Lead Opinion
OPINION
{1} New Mexico law requires a trial judge to hold an evidentiary hearing to determine whether a juvenile, adjudicated as a youthful offender for having committed certain serious criminal offenses, is “amenable” to treatment or rehabilitation in juvenile facilities or should be sentenced to prison as an adult. See NMSA 1978, § 32A-2-20 (1993) (amended 2009). Our courts have labored for years debating whether the Sixth Amendment right to a jury trial requires the amenability determination to be made by the jury or by the trial judge as the statute provides. See State v. Gonzales,
{2} On the basis of U.S. Supreme Court precedent recently issued in Oregon v. Ice,
BACKGROUND
{3} The Court of Appeals succinctly described the events resulting in the prosecution of Rudy B. (“Child”) in this case. “Child was involved in a gang fight in a parking lot. Under the impression that one of the other gang members had a gun, Child pulled out his own weapon and began shooting. He hit three people, one of whom was rendered a quadriplegic.” Rudy B.,
{4} The State then filed a petition in children’s court against Child, seventeen years old at the time, alleging various youthful offender offenses and potentially subjecting him to an adult sentence. Soon thereafter, the State filed notice of its intent to seek adult sanctions and obtained a grand jury indictment, charging Child with three counts of shooting from a motor vehicle (great bodily harm), three counts of aggravated battery (deadly weapon), and one count of unlawful possession of a handgun by a minor, and one count of tampering with evidence. Prior to trial, Child pleaded guilty to two counts of shooting from a motor vehicle (great bodily harm) and to two counts of aggravated battery (deadly weapon) (firearm enhancement). In return, the State agreed to drop the remaining charges.
{5} The plea agreement specified that Child was to be sentenced after an amenability hearing that would be held “pursuant to [Section] 32A-2-20.” Section 32A-2-20 requires a trial judge to hold an evidentiary hearing to determine whether a juvenile adjudicated as a youthful offender should be sentenced as a juvenile or as an adult. To sentence a youthful offender as an adult, the trial judge must make two findings (collectively “the amenability determination”): “(1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and (2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.” Section 32A-2-20(B). The statute provides a list of factors for the trial judge to consider in light of the evidence presented at the amenability proceeding. Section 32A-2-20(C).
{6} Child’s agreement further explained that, depending on the outcome of the amenability proceeding, he faced either a juvenile disposition until the age of twenty-one with the Children, Youth & Families Department, or an adult sentence of up to twenty-six years with the Department of Corrections. The agreement also contained a provision in which Child waived “all motions, defenses, objections, or requests” regarding the judgment against him, and “specifically waivefd] his right to appeal as long as the Court’s sentence [was] imposed according to the terms of [the] agreement.”
{7} At the amenability hearing, the trial judge heard conflicting evidence regarding Child’s amenability to treatment or rehabilitation as a juvenile in available facilities. At the conclusion of the hearing, the trial judge explained that her decision as to Child’s amenability would turn primarily on “the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available,” given that Child was eighteen at the time of the hearing. Section 32A-2-20(C)(7). She further explained that the parties had not done an adequate job of educating her regarding the programs and facilities available to treat or rehabilitate Child by the time he reached twenty-one. Because the trial judge felt incapable of rendering an informed decision, she deferred her ruling on Child’s amenability until the parties could present additional evidence regarding the available treatment or rehabilitation options.
{8} Based on the evidence presented at a subsequent hearing, the trial judge concluded that no suitable facilities or services were available to treat or rehabilitate Child to a level that would adequately protect the public by the time he turned twenty-one. Consequently, the judge found that Child was not amenable to treatment or rehabilitation as a child in available facilities, and that he was not eligible for commitment to an institution for children with developmental disabilities or mental disorders. The judge imposed an adult sentence of twenty-five years imprisonment with the Department of Corrections.
