BROWN, Judge.
Paul Henry Gingerich appeals his conviction for conspiracy to commit murder as a class A felony.
In April 2010, Gingerich was twelve years and two months old, stood about 5'2", weighed about eighty pounds, and was a sixth grader at Wawassee Middle School. On April 20, 2010, Gingerich and Colt Lundy shot and killed Philip Danner, Lundy's stepfather, and they were subsequently apprehended in Peru, Illinois, while traveling to Arizona.
On April 22, 2010, the court held a detention/probable cause hearing in which Gingerich was represented by Thomas W. Earhart. Detention of Gingerich was authorized, the State requested to file a delinquency petition, the court authorized the filing of the petition, and the State filed a motion to waive juvenile jurisdiction pursuant to Ind.Code § 31-30-3-4. That same day, the court set the matter for hearing on April 29, 2010. On April 27, 2010, Gingerich filed a motion to continue the waiver hearing, stating that "such hearing date does not allow Counsel ... sufficient time to prepare for such hearing" and noted specifically that "counsel needs time to (a) identify and interview potential witness[es] on behalf of [Gingerich]; (b) obtain and review exhibits for presentation; [and] (c) conduct its own investigations as it has not received from the State any witness or client statements, autopsy reports, coroner reports, ballistic reports or forensic reports." Appellant's Appendix at 10. Gingerich's counsel also stated in the motion that he "believes that it is in the best interest of his client that a psychological and/or psychiatric evaluation be done," that this could not be accomplished prior to the hearing, and concluded that "without additional time, the matters to be determined at the waiver hearing cannot be completely and fairly heard and determined." Id.
On April 29, 2010, the court denied Gingerich's motion to continue and held a waiver hearing. At the outset, Gingerich renewed his motion to continue the hearing, noting that "we are at a critical stage in these proceedings," that "[t]he decisions made by the Court today are going to be life altering," and that "we do not feel that we have had adequate time to prepare for this waiver hearing...." Waiver Transcript at 3.
Id. at 7-8.
The hearing proceeded and Karen Wenzelmaier, a neighbor of Gingerich, testified that she had been Gingerich's neighbor for eleven years, that her son frequently played with him, that she had never had problems with Gingerich, that she had never witnessed any violent acts or acts of cruelty or noticed character flaws which would make her feel uneasy, and that she felt that her children were safe being around Gingerich. She also testified that she believed he was a well-adjusted person and that the charges were out of character for him. Henry Witthoeft, who was Gingerich's maternal grandfather, testified that the two had a wonderful relationship and that he believed Gingerich was a "wholesome young man with a good attitude...." Id. at 37. Dave Yoder, Gingerich's uncle, testified that he would visit with Gingerich three times a month and that he believed Gingerich was an average twelve-year-old who was courteous and respectful.
The State called Robert Babcock, the Chief Probation Officer of the Kosciusko County Probation Department responsible for both the juvenile and adult divisions. Babcock testified that he was familiar with the different dispositional alternatives in both the juvenile and adult divisions. When asked whether it was in the boys' best interests and the safety and welfare of the community that they remain in the juvenile justice system, Babcock testified:
Id. at 60-63. When asked about the dispositional alternatives in the adult criminal system, Babcock testified: "[I]t starts at fifty-five years, ten years reduction for mitigating, ten years for aggravating, so you're looking at a range from forty-five to sixty-five years. Not to say, that could be modified later on. County time, probation time, electronic monitoring could all be considered on a modification...." Id. at 63-64. Babcock also testified that the Department of Correction identifies the facility that best serves treatment of defendants given the nature of their offenses.
