2004-822, IN RE JUVENILE 2004-822

arguing that the court c ould not legally sentence the juvenile to a suspended dispositional hearing, counsel for the juvenile filed a memorandum of law adjudicatory hearing, the court found the juvenile petition “true.” Prior to the assault, which he allegedly committed at the age of twelve. Following an the juvenile was charged with delinquency and aggravated felonious sexua l The limited record reflects the following facts. At the age of seventeen,

act he committed when he was twelve years old. We affirm. 628:1 (Supp. 2005) precludes hol ding a person “criminally responsible” for an that the trial court erred in imposing a suspended jail sentence because RSA system of juvenile jury trials that subjects juveniles to double jeopardy; and (2) (1) RSA 169 - B:19, III - c (Supp 2005) is unconstitutional because it establishes a Court (Cappiello, J.) sentencing him to a suspended jail term. He argues that: NADEAU, J. The juvenile appeals an order of the Rochester District

and orally, for the juvenile. Andrew Winter s, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 2004 - 822 Rochester Distri ct Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

juvenile. T he Breed Court only prohibited the transfer of a case to an adult in Breed v. Jones, but nothing in Breed precludes a de novo appeal for a The juvenile first relies upon the United States Supreme Court’s decision

III - c (d). suspended . . . during the pendency of the de novo process.” RSA 169 - B:19, portions of the dispositional order made by the originating court [tha t were] a finding of true, the de novo trial court may “reinstate or modify only those incarceration will be vacated pending the de novo jury trial. If the jury returns the pre - trial and trial proceedings,” but any previou s disposition involving placement, supervision and treatment of the juvenile during the pendency of originated shall retain jurisdiction over all matters and orders pertaining to the B:19, III - c (c) provides in relevant p art that “[t]he court in which the petition it shall be conducted by a specially assigned district court judge. Id. RSA 169 building equipped with jury capability, RSA 169 - B:19, III - c (b), and in all cases Whenever possible, the de novo jury trial shall be held in a district court before a jury” by filing a request within three days of his original adjudication. such juvenile “may, after the disposition is issued, request a de novo trial right to a jury trial.” RSA 169 - B:19, III - c (b) provides in relevant part that any committed without first being afforded the right to a jury trial or waiving the suspended, or deferred sentence to an adult correctional facility “shall not be relevant part that any juvenile whose disposition includes an imposed, trial procedure, effective January 1, p. 2 2003. RSA 169 - B:19, III - c (a) provides in The legislature enacted RSA 169 - B:19, III - c, establishing a juvenile jury

incarceration of juveniles in adult correctional facilities. Id. at 7 p. 2 25. 169 - B:19, III - a (2002) were unconstitu tional to the extent that they allowed time Jeffrey C. was decided, we held that RSA 169 - B:19, III (2002) and RSA 724. Because no New Hampshire statute authorized a juvenile jury trial at the correctional facilities without first affording them the right to a jury trial. Id. at Constitution bars the State from incarcerating juvenile offenders in adult Jeffrey C., 146 N.H. 722 (2001). There we held that the New Hampshire The legislature enacted RSA 169 - B:19, III - c following our decision in In re

N.H. 661, 664, cert. denied, 1 p. 2 25 S. Ct. 2918 (2005). law, we review the trial court’s determination de novo. State v. Kepple, 151 Constitutions. Because the constitutionality of a statute involves a question of which violates the Double Jeopardy Clauses of the State and Federal RSA 169 - B:19, III - c, a juvenile who chooses to have a jury trial faces two trials, 519 (1975). Specifically, he argues that under the procedure established by it s ubjects juveniles to double jeopardy in violation of Breed v. Jones, 421 U.S. The juvenile argues that RSA 169 - B:19, III - c is unconstitutional because

jail term of twelve to eighteen months. jail sentence. After a hearing, the court sentenced the juvenile to a suspended p. 3 3

two trials in order to exercise their right to a jury t rial. The Massachusetts New Hampshire cannot waive the first non - jury trial, and thus they must have The juvenile attempts to distinguish Ludwig on the basis that juveniles in

Id. at 6 p. 3 31 - 32 (citation omitted).

and secure an acq uittal. from affording a defendant two opportunities to avoid conviction first trial. Nothing in the Double Jeopardy Clause prohibits a State a new trial without assignment of error in the proceedings at his convicted defendant in Mass achusetts may obtain a “reversal” and and an appeal resulting automatically in a new trial is that a reprosecute. The only difference between an appeal on the record circumstances, it long has been clear that the State may conviction and a remand of his case for a new trial. Under these appeals on the basis of the trial record and gains a reversal of his different position than is a convicted defendant who successfully defendant who elects to be tried de novo in Massachusetts is in no [T]he decision to secure a new trial re sts with the accused alone. A

protection against double jeopardy, the Court reasoned: In holding that the Massachusetts system did not violate the constitutional jeopardy claim that the juvenile has raised in the instant case. See id. at 6 p. 3 31. district court. In Ludwig, the Supreme Court rejected the same double system in place in Massachusetts for adults convicted of misdemeanors in the 618 (1976), considered a double jeopardy challenge to a similar de novo trial The United States Supreme Court, in Lud wig v. Massachusetts, 427 U.S.

