In Re Saifu K.

MEREDITH, J. On September 13, 2001, a petition was filed in the Circuit Court for Montgomery County, alleging that Saifu K., the appellee, engaged in delinquent conduct when he was 14 years old by committing sexual offenses upon his young cousin during a period when he was living with her family the previous year. By the time the petition was filed, Saifu resided with his parents and had relocated to another state. The petition was not served upon him until he was arrested six years later, and there was no evidence that Saifu or his parents were aware of the petition until it was served. On September 28, 2007, when Saifu was 21 years old, the State, appellant, moved for the circuit court, sitting as the juvenile court, to waive juvenile jurisdiction and transfer this matter to adult court for criminal prosecution pursuant to Maryland Code (1973, 2006 Repl.Vol.), Courts and Judicial Proceedings ³⁹⁷ Article (“CJ”), § 3-8A-07(e).

The State’s motion was denied after a hearing, and Saifu’s motion to dismiss the juvenile petition was granted. The State appealed the juvenile court’s rulings, and raises the following question: Did the juvenile court err in declining to transfer Saifu K.’s case to adult court pursuant to Section 3-8A-07 of the Juvenile Causes subtitle and dismissing the case? We answer “no” to that question and affirm the judgment of the juvenile court. Facts and Procedural History The facts giving rise to this appeal were well summarized by Circuit Court Judge Ronald B. Rubin as follows in his written opinion: The relevant facts are simple and largely undisputed, albeit unusual.

The Respondent [Saifu] was born on February 8, 1986, making him now over 21 years old. The alleged offenses occurred between September and December, 2000, making the Respondent 14 years old at the time of the alleged offenses. According to the Petition [filed by the State on September 13, 2001], during the later part of 2000, the Respondent committed rape in the second degree ... (and related offenses) upon a minor female.

On March 26, 2001, Child Protective Services received a report of child sexual abuse of a 6 year old, Nichole K. The Respondent, Saifu K., was the cousin of the alleged victim and was residing temporarily in the victim’s home in Maryland at the time of the events in question. The victim disclosed the incidents in March 2001, after the Respondent returned to his home in Staten Island, New York. Thereafter, a joint investigation was initiated by Child Protective Services and the State’s Attorney’s Office for Montgomery County. The State’s Attorney had an address for the Respondent in New York, and two telephone numbers.

The State left messages on the voice mail recordings for both telephone numbers, and sent correspondence to the ³⁹⁸ Staten Island address. When no response was received, the case was forwarded to the Department of Juvenile Services, which authorized the filing of a juvenile Petition. The Petition was filed on September 13, 2001. The Petition that was sent to the Respondent’s Staten Island address by regular mail contained an incorrect zip code and incorrect apartment number.

A Preliminary Inquiry was held on October 3, 2001, and the Respondent did not appear. The Preliminary Inquiry was continued to October 17, 2001, and when the Respondent failed to appear, the Court issued a Writ of Attachment. Several status hearings were held thereafter and the issuance of the Writ was reaffirmed on those occasions. The State periodically, albeit unsuccessfully, attempted to locate the Respondent and his family.

In May 2007, the State obtained additional information and the Respondent was arrested in New Jersey. After extradition to Maryland, the Writ was served on September 28, 2007. The Court held a Preliminary Inquiry that day and detained the Respondent. A petition to waive this matter to adult criminal court, under § 3-8A-07 of the' Courts Article, was filed on September 28, 2007.

The Court held a hearing on October 1, 2007, continued the Respondent’s detention, but ordered the State and the Attorney General (on behalf of the Department of Juvenile Services) to brief certain issues. A waiver hearing was set for October 26,2007. At the waiver hearing, the State argued that, under C J § 3-8A-07(e), the juvenile court had no authority to take any action other than waiving jurisdiction to the circuit court for criminal prosecution. The specific subsection upon which the State bases its argument reads: “The court has exclusive original jurisdiction, but only for the purpose of waiving it, over a person 21 years of age or older who is alleged to have committed a delinquent act while a child.” 1 ³⁹⁹ The juvenile court disagreed with the State’s contention that CJ § 3-8A-07(e) made the waiver of juvenile jurisdiction mandatory.