After Babcock offered his opinion that Lundy should be waived into the adult criminal system, the prosecutor asked him his opinion regarding Gingerich, to which he responded:
At the conclusion of the presentation of evidence, the court stated that it "does not find from the evidence that it would be in the best interest of [Lundy] or [Gingerich] and the safety and welfare of the community... to remain within the juvenile system," and it issued a waiver order waiving juvenile jurisdiction of both Gingerich and Lundy to the Kosciusko Circuit Court and remanded custody of them to the Sheriff of Kosciusko County. Id. at 84. In waiving, the court noted that "[o]ur laws really do not afford an effective rehabilitation when a child is charged with an act of Murder," that "juvenile jurisdiction can continue until the child attains twenty-one years of age, however, under the juvenile law, a child cannot be placed in a juvenile correctional facility after age eighteen, leaving the Court without threat to further the child's rehabilitation," and that "commitment to a juvenile correction facility would not give sufficient time to treat and rehabilitate the child." Id. at 83.
The next day, on April 30, 2010, the State filed informations charging Gingerich and Lundy with the murder of Danner. On May 11, 2010, the State filed a motion to consolidate the cases of Gingerich and Lundy for the purposes of trial, and, on May 28, 2010, over Gingerich's objection, the Kosciusko Circuit Court ordered that the cases be consolidated. On June 2, 2010, the State filed a motion to amend and add Count II, aiding, inducing or causing murder, a felony.
On June 7, 2010, Gingerich filed a motion to dismiss and request for expedited hearing and accompanying memorandum of law in which he argued that "the waiver hearing was fundamentally flawed and violates Due Process and that this Court does not have jurisdiction or that it is fatally flawed." Appellant's Appendix at 73. In the motion, Gingerich argued that the waiver hearing "in this case falls far short of a `full investigation.'" Id. A month later, on July 7, 2010, the court held a hearing on Gingerich's motion. At the hearing, Gingerich reiterated that he filed a motion to continue in advance of the waiver hearing and renewed his motion at the hearing and argued that he "was only allowed four (4) business days in which to prepare for the Waiver hearing." Volume I Transcript at 4. Gingerich argued that, because jurisdiction over Gingerich in the adult criminal court "only comes through Waiver of the Juvenile Court and that the Waiver is defective ... this Court did not acquire jurisdiction" and that therefore the juvenile court's denial of Gingerich's request for a continuance was a denial of due process. Id. at 5. Gingerich also noted that this was significant because the burden of proof at the waiver hearing was shifted to him. Gingerich argued that,
On July 22, 2010, Earhart filed a motion to withdraw his appearance for Gingerich which the court granted, and attorneys William Cohen, Elizabeth Bellin, and Fred Franco filed appearances for Gingerich. On August 6, 2010, Gingerich filed a motion to reconsider the denial of his earlier motion to dismiss and attached a preliminary opinion from Dr. Stephen Ross who performed a psychological examination of Gingerich. The motion stated: "Dr. Ross is of the opinion that [Gingerich] can be retained in the juvenile court system and that [Gingerich] does not pose a safety consideration and it would be in the best interest of [Gingerich] to be remanded to the juvenile court." Appellant's Appendix at 210. The court denied Gingerich's motion. On September 2, 2010, the court heard argument on Gingerich's request for interlocutory appeal of its denial of the motion to reconsider, among other things. The court denied Gingerich's motion.
On October 5, 2010, Gingerich filed a motion to suppress statements given by Gingerich to police in Illinois and Indiana on April 21 and 22, 2010, pursuant to Ind.Code § 31-32-5-1 and his Miranda rights. On October 8, 2010, the court denied Gingerich's motion.
On November 3, 2010, the State filed a charging information for Count III, conspiracy to commit murder as a class A felony. That same day, the State and Gingerich filed a plea agreement whereby Gingerich agreed to plead guilty to Count III and the State agreed to dismiss Counts I and II. The plea agreement noted that it would be left to the court's discretion to sentence Gingerich under Count III, and that the sentencing range for class A felonies was twenty-fifty years. In addition, the agreement stated that Gingerich "understands that he has certain rights arising under the Constitution of the United States and the State of Indiana, and further acknowledges that he understands that he has and by pleading guilty is waiving, each of the several rights by placing his initials next to each right described...." Appellant's Appendix at 268. Among the rights listed that Gingerich initialed were his "right to appeal his waiver from Juvenile Court ... to Adult Court in this case." Id. The plea agreement was signed by Gingerich, both of his parents, defense attorneys Franco and Cohen, and the prosecutor. The plea agreement also contained an addendum, signed by both of Gingerich's parents, stating that "Gingerich has had fully explained to him his rights with respect to the pending criminal case," that he "has carefully reviewed every part of this agreement and that to the best of their knowledge, Paul H. Gingerich's decision to enter into this agreement is an informed and voluntary one," that
On January 3, 2011, Gingerich filed a sentencing memorandum arguing for the court to impose the minimum sentence; Gingerich attached to the memorandum the final report by Dr. Ross, prepared on October 26, 2010, which concluded in part:
Id. at 364.
