Matter of Trader

Orth, C. J., delivered the opinion of the Court. I The General Assembly of Maryland, recognizing the advisability of providing for “the care, protection and wholesome mental and physical development of children”, removed, as one means to that end, “from children committing delinquent acts the taint of criminality and the consequences of criminal behavior”, and provided “a program of treatment, training, and rehabilitation consistent with the protection of the public interest.” Maryland Code, Courts and Judicial Proceedings Article, § 3-802. 1 The general law relating to juvenile causes was ⁴ substantially rewritten by ch. 432, Acts 1969, codified as Art. 26, §§ 51-71. Both under the old law as previously in effect and as revised in 1969, the Legislature, in certain circumstances, deemed it necessary in the protection of the public interest to strip the sheltering cloak of juvenile procedures from delinquent children. It provided that a court having jurisdiction in juvenile causes may waive its exclusive jurisdiction over a delinquent child and order that child held for trial under regular procedures of the court which would have jurisdiction over the offense if committed by an adult.

We summarized the law relating to waiver of juvenile jurisdiction in Aye v. State, 17 Md. App. 32 , decided 31 January 1973. See Courts Art. § 3-816. An "Order of a juvenile court waiving its exclusive jurisdiction over a delinquent child was subject to immediate appellate review at the option of an aggrieved party. 2 This was so because “An aggrieved party may appeal from any final order, judgment, or decree of the juvenile court to the Court of Special Appeals in the manner prescribed by the Maryland Rules.” Code, Art. 26, § 70-25. See Maryland Rules, chapter 1000.

Under the old law, Thomas v. State, 10 Md. App. 458, 461 , and the new law as revised in 1969, Wheeler v. State, 10 Md. App. 624, 626 , an order waiving jurisdiction was a final order and terminated the jurisdiction of the juvenile court over the case. This was spelled out in plain words in § 70-16 (c) of Art. 26: “An order of waiver shall be considered a final order and terminates the jurisdiction of the [juvenile] court over the case.” In Aye v. State, supra, at 36-40, we discussed the jurisdiction of the various courts involved and the procedures to be followed ⁵ when a waiver of juvenile jurisdiction was challenged on direct appeal and when it was not so challenged, and the law in that area was satisfactorily settled. 3 On 1 July 1973 the law concerning appeal from waiver of juvenile jurisdiction became decidedly unsettled. This was the effective date of ch. 773, Acts 1973. It repealed and re-enacted § 70-16 (c) of Code, Art. 26. “An order of waiver shall be considered a final order and terminates the jurisdiction of the court over the case” was rewritten to read, as stylistically revised by the Courts Article: “An order waiving jurisdiction is interlocutory.” Courts Art. § 3-817.

The effect was drastic. Being interlocutory, a waiver order was no longer immediately appealable, and it is patent that this was the legislative intent. Whether it was appealable at all, and if so, how and when, was put in limbo. II The provisions of the general law relating to juvenile causes do not apply to Montgomery County.

Code, Art. 26, § 71, read: “The provisions of this subtitle [Juvenile Causes] shall not apply to Montgomery County.” 4 Courts Art. § ⁶ 4-403 prescribes: “In Montgomery County only, the District Court has jurisdiction in juvenile causes as provided in subtitle 5 [Juvenile Causes in Montgomery County] of this Title.” 5 The purposes of the subtitle, although couched in different language, are in substance the same as the declared purposes of the general law of juvenile causes, and it is clear that the underlying philosophy of the general law and of the Montgomery County law is the same. 6 Jurisdiction under the general law is similar to that under the Montgomery County law, 7 and the substantive and procedural aspects of each law are generally comparable. The jurisdiction bestowed and the substantive and procedural aspects prescribed are such as to accomplish the purposes of the laws. Like the general law, the Montgomery County law contains provisions for the waiver by the juvenile court of its jurisdiction. Courts Art. § 4-506. 8 Under each law the procedure after waiver is for the court to order the child ⁷ proceeded against as an adult.

