COURT [NO. 57JV-18-6] HONORABLE JERRY RYAN, JUDGE

          Crawford Law Firm, by: Brandon Crawford, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, JUDGE

         I.K. appeals his adjudication of delinquency by the Polk County Circuit Court. He argues that the circuit court violated his due-process rights by adjudicating him delinquent for an offense for which the State did not charge-specifically by sua sponte amending the charge from second-degree terroristic threatening to second-degree assault at the conclusion of the bench trial. We affirm.

         On March 6, 2018, the State filed a petition in the juvenile division of the Polk County Circuit Court seeking to adjudicate I.K. delinquent for committing the offense of terroristic threatening in the first degree, a Class D felony, in violation of Arkansas Code Annotated section 5-13-301(a)(1) (Supp. 2017). In the petition, the State alleged that appellant threatened to "shoot up" the Mena High School campus.

         On April 4, 2016, at the beginning of the hearing on the petition, the State amended the charge to terroristic threatening in the second degree, a Class A misdemeanor, in violation of Arkansas Code Annotated section 5-13-301(b)(1) (Supp. 2017). At the end of the evidence the circuit court found:

[T]o sustain a charge of terroristic threatening in the second degree under Title 5 Chapter 13 section 301, the statute requires that a person commits the offense of terroristic threatening in the second degree if with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to another person.
Now, the evidence that I've heard here today, the conversation that took place between [I.K.] and Dustin was not with the purpose of terrorizing Dustin, by making those threats. However, when he said, "No, if I shoot up your school I will tell you, but if I come to school that day, you're f***ed." Then, that to me constitutes assault in the second degree, which is defined as:
A person commits assault in the second degree if he or she recklessly engages in conduct that creates a substantial risk of physical injury to another person.
Whether it was a joke or not it was reckless. You're guilty of assault in the second degree. And that's what the Court finds. I'm gonna place you on probation for a period of six months, [I. K.], under the standard conditions of probation. I'll need an order prepared to that effect. And you will need to meet with Ms. Hillard just as soon as we leave court. Okay. Anything else, in this matter?

         The circuit court in effect sua sponte amended the charge to assault in the second degree, a Class B misdemeanor, in violation of Arkansas Code Annotated section 5-13-206(a) (Repl. 2013), at the end of the trial and sentenced I.K. accordingly. Although counsel and the circuit court subsequently discussed the possibility of a diversion, it is undisputed that neither I.K.'s counsel nor the State objected to the circuit court's sua sponte change in the charge. I.K. was sentenced to six months of supervised probation pursuant to an order of adjudication filed on May 18, 2018. He filed a timely notice of appeal, and this appeal followed.

         I.K. argues that the circuit court erred in sua sponte amending the charge to an uncharged, non-lesser-included offense. The United States Supreme Court has extended constitutional due-process protections to juveniles. See In re Gault, 387 U.S. 1, 33 (1967). In Gault, the Court held that juveniles should be afforded the right against self-incrimination and the right to counsel under the federal Constitution. Id. at 36. The Court's holding affirmed that "[d]ue process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." Id. at 20.

         Although juvenile proceedings need not conform with all the requirements of a criminal trial, essential requirements of due process and fair treatment must be met. Golden v. State, 341 Ark. 656, 21 S.W.3d 801 (2000). We have held that "[n]otice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with ...


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