On January 4, 2011, the court held a sentencing hearing in which it noted at the outset that it had reviewed a number of letters it had received, as well as the presentence investigation report and the report prepared by Dr. Ross. The court issued its judgment of conviction and order of commitment sentencing Gingerich to thirty years with five years suspended to probation on Count III and dismissing Counts I and II. In its order, the court stated:
Id. at 295. On January 18, 2011, the Department of Correction placed Gingerich at the Pendleton Juvenile Facility in Pendleton, Indiana.
On January 26, 2011, Monica Foster entered her appearance on behalf of Gingerich. That same day, Gingerich, by Foster, filed a notice of appeal.
The dispositive issue is whether the juvenile court abused its discretion when it denied Gingerich's request for a continuance of the waiver hearing. Generally, "denials of motions for continuance not based on statutory grounds are committed to the sound discretion of the trial court...." Vance v. State, 640 N.E.2d 51, 55 (Ind.1994). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court or where the record demonstrates prejudice to the defendant from a denial of the continuance. Tharpe v. State, 955 N.E.2d 836, 843 (Ind. Ct.App.2011), trans. denied. Continuances to allow additional time for preparation are generally disfavored in criminal cases. Vance, 640 N.E.2d at 55 (citing Baxter v. State, 522 N.E.2d 362, 366 (Ind.1988), reh'g denied); Tharpe, 955 N.E.2d at 843.
Ind.Code § 31-30-3-4 governs waiver into adult court for acts which would be murder and provides:
As noted by Gingerich, the probable cause hearing took place the day after he was detained by police in Illinois, the waiver hearing was set for five business days (or one week) after the probable cause hearing, and Gingerich's counsel requested a continuance in order to "properly investigate the case against waiver," which the court denied. Appellant's Brief at 32.
On appeal, the State argues that Gingerich's claims of error are not jurisdictional "but are merely the kinds of legal and procedural error that a defendant routinely forsakes by pleading guilty" and that Gingerich "relinquished his claims of pretrial error and expressly waived appeal in exchange for substantial benefits, and his decision should be respected and enforced." Appellee's Brief at 33. The State notes that Gingerich received a substantial benefit by pleading guilty pursuant to the plea agreement because he was allowed to plead guilty to a lesser charge of conspiracy to commit murder and faced a far reduced potential sentencing range. The State asserts that "[o]nce a court has acquired subject matter and personal jurisdiction, challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." Id. at 14 (quoting Buckalew v. Buckalew, 754 N.E.2d 896, 898 (Ind.2001)). The State argues that "characterizing other sorts of procedural defects as `jurisdictional' misapprehends the concepts." Id. at 15 (quoting K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006)). The State asserts that here, the juvenile court had exclusive original subject matter jurisdiction over Gingerich, that it possessed the statutory authority to waive subject matter jurisdiction to the adult court pursuant to Ind.Code § 31-30-3-4, and that, indeed, the statute "creates a presumption in favor of waiving juvenile jurisdiction to the adult court" where the court "finds probable cause exists to believe that a child over the age of ten has committed an act that would be murder if committed by an adult ..." Id. at 15-16. In so arguing, the State acknowledges that it has previously taken a contrary position regarding whether waiver proceedings were jurisdictional in Roberson v. State, 900 N.E.2d 446 (Ind.Ct.App.2009), clarified on reh'g. 903 N.E.2d 1009 (2009) ("Roberson Rehearing"), trans. denied, but it argues that this previous position "cannot hold as it is contrary to the Indiana Supreme Court's holding in K.S." Id. at 17.