v. Canaan Mun. Ct., 116 N.H. 616, 618 (1976). The effect of such an appeal is to vacate the district court judgment. Jenkins (1976); RSA 502 - A:12 (1997); RSA 599:1 (2001); see also RSA 592 - A:2 (2001). 115 N.H. 628, 6 p. 3 30 (1975) (decided under prior law), cert. denied, 42 7 U.S. 909 right to a de novo trial in the superior court with a jury. See State v. Handfield, convicted of a class A misdemeanor in a district court without a jury has the is provided to certain adult defendants. An adul t defendant who has been time extending beyond their seventeenth birthday. A similar de novo jury trial found to be delinquent and sentenced to committed, suspended, or deferred jail RSA 169 - B:19, III - c prov ides a de novo jury trial for juveniles who are

inapposite. court system and the juvenile does not stand trial as an adult. Thus, Breed is a court of general criminal jurisdiction; rather, the case remains in the juvenile requesting a de novo trial pu rsuant to RSA 169 - B:19, III - c, is not transferred to adjudicated in juvenile court. Breed, p. 4 421 U.S. at 541. By contrast, a juvenile court where the juvenile would be tried as an adult after the juvenile had been 4

adult correctional facility is imposed. We disagree. juvenile is n ecessarily held “criminally responsible” whenever a sentence to an of RSA 628:1. He argues that Jeffrey C. stands for the proposition that a corrections, it thereby holds the juvenile “criminally responsible” for purposes when a district court sentences a juvenile to incarceration in a house of to be a juvenile delinquent, as was the case here. The juvenile c ontends that juvenile who committed an offense when he was twelve years old may be found adjudged to be a juvenile delinquent.” Pursuant to RSA 628:1, I, then, a less than 15 years old is not criminally responsible for his conduct, but may be RSA 628:1, I, in relevant part provides that, for most offenses, “a person

him to a term of incarceration in an adult facility. We disagree. assaul t, the plain language of RSA 628:1 precluded the court from sentencing only twelve years old when he committed the aggravated felonious sexual held him criminally responsible. The juvenile contends that because he was twelve years old, and that by imposing a suspended jail sentence, the court holding a person criminally responsible for an act he committed when he was Next, the juvenile argues that the plain language of RSA 628:1 precludes

waive a de novo jury trial after an initial adjudication. trial system, there is no double jeopardy bar to allowing the juvenile to elect or the adult defendant’s double jeopardy rights are not violated by the de novo who is first tried for a class A misdemeanor in district court. Therefore, just as no greater hardship upon a juvenile than is placed upon an adult defendant imposed. In re Jeffrey C., 1 p. 4 46 N.H. at 725. Thus, RSA 169 - B:19, III - c imposes afforded that right before a sentence to an adult correctional facility can be Accordingly, without a waiver of his right to a jury trial, the juvenile must be to a jury trial or waiving the right to a jury trial.” RSA 169 - B:19, III - c. sentenced to an adult correctional facility “without first being afforded the right summary procedure. The statute expressly provides that no juvenile may be de novo jury trial. Nothing in RSA 169 - B:19, III - c prohibits this type of having the district court enter a finding of “true,” and proceeding directly to his opportunity to forgo a full contest of the charges in the initial adjudication by A juvenile c harged by petition in New Hampshire is afforded a similar

627. find the strengths and the weaknesses of the State’s case against him.” Id. at a defendant could “utilize [the first] proceeding fruitfully as a discovery tool and trial by ju ry. Id. at 626. On the other hand, as the Ludwig Court pointed out, judge find him guilty and impose a sentence, and then requesting his de novo procedure of ‘admitting sufficient findings of fact’” in the first trial, having the could “enjoy his right to trial by jury expeditiously by invoking the . . . second.” Id. at 620. The Ludwig Court noted, however, that the def endant avoid a trial of some sort at the first tier before he obtain[s] a trial by jury at the scheme at issue in Ludwig, however, similarly did “not allow an accused to p. 5 5

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

RSA 628:1. finding of guilt in a criminal proceeding. Accordingly, we find no violation of time of his adjudication, the adjudication of “true” was not equivalent t o a correctional facility by virtue of the fact that he was seventeen years old at the Although the juvenile’s sentence included a suspended term in an adult 169 - B, which establishes the procedures and penaltie s for juvenile delinquents. adult proceeding or any penalties that were not authorized under RSA chapter the juvenile’s case transferred to the superior court, nor was he subjected to an crime and no such conviction has been entered on the record. At no time was 169 - B:34 -:38 (2002 & Supp. 200 p. 5 5). The juvenile has not been found guilty of a case once he becomes twenty - one years old. See RSA 169 - B:4, VI (2002); RSA proceedings, including confidentiality of the proceedings and the closing of his The juvenile here was afforded all the protections that attend juvenile

guilty of a crime and thus been held “criminally responsible.” sentencing a juvenile to a term of incarceration, the juvenile has been found and transfer to the superior court). Nothing in J effrey C. suggests that by held criminally responsible, but only after certification under RSA 169 - B:24 or more of certain offenses when he was between thirteen and fifteen, may be Cf. RSA 628:1, II (juvenil e between thirteen and seventeen, who committed one indictment and subject to the full range of criminal penalties for that offense. assault is to be treated as an adult: to be tried in superior court after an To be held “criminally responsible” for aggravated felonious sexual

incarceration in an adult facility a de novo trial by jury at their election. ruling, the legislature amended RSA 169 - B:19 to grant juveniles facing afforded a jury trial. In re Jeffrey C., 146 N.H. at 724. In response to that adult correctional facility was unconstitutional where the juvenile had not been In Jeffrey C. we held that the incarceration of a delinquent juvenile in an