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Handling the Transfer Hearing Montana Youth Court Act

Laura Watson Christopher Morris. Handling the Transfer Hearing Montana Youth Court Act. 41-5-102 Purpose.

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Handling the Transfer Hearing Montana Youth Court Act

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  1. Laura Watson Christopher Morris Handling the Transfer HearingMontana Youth Court Act

  2. 41-5-102 Purpose • (1) to preserve the unity and welfare of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of a youth coming within the provisions of the Montana Youth Court Act; • (2) to prevent and reduce youth delinquency through a system that does not seek retribution but that provides: • (a) immediate, consistent, enforceable, and avoidable consequences of youths' actions; • (b) a program of supervision, care, rehabilitation, detention, competency development, and community protection for youth before they become adult offenders; • (c) in appropriate cases, restitution as ordered by the youth court; and • (d) that, whenever removal from the home is necessary, the youth is entitled to maintain ethnic, cultural, or religious heritage whenever appropriate; • (3) to achieve the purposes of subsections (1) and (2) in a family environment whenever possible, separating the youth from the parents only when necessary for the welfare of the youth or for the safety and protection of the community; • (4) to provide judicial procedures in which the parties are ensured a fair, accurate hearing and recognition and enforcement of their constitutional and statutory rights.

  3. 41-5-203 Jurisdiction of Court • (1) Except as provided in subsection (2) and for cases filed in the district court under 41-5-206, the court has exclusive original jurisdiction of all proceedings under the Montana Youth Court Act in which a youth is alleged to be a delinquent youth or a youth in need of intervention or concerning any person under 21 years of age charged with having violated any law of the state or any ordinance of a city or town other than a traffic or fish and game law prior to having become 18 years of age. • (2) Justices', municipal, and city courts have concurrent jurisdiction with the youth court over all alcoholic beverage, tobacco products, and gambling violations alleged to have been committed by a youth. • (3) The court has jurisdiction to: • (a) transfer a youth court case to the district court after notice and hearing; • (b) with respect to extended jurisdiction juvenile cases: • (i) designate a proceeding as an extended jurisdiction juvenile prosecution; • (ii) conduct a hearing, receive admissions, and impose upon a youth who is adjudicated as an extended jurisdiction juvenile a sentence that may extend beyond the youth's age of majority; • (iii) stay that portion of an extended jurisdiction sentence that is extended beyond a youth's majority, subject to the performance of the juvenile portion of the sentence; • (iv) continue, modify, or revoke the stay after notice and hearing; • (v) after revocation, transfer execution of the stayed sentence to the department; • (vi) transfer supervision of any juvenile sentence if, after notice and hearing, the court determines by a preponderance of the evidence that the juvenile has violated or failed to perform the juvenile portion of an extended jurisdiction sentence; and • (vii) transfer a juvenile case to district court after notice and hearing; and • (c) impose criminal sanctions on a juvenile as authorized by the Extended Jurisdiction Prosecution Act, Title 41, chapter 5, part 16.

  4. 41-5-204 Venue • (2) The county where a youth is a resident has initial jurisdiction over any youth alleged to be a youth in need of intervention. The youth court of that county shall assume the initial handling of the case. Transfers of venue may be made to any of the following counties in the state: • (a) the county in which the youth is apprehended or found; • (b) the county in which the youth is alleged to have violated the law; or • (c) the county of residence of the youth's parents or guardian.

  5. 41-5-1201 Preliminary Inquiry • (1) Whenever the court receives information from an agency or person, including a parent or guardian of a youth, based upon reasonable grounds, that a youth is or appears to be a delinquent youth . . . or that the youth is subject to a court order or consent order and has violated the terms of an order, a juvenile probation officer or an assessment officer shall make a preliminary inquiry into the matter.

  6. 41-5-1202 Preliminary Inquiry • probation officer or assessment officer shall: (a) advise the youth of the youth's rights under this chapter and the constitutions of the state of Montana and the United States; (b) determine whether the matter is within the jurisdiction of the court; (c) determine, if the youth is in detention, a youth assessment center, or shelter care, whether detention, placement in a youth assessment center, or shelter care should be continued or modified based upon criteria set forth in 41-5-341 through 41-5-343. (2) In conducting a preliminary inquiry, the juvenile probation officer or assessment officer may: (a) require the presence of any person relevant to the inquiry; (b) request subpoenas from the judge to accomplish this purpose; (c) require investigation of the matter by any law enforcement agency or any other appropriate state or local agency; (d) perform a youth assessment pursuant to 41-5-1203.