Gingerich argues that his guilty plea and its provisions have been rendered a nullity because errors at the waiver hearing created a jurisdictional deficiency in the adult criminal court and were not merely procedural, noting that Ind.Code § 31-30-1-1 vests "exclusive original jurisdiction" in the juvenile court over a child who is alleged to, before becoming eighteen years of age, commit a delinquent act, and, for persons charged with an act that would be
Regarding the Indiana Supreme Court's opinion in K.S., Gingerich argues that it "does not render the appellate courts impotent to correct gross injustices involving transfer of juvenile jurisdiction," noting that it instead "involved juvenile jurisdiction only...." Appellant's Reply Brief at 2 (emphasis added). Gingerich maintains that "[h]ere, as in K.S., exclusive jurisdiction over [his] case resided with the juvenile court," but "[t]hat is where the similarity with K.S. ends" because "[t]here was no transfer of jurisdiction in K.S. and thus, the Court never addressed the question of subject matter jurisdiction attendant to constitutional irregularities in the juvenile waiver process." Id. at 3-4 (emphasis omitted). Gingerich argues that "[j]urisdiction vests in the criminal court only if the case is properly waived," that here "transfer was unlawful because the hearing that produced it failed to comport with due process," and that "[f]ailure to follow proper constitutionally imposed procedures in the transfer process results in a jurisdictional defect in the criminal court because it is only through that process that it acquires jurisdiction." Id. at 4. Gingerich contends that K.S. is "wholly supportive" of his position, noting that "[a]lthough a guilty plea generally extinguishes the right to appellate review of pretrial rulings, it does not and cannot prevent review of deficiencies of subject matter jurisdiction. Nor can [his] purported waiver of review in the plea create jurisdiction that did not exist." Id. at 5.
In Roberson, this court addressed the issues of whether the juvenile court abused its discretion in waiving the defendant into adult court and whether his sentence was inappropriate and, sua sponte, held that "[i]t is well-settled that a defendant may not question pre-trial proceedings following a guilty plea" and thus "Roberson gave up the right to bring any claim regarding his waiver into adult court when he pled guilty." 900 N.E.2d at 448. The court went on to address the merits and found the waiver nevertheless proper. Id. at 448-452.
The State petitioned the court for rehearing, noting in its petition that "[w]hile the State certainly could benefit from the application of the Court's ruling in other cases, [it] has an ethical duty to disclose legal authority contrary to the Court's opinion." Appellant's Addendum to Reply at 4.
This court granted the State's petition for rehearing "for the limited purpose of clarifying that one may challenge a waiver into adult court at any time, as it involves a question of subject matter jurisdiction." Roberson Rehearing, 903 N.E.2d at 1009 (citing Camden, 640 N.E.2d at 696-697 (concluding that the juvenile court has exclusive original subject matter jurisdiction over juvenile case until waived into adult court pursuant to statute)). In so holding, the court noted that "[w]hen courts lack subject matter jurisdiction, their actions are void ab initio and may be attacked at any time." Id. (quoting Kondamuri v. Kondamuri, 799 N.E.2d 1153, 1156 (Ind. Ct.App.2003), trans. denied).
To the extent that the State asserts that Roberson is not good law because it conflicts with the Indiana Supreme Court's holding in K.S., we observe that in K.S. the Indiana Supreme Court held that "Indiana trial courts possess two kinds of `jurisdiction'" which are subject matter jurisdiction and personal jurisdiction, that "[w]here these two exist, a court's decision may be set aside for legal error only through direct appeal and not through collateral attack," and that "[o]ther phrases recently common to Indiana practice, like `jurisdiction over a particular case,' confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations." 849 N.E.2d at 540. The Court observed that in that case there was "no question that the juvenile court had subject matter and personal jurisdiction," noting that "`[t]he question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs,'" that "[a] juvenile court indeed has exclusive jurisdiction over a proceeding alleging a child to be a delinquent child," and that "[a]s for personal jurisdiction, K.S. was a Marion County resident who submitted himself to the authority of the court." Id. at 542 (quoting Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000), reh'g denied; and citing Ind.Code § 31-30-1-1). We do not find that any statements in K.S. conflict with our holding in the Roberson Rehearing. See also Seay v. State, 167 Ind.App. 22, 25, 39-40, 337 N.E.2d 489, 491, 499 (1975) (reversing assault conviction in adult criminal court of seventeen-year-old defendant because "[a] proper waiver was the only way the Circuit Court could have acquired jurisdiction" and "[l]acking a valid transfer of juvenile jurisdiction, the [adult] court was without power to try and convict" the defendant).
