*1 judgment, the written the oral nouncement of sentence controls. See Rosa,
United v. Munoz-Dela States 495 F.2d (9th Cir.1974); Johnson, supra. State
Therefore, the action of the trial did modify
not appellant’s only sentence but
corrected record. record,
In reviewing the we note the minute entry also in error in
stating appellant to 28 sentenced
years on count one of burglary
counts. The sentence actually imposed by
the trial court was 20 years. The record is to show appellant’s
corrected sentence years’ Count is 20 imprisonment,
run concurrently with the other sentences.
The record is also corrected to show that
appellant was sentenced to imprisonment
rather than to the Department of Correc
tions, as stated in the minute entry. See Gutierrez,
State v. 130 Ariz. 634 P.2d
960 (1981). attempted conviction for armed rob-
bery is reversed and the sentence is modi-
fied to correct the above errors. judg-
ment is affirmed in every respect. other
HATHAWAY BIRDSALL, JJ., con-
cur. P.2d Matter of the APPEAL IN
MARICOPA COUNTY JUVENILE
ACTION NO. J-84984.
No. 1 CA-JUV 181. Arizona,
Court Appeals
Division Department C.
Aug.
Review Sept. 13, Granted
old, riding automobile with three in an juveniles sitting pas- in the front other at an senger stopped seat. When the car intersection, appellant exited the passenger side, went car behind him and According in the face. punched driver *3 an appellant, response to this was in to As a gesture by obscene made victim. blow, the victim seri- result of suffered injury eye. to his This to a right ous act led being petition delinquency of filed on De- 7,1981, appellant that was charging cember he had delinquent a child in that committed aggravated the crime of assault in violation 1203(A)(1). of A.R.S. § 13— offense, of of the gravity Because prior that had a appellant adjudication fact he had delinquency subsequent^ of and that Phoenix, Baggot, appellant. for Atmore turned 17 and would reach his 18th birth- ly Collins, 7, 1982, County state, Maricopa Thomas E. on December on day Miller, 30, 1981, County K. filed a for Atty. by Deputy request Barbara December Phoenix, superior to appellee. appellant for transfer of court Atty., an Pursuant
for trial as
adult.
to Rule
conducted a transfer
probation
officer
OPINION
a
prepared
transfer
re-
investigation and
JACOBSON, Presiding Judge.
hearing
to the transfer
port prior
presented
The sole
from
appeal
issue
on
27,1982.
At
April
April
was set for
transferring
order of
an
court
began with
hearing,
proceedings
juvenile appellant
to adult court for
required
as
Rule
by
of the assault
evidence
prosecution is
Arizona’s
criminal
whether
conclusion, the
At its
court found
14(a).
to
of
grounds
“reasonable
believe” standard
and
that
the offense had been committed
14(b),
in Rule
Rules of Pro-
proof embodied
cause to believe
probable
that
there
Court,
A.R.S.,1
17A,
cedure for Juvenile
appellant
that
had committed the offense.
proc-
requirements
meets minimum
of
then requested
counsel
Appellant’s trial
ess under the fourteenth amendment.
psychological
the court order further
14(a).
Rule
evening of October
evaluation as authorized
A
early
In the
years
hearing
then
whether a
who was
almost
further
on
transfer
appellant,
stated,
private agency,
by person
public
qual-
refers to the
or
or
a
Unless otherwise
“Rule”
1.
for
Juvenile Court.
Rules
Procedure
ified to make such examinations.
(b)
may
Hearing;
The court
transfer
for
action
Transfer
Order
hearing
(a)
prosecution
appropriate
shall
include evi-
The transfer
to the
waived,
alleged,
having jurisdiction
offense
unless
dence
of the offense if the court
investigation report. At
transfer
and
probable
finds
and
cause
reasonable
hearing,
of the transfer
the conclusion
believe
to
that:
has
whether
offense
determine
an
court shall
(1) The
child
not amenable
treatment
to
ex-
and that
cause
been committed
delinquent
child
or
rehabilitation
as
committed the
to
child
ists
believe
through
facilities;
available
prob-
alleged.