  7. 41-5-1301 Informal Disposition • After a preliminary inquiry under 41-5-1201, the juvenile probation officer or assessment officer upon determining that further action is required and that referral to the county attorney is not required may: • (1) provide counseling, refer the youth and the youth's family to another agency providing appropriate services, or take any other action or make any informal adjustment that does not involve probation or detention; or • (2) provide for treatment or adjustment involving probation or other disposition authorized under 41-5-1302 through 41-5-1304 if the treatment or adjustment is voluntarily accepted by the youth's parents or guardian and the youth, if the matter is referred immediately to the county attorney for review, and if the juvenile probation officer or assessment officer proceeds no further unless authorized by the county attorney.

  8. 41-5-1302 Consent Adjustment • 1) Before referring the matter to the county attorney and subject to the limitations in subsection (3), the juvenile probation officer or assessment officer may enter into a consent adjustment and give counsel and advice to the youth, the youth's family, and other interested parties if it appears that: • (a) the admitted facts bring the case within the jurisdiction of the court; • (b) counsel and advice without filing a petition would be in the best interests of the child, the family, and the public; and • (c) the youth may be a youth in need of intervention and the juvenile probation officer or assessment officer believes that the parents, foster parents, physical custodian, or guardian exerted all reasonable efforts to mediate, resolve, or control the youth's behavior and the youth continues to exhibit behavior beyond the control of the parents, foster parents, physical custodian, or guardian. • 2) Any probation or other disposition imposed under this section against a youth must conform to the following procedures: • (a) Every consent adjustment must be reduced to writing and signed by the youth and the youth's parents or the person having legal custody of the youth. • (b) If the juvenile probation officer or assessment officer believes that the youth is a youth in need of intervention, the juvenile probation officer or assessment officer shall determine that the parents, foster parents, physical custodian, or guardian exerted all reasonable efforts to mediate, resolve, or control the youth's behavior and that the youth continues to exhibit behavior beyond the control of the parents, foster parents, physical custodian, or guardian. • (c) Approval by the youth court judge is required if the complaint alleges commission of a felony or if the youth has been or will be in any way detained. • 3) A consent adjustment without petition under this section may not be used to dispose of a youth's alleged second or subsequent offense if: • (a) the youth has admitted commission of or has been adjudicated or sentenced for a prior offense that would be a felony if committed by an adult; • (b) the second or subsequent offense would be a felony if committed by an adult and was committed within 3 years of a prior offense; or • (c) the second or subsequent offense would be a misdemeanor if committed by an adult and was committed within 3 years of a prior offense, other than a felony, unless the juvenile probation officer notifies the youth court and obtains written approval from the county attorney and the youth court judge.

  9. Formal Proceedings Youth Court or District Court

  10. 41-5-206 Filing in District Court • Sets out enumerated offenses that MAY be filed in District Court at 12 years of age or older

  11. Offenses for 12 years and older • (i) sexual intercourse without consent as defined in 45-5-503; • (ii) deliberate homicide as defined in 45-5-102; • (iii) mitigated deliberate homicide as defined in 45-5-103; • (iv) assault on a peace officer or judicial officer as defined in 45-5-210; or • (v) the attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for either deliberate or mitigated deliberate homicide; or

  12. Additional offenses if 16 or older • (b) the youth charged was 16 years of age or older at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following: • (i) negligent homicide as defined in 45-5-104; • (ii) arson as defined in 45-6-103; • (iii) aggravated assault as defined in 45-5-202; • (iv) sexual assault as provided in 45-5-502(3); • (v) assault with a weapon as defined in 45-5-213; • (vi) robbery as defined in 45-5-401; • (vii) burglary or aggravated burglary as defined in 45-6-204; • (viii) aggravated kidnapping as defined in 45-5-303; • (ix) possession of explosives as defined in 45-8-335; • (x) criminal distribution of dangerous drugs as defined in 45-9-101; • (xi) criminal possession of dangerous drugs as defined in 45-9-102(4) through (6); • (xii) criminal possession with intent to distribute as defined in 45-9-103(1); • (xiii) criminal production or manufacture of dangerous drugs as defined in 45-9-110; • (xiv) use of threat to coerce criminal street gang membership or use of violence to coerce criminal street gang membership as defined in 45-8-403; • (xv) escape as defined in 45-7-306; • (xvi) attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for any of the acts enumerated in subsections (1)(b)(i) through (1)(b)(xv).

  13. Mandatory in District Court at 17 • 41-5-206 (2) The county attorney shall file with the district court a petition for leave to file an information in district court if the youth was 17 years of age at the time the youth committed an offense listed under subsection (1).

  14. Other non-enumerated felonies and misdemeanors • 41-5-206 (5) An offense not enumerated in subsection (1) that arises during the commission of a crime enumerated in subsection (1) may be: • (a) tried in youth court; • (b) transferred to district court with an offense enumerated in subsection (1) upon motion of the county attorney and order of the district court. The district court shall hold a hearing before deciding the motion.