Having determined that Gingerich has not waived his ability to challenge the denial by the juvenile court of his request for
Gingerich argues that "the court misapprehended the basis of the requested continuance," noting that in denying the request "the court stated: `the reasons for the continuance go mainly to the underlying case and such discovery will be had if this Court does waive juvenile jurisdiction.'" Appellant's Brief at 39. Gingerich argues that, instead, his request was in order to have "a fair chance to provide due process," noting that he highlighted for the court that he was unable to conduct a mental health evaluation and had not received potential evidence to present including witness statements, client statements, autopsy reports, coroner reports, ballistic reports, or forensic reports. Id. at 33. Gingerich argues that the State has the initial burden of proving by a preponderance of the evidence the requirements of Ind.Code § 31-30-3-4(1)-(3), and that if sustained, the burden shifts to the juvenile to demonstrate that waiver would not be in the best interests of the child and the safety and welfare of the community. Id. at 38. Thus, as argued by Gingerich, defense counsel at a waiver hearing has a twofold duty to both contest evidence of criminality and "provide evidence demonstrating that the child and society's interests are better served by the child remaining in the juvenile system." Id. Gingerich argues that it is "extraordinarily difficult" to contest evidence of criminality when it "has yet to be provided" and is "impossible to produce compelling evidence relevant to the second inquiry with 5 days notice." Id.
Gingerich contends that the court's denial of the continuance is made more troublesome because this question "has largely been decided" by the Indiana Supreme Court in Vance, discussed below. Id. at 38. Gingerich argues that the trial court here did not comply with Vance because "there was no preliminary investigation, no mental health evaluation even though the mere sight of [him] ought to have been cause for pause" and thus "[t]here simply was no conscientious determination of waiver. The proceedings here bear all the hallmarks of a perfunctory proceeding and not the careful proceeding our constitutions demand." Id. at 39.
Gingerich argues that specifically, the court's denial of a continuance resulted in "two discrete areas of harm" to him. Id. at 33. First, Gingerich says that he was not able to have a mental health evaluation conducted and thus could not obtain professional testimony to demonstrate that he was incompetent to stand trial or enter a guilty plea, noting that his counsel requested both orally and by written submission to the court that a mental health evaluation be performed in advance of the waiver hearing. Gingerich argues that "[a] mental health evaluation for a 12-year old charged with murder seems an essential and obvious prerequisite" prior to a waiver hearing. Id. at 34. Gingerich notes that he advised the court it would take 2-3 weeks for the Bowen Center to evaluate him and report back to the court, and states that a continuance would have allowed him to demonstrate this to the juvenile court at the appropriate time.
Second, Gingerich argues that in ordering waiver, the court relied upon false testimony by Chief Probation Officer Ronald Babcock, and that had the continuance been granted his counsel would have been prepared to refute these statements through cross-examination. Gingerich cites to the court's statements made in waiving jurisdiction as follows:
Id. at 35 (quoting Waiver Transcript at 83). Gingerich argues that these statements echoed Babcock's false testimony. Specifically, Gingerich cites the following statements as false and cites to relevant authority as follows: (1) Babcock "testified that the [DOC] could hold [Gingerich] only until his 18th birthday" when in fact Ind. Code § 11-13-6-4 allows the DOC to hold juvenile offenders "for any amount of time it deems appropriate until he turns 21"; (2) Babcock "testified that there is no longer parole for juvenile offenders," but Ind. Code § 11-13-6-4 specifically provides for parole and discharge for delinquent offenders; and (3) Babcock "averred that children who are not waived are released with no supervision at the age of 18" when actually, pursuant to Ind.Code § 31-30-2-2, "[t]en days before the child's release the IDOC is statutorily required to inform the trial court" of an impending release which allows the court "to reassert jurisdiction and place the child on probation until [his] 21st birthday." Id. at 36 (citing Ind.Code § 31-30-2-3; RJG v. State, 902 N.E.2d 804 (Ind.2009)).