{9} On appeal, our Court of Appeals reversed, holding Section 32A-2-20(B) and (C) facially unconstitutional because its amenability determination was made by a judge and not the jury. Rudy B.,
DISCUSSION
{10} The State raises two issues on appeal. First, the State contends that the Court of Appeals did not have jurisdiction to consider Child’s constitutional challenge to Section 32A-2-20 because Child waived his right to appeal in the plea agreement. Second, the State argues that the Court of Appeals erred when it declared Section 32A-2-20 unconstitutional, largely because it improperly applied the U.S. Supreme Court’s recent opinion in Ice,
The Court of Appeals had jurisdiction over this case.
{11} The State maintains that Child’s explicit waiver of his right to appeal divested the Court of Appeals of jurisdiction to consider his constitutional challenge to Section 32A-2-20. The State’s argument is essentially that appellate jurisdiction rests on the status of an appellant as an “aggrieved party,” and that Child “agreed not to be aggrieved” when he waived his right to appeal. See N.M. Const, art. VI, § 2 (“[A]n aggrieved party shall have an absolute right to one appeal.”). We find the jurisdictional argument unpersuasive.
{12} The State does not cite, and we cannot find, any authority to support the proposition that a waiver in a plea agreement of the right to appeal divests the Court of Appeals of jurisdiction to hear an appeal in a criminal proceeding. The two cases on which the State relies merely illustrate the well-established principle that a voluntary plea of guilty or nolo contendere “ ‘ordinarily constitutes a waiver of the defendant’s right to appeal his conviction on other than jurisdictional grounds.’ ” State v. Chavarria,
{13} At bottom, a plea agreement is simply a contract between the State and an accused that affects the rights of the parties but not the court’s jurisdiction, which is a creature of statute and the state constitution. See State v. Simmons,
{14} Subject matter jurisdiction, on the other hand, implicates a court’s “power to decide” the issue before it. State v. Bailey,
{15} With respect to this ease, the Legislature vested the Court of Appeals with subject matter jurisdiction over “criminal actions, except those in which a judgment of the district court imposes a sentence of death or life imprisonment.” NMSA 1978, § 34-5-8(A)(3) (1983). Child’s waiver of his right to appeal does not transform this proceeding into something other than a “criminal action.” Nor did the trial court impose a sentence of death or life imprisonment. Hence, Child’s waiver does not implicate the “power” or “competen[ce]” of the Court of Appeals to consider his ease.
{16} The State did not raise the issue of Child’s waiver of his right to appeal to the Court of Appeals, nor did it raise the issue to this Court in its petition for certiorari. Consequently, because this is neither a jurisdictional nor foundational issue that is integral to the resolution of the questions presented in this petition, we do not decide whether the scope of Child’s waiver extended to the constitutionality of Section 32A-2-20. See State v. Javier M.,
Classification of Juvenile Offenders
{17} The State argues that the Court of Appeals should not have overruled Gonzales because Apprendi does not apply to amenability proceedings for youthful offenders. Before we begin our analysis, we briefly describe New Mexico’s three-tiered juvenile offender classification.
{18} The Delinquency Act establishes three levels of juvenile offenders, largely based on the alleged offense leading to the filing of a petition against the child. At the upper extreme are serious youthful offenders, children between the ages of fifteen and eighteen who are charged with first-degree murder. See NMSA 1978, § 32A-2-3(H) (1993) (amended 2009). Serious youthful offenders are automatically tried and, if convicted, sentenced as adults. Id. (citing State v. Muniz,
{19} The intermediate classification of juvenile offender, the youthful offender, has required our repeated attention and is the one relevant to this case. See, e.g., State v. Jones,
The Apprendi Line of Cases Through Cunningham
{20} Turning to the matter at hand, we begin with an overview of the history of the Apprendi rule. In Apprendi, the Supreme Court invalidated New Jersey’s “hate crime” law, which the trial judge relied on to extend the defendant’s sentence after finding by a preponderance of the evidence that the defendant’s various weapons-related offenses had been “motivated by racial bias.” Apprendi,
{21} The trend coming out of the Supreme Court’s post-Apprendi decisions was unmistakable. See Cunningham v. California,
{22} The Court did not flinch or deviate from the binary, black-or-white Apprendi analysis. If anything, the Court strengthened the Apprendi rule when, in response to the State of Washington’s defense of its sentencing scheme,
{23} More than once this Court has wrestled with the Apprendi rule, most recently in State v. Frawley,
