Opinion
No. 51926-3-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-01252-6. Judgment or order under review. Date filed: 02/10/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
T Weaver — Informational Only (Appearing Pro Se), P.O. Box 1233, Blaine, WA 98230.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Travis Weaver appeals his adult superior court conviction of conspiracy to possess marijuana. He argues he was denied effective assistance of counsel when his attorney failed to file a motion extending juvenile jurisdiction beyond his 18th birthday. Because Weaver fails to establish that the outcome would have been different but for his counsel's error, we affirm.
FACTS
On May 7, 2002, three months before his 18th birthday, Travis Weaver was in Blaine, Washington, with two friends, Richard Akers and Skyler Anderson. They were waiting near the Canadian/United States border for two men, Nicholas Rinnert and Zachary Waters, to deliver two hockey bags that contained 39 pounds of marijuana. Weaver and his friends planned to hold the bags for Rinnert and Waters until they crossed the border. When Weaver received a call on his cell phone that Rinnert and Waters were going to make the drop, the teenagers drove a red SUV to an unfenced area near the border. Unbeknownst to the boys, Border Patrol agents with night vision goggles were watching Rinnert and Waters drop the bags off. They saw Weaver and his friends pick them up, take them over the border, and load them into the trunk of Waters' car. The Border Patrol stopped and arrested Waters and Rinnert. Eventually, they also stopped the SUV and arrested Akers, Anderson, and Weaver. The State charged Weaver as a juvenile with conspiracy to possess marijuana. Both the State and Weaver continued the case several times, and Weaver waived his right to a speedy trial. Apparently unbeknownst to his attorney, Weaver turned 18 on August 5, 2002, and his attorney had not filed a motion to extend juvenile jurisdiction. On September 11, 2002, the State refiled the conspiracy charge in adult court where a jury convicted Weaver. He appeals.
ANALYSIS
The standard of review for ineffective assistance of counsel is set forth in Strickland v. Washington.
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . ."
In re Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001) (quoting Strickland, 466 U.S. at 687).
Reasonable attorney conduct includes a duty to investigate the facts and relevant law. There is no constitutional right to be tried as a juvenile, and juvenile jurisdiction is defined by statute. A juvenile court loses jurisdiction when the juvenile turns 18 unless jurisdiction is extended by written order before the juvenile's 18th birthday. Once a juvenile court loses jurisdiction, it cannot reinstate it retroactively. Juvenile court jurisdiction is strictly construed. This court reviews a lapse of juvenile jurisdiction de novo.
State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978).
State v. Dixon, 114 Wn.2d 857, 860, 792 P.2d 137 (1990).
See ch. 13.40 RCW; State v. Sharon, 33 Wn. App. 491, 495, 655 P.2d 1193 (1982), affirmed by 100 Wn.2d 230, 668 P.2d 584 (1983).
RCW 13.40.300(1)(a); State v. Nicholson, 84 Wn. App. 75, 78, 925 P.2d 637 (1996), review denied, 131 Wn.2d 1025 (1997).
State v. Rosenbaum, 56 Wn. App. 407, 411-12, 784 P.2d 166 (1989).
Id.
Id. at 411.
Weaver argues that he was denied effective assistance of counsel because a reasonable attorney would have moved to extend juvenile jurisdiction and but for the attorney's error, the result of the proceedings would have been different. He asks this court to vacate the adult superior court conviction. The State responds, arguing that counsel's failure to extend jurisdiction does not qualify as the type of error that rises to the level of ineffective counsel because it simply accelerated the inevitable — consolidation of all three defendants' cases in superior court. In addition, it argues Weaver has not shown that the error deprived him of a fair trial because he presents no persuasive evidence that the juvenile court would have agreed to extend jurisdiction.
Weaver argues that the proper remedy in this case would be to vacate the adult conviction, leaving the State free to recharge Weaver in adult court. See Dillenburg v. Maxwell, 70 Wn.2d 331, 355-356, 413 P.2d 940, 422 P.2d 783 (1966), cert. denied, 386 U.S. 998 (1967). Although we affirm the conviction and therefore need not reach the issue of remedy, we note that Dillenburg is distinguishable from this case. In Dillenburg, a juvenile probation officer signed a document that surrendered juvenile court control over the 16-year-old petitioner without a formal hearing in juvenile court. Because the defendant was denied due process, the trial court was without jurisdiction to try him and the resulting judgment and sentence was null and void. This case does not involve a due process violation.
It is undisputed that juvenile jurisdiction offers advantages that adult superior court does not. In State v. Calderon, the Supreme Court noted that some of these benefits include avoiding the stigma of an adult criminal conviction and receiving penalties that are not as harsh as those imposed in adult court. And this court has presumed prejudice in cases where the State's negligence, such as undue delay in charging an offender, results in a defendant's losing juvenile jurisdiction. We agree with Weaver that a reasonable attorney who knew the facts, including Weaver's age and the relevant case law, would have moved to extend jurisdiction so Weaver could benefit from being tried in juvenile court. Accordingly, Weaver has established the first Strickland prong. But the critical issue in this case is whether Weaver has established that but for the error, there is a probability that the outcome would have been different.