Gingerich also notes that Babcock's statements that he was unaware of any residential facilities which would accept Gingerich is refuted by the brief of Amicus MCPDA, discussed below, which lists "at least 17 locked and secure private facilities in Indiana that would accept a 12 year old charged with murder" and also does not account for "the state run facilities, including the Pendleton Juvenile Facility where [Gingerich] is currently housed...." Id. Gingerich maintains that "[h]ad counsel been given more time, they could have presented the truthful testimony of the folks who actually run the institutions" as is routine in Marion County. Id. at 37. Gingerich argues that "[w]hen the prosecutor presents testimony that leaves a false or misleading impression in the mind of the fact finder, due process is violated." Id. (citing Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (holding that it is "incompatible with `rudimentary demands of justice' for the State to allow false evidence to go uncorrected when it appears," even if it did not solicit the false evidence, and that in such cases due process requirements require a new trial) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217(1959))).
Amicus MCPDA begins by emphasizing that, pursuant to Ind.Code § 31-30-3-4, "a full investigation is a necessary and statutorily-required prerequisite to waiver" and thus the full investigation requirement in the statute is "a state-created liberty interest." Amicus MCPDA's Brief at 2. Thus, "a juvenile has a liberty interest in being waived to adult court if and only if the strictures of the waiver statute are satisfied — including the requirement of/right to a full investigation," and that "[o]nce created, the State may not, consistent with the due process requirements of the Fourteenth Amendment, arbitrarily deny a juvenile said liberty interest." Id.
Amicus MCPDA states that juveniles in Marion County who face being waived into adult court "are typically afforded at least a minimum of three months to investigate and prepare" which "is critical because of the nature and scope of what needs to be done...." Id. at 3. Amicus MCPDA notes
Finally, Amicus MCPDA notes that as part of its preparation for a murder waiver case it "would investigate possible dispositional alternatives that would accept placement of and be able to provide treatment for a juvenile found true of murder" by "trying to get the juvenile pre-approved for placement" at one of a number of non-Department of Correction facilities "that will take juveniles as young as 12 years old who have been found true of murder — provided the facilities' other clinical admission requirements are met," and it lists seventeen potential facilities. Id. at 5. Amicus MCPDA notes that at the waiver hearing it would introduce evidence of facilities that had pre-approved the juvenile's placement and the secure nature of the facilities, as well as the programs and services available for juveniles sent to the Pendleton Juvenile facility of the DOC, and that such evidence "is a crucial part of the process because in order to make a well-informed decision about the appropriateness of waiver, the trial court must know that there are secure facilities capable of protecting the community while at the same time providing the necessary and proper care and treatment...." Id. at 8.