The court noted that, under CJ § 3-8A-06(a), because the offenses were alleged to have been committed when Saifu was only 14, and were not offenses that were punishable by death or life imprisonment, the court could not have waived juvenile jurisdiction if Saifu had been brought before the court prior to his 21st birthday. 2 The court observed that the legislature “has decided that persons of a certain age, when they engage in conduct that would be unlawful if done by an adult, do not commit crimes but instead commit ‘delinquent acts.’ Such persons are not to be punished but, instead, are to be afforded ‘treatment, guidance and rehabilitation.’ See, e.g., Smith v. State, 399 Md. 565, 580-81 , 924 A.2d 1175 (2007); Lopez-Sanchez v. State, 388 Md. 214 , 247-M9, 879 A.2d 695 (2005) (Wilner, J., concurring); In re Franklin P., 366 Md. 306, 329-30 , 783 A.2d 673 (2001).” The court pointed out that, under CJ § 3-8A-03(a)(l), and subject to certain statutory exceptions not applicable to the present case, a juvenile court “has exclusive original jurisdiction over ... a child who is alleged to be delinquent,” as the State alleged with respect to Saifu in the petition that was filed in the present case. 3 This conclusion is supported by CJ ⁴⁰⁰ § 3-8A-05(a), which provides: “If a person is alleged to be delinquent, the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle.” 4 See In re Darren M., 358 Md. 104, 112 , 747 A.2d 612 (2000) (“In making a jurisdictional determination based on age, the age of the person at the time he or she allegedly committed the acts underlying the charges generally controls.”). The State timely noted an appeal of the juvenile court’s decision to deny the State’s petition to waive jurisdiction. Discussion As we noted above, at the time Saifu allegedly committed the delinquent acts, from September to December of 2000, the provision that is now CJ § 3-8A-07 was codified at CJ §§ 3-806 and 3-807, Md.Code (1973, 1998 Repl.Vol.). More specifically, what is now CJ § 3-8A-07(e) was then CJ § 3-807(b); the language of that particular subsection is unchanged.

Accordingly, hereinafter we shall refer to former CJ §§ 3-806 and 3-807 instead of CJ § 3-8A-07. Similarly, as to other statutes in the Juvenile Causes subtitle that are relevant to this case, we note that the provisions that are now CJ §§ 3-8A-03, -05, and -06 were then codified at CJ §§ 3-804, -805, and -817, respectively, and we shall refer to the three older equivalent statutes hereinafter. In September 2000, those three were codified in the 1998 Replacement Volume. But they were then amended effective October 1, 2000, at which point they were codified at Maryland Code (1973, 1998 Repl.

Vol., 2000 Supp.) of the Courts and Judicial Proceedings Article. Because these amendments did not make any changes material to the case sub judice, for simplicity’s sake, we shall quote the version of all five statutes found in the 1998 Replacement Volume. ⁴⁰¹ We consider several sections of the Juvenile Causes subtitle pertinent to our conclusion that CJ § 3-807(b) did not mandate waiver of the juvenile court’s jurisdiction. In general, CJ § 3-804 described the juvenile court’s jurisdiction; § 3-805(a) established that the age of the alleged offender at the time of the alleged offense controlled jurisdictional issues; §§ 3-806 and 3-807 provided for termination of the juvenile court’s jurisdiction; and § 3-817 established the circumstances for waiver of the juvenile court’s exclusive jurisdiction. We quote excerpts of the former language of the Juvenile Causes subtitle, as published in Md.Code (1973, 1998 RepLVol.): Section 3-804.