102 Wn.2d 348, 684 P.2d 1293 (1984).
Id. at 352.
State v. Frazier, 82 Wn. App. 576, 587-88, 918 P.2d 964 (1996).
Because the parties in this case have not disputed the point, we assume for the sake of argument that failure to move to extend jurisdiction creates the kind of prejudice Strickland contemplated. We conclude that Weaver has not shown that the outcome more probably than not would have been different but for his counsel's error because he has not shown there is a reasonable probability that the juvenile court would have extended jurisdiction. The State points to several reasons why the court would have denied the motion. First, the State asserts it never agreed that Weaver's case belonged in juvenile court. It would have contested any formal motion to extend jurisdiction because it intended to consolidate Weaver's trial with the other defendants. Second, the amount of marijuana Weaver helped bring over an international border makes it a serious crime such that it is unlikely that the juvenile court would have extended jurisdiction. Finally, Weaver committed this crime only three months before he turned 18, and the juvenile court would have had to make a special exception to extend juvenile jurisdiction. We agree with the State that it is more likely than not that the juvenile court would have denied the motion.
The second Strickland prong is met when the error results in an unfair or unreliable trial such that "the conviction . . . resulted from a breakdown in the adversary process. . . ." Stenson, 142 Wn.2d at 720 (emphasis added). Weaver does not allege that the error in this case affected the trial itself or otherwise led to an "unreliable" result. Rather, he suggests that the outcome would have been "different" because he would have avoided adult superior court and enjoyed the benefits of juvenile court.
Even if the September 9 transcript reflected a discussion about a deferred disposition, nothing in the record establishes that the juvenile court was in fact aware of Weaver's age. Without that link, we cannot impute intent to the court.
We also reject Weaver's argument that the court implicitly extended jurisdiction by extending the fact-finding hearing date past Weaver's 18th birthday. The theory that jurisdiction may be "implicitly" extended is contrary to the statute and Washington case law. RCW 13.40.300(1)(a) specifically requires:
(1) In no case may a juvenile offender be committed by the juvenile court to the department of social and health services for placement in a juvenile correctional institution beyond the juvenile offender's twenty-first birthday. A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of social and health services beyond the juvenile's eighteenth birthday only if prior to the juvenile's eighteenth birthday:
(a) Proceedings are pending seeking the adjudication of a juvenile offense and the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth birthday[.]
(Emphasis added.)
The statute does not permit a court to implicitly extend jurisdiction. Rather, it must extend jurisdiction in writing, and it must do so before the defendant turns 18. If it does not do so, the court automatically loses jurisdiction over the defendant. That is the case here. This conclusion is consistent with State v. Rosenbaum, a case in which we rejected an argument that a juvenile court could regain jurisdiction by entering a nunc pro tunc order after the defendant turned 18. Because there was no attempt to extend jurisdiction before the defendant's 18th birthday or any discussion about it in the record, the court could not regain jurisdiction with a nunc pro tunc order, the purpose of which is to record some prior act of the court which was actually performed but not entered into the record. We concluded that the public policy preference for juvenile court jurisdiction was not sufficient to reinstate the court's jurisdiction by validating a nunc pro tunc order that the court had no jurisdiction to enter. The situation is similar here. There is no discussion in the record supporting Weaver's position that the parties or the court actually intended to extend jurisdiction. And Weaver's argument is even less compelling than Rosenbaum's. The Rosenbaum court's decision to enter a nunc pro tunc order is a strong indication that it would have granted a motion to extend jurisdiction. In contrast, there is no written order or any discussion in the record here to support Weaver's theory that the court would have granted a motion to extend jurisdiction.
Nicholson, 84 Wn. App. at 78 ("[t]wo conditions are necessary, therefore, to extend juvenile jurisdiction: (1) proceedings pending seeking the adjudication of a juvenile offense, and (2) the entry of a written order.") (citing RCW 13.40.300(i)(a)).
This conclusion is also consistent with State v. Nicholson. There we rejected an argument that the juvenile court's decision to schedule a hearing on the State's motion to decline jurisdiction until after the defendant turned 18 was a de facto extension of juvenile jurisdiction. There was compelling evidence that the juvenile court would have extended jurisdiction had the motion been properly made. But we nonetheless concluded that "a motion [to decline jurisdiction] only stays further action on the merits of the case, but does not automatically extend juvenile court jurisdiction." Weaver argues that rescheduling a fact finding hearing, as opposed to scheduling a decline hearing distinguishes the two cases. The argument is counterintuitive. Scheduling a decline hearing to determine jurisdiction is a much stronger indication that the court intends to retain jurisdiction at least until the date of the hearing than is an order simply continuing a trial date. The juvenile court's decision to reschedule a fact-finding hearing says nothing about retaining jurisdiction. In fact, it presents a less compelling argument than that rejected in Nicholson.
In Nicholson, the court indicated it intended to retain jurisdiction and issued a nunc pro tunc order in an effort to remedy the error. Id. at 76-77.
Id. at 79.
We affirm.
SCHINDLER and COLEMAN, JJ., concur.