{24} If the Supreme Court had stopped at Cunningham, we would be hard-pressed to disagree with our Court of Appeals that judge-made amenability determinations under Section 32A-2-20 violate the Apprendi rule. If we were to assume — as did the Court of Appeals — that the amenability determination falls within the scope of the Apprendi rule, then the Court of Appeals’ conclusion would appear correct. After all, Section 32A-2-20(B) and (C) does permit a trial judge to increase a youthful offender’s sentence far beyond the juvenile disposition that would otherwise apply, based on findings not made by a jury or admitted by the child relating to non-amenability to treatment or rehabilitation as a juvenile. See Blakely,
Oregon v. Ice Defines the Outer Limit of the Apprendi Rule
{25} In 2009, the Supreme Court finally marked the outer limit of the Apprendi rule in Ice,
{26} The U.S. Supreme Court reversed, holding that the Apprendi rule simply does not apply. The majority held that the concurrent sentencing statute is beyond “the scope of the Sixth Amendment’s jury-trial guarantee, as construed in Apprendi.” Ice, 555 U.S. at-,
{27} The Court made clear that it viewed the sentencing statute in Ice as fundamentally different from those that it had considered in the previous cases applying the Apprendi rule. According to the 5-4 majority, the Apprendi rule had only been applied to sentencing in the “offense-specific context,” Ice, 555 U.S. at-,
{28} To determine whether to extend Apprendi to the realm of consecutive sentencing, the Court looked to the “twin considerations” of “historical practice and respect for state sovereignty.” Ice, 555 U.S. at -,
There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused. Instead, the defendant — who historically may have faced consecutive sentences by default — has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice.
Id. at-,
{29} Also counseling against extending the Apprendi rule to consecutive-sentencing determinations are principles of federalism, or state sovereignty, which include “the authority of States over the administration of their criminal justice systems.” Ice, 555 U.S. at -,
{30} Perhaps most revealing of new limits for the Apprendi rule, Justice Scalia’s dissent voiced frustration that the majority opinion “is a virtual copy of the dissents” in each of the prior cases applying the Apprendi rule. Ice, 555 U.S. at -,
{31} Ice signals change. The Ice majority opinion appears to embrace, for the first time, the point of view taken in the dissenting opinions in the Apprendi line of cases. The opinion does appear to represent a pivotal turning point in the Court’s Sixth Amendment analysis, signaling a demarcation of how far at least a majority of the Court will extend Apprendi’s black-or-white rule. After all, the trial judge in Ice did enlarge the defendant’s sentence well beyond the statutory maximum based upon a factual determination made by the judge and not the jury. And yet, the Court looked beyond just the obvious, arithmetic impact on sentencing to explore the historical roots — and the limits— of the Apprendi rule.
{32} Though we have struggled before in our efforts to divine how the Supreme Court would apply its rule, see Lopez,
{33} After Ice, the Apprendi rule continues to apply with full force to judicial findings enlarging criminal sentences that conflict with the traditional domain of the jury. Where a defendant seeks to “extend” the Apprendi rule, however, beyond the context of the sentencing statutes in the Apprendi line of cases, this Court will engage in a more probing analysis taking into account the historical role of the jury and the effect on principles of federalism.
The findings required by Section 32A-2-20(B) are beyond the scope of the Apprendi rule.
{34} We now turn to the substantive issue before us, which is whether the findings required by Section 32A-2-20(B) are unconstitutional because they deprive youthful offenders of a Sixth Amendment right to have a jury make those findings, as that right is defined in Apprendi and limited by Ice. We begin, as the Supreme Court did in Ice, and as our Court of Appeals did in Gonzales, with our view that Child’s proposal to apply Apprendi to Section 32A-2-20(B) would extend the Apprendi rule beyond the context in which it arose and previously has been applied. We agree with the State that the findings required by Section 32A-2-20(B), like the findings in Ice, are not offense-specific. At its core, Section 32A-2-20(B) mandates a careful balancing of individual and societal interests involving a delinquent child’s prospects for reintegration into public life by the time the child turns twenty-one. Importantly, the focus of the findings at issue is on the child, not on the particular offense committed. See § 32A-2-20(B) (providing that to sentence a youthful offender as an adult, the judge must find that “(1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and (2)the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders” (emphasis added)).