the court finds such
If
offense
(2)
insti-
The
an
child is not commitable to
has
cause
able cause or evidence
deficient, mentally defec-
mentally
tution for
waived, upon
or the
its own
been
motion
mentally
persons; and
tive or
ill
order,
may
any
party,
it
motion
interested
public re-
(3)
safety
or interest
investigation,
transfer
an
addition
crimi-
quires
be transferred
the child
investigation including
physical
a mental and
prosecution.
nal
child,
made
examination of the
to be
should occur under the circumstances of
cases
Maryland up-
cites
from Texas and
May
was held
after
holding
of the evidence”
“preponderance
judge
which the
entered his
standard of
all
of a trans-
aspects
following
or-
findings, concluding with
hearing.
fer
der:
point
At
necessary
this
it is
to
THE COURT FINDS
reasonable
fact
differentiate
in
finding process
to believe that:
in the
aspects
volved
dual
The child is not amenable to treat-
(Rule
14(a))
The first
deals with
delinquent
or
as a
ment
rehabilitation
an
the issue of whether
offense has been
facilities;
through
child
available
and whether
the juvenile
committed
has
The child
is not committable
an
the offense. The
committed
deficient,
mentally
institution for
men-
aspect
inquiry
is that
tally defective mentally
persons;
ill
(Rule
14(b))
cause.”
second
*4
court,
with whether the
after finding
deals
public
The safety
or interest of the
juvenile
the
has
probable cause
com
requires that
the child be transferred
charged,
should
mitted
offense
transfer
prosecution.
for criminal
court for trial
juvenile
superior
as an
9, 1982,
June
a
of
timely
On
notice
by
adult under the criteria established
appeal was filed
transcripts
and
were re
proof
14(b). Again,
the standard of
re
quested. The state filed its
to the
response
here is
cause and reasona
quired
appeal
notice of
and
matter was con
ble
to believe.”3
by
sidered
this
on
court at conference
No
that the fact
appellant
The
contends
find-
days
vember
eight
appel
before
14(b) requires
under
involved
a
ing process
lant’s 18th birthday.2
of
proof
beyond
a
reasonable
appeal, appellant argues
On
that under
without
doubt.
state
differentiating
balancing
Eldridge,
test of Mathews v.
finding
fact
between the different
func-
319,
893,
424
96
47
18
U.S.
S.Ct.
L.Ed.2d
(b)
14(a)
argues
of Rule
and
tions
for a
(1976),
standard of
“reasonable
evidence
preponderance
standard.
grounds to believe” established
by
in
zeroes
party
Neither
whether “proba-
constitutionally
is
impermissible and
is
of a
ble cause”
less
standard than “pre-
that a standard of
a reasonable
ponderance of the evidence” and if so
doubt” should be
to this
applied
aspect
whether
that standard is constitutionally
the transfer
In
proceedings.
opposition, the
juvenile
adequate
remove
from the
argues
only
state
would the “be-
not
protection
juvenile
court.
a reasonable
an
yond
place
doubt” standard
We
resources,
will now
upon
undue burden
the state’s
embark
in
upon that
However,
quiry.
some
probably
background
but it would
unconstitutional
against
Jones,
519,
which this
inquiry
Breed v.
421 U.S.
95 S.Ct.
to be
under
is neces
made
Arizona,
1779,
sary.
L.Ed.2d 346
The state fur-
as all
jurisdictions,
44
other
has
the juvenile’s guilt
developed
that because
argues
ther
based
court system
issue at the transfer
sociological
pri
is not at
its
innocence
philosophy with
high-
hearing,
by
objective
due
satisfied
treats
process
mary
designed
to aid
er standard
doubt ment and
offend
beyond
reasonable
youthful
rehabilitation of
which comes
No.
later
the trial
during
Appeal,
into
ers.
Juvenile
play
Maricopa Cty.
(App.
adult
644
J-86509,
court or
adjudication hearing
380,
124
P.2d
604
Ariz.
if
States, supra.
transfer is not ordered.
state
Finally,
1979);
v.
Kent
United
appellant
“probable cause”
The fact that
subsequently
terms
opinion,
reached
our
In
syno-
are
birthday
grounds to believe”
his 18th
does not
“reasonable
moot the transfer
and
nomous
proof.
same standard
appeal.
to the
States,
and refer
issue on
v.