  15. Options in District Court • Stipulate to leave in District Court • Stipulate to transfer to Youth Court • With or without conditions? • Stipulate to transfer to Youth Court and Stipulate to transfer supervisory responsibility to District Court after 18 under 41-5-208 • Contested Transfer Hearing

  16. Stipulate under 41-5-208 • Two documents • Stipulation to Transfer to Youth Court • Stipulation to Transfer Supervisory Responsibility • From age 18 up to age 25 • Similar to a plea agreement

  17. Order to Transfer

  18. Order to Transfer – Contined

  19. Stipulation

  20. Stipulation – Continued

  21. Stipulation – Continued

  22. Stipulation – Terms

  23. Transfer Hearing- 30 Days • 41-5-206 (3) • Hearing shall be set within 30 days from granting leave NOT arraignment • If summons or warrant issued, hearing still needs to be set within 30 days of leave • Hearing can be continued by either party for good cause

  24. Transfer Hearing Criteria • The district court may not transfer the case back to the youth court unless the district court finds, by a preponderance of the evidence, that: • (a) a youth court proceeding and disposition will serve the interests of community protection; • (b) the nature of the offense does not warrant prosecution in district court; and • (c) it would be in the best interests of the youth if the matter was prosecuted in youth court.

  25. First Factor • (a) a youth court proceeding and disposition will serve the interests of community protection;

  26. Second Factor • (b) the nature of the offense does not warrant prosecution in district court; and

  27. Third Factor • (c) it would be in the best interests of the youth if the matter was prosecuted in youth court

  28. Transfer Hearing Burden • Burden on the Defendant • Preponderance of the evidence • [W]e conclude that the statute satisfies the concern we addressed in Butler that due process requires the court to afford a youth “theopportunity with the assistance of counsel to challenge the prosecution's allegations that there was probable cause or that the seriousness of the crime or the interests of the community protection require[ ] an information to be filed in District Court.” State v. McKee, 2006 MT 5, ¶ 20, 127 P.3d 445, 330 Mont. 249 (2006)

  29. Typical Witness • Chief Probation Officer • Department of Corrections Supervisor • Law Enforcement • Victim(s) • Mental Health Evaluator • School Personnel

  30. Chief Probation Officer • Establish the following: • Defendant’s prior history in Youth Court • Court Services’ limited ability to offer services after Youth turn 18 • Court Services’ position that District Court is the appropriate place for Defendant • Goes directly to Third Factor: • (c) it would be in the best interests of the youth if the matter was prosecuted in youth court

  31. Department of Corrections Supervisor • Establish the following: • Defendant would be entitled to placement with any program for a convicted adult. • If under 18 and sentenced to MSP, Defendant would likely be transferred from Montana State Prison to Pine Hills Youth Correctional Facility through an agreement between the wardens.

  32. Department of Corrections Supervisor • If close to 18 and sentenced to a DOC commitment, Defendant would likely be placed at the Missoula Area Screening Center for placement with program after turning 18. • Some DOC programs are available to Defendants under the age of 18 such as ISP and the boot camp program.

  33. Law Enforcement • Nature of the offense • Defendant actions at the time of offense and/or arrest • Statements of witnesses and/or victims • Goes directly to First and second Factor: • (a) a youth court proceeding and disposition will serve the interests of community protection • (b) the nature of the offense does not warrant prosecution in district court

  34. Victim(s) • Establish the victim’s position for Defendant • District Court with higher level of supervision • Goes directly to First and second Factor: • (a) a youth court proceeding and disposition will serve the interests of community protection • (b) the nature of the offense does not warrant prosecution in district court

  35. Mental Health Evaluator • Not typically allowed by State unless raised by defense • Court may order under 46-14-221 Fitness to Proceed • Court can then also ask evaluator on best placement options for Defendant

  36. School Personnel • Typically have longest records with Defendant • Use to establish: • Competency and education level • Discipline problems

  37. Criminally Convicted Youth Act • This Act exists to hold a youth accountable for his actions, protect the public, and provide for the development and rehabilitation of the youth. Mont Code Ann. § 41-5-2502

  38. Criminally Convicted Youth Act • Requires the DOC to submit a status report to the Court, county attorney, and defense attorney every 6 months until the Defendant reaches the age of 21 • The Court must hold a hearing to review the Defendant’s sentence prior to his 21st birthday

  39. Criminally Convicted Youth Act • If appropriate the Court, the county attorney or defense attorney could request a sentence review hearing at any time and if at that hearing the Defendant was determined to be substantially rehabilitated the Court could modify the Defendant’s sentence by making new recommendations and even reducing a sentence.

  40. Criminally Convicted Youth Act -- Judgment • IT IS FURTHER ORDERED the Defendant is sentenced according to the Criminally Convicted Youth Act, Title 41, Part 25. This Court retains jurisdiction over the case until the criminally convicted youth reaches the age of 21. The department shall submit a status report to the court, county attorney, defense attorney, and juvenile probation officer every 6 months until the youth attains the age of 21. The report must include a recommendation from the department regarding the disposition of the criminally convicted youth.

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