Amicus CLC argues that "the juvenile court has an obligation to allow a youth facing waiver to adult court to conduct and present evidence from a full investigation to the court," noting that the Indiana Supreme Court has "interpreted the need for a full investigation in Vance v. State, where it stated that a juvenile's right to basic due process and fair treatment in waiver hearings `include[s] the right to present evidence ... of any circumstances... entitled to him [or her].'" Amicus CLC's Brief at 10 (quoting Vance, 640 N.E.2d at 55). Amicus CLC notes that the Institute of Judicial Administration and American Bar Association ("IJA-ABA") suggests the use of expert opinions in juvenile waiver hearings, particularly while assessing the effectiveness of dispositional alternatives that would be available to the youth if retained in the juvenile justice system. Amicus CLC also cites guidelines issued by the National Council of Juvenile and Family Court Judges ("NCJFCJ") which "encourages the juvenile court to have three evaluations conducted in any waiver hearing" including a social evaluation examining the "youth's family situation, educational history, current and prior offenses, involvement in pro-social activities, and adjustment to detention as well as any other individuals of influence in the youth's life and any services with which the youth has been involved," a physical examination covering
Amicus CLC argues that conducting a full examination in conformance with the NCJFCJ standards requires that the parties have sufficient time to gather and prepare evidence for the court and that, although generally continuances for additional preparation time are disfavored in Indiana, "Indiana case law specifically supports giving counsel in wavier [sic] cases additional time to afford a youth his or her full due process rights before a waiver decision is made." Id. (citing Vance, 640 N.E.2d at 54-56); Elmore v. State, 657 N.E.2d 1216, 1218 (Ind.1995) (counsel was appointed less than a week before trial and a continuance was granted, postponing the trial for a month). Amicus CLC also acknowledges that although the IJA-ABA Standards and NCJFCJ Guidelines recommend that the waiver hearing be conducted within ten business days of the probable cause hearing, the purpose of this "limitation is solely meant to avoid unnecessary delay in gathering information ... particularly if the youth is incarcerated," and the timeframe can and should be extended when the court is taking concrete steps toward gathering information. Id. at 12. Amicus CLC also argues that the IJA-ABA Standards and NCJFCJ Guidelines require a full hearing to be conducted that comports with due process requirements including having representation by counsel, the taking of testimony under oath, the right to call and cross-examine witnesses, the right to see evidence presented against the youth, and the right to present evidence on behalf of the youth, that at least three days prior to the hearing the final evaluation reports be provided to the parties to ensure adequate review and preparation time, and that the court should also have access to these reports prior to the hearing.
The State maintains that Gingerich has not shown that he was prejudiced by the denial of his continuance. The State argues that "[u]nlike in Vance, defense counsel in this case had a full week after the probable cause hearing was held to prepare for the waiver hearing." Appellee's Brief at 28. The State argues that "[b]y the time he pled guilty, [Gingerich] had many months and ample opportunity to summon relevant evidence, investigate relevant legal and factual issues, and consider the completed psychiatric evaluation" and, armed with this information, still decided to plead guilty and to waive his appeal rights in the plea agreement. Id. at 29. The State refutes Gingerich's claim that additional time would have permitted him to demonstrate that he was not competent by suggesting, without citation to authority, that "[h]is competence does not bear upon his burden under the waiver statute." Id. The State also contends that by pleading guilty Gingerich "tacitly admit[ted] that he could not have met his statutory burden" and thus has not shown that he was harmed by the denied continuance. Id. Finally, the State argues that any error was harmless because "[t]he completed psychological evaluation did not show that [Gingerich] suffered from any intellectual dysfunction or psychological conditions that would particularly benefit from treatment in the juvenile system" and the juvenile court found that the juvenile system was simply not adequately equipped to deal with this case. Id. at 30. In his reply brief, Gingerich argues that the State's assertion that competence does not bear
As noted above, the crux of the arguments of Gingerich and the amici are essentially that the juvenile court's denial of the continuance prohibited Gingerich from receiving a full and fair opportunity to present his claims, i.e., a denial of due process.
We note that Ind.Code § 31-30-3-4 implicates valid liberty interests held by Gingerich. As he notes, Ind.Code § 31-30-1-1 vests "exclusive original jurisdiction" in the juvenile court over a child who is alleged to, before becoming eighteen
In Vance, the Indiana Supreme Court addressed the issue of whether the defendant's "waiver to adult court was legally effective." 640 N.E.2d at 53. Defendant Vance was convicted of murdering his mother, for which he received a sixty-year sentence, as well as other charges which were filed separately. Id. at 53, 56. On August 9, 1991, at the time the murder was committed, Vance was fifteen years old. Id. at 54. The juvenile court held two waiver hearings: first, in August 1991 when the State charged Vance with murder; and second, in May 1992 when the additional charges were filed. Id. On appeal, Vance argued that reversible error occurred at each of the hearings. Id.