Courts Art. § 3-816 (e), § 4-506 (b) and § 4-509. But unlike the present status of the general law, the waiver order under the Montgomery County law is a final order. Courts Art. § 4-508 provides that jurisdiction obtained by the juvenile court continues until the child reaches 21 years of age unless the court terminates jurisdiction sooner, (emphasis supplied) The waiver order, because it terminates the jurisdiction of the juvenile court, is a final order in the absence of statutory provision to the contrary, 9 and, as such, is immediately appealable. 10 The effect of all this is that in Montgomery County a child alleged to be delinquent may have the juvenile court’s decision to waive its jurisdiction reviewed on appeal before action under the regular procedure that would follow if the acts it is claimed he committed were committed by an adult, but in all other parts of the State such a child, subject only to the waiver order being valid on its face, is prosecuted for criminal conduct as an adult without the right first to have the validity of the waiver by the juvenile court determined under appellate procedures. The unfavorable position of the child without the boundaries of Montgomery County is obvious.

Ill Although, in Maryland, appellate jurisdiction is at the largess of the General Assembly, a state not being required by the federal constitution to provide the right of appellate review, when the right is given, a person is protected from invidious discriminations with respect thereto or from improper denials thereof by the due process and equal ⁸ protection clauses of the federal constitution. 11 State v. Lohss, 19 Md. App. 489 , citing Griffin v. Illinois, 351 U. S. 12, 18 ; Harris v. State, 6 Md. App. 7, 17 ; McCoy v. Warden, 1 Md. App. 108, 121 . We think that the unfavorable position with respect to the immediate right of appeal from a waiver of juvenile jurisdiction of a child in other parts of the State as compared to a child in Montgomery County amounts to prejudice of constitutional dimension. “The Equal Protection Clause relates to equality between persons as such rather than between areas.” Salsburg v. State of Maryland, 346 U. S. 545, 551 . “It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.” State of Missouri v. Lewis, 101 U. S. 22, 31 . Prior to the enactment of ch. 773, Acts 1973, all children within that class of persons consisting of children alleged to be delinquent enjoyed the same protection of the laws — they all had the right to an immediate appeal from an order of a juvenile court waiving its jurisdiction over them to a court with criminal jurisdiction. The statute, however, leaving the right to the members of the class in Montgomery County, denied the right as to members of the class in the rest of the State.

We think that ch. 773, Acts 1973, now codified as Courts Art. § 3-817, is in contravention of the equal protection and due process clauses of the Fourteenth Amendment and is invalid with respect to the waiver order being interlocutory. The general rule is that “A statutory discrimination will not be set aside as a denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580, 584 . Wq cannot reasonably conceive of a state of facts to justify distinguishing, with respect to the right to appeal from a waiver order, between a child alleged to have ⁹ committed a delinquent act in Montgomery County and a child alleged to have committed such an act in any other county or Baltimore City.

We were persuaded in Greene v. State, 11 Md. App. 106 , in adopting the holding in Long v. Robinson, 316 F. Supp. 22 (D. Md. 1970), affirmed in Long v. Robinson, 436 F. 2d 1116 (4th Cir. 1971), that there was no reasonable justification for the requirement that those persons 16 and 17 years old arrested for acts committed in Baltimore City be tried as adults in the Criminal Court of Baltimore, when persons the same age arrested for acts anywhere else in Maryland would be first subject to the jurisdiction of the juvenile court system. 12 The United States District Court 13 concluded that there was no psychological or physical basis for distinguishing between 16 and 17 year old persons residing in Baltimore City and in the Counties and that, if there was in the past reasonable ground for such distinction, there was no present justification for it — such basis no longer exists. It found the exception as to Baltimore City to be arbitrary, unreasonably discriminatory, and not related to any legitimate State objective, with an effect which was not hypothetical or theoretical but starkly real. 316 F. Supp. at 27-28 . We think the denial of appeal everywhere in the State except Montgomery County to be equally arbitrary, unreasonably discriminatory and unrelated to any legitimate State objective. The child alleged to be delinquent for the commission of a crime in Montgomery County, regardless of residence, see Courts Art. § 4-504 (a), upon waiver by the juvenile court, will not be tried under criminal procedures as an adult, if he opts to have the validity of the waiver tested on appeal, until the waiver has been found to meet all applicable statutory and constitutional requirements.

