In re Appeal No. 1258

* Orth, C. J., delivered the opinion of the Court. THE JURISDICTION OF THE JUVENILE COURT Chapter 554, Acts 1975, effective 1 July 1975, repealed former §§ 3-801 to 3-842, comprising Subtitle 8, “Juvenile Causes”, of the Courts and Judicial Proceedings Article, and enacted new §§ 3-801 to 3-833 in lieu thereof. 1 Under the new law, court means “the circuit court of a county or Baltimore ²²⁷ City sitting as the juvenile court. In Montgomery County, it means the district court sitting as the juvenile court.” § 3-801 (g). The general jurisdiction of the court is spelled out in § 3-804.

Ordinarily, it has exclusive original jurisdiction over a child alleged to be delinquent, in need of supervision, or in need of assistance. § 3-804 (a). But see § 3-804 (d). A child is a person under the age of 18 years. § 3-801 (c). The determination of jurisdiction upon an allegation that a child is delinquent 2 is controlled by “the age of the child at the time the alleged delinquent act was committed”, § 3-805 (a), as distinguished from all other cases, where it is the age of the child at the time the petition is filed which controls the determination of jurisdiction, § 3-805 (b). 3 When a person is subject to the jurisdiction of the court, he may not be prosecuted for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived. § 3-807 (a).

Subsection (b) of § 3-807 then provides: “The court has exclusive original jurisdiction, but only for the purpose of waiving it, over an adult who is alleged to have commited a delinquent act while a child.” The provisions of § 3-805 (a), read with the provisions of § 3-807 (b), present problems. They were recognized by the Circuit Court for Kent County in two proceedings recently before it. In each case a person was alleged to have committed a delinquent act when he was under the age of 18 years. He was over the age of 18 years when new § § 3-805 (a) and § 3-807 (b) became effective, when a petition was filed charging him with being a delinquent child and when the petition came on for hearing in the Juvenile Court.

The ²²⁸ Juvenile Court dismissed the petitions. The State noted appeals and the cases were docketed in this Court in the September Term, 1975, as In Re Appeal No. 1022 and In Re Appeal No. 1081. 4 The Court of Appeals granted certiorari prior to decision by us and docketed the cases as No. 142, September Term, 1975. It issued a Per Curiam Order: “For reasons to be stated in an opinion to be filed later, it is this 8th day of March, 1976 ORDERED, by the Court of Appeals of Maryland, that the orders of the Circuit Court for Kent County sitting as a Juvenile Court dismissing the Juvenile Petitions be, and they are hereby, affirmed with costs to be paid by the State of Maryland, and it is further ORDERED that the mandate be issued forthwith.” In No. 1022 Rasin, J., presiding in the Juvenile Court, explained to the prosecutor why he was dismissing the petition for lack of jurisdiction: “[Y]ou are faced with a quirk of the law — I didn’t agree with the provision when they rewrote the juvenile statute — but the present law says that Juvenile Court has jurisdiction over people who are 18 when the charges are brought only for the purpose of waiving jurisdiction, if the act was committed before the child was 18. We don’t have any jurisdiction, as we did under the old law, to go ahead and try the case and do anything about it.

So, I think you are caught with a technicality here the Court must look at as if the hearing were held at a time when the child was under 18, and would the Court have waived jurisdiction at that time. If the Court would have, okay, we’ll waive it now and you can be treated as an adult. But if the Court would not have, then we don’t waive ²²⁹ jurisdiction and we have no jurisdiction — we won’t waive the jurisdiction which we don’t have. It seems to me it is a little ridiculous.

But anyway, it is an automatic dismissal of the petition. So I think that is what you are faced with here. Because obviously, if this case had come to me before he was 18, under these circumstances I would not have waived jurisdiction. I would have kept him in the juvenile court.” In No. 1081 Judge Rasin said in dismissing the petition: “As a matter of fact, there is a difference of opinion as to whether the Court can do anything but waive, or whether it can proceed with a juvenile hearing if it doesn’t waive.

It seems clear to me. . . . Because I think the law is set up as sort of a no-man’s-land which protects a first offender, which I don’t think was really intended by the people who drafted the statute, to provide that one who commits an act before he is 18, and isn’t charged until after he is 18, and if he had no prior record he goes scot-free. That seems to be the concensus on the part of most of the people who have had to deal with this particular part of the law. It is highly unsatisfactory. ...

Well, as unfortunate as I think it is, from both the point of view of the interests of the public, and the interests of this Respondent, and considering the fact that there was no prior misbehavior that had been brought to the attention of the authorities or juvenile services, and what we are dealing with is a 17 year-old boy, who is alleged to be involved in a breaking and entering, and under those circumstances the Court would not have waived jurisdiction, and the fact that he is now 18 is insufficient as a fact to waive jurisdiction, because if that had been the intention then the law would have been drafted so that anyone who is found to have committed a crime before he was 18, with ²³⁰ discovery being made after he was 18, would automatically be tried as an adult offender, and that would have been the easy answer to the problem. So the Court will deny waiver which in effect terminates the case, because the Court does not have jurisdiction over anyone who is now 18. It has been suggested that in situations like this the State should have at least maybe three years, and would provide that in the event it was detected after 18, that the Juvenile Court, in those situations, could have jurisdiction until the person is 21. That at least gives you three years to cover a situation such as this, so that the Juvenile Court can go ahead and try them.

