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Lewis v. State

Court of Appeals of Arkansas, Divisions III, IV

September 11, 2019

GREGORY DWAYNE LEWIS III APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NOS. 46CR-17-737 & 46CR-17-738], HONORABLE BRENT HALTOM, JUDGE.

          Joseph C. Self, for appellant.

         One brief only.

          PHILLIP T. WHITEAKER, JUDGE.

         The appellant, Gregory Dwayne Lewis III, files this interlocutory appeal of a Miller County Circuit Court order denying his motions to transfer two cases to the juvenile division of the circuit court. On appeal, Lewis's counsel has filed a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, explaining that an appeal of the transfer decision would be without merit. The motion is accompanied by an abstract, addendum, and brief concerning the proceedings related to the motion to transfer. Counsel explained in the brief that the only adverse ruling pertinent to this interlocutory appeal was the denial of the motion to transfer and contended that there was nothing in the record that would arguably support an appeal.[1] We agree.

         Procedurally, the State filed two separate charges against sixteen-year-old Lewis in November 2017. In Miller County Circuit Court Case No. 46CR-17-737, Lewis was charged as an adult with one count of aggravated assault and two counts of committing a terroristic act in violation of Arkansas Code Annotated section 5-13-310(a)(1) (Repl. 2013) (shooting at an occupied conveyance). In Miller County Circuit Court Case No. 46CR-17-738, Lewis was also charged as an adult with seven counts of committing a terroristic act in violation of section 5-13-310(a)(1) (shooting at an occupied conveyance), twenty-two counts of aggravated assault, and two counts of second-degree battery.

         Lewis filed motions to transfer these matters to juvenile court. The State responded, arguing that Lewis was charged with very serious felonies; that the crimes were committed in an aggressive, violent, premeditated, and willful manner; that they were crimes against persons; and that Lewis directly participated in the crimes.[2] After a hearing, the circuit court denied Lewis's motions to transfer, and Lewis has appealed. Counsel has requested permission to withdraw alleging that the appeal has no merit. In considering counsel's request, we will now consider the law pertinent to motions to transfer matters from the criminal division of the circuit court to the juvenile division of the circuit court, as well as the matters presented to the circuit court below.

         Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of the 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) (Repl. 2015). However, a defendant charged in the criminal division may file a motion to transfer to the juvenile division, and the court in which the criminal charges have been filed must conduct a hearing to determine whether to transfer the case. Ark. Code Ann. § 9-27-318(e).

         Here, Lewis filed such a motion challenging the jurisdiction of the criminal division of the circuit court over the charges and alleging that the juvenile division was the more appropriate jurisdiction. The circuit court then conducted an evidentiary hearing as required by statute. As the moving party, Lewis bore the burden of proving that the case should be transferred. Z.T. v. State, 2015 Ark.App. 282.

         The circuit court in this case heard evidence that Lewis was only sixteen years old at the time he was charged with the offenses and had no significant juvenile history. However, Lewis was part of an allegedly violent street gang known as "Had Azz," had participated in and accepted responsibility for the commission of multiple violent felonies that occurred on two separate occasions, and his actions had resulted in two people being shot. The court was also presented with evidence that during the pendency of the charges and while Lewis was released on bond, he was detained by the police for possessing a firearm. A search conducted during that detention revealed live ammunition in his pocket. This resulted in a revocation of his bond. Even Lewis's own mother testified at the hearing that her son was considered by some to be a leader and that he occasionally engaged in adult behavior.

         At the juvenile-transfer hearing, the circuit court considered all the factors required by statute:

(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, ...

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