Anywhere else in the State, upon waiver of the juvenile court, such child will be held as an adult, and, subject only to the waiver order being valid on its face, will be tried under criminal procedures as an ¹⁰ adult. 14 The child waived to the criminal court in other than Montgomery County, even if ultimately acquitted or even if afforded appellate review of the waiver after conviction, has been compelled to stand trial on criminal charges as an adult, unlike the child in Montgomery County, without the opportunity of an appellate determination whether the waiver procedure met statutory and constitutional requirements. We believe that the discrimination patently resulting therefrom is not hypothetical or theoretical, but starkly real. We hold that the part of ch. 773, Acts 1973, formerly codified as Art. 26, § 70-16 (c), presently codified as Courts Art. § 3-817, which declares “An Order waiving jurisdiction is interlocutory”, is unconstitutional and void. 15 Whether our holding may be deemed to resurrect the former statute providing that “An order of waiver shall be considered a final order and terminates the jurisdiction of the court over the case” or to leave it repealed, is immaterial. Even without the express declaration of finality, under the remaining provisions of the law it is patent that, absent the legislative prescription to the contrary, an order waiving jurisdiction terminates the jurisdiction of the juvenile court, and is, therefore, a final order. “A person subject to the jurisdiction of the juvenile court may not be prosecuted for a ¹¹ criminal offense committed before he reached 18 years of age unless jurisdiction has been waived.” Courts Art. § 3-809.

It necessarily follows that he may be so prosecuted upon waiver, and to be so prosecuted the jurisdiction of the juvenile court must have terminated. The jurisdiction of a juvenile court over a child continues until the person has reached 21 years “unless terminated sooner.” Courts Art. § 3-815 (a). As the waiver is the “sooner” termination, upon the order of waiver the jurisdiction of the juvenile court is ended. IV Four petitions were filed by the State’s Attorney for Baltimore City in the Circuit Court of Baltimore City, Division for Juvenile Causes (Juvenile Court) alleging that RICHARD LEE TRADER, bom 16 November 1955, was a delinquent child. 16 The State’s Attorney requested that the jurisdiction of the Juvenile Court be waived.

A waiver hearing was had on 6 July 1973. The same date the court waived its jurisdiction as to each of the petitions and ordered Trader held for action under the regular criminal procedures. 17 On 26 July 1973 Trader noted an appeal therefrom. It was docketed in the Court of Special Appeals of Maryland as Matter of Richard Lee Trader, No. 380, September Term, 1973. ¹² The grand jury for the City of Baltimore filed four presentments on 7 August 1973 and four indictments, Nos. 17303355-56-57 and 58, on 16 August, charging Trader with four crimes of arson and related offenses, predicated upon the acts upon which the delinquency petitions were based. On 4 September Trader moved to dismiss the indictments on the ground that the statute designating an order of waiver interlocutory was unconstitutional.

The motion was heard in the Criminal Court of Baltimore on 24 September. The court granted the motion to dismiss the indictments, finding that the amendment of the statute was “so repugnant to the original jurisdictional plan for juvenile proceedings as evidenced by Article 26 that it must be stricken down as being unconstitutional.” The State appealed from the order dismissing the indictments. Courts Art. § 12-302 (c). The case was docketed in the Court of Special Appeals of Maryland as State v. Richard Lee Trader, No. 589, September Term, 1973.