The Court first discussed the waiver hearing on the murder charge, noting that Vance argued that he was denied due process when the juvenile court refused to grant his request for a continuance so that his attorney could gather evidence to show that waiver was not appropriate. Id. at 54-55. "Thus, he reasons, the waiver was improper, the adult court never obtained jurisdiction over him and, as a result, his conviction for murder is a nullity." Id. at 54. The record reflected that the public defender was appointed on Saturday, August 10, the first court appearance was on Monday, August 12, and that same day the State requested that Vance be waived to adult court. Id. Defense counsel requested a continuance in order to prepare for the hearing which the court denied, noting that "due to the mandatory language of the statute, the Court overrules the motion for continuance." Id. at 55. The court waived jurisdiction. Id.
The Court began its analysis stating: "It is now well-established that juveniles are entitled to basic requirements of due process and fair treatment during waiver hearings, including `the right to present evidence, if any be available to him, of any circumstances that would entitle[] him to the benefits that might be afforded to him by the provisions of the Juvenile Act.'" Id. (quoting Summers v. State, 248 Ind. 551, 560, 230 N.E.2d 320, 325 (Ind.1967) (following Kent, 383 U.S. at 554-555, 546 86 S.Ct. at 1054)). The Court noted that the juvenile court was mistaken in deeming that waiver was "mandatory," noting instead that "there is merely a presumption that jurisdiction will be waived," and that "[t]he presumption operates in favor of waiver `unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.'" Id. Thus, the Court concluded that "it was possible that had Vance been granted a continuance, he might have
The Court also highlighted the statutory requirement that "the juvenile court may not waive jurisdiction until `after full investigation and hearing,'" and noted:
Id. (emphases added).
The Court also acknowledged an argument by the State that denials of motions for continuance not based on statutory grounds are committed to the sound discretion of the trial court, and that generally continuances allowing for preparation are not favored, but noted that the circumstances, including that counsel had only two days to prepare and that counsel requested a continuance, dictate that a continuance was "required in order that the statutory full investigation could take place and Vance could marshall evidence as to why he should remain in the juvenile justice system." Id. Having said this, the Court also noted that its inquiry was not over, that "[n]ot all trial error is reversible error, and that "[f]or the denial of a continuance to be reversible error, the defendant must demonstrate the prejudicial abuse of discretion by a specific showing that additional time would have aided the defense."
Thus, the Indiana Supreme Court in Vance held that juvenile waiver hearings are not "perfunctory proceedings" and that due process requires that child defendants at waiver proceedings be afforded sufficient time to prepare a defense addressing both evidence of criminality as well as whether waiver would not be in the best interests of the child and the safety and welfare of the community. Under these circumstances, in which Gingerich's counsel had four business days to prepare, and he repeatedly moved for a continuance both on April 27, 2010 and at the outset of the hearing itself, we conclude that Gingerich's counsel did not have sufficient time to prepare and that he was prejudiced. In so holding, we note that Gingerich on appeal identified specific instances in which his lack of time to prepare prejudiced him at the waiver hearing. First, Gingerich identifies the failure to investigate whether Gingerich was competent, due to developmental immaturity, to stand trial or enter a guilty plea. Gingerich in his brief points to Dr. Ross's report which was completed on October 26, 2010 (about a week before Gingerich pled guilty) and which noted concerns about Gingerich's competence, noting that Gingerich believed it was the judge's responsibility to find him guilty, he displayed an inability to articulate fully what his counsels' role was in the case, he
For the foregoing reasons, we reverse Gingerich's conviction for conspiracy to commit murder as a class A felony, and we
Reversed and remanded.
BAKER, J., and KIRSCH, J., concur.
Also, at the start of the State's presentation of evidence at the waiver hearing, the prosecutor moved to incorporate "the earlier hearing a week ago," held on April 22, 2010, noting that he intended "to offer to the Court additional information, summarized information of probable cause...." Waiver Transcript at 8. The appellant's brief cites to the transcript of the April 22, 2010 hearing in its statement of facts; however, the record does not contain a copy of this transcript.
August 22, 2011 Order.