{35} Admittedly, the particular circumstances of the child’s offense may have some bearing on this decision. For example, some of the factors that the judge must weigh under Section 32A-2-20(C) are “offense specific,” such as
(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
(3) whether a firearm was used to commit the alleged offense; [and]
(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
However, the judge must also consider a range of other information relating to the child that has little or nothing to do with the charged offenses. See § 32A-2-20(C)(5), (7) (providing that the trial judge shall consider “the maturity of the child as determined by consideration of the child’s home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability” and “the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available”).
{36} Regardless of the particular offense of which a youthful offender is adjudicated— or, as this case demonstrates, even the number of offenses — the inquiry under Section 32A-2-20(B) is the same: Can the child be rehabilitated or treated sufficiently to protect society’s interests by the time he reaches the age of twenty-one? Questions of rehabilitation and societal protection are exactly what dominated the thinking of the trial judge in this very case. The inquiry is neither offense-specific nor, as we shall see, is it a task traditionally performed by juries. Nonetheless, though we hold that the context and purpose of the findings required under Section 32A-2-20(B) insulate them from the Apprendi rule, we think it prudent to submit the offense-specific factors in Section 32A-2-20(C)(2), (3) and (4) to the jury during the trial perhaps by way of special interrogatories. Doing so will place only a minimal burden on the process because it can be done during the trial. We refer this matter to the UJI Committee for Criminal Cases for appropriate action.
Factors Leading to an Ice Analysis
{37} We are also persuaded, as was the U.S. Court of Appeals for the Tenth Circuit in Gonzales v. Tafoya,
{38} As our courts have seen first-hand, an informed amenability determination can be made only by weighing a thorough knowledge of the resources for treatment and rehabilitation offered by the State against various, and often conflicting, psychological and social evaluations of “the child’s home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability.” Section 32A-2-20(C)(5). Like the civil commitment findings in Addington, the fallibility and lack of precision inherent in the amenability determination “render certainties virtually beyond reach in most situations.”
{39} Additionally, the findings in the Apprendi line of cases uniformly occurred in the adult criminal context, whereas, the findings required by Section 32A-2-20(B) arise in the juvenile justice context. See Gonzales,
{40} We are persuaded that applying the Apprendi rule here — to findings that are not offense-specific, are predictive in nature, and are made in the juvenile context — represents an extension of the circumstances under which the rule has previously been applied. We will therefore look to the “twin considerations” of “historical practice and respect for state sovereignty” to determine whether the Sixth Amendment jury-trial guarantee extends to the findings required by Section 32A-2-20. Ice, 555 U.S. at -,
The Jury Historically Played No Role in Sentencing a Child as an Adult
{41} As an initial matter, Child and Amici both argue that, although the Sixth Amendment right to a jury trial does not apply to juvenile proceedings under McKeiver, New Mexico, nonetheless, confers such a right as a matter of law “when the offense alleged would be triable by jury if committed by an adult.” NMSA 1978, § 32A-2-16(A) (2009). Apprendi’s Sixth Amendment protections, the argument goes, extend to alleged youthful offenders who are, by definition, charged with an offense that would be triable by a jury if committed by an adult. See § 32A-2-3(J) (defining “youthful offender” and listing youthful offender offenses). For the sake of argument, we can concede the point. See Rudy B.,
{42} We agree with the Court of Appeals that the historical analysis undertaken in Ice would be a poor fit here if the inquiry were limited to whether the post-trial amenability determination required by Section 32A-2-20(B) was within the purview of the jury at the time of the framing of the Bill of Rights. See Rudy B.,
{43} Although the timing of our amenability proceeding is unique, the specific inquiry of whether a child is amenable to treatment or rehabilitation is hardly exclusive to New Mexico. Since Cook County, Illinois established the first juvenile court in 1899, all 50 states have enacted some form of juvenile code that emphasizes treatment and rehabilitation, as opposed to punishment, for juvenile offenders. However, the juvenile codes also allow for adult treatment when the child is determined to be incapable of reform. See Samuel M. Davis, Rights of Juveniles 2d: The Juvenile Justice System § 1:1, at 1-2 (2d ed.2010). Unlike New Mexico’s current, post-adjudicatory proceeding, the overwhelming majority of states considers the amenability question at the initiation of proceedings against the child at a transfer or “waiver” hearing. See Davis, supra § 4:1, at 212 (explaining that New Mexico is currently one of only five states that do not “provide by statute for waiver of jurisdiction or a functional equivalent”).