Kent
United
383
Rubio, 404
v.
F.2d
States
541,
1045,
United
See
86
U.S.
S.Ct.
dard based A.R.S. § always years if In for an act which does not benefit the child. more than five 6. This Kent, by a misde- between transfer meant done an adult would constitute the difference five-year punishment confinement and a meanor with a maximum that in a the difference hand, potential confinement and a fine of sentence. On the other time of a six-month death Maricopa Cty. why exemplify Juvenile Appeal, stan- $300. in These extremes in the case of J-86509, proof may supra, year juvenile dards of not be determined on a case No. the fifteen old time, by determining shoplifting. stan- charged case basis. with At that proof, subject juris- error inherent in the juveniles the risk of dard were Thus, applied finding process twenty-one. must be age if truth treated until diction exceptions generality potential of cases and not the rare juvenile, there was commitment as a s to the state 8-203), and has full access (Rule 4) and from publicity § nile is shielded child. This of the in evaluation judge has considerable resources of- probation in that the delin- conflict between disposition potential discretion error in child, in care of its a risk of quent may placed child creates ficer and the repu- against a parents, probation department, weighs favor of the state citizen, the De- private agency, table upon based proof burden of maintaining a partment of Corrections. 8-241. A.R.S. § as discussed Additionally, probabilities. Thus, private involved is com- to be earlier, the evidence quality manding. nature, imprecise by is its evaluated being of discretion in a deal great results permanency As to of the note a We also in the trial court. placed decision, the transfer is irrevocable unless of evidence quality to relax the tendency Additionally, reversed on appeal. Rule 24. Mat- hearing. See admissible in a transfer any charges against as to filed subsequently No. J-47735- Juv. Act. County, ter of Pima juvenile, previous decision to trans inferred that the court supra, where decisively fer would if not weigh heavily, delinquency was admissible finding prior subsequent only to transfer not decision showing that though even there was no previous finding because of the factual but counsel in the represented by child had been would have point because at that the child waived counsel. or had prior proceeding the environment of the adult been cast into error Thus, the risk of we conclude factors, Considering all these system. plus and does not weighs in the state’s favor prior the fact that to the actual decision proof adopted. support standard transfer, both the state and the child have an interest in maintaining parens patri We the differences recognize relationship, ae we conclude that the first as “rea proof involved in burdens of such Eldridge factor of the test favors the use of grounds “prepon sonable to believe” and greater a standard that than the mere always not derance of the evidence” do inherent in the “probabilities” in the outcome of a great make difference cause and reasonable to believe However, adoption case. particular standard. futile the standard of is more than a Turning Eldridge to the second fac involving In cases in semantical exercise. tor —the risk of error created the state’s re rights, dividual standard chosen procedure again find on those society places flects the value —we based upon probabilities inade Texas, Here, supra. rights. Addington quate. stan the “reasonable to believe” accu requires only dard a threshold factual adversary The decision to transfer is an impress racy adequately which does not proceeding request initiated to trans- the fact finder the importance *7 being county attorney fer filed allocation proper decision involved and the probation the officer. Rule 12. Once the against the risk of falls error. If error requested, juvenile probation transfer is the child, parens patriae it the ejected is from investigation officer conducts a transfer The socio court. juvenile umbrella of the child, and transfer the report evaluating to which is directed logical atmosphere including background the child’s social as the child is is lost wards rehabilitation any previous Under history delinquency. In con criminal arena. adult cast into the procedure, juvenile the is in a disadvan- against government, falls the trast, tageous if error position probation because the offi- from is not removed offender cer who the criminal prepares report, may transfer delinquency there is still a grasp, initially have filed the state’s petition, works di- delinquent, adjudicated face. If rectly juvenile (A.R.S. hearing for the court judge, necessary