Jurisdiction of court. (a) Child alleged to be delinquent, in need of supervision or assistance or with citation for violation; termination, of parental rights and related adoption proceedings.—The court has exclusive original jurisdiction over: (1) A child alleged to be delinquent, in need of supervision, in need of assistance or who has received a citation for a violation; (e) Limitations.—The court does not have jurisdiction over: (1) A child at least 14 years old alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment, as well as all other charges against the child arising out of the same incident, unless an order removing the proceedings to the court has been filed under Article 27, § 594A of the Code; (2) A child at least 16 years old alleged to have done an act in violation of any provision of the Transportation Article or other traffic law or ordinance, except an act that prescribes a penalty of incarceration; (3) A child at least 16 years old alleged to have done an act in violation of any provision of law; rule, or regulation governing the use or operation of a boat, except an act that prescribes a penalty of incarceration; ⁴⁰² (4) A child at least 16 years old alleged to have committed any of the following crimes, as well as all other charges against the child arising out of the same incident, unless an order removing the proceeding to the court has been filed under Article 27, § 594A of the Code: (i) Abduction; (ii) Kidnapping; (iii) Second degree murder; (iv) Manslaughter, except involuntary manslaughter; (v) Second degree rape; (vi) Robbery with a dangerous or deadly weapon; (vii) Second degree sexual offense in violation of Article 27, § 464A(a)(l) of the Code; (viii) Third degree sexual offense in violation of Article 27, § 464B(a)(l) of the Code; (ix) A crime in violation of Article 27, § 36B, § 373, § 374, § 445, § 446, or § 481C of the Code; (x) Using, wearing, carrying, or transporting of firearm during and in relation to a drug trafficking crime in violation of Article 27, § 281A of the Code; (xi) Use of a firearm in violation of Article 27, § 291A of the Code; (xii) Carjacking or armed carjacking in violation of Article 27, § 348A of the Code: (xiii) Assault in the first degree in violation of Article 27, § 12A-1 of the Code; (xiv) Attempted murder in the second degree in violation of Article 27, § 411A of the Code; (xv) Attempted rape or attempted sexual offense in the second degree under Article 27, § 464F of the Code; or (xvi) Attempted robbery with a dangerous or deadly weapon under Article 27, § 488 of the Code. ⁴⁰³ Section 3-805. Determination of jurisdiction. (a) Cases of delinquency.—If a person is alleged to be delinquent, the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle.

(b) Other cases.—In all other cases the age of the child at the time the petition is filed controls the determination of jurisdiction under this subtitle. Section 3-806. Retention or termination of jurisdiction. (a) Duration.—If the court obtains jurisdiction over a child, that jurisdiction continues until that person reaches 21 years of age unless terminated sooner.

(b) Offenses committed after age of 18.—This section does not affect the jurisdiction of other courts over a person who commits an offense after he reaches the age of 18. (c) Termination.—Unless otherwise ordered by the court, the court’s jurisdiction is terminated over a person who has reached 18 years of age when he is convicted of a crime, including manslaughter by automobile, unauthorized use or occupancy of a motor vehicle, or operating a vehicle while under the influence of intoxicating liquors or drugs, but excluding a conviction for a violation of any other traffic law or ordinance or any provision of the State Boat Act, or the fish and wildlife laws of the State. Section 3-807. Prosecution barred in absence of waiver.

(a) In general.—A person subject to the jurisdiction of the court may not be prosecuted for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived. (b) Exclusive original jurisdiction.—The court has exclusive original jurisdiction, but only for the purpose of waiving it, over a person 21 years of age or older who is alleged to have committed a delinquent act while a child. ⁴⁰⁴ Section 3-817. Waiver of jurisdiction. (a) How waived.—The court may waive the exclusive jurisdiction conferred by § 3-804 with respect to a petition alleging delinquency by: (1) A child who is 15 years old or older; or (2) A child who has not reached his 15th birthday, but who is charged with committing an act which if committed by an adult, would be punishable by death or life imprisonment.

(b) Hearing.—The court may not waive its jurisdiction until after it has conducted a waiver hearing, held prior to an adjudicatory hearing and after notice has been given to all parties as prescribed by the Maryland Rules. The waiver hearing is solely to determine whether the court should waive its jurisdiction. (c) Unfit subject for juvenile rehabilitative measures.— The court may not waive its jurisdiction unless it determines, from a preponderance of the evidence presented at the hearing, that the child is an unfit subject for juvenile rehabilitative measures. For purposes of determining whether to waive its jurisdiction, the court shall assume that the child committed the delinquent act alleged.

(d) Criteria.—In making its determination, the court shall consider the following criteria individually and in relation to each other on the record: (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; (4) The nature of the offense and the child’s alleged participation in it; and (5)