{44} The focus of the pre-trial waiver proceeding followed in other states is similar to our post-trial amenability hearing. The judge must determine whether to waive the jurisdiction of the juvenile court in favor of the adult trial court based on the child’s amenability to treatment or rehabilitation. Prior to 1993, New Mexico made the amenability determination in a pre-trial waiver proceeding. See 1955 N.M. Laws, ch. 205, § 9 (requiring the trial judge to make a finding that the child was not a “proper subject for reformation or rehabilitation” prior to initiating adult proceedings); NMSA 1953, § 13-14-27(A)(2) (Vol. 3, Repl., Part 1); 1975 N.M. Laws, ch. 320, § 4(A)(5). Thus, while New Mexico now makes the amenability determination post-trial, the inquiry is largely the same as that of a pre-trial waiver proceeding: whether the child should be subjected to adult consequences based on the lack of prospects for successful treatment and rehabilitation.
{45} Of the courts to consider whether judge-made, pre-trial waiver determinations violate the right to a jury trial, “the overwhelming weight of authority ... concludes that Apprendi does not apply to juvenile waiver hearings.” State v. Kalmakoff,
{46} Interestingly, the factors that the New Mexico judge must consider under Section 32A-2-20(C) to determine whether to invoke an adult sentence are used in other jurisdictions to determine whether waiver is appropriate. 2 Wayne R. LaFave, Substantive Criminal Law § 9.6(d), at 69-70 (2d ed.2003). These factors are largely identical to a set of criteria laid out by the U.S. Supreme Court in Kent v. United States,
{47} Similarly, since the inception of the first New Mexico Juvenile Code in 1917, our statutes and caselaw make clear that it is the trial judge, not the jury, who decides whether to invoke an adult sentence based on a child’s amenability to treatment — whether pre- or post-adjudication. Since 1955, the trial judge has been expressly required by statute to decide whether a child is amenable to treatment or rehabilitation based upon certain findings. See 1955 N.M. Laws, ch. 205, § 9 (requiring the trial judge to make a finding that the child was not a “proper subject for reformation or rehabilitation” pri- or to initiating adult proceedings); § 13-14-27(A)(2); 1975 N.M. Laws, eh. 320, § 4(A)(5); § 32A-2-20(B). Before 1955, the trial judge had the discretion to try and sentence a juvenile as an adult. As this Court explained in State v. Doyal,
[M]ay we not fairly assume that in whatever capacity as judge he acts [whether as a judge of the district court or the juvenile court], he will so exercise his discretion as to try no child in the district court for what would have been a felony if done by an adult, if extreme youth of the offender plus other facts in evidence gives reasonable promise of his rehabilitation by treatment in the juvenile court; nor at all save where the demands of society for the prevention and punishment of crime are so compelling as to leave no other alternative.
.... Never, since our legislature enacted the first Juvenile Delinquency Act, has it attempted to deny district courts their traditional and constitutional power to place on trial one accused of having committed a felony, merely because his age at the time of the offense placed him below the maximum named in the statute for juvenile delinquents.
Doyal,
{48} Doyal establishes that, since the inception of separate proceedings for juveniles in 1917, the trial judge — -not the jury — was responsible for determining whether to try and sentence a child as an adult based on the child’s amenability to treatment or rehabilitation. Put simply, the trial judge has decided the child’s amenability to treatment or rehabilitation for as long as that determination has been a part of criminal proceedings in New Mexico.
