Supreme Court of NebraskaMar 21, 1974
191 Neb. 523 (Neb. 1974)
191 Neb. 523215 N.W.2d 859

No. 39215.

Filed March 21, 1974.

1. Criminal Law: Infants: Constitutional Law: Courts: Prosecuting Attorneys. The authority vested in a prosecuting attorney to determine whether a child under 16 years of age who has committed a crime shall be prosecuted in the juvenile or criminal court is not violative of the due process clause of the Fourteenth Amendment to the Constitution of the United States or Article I, section 3, Constitution of Nebraska. 2. Criminal Law: Infants: Constitutional Law: Prosecuting Attorneys. The discretion vested in a prosecuting attorney to determine in which court a minor shall be prosecuted is not violative of Article II, section 1, of the Constitution of Nebraska, as an unlawful delegation of legislative power. 3. ___: ___: ___: ___. Due process does not require a prosecuting attorney to hold an adversary hearing prior to determining the manner in which a minor offender shall be proceeded against. 4. Criminal Law: Infants: Constitutional Law: Courts. Juvenile courts do not have the sole or exclusive jurisdiction of children under 18 years of age who have violated the laws of Nebraska.

Appeal from the District Court for Douglas County: JOHN C. BURKE, Judge. Affirmed.

Thomas P. Kelley, for appellant.

Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.

Heard before WHITE, C. J., BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and COLWELL and WARREN, District Judges.

This is a post conviction proceeding. Defendant was 15 years of age at the time of his conviction for first degree murder while perpetrating a robbery. He entered a plea of guilty pursuant to a plea bargain wherein the prosecuting attorney agreed to recommend a life sentence. He contends error was committed in that: (1) Authorizing the county attorney to file charges in either the juvenile or criminal courts, at his discretion, violates the Fourteenth Amendment to the Constitution of the United States, and Article I, section 3, Constitution of Nebraska; (2) without legislative guidelines for the exercise of such discretion there is a violation of Article II, section 1, Constitution of Nebraska; (3) there was an abuse of the prosecutor's discretion in failing to investigate the defendant's background; (4) the guilty plea was invalid because not fully understood by the defendant and because it was obtained by coercion; (5) defendant's counsel was inadequate; and (6) when under 16 years of age, a defendant must be proceeded against in the juvenile court. We affirm the judgment of the District Court overruling the defendant's motion to vacate and set aside the sentence.

The constitutional questions raised are readily answerable. In DeBacker v. Sigler, 185 Neb. 352, 175 N.W.2d 912, this court held that vesting in the county attorney a discretionary power to proceed against juveniles in the juvenile or criminal courts was not an unconstitutional practice and did not violate the precepts of due process. The question was before the court in United States v. Bland, 472 F.2d 1329 (1972), and Cox v. United States, 473 F.2d 334 (1973). Both cases dealt with a similar discretion vested in the Attorney General of the United States under federal statutes. Both cases hold: "Congress could reasonably vest in Attorney General, rather than in a judge in a judicial proceeding, the responsibility of deciding whether or not to prosecute a juvenile as an adult." Cox v. United States, supra, The Bland case specifically states that such discretion does not violate due process.

The two last-mentioned cases also answer defendant's contention that the prosecutor should have investigated more thoroughly. The Bland case states: "While there may be circumstances in which courts would be entitled to review the exercise of prosecutorial discretion as to whether a person should be charged as a juvenile or as an adult, those circumstances would necessarily include the deliberate presence of such factors as race, religion or other arbitrary classification. * * *

"Due process does not require an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom."

The Legislature has defined what acts shall constitute criminal offenses and specified punishments therefor. It has also created juvenile courts and determined who may be subjected to the jurisdiction of a juvenile court. It has not made this jurisdiction exclusive as pertains to minors who have committed crimes. See State v. McCoy, 145 Neb. 750, 18 N.W.2d 101. The laws of this state permit the prosecuting attorney to determine whether a felon of tender age shall be prosecuted in the juvenile court or in the District Court as an ordinary offender. The discretion so vested in the prosecuting attorney is akin to that permitting him to determine whether or not to prosecute, what charge should be made, and whether or not to dismiss, apply for immunity, or accept a plea to a lesser offense. All these matters represent necessary and essential decisions of an administrative character which of necessity are determined under varying factual circumstances. To fix reasonable legislative standards for the determination of such matters would be difficult and probably impossible due to the multiplicity of factual situations encountered. This same proposition was raised in People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131, cert. den. 409 U.S. 914, 93 S.Ct. 247, 34 L.Ed.2d 175. It is stated therein: "Historically, the office of the State's Attorney has involved the exercise of a large measure of discretion in the many areas in which State's Attorneys must act in the performance of their duties in the administration of justice. We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State's Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purposes of the Act * * * can be presumed to be considered by State's Attorneys in making determinations in these matters."

The assertion that one under 16 years of age must be referred to the juvenile court was answered in Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240, wherein this court held in the case of a 14-year-old defendant that: "A careful study of the act clearly indicates it is not intended the juvenile court shall have exclusive jurisdiction and control of all juveniles. * * * `Juvenile courts do not have the sole or exclusive jurisdiction of children under eighteen years of age who have violated our laws.'" See, also, Kennedy v. Sigler, 397 F.2d 556 (8th Cir., 1968), which arrives at the same result in a similar case.

In regard to defendant's statement that the plea of guilty was not intelligently and voluntarily made, the record discloses that he was represented by an experienced lawyer who had some doubts as to his guilt and consulted the boy and his parents at length. The defendant persistently insisted that he had committed the murder and, this factor, together with other evidence, convinced defendant's lawyer and parents that a plea of guilty should be entered as a conviction seemed indicated if the case were tried. The decision to plead guilty was made after a full discussion and explanation to defendant and his parents and appeared to be free of any coercion. The facts do not sustain either defendant's contention that the plea was involuntary or that he was inadequately represented by counsel.

No error appearing, the judgment of the District Court is affirmed.