Santosky litigants be Kram- to met. so that the and the fact finder know at proceeding er, supra. the outset how the risk of error will be allocated and the standard of juvenile potential faces a loss of liberty the private interest involved in a transfer and a stigma attaches. In re Winship, 397 substantial, hearing is liberty loss of L.Ed.2d 368 stigma and the attached to a determination are similar delinquency to that involved in guilt a determination of for an adult. Turning to the final Eldridge fac re Winship, supra. Although juvenile governmental tor —the involved in system court is directed toward rehabilita- procedure state’s chosen again find —we tion, it complements very vital interest no compelling argument in favor of main of the state in its enforcement of its crimi- taining the existing standard. Until nal difficulty prov- laws. The inherent in juvenile transferred, is actually govern ing transfer criteria to a high degree ment shares the child’s interest in par- weighs correctness against also a burden of patriae ens relationship between the child proof greater preponderance than a and the state. It only is after the decision Additionally, evidence. because the trans- to transfer is made that the parties’ inter fer not hearing guilt ests does determine diverge earlier, and as indicated if er ror the factors state, weighing against is made against may the conse quences are not be considered the trial at sentenc- judge so substantial as total re lease. if a ing prosecution brought court, adult we conclude that “preponder- Additionally, raising of the stan ance adequate. of the evidence” standard is dard would not create any substantial fiscal C., Accord In re Bobby Md.App. or administrative burden upon the state (1981); State, A.2d 435 Strange v. such as is involved when a procedural right (Tex.Civ.App.1981). S.W.2d such as right to counsel is imposed. Al though a higher standard of proof may procedure upon usual a rever impose some limited increase in the state’s sal of a transfer order is to remand the burden mustering evidence, its pri matter court for a new mary change would be the conceptual im However, because appellant has pression upon the fact finder of the degree n now his passed eighteenth birthday and the of correctness expected in the factual con no longer jurisdiction, court has Thus, clusions. we conclude that Arizona’s Appeal, in Juvenile No. J- Maricopa Cty. grounds “reasonable to believe” standard of 86509,124 (1979), Ariz. 14(b) does not meet minimum stan order of transfer is vacated. dards of process under the fourteenth amendment and therefore is unconstitution J., CONTRERAS, concurs. al. BROOKS, Judge, dissenting.
Earlier,
disposed
we
of the appellant’s
contends that
argument
Appellant
“reasonable
standard should
“beyond
to believe”1 standard of
em-
reasonable doubt”. After re-
factors,
viewing
Eldridge
14(b)
we conclude
bodied in Rule
is not fundamentally
the minimum
permissible
process
fair and is violative of due
and that
“preponderance of the
evidence”. While
a standard of
a reasonable doubt”
14(b) provides
may
1. Rule
that the
trans-
determination is to be made based
prosecution
fer the action for criminal
if the
on “reasonable
to believe.” This is-
finds
however,
cause and
sue,
reasonable
is immaterial
to this matter be-
grounds to believe” three factors
cause,
out,
majority points
as the
the terms
*8
14(b)
present.
are
It is not clear whether
grounds”
“probable
and
“reasonable
cause”
applied
the standard to be
in this determination
equivalents
are substantial
of the
mean-
same
grounds
is “reasonable
to believe” or whether
States,
Draper
307,
ing.
See
v. United
358 U.S.
the standard includes both
cause”
3,
329,
310 n.
79 S.Ct.
331 n.
313
aspect
procedural safeguards.”
this
the trans-
substitute
Math
applied
should be
to
of
Eldridge,
v.
424 U.S.
S.Ct. at
fer
The state
and
ews
proceedings.
responds,
test
Eldridge
It is
that
the
re
clear
concludes,
the
the
majority opinion
that
the risk of
consideration of both
erro
quires
standard of
a reasonable doubt” is
interests and
private
of
deprivation
neous
an
of proof
unrealistic burden
to be applied
procedure or
the likelihood that a substitute
in
a transfer
I agree with this
would reduce
standard
higher evidentiary
however,
conclusion. The majority,
makes
Kramer,
v.
Santosky
that
risk. See
the further conclusion that the stated stan-
at 1398.
S.Ct.
dard
14(b)
in Rule
of
grounds
“reasonable
to believe” is a lesser standard
“pre-
than
analysis
majority’s
of
agree
I
with the
ponderance of the evidence” and that
it
in which
finds
Eldridge
the first
factor
lesser
satisfy
standard does not
due process
interest
in
that
the
has a critical
requirements.