Upon joint motion of Trader and the State, the two cases were consolidated for briefing and argument by order of this Court of 29 October 1973. 18 V In case No. 380 the State moved to dismiss the appeal, claiming that as at the time of the waiver hearing an order waiving jurisdiction was interlocutory, there was no right of appeal. In the light of our holding unconstitutional and void the part of ch. 773, Acts 1973, formerly codified as Art. 26, § 70-16 (c), presently codified as Courts Art. § 3-817, which declares “An order waiving jurisdiction is interlocutory”, the motion to dismiss is denied. This leaves the appeals from the waiver orders properly before us. 19 With respect to case No. 589, we set out the effect of an order of waiver in Aye v. State, supra, at 36-37: ¹³ “Jurisdiction over the person of the child then vests in the court having jurisdiction over the criminal offense with which that child is charged. If an appeal is noted from an order of waiver in accordance with the Maryland Rules, the criminal court, pending the determination of the appeal has no jurisdiction over the case.

This Court is then vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto are suspended. * * * This is so even though the general rule is that an appeal in the juvenile proceeding shall not stay the order, judgment, or decree appealed from, * * (footnotes and citations omitted) Courts Art. § 3-809, entitled “Prosecutions Barred in Absence of Transfer”, provides: “A person subject to the jurisdiction of the juvenile court may not be prosecuted for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived.” Upon the noting of the appeal from the waiver orders, whether the jurisdiction of the juvenile court over Trader had been effectively waived, could not be determined until validity of the waiver proceedings had been resolved under appellate procedures. If it was found that the waiver proceedings were invalid, jurisdiction reverted back to the Juvenile Court. If it was found that the waiver proceedings were valid, jurisdiction became vested in the criminal court. But until a final appellate determination that the waiver was valid, prosecution for a criminal offense was barred.

It follows that in case No. 589 the Criminal Court of Baltimore had no jurisdiction, and, therefore, its actions on all matters which came before it concerning Trader, including the grant of the motion to dismiss the indictments, were null and void. As to case No. 589 the appeal is dismissed, there being nothing from which to appeal. Rule 1035, §§a2andb(l). 20 ¹⁴ VI There remains the question of the propriety of the waiver proceedings. Trader claims that the evidence was not sufficient to sustain the court’s decision to waive its jurisdiction.

The degree of proof required was a preponderance of the evidence. Courts Art. § 3-830 (e). The purpose of a juvenile waiver hearing is to determine the fitness of the child for juvenile rehabilitative measures giving due consideration for the safety of the public. Matter of Flowers, 13 Md. App. 414, 416 .

The factors to be considered are designated in Courts Art. § 3-816 (c): “(1) age of child; (2) mental and physical condition of child; (3) the child’s amenability to treatment in any institution, facility, or program available to delinquents; (4) the nature of the offense; and (5) the public safety.” Not all of the factors, however, need be resolved against the juvenile to justify waiver. Hazell v. State, 12 Md. App. 144, 155 . 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.

Matter of Barker, 17 Md. App. 714, 721 ; Matter of Johnson, 17 Md. App. 705 . For the purpose of making a determination a court may request that a study concerning the child, his family, his environment and other matters relevant to the disposition of the case be made. Courts Art. § 3,-816 (e); Rule 911 b. A waiver investigation was made in this case and a ¹⁵ comprehensive report submitted by the Department of Juvenile Services. 21 Trader concedes that the hearing judge “expressly based his decision on all of the statutory criteria.” He challenges, however, “the trial court’s conclusions on each criterion as unsupported by a preponderance of the evidence, and further challenges the court’s holding that the cumulative effect of the five [criteria] was sufficient to warrant waiver.” Trader’s competency to participate in the waiver hearing was expressly conceded by his counsel.

For the record the court reviewed Trader’s record: “[T]he respondent is 17 years of age and will be 18 on November the 16th of this year. Let the record also show that on September 25th, 1969 the respondent was found to be a child in need of supervision, by reason of being ungovernable, to being truant, and leaving home without permission. There was a mental evaluation conducted. And he was later committed to Boy’s