But right now the law says you don’t have any jurisdiction over a person, where the petition is initiated after he is 18.” It is manifest in the action taken by the Court of Appeals that it is in accord with the court below that in the circumstances the Juvenile Court had jurisdiction “only for the purpose of waiving it” and not for the purpose of determining delinquency vel non at an adjudicatory hearing, See 60 Op. Atty. Gen., filed 30 June 1975. WAIVER OF JURISDICTION BY THE JUVENILE COURT The Juvenile Court may waive its exclusive jurisdiction as to a child who is 15 years of age or older after a waiver hearing, held prior to an adjudicatory hearing upon due notice.

Courts Art. § 3-817 (a) (1) and (b). To waive its jurisdiction, the court must determine, from a preponderance of the evidence, “that the child is an unfit subject for juvenile rehabilitative measures.” Subsection (c). In making the determination whether to waive, the court is required by subsection (d) to consider: “(1) Age of the child; (2) Mental and physical condition of the child; (3) The child’s amenability to treatment in any institution, facility, or program available to delinquents; ²³¹ (4) The nature of the offense and the child’s alleged participation in it; and (5) The public safety.” See Maryland Rule 913. After a petition has been filed bringing a person under the exclusive jurisdiction of the Juvenile Court, the court may direct a qualified agency “to make a study concerning the child, his family, his environment, and other matters relevant to the disposition of the case.” Courts Art. § 3-818 (a).

This report is admissible as evidence at a waiver hearing, but the attorney for each party “has the right to inspect the report prior to its presentation to the court, to challenge or impeach its findings, and to present appropriate evidence with respect to it.” Id. Cf. Rule 913, §§ b and c. Procedures upon a waiver of jurisdiction are provided both by Courts Art. § 3-817 (e) and Rule 913, § e.

The statute states: “If the jurisdiction is waived, the court shall order the child held for trial under the regular procedures of the court which would have jurisdiction over the offense if committed by an adult.” The Rule goes into more detail. It provides: “1. If the Court concludes that its jurisdiction should be waived, it shall: (a) state the grounds for its decision on the record or in a written memorandum filed with the clerk; (b) enter an order (i) waiving its jurisdiction and ordering the respondent held for trial under the appropriate criminal procedures; and (ii) placing the respondent in the custody of the sheriff or other appropriate officer in an adult detention facility pending a bail hearing pursuant to Chapter 700 of the Maryland District Rules.” Under both the statute and the Rule, a petition alleging delinquency shall be considered a charging document for purposes of detaining the respondent pending a bail hearing. Courts Art. § 3-817 (d) and Rule 913, § e 2.

In Matter of Trader, 20 Md. App. 1, 14-15 (1974), reversed on other grounds, 272 Md. 364 (1974), we said: “The purpose of a juvenile waiver hearing is to determine the fitness of- the ²³² child for juvenile rehabilitative measures giving due consideration for the safety of the public.” We cited Matter of Flowers, 13 Md. App. 414, 416 (1971) and set out the factors to be considered, which under the law then in effect were in substance the same as the present law. We pointed out, giving Hazell v. State, 12 Md. App. 144, 155 (1971), cert. den., 263 Md. 715 (1971), as authority, that not all of the factors, however, need be resolved against the respondent to justify waiver. We explained, 20 Md. App. at 14 : “The court is not required to make an arithmetic-type calculation as to the weight it assigns each factor. The general rule is that a waiver will be upheld where a preponderance of the legally sufficient evidence shows that such a determination is proper in the light of the factors to be considered.” See Matter of Barker, 17 Md. App. 714, 721 (1973); Matter of Johnson, 17 Md. App. 705 (1973).

THE CASE SUB JUDICE Statement of the Case The respondent in the juvenile proceeding below, who in deference to Rule 1097 shall remain anonymous, but who, for ease of expression shall be hereinafter known as “Albert”, was alleged to have committed certain delinquent acts on two occasions, 22 June 1975 and 14 September 1975. Albert became 18 years of age on 5 October 1975. Two petitions charging him with being a delinquent child were filed on 3 November 1975. The same date the State filed a petition requesting that the Juvenile Court waive its jurisdiction and that Albert be held for action under the regular procedures that would follow if such acts had been committed by an adult.

Upon hearing on 1 December 1975 the court ordered that its exclusive original jurisdiction be waived and that Albert be held for action under the appropriate criminal procedures. Albert appealed. Courts Art. § 3-817 (f). The Waiver Hearing At the hearing on 1 December 1975 Albert opposed the waiver of jurisdiction.

The court read into the record the ²³³ crimes set out in the petitions which were the bases of the allegations of delinquency. The crimes related to the breaking and entering of certain premises on 22 June 1975 and 14 September 1975. The State proffered the testimony of a police officer. The proffer described the circumstances of the breakings and the personal property stolen.

Several days after the last breaking the police, upon receipt of information from a “confidential informant” recovered certain of the stolen articles from Albert’s bedroom. Albert confessed to his participation in the crimes. The first series of offenses were committed three months before Albert reached the age of 18 years and the second series three weeks before he attained that age. The State said: “As to the nature of these offenses, they are both very serious felonies,” with