From this
I re-
conclusion
that
the
I also find
un-
transfer decision.
spectfully
factor,
dissent.
state
der the third
the
does
Eldridge
in impos-
interest
countervailing
not have a
that
the
concluding
“reasonable
on
proof”
the
ing a “lesser standard
grounds
to believe” standard of Rule
second Eldridge
The
proceedings.
does not meet minimum standards of due
I
factor, however,
find
significant.
is most
process,
majority analyzed
each of the
substituting
that
value of
probable
three
in
factors set forth Mathews v. Eld
the evidence”
“rea-
“preponderance of
ridge.2 The. second factor is
critical
negligible
sonable
believe” is
grounds to
determination in this matter.
majority
The
provided
regarding
and
procedures
that
concludes that a risk of error is
in
present
prosecu-
transfer of a
for criminal
provided
standard due to a “potential
requirements
tion meet
the minimum
probation
conflict between the
officer and
due process.
child”,
“great
deal of discretion
initially
majority
I
that
suggest
in
placed
the trial court”
to
due
[which is]
more than a semantical
engaging
nothing
the imprecise quality of evidence and the
“preponder-
that a
exercise when it finds
fact
“the ‘reasonable
to be
proof
ance of the
standard
evidence”
lieve’
requires only
standard
a threshold
than
requires something
probabilities
more
factual
accuracy
does not adequately
and that this
meets minimum re-
standard
impress
the fact finder the
importance
quirements of
while
standard
process
due
of the decision involved
and
allo
to believe”
based on “reasonable
cation of risk of error.”
v.
majority
does not.
relies
Cole
In determining the propriety
a particu-
Miami,
83 P.2d
Town of
52 Ariz.
lar
given case,
in a
how-
(1938)
“preponderance
for its
definition
ever,
enough simply
it is not
we
say that
of the
The actual definition
evidence.”
are trying to minimize the risk of error.
as satisfies
vided
that ease is “such
Kramer,
See
Santosky v.
carries conviction
an
conscience and
1388, 1411,
(1982)
this test
is whether the fact sought to be
assess the cumulative effect of such safe-
proved is more probably true than not true.
guards. The courts must consider
fair-
“the
See, e.g., Todd v. Weikle,
663,
36 Md.App.
reliability
ness
of the existing
...
376
104, 108
A.2d
(1977); Appeal
Tucker,
holding
cedures” before
that
the Constitu-
538
626,
P.2d
629 (Okl.App.1975).
Indeed,
tion
more. Mathews v.
requires
Eldridge,
the Arizona Supreme
343,
Court in Cole conclud
424
at 907. Only
U.S.
96 S.Ct.
ed that “the
is,
ultimate test
through
may
does
evi
such a
inquiry
broad
courts
dence convince the trier of fact
challenged govern-
one
determine whether a
theory of the case is more probable than the
process
mental action satisfies the due
re-
other.” Cole v.
Miami,
Town of
52 Ariz. at
quirement of “fundamental
fairness”. See
497,
focus threatens
1779, 1790,
to overlook
factors which
lieve” is constitutionally infirm.
Article 15 of the Arizona Constitu- § provides that
tion judges discretion, in their
may, suspend criminal
prosecution of age children under the eighteen and the powers judges of such
to control such children provided shall be as by law. I regard- find that the procedures
ing prosecution for criminal
vided Rules of the Arizona
Rules Procedure for the Juvenile Court
meet requirements minimum proc- of due I
ess. would affirm the order which trans-
ferred prosecution. COMPANY,
INDUSTRIAL INDEMNITY corporation,
a California
Plaintiff-Appellee,
v. GOETTL; Adgus Properties, part
Gust
nership composed of Adam D. Goettl Goettl; Billy Clyde
and Gust Hart man, Defendants-Appellants,
v.
GREAT AMERICAN INSURANCE
COMPANY, foreign corporation,
Defendant-Appellee.
GREAT AMERICAN INSURANCE
COMPANY, foreign corporation,
Crossclaimant-Cross-Appellant, PROPERTIES,
ADGUS partnership composed of Adam D. Goettl and Gust
Goettl, Defendant-Cross-Appellee.
1No. CA-CIV 5729.
Court Appeals Arizona, 1, Department
Division D.
Sept.
Reconsideration Denied Nov.
Review Denied Dec.