{49} Child argues in the present ease that the rebuttable presumption for children between the ages of seven and fourteen, also known as the common-law infancy defense, provides the appropriate historical analog to the modern-day amenability determination. The infancy defense required the prosecution to prove that when a child subject to the rebuttable presumption committed the alleged offense, the child “manifested a consciousness of guilt, and a discretion to discern between good and evil.” 4 William Blackstone, Commentaries on the Laws of England 23-24 (1769); see 2 LaFave, supra § 9.6(a), at 62-63. The State had to prove the child’s criminal capacity to the jury beyond a reasonable doubt. See Commonwealth v. Mead,
{50} We are not persuaded. The infancy defense, which acted as a complete bar to criminal liability, was a rebuttable presumption that a child of a certain age could not form the necessary criminal intent to commit the crime of which he was accused. In other words, a child who raised the infancy defense effectively argued that, although he committed the act necessary to constitute the charged offense, he should be relieved from liability because he did not understand the moral consequences of his actions — he was not culpable. Infancy is, thus, a determination of historical fact closely linked to mens rea, one of the essential elements of most crimes and historically determined by the jury.
{51} By contrast, the amenability finding does not exonerate the child or render him blameless. As with any criminal proceeding, the jury may find at the adjudicatory stage that a juvenile lacked the requisite mens rea to be guilty of the charged offense. See Addington,
{52} Even more to the point, the amenability determination only applies to youthful offenders, who by definition must be at least fourteen years of age, see § 32A-2-3(J); whereas, the common-law infancy defense only applied to children between the ages of seven and fourteen. The jury, therefore, played no historical role in determining whether a child over the age of fourteen had the capacity to commit a crime, because at common law such children “had the same capacity as adults” and were commonly treated as such. 2 LaFave, supra § 9.6(a), at 62-63. Clearly, we can conclude that the amenability determination is not an “encroachment ... by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused.” Ice, 555 U.S. at -,
{53} Neither Child nor the State offer any other historical basis for us to determine whether Apprendis rule is applicable to the amenability determination, and we can find none. Thus, although the amenability determination was not an aspect of the prosecution of juveniles at the time of the framing of the Bill of Rights, it has been a question for the judge — not the jury — since the creation of the juvenile court systems at the turn of the twentieth century. Put simply, an amenability determination has never been based upon facts “historically found by the jury,” and so it cannot be a “threat to the jury’s domain” as preserved in the U.S. Constitution. We now turn to the second of Ice’s “twin considerations,” state sovereignty and principles of federalism.
Principles of federalism preclude the application of Apprendi to the amenability finding.
{54} As Ice explained, “[w]e have long recognized the role of the States as laboratories for devising solutions to difficult legal problems.” 555 U.S. at -,
{55} To be sure, the Supreme Court has made clear that juvenile proceedings must meet minimal constitutional requirements. Kent set the minimum procedural requirements for waiver proceedings,
{56} At the same time, the Court has repeatedly emphasized that it follows a more deferential approach to state decisions of how to administer their juvenile court systems. “From the inception of the juvenile court system, wide differences have been tolerated — indeed insisted upon — between the procedural rights accorded to adults and those of juveniles.” In re Gault,
{57} Given the states’ discretion “to experiment further and to seek in new and different ways the elusive answers to the problems of the young,” McKeiver,
{58} Finally, the same administrative burdens noted by the Supreme Court in Ice counsel against applying Apprendi to amenability determinations. See Ice, 555 U.S. at -,
{59} In sum, because the amenability determination historically has not been made by the jury, applying Apprendi would interfere unnecessarily with New Mexico’s traditional discretion in administering a system of juvenile justice. We hold that the amenability determination is not within the scope of the Apprendi rule and the Sixth Amendment’s guarantee of a jury trial does not apply to amenability proceedings.
CONCLUSION
{60} We reverse the Court of Appeals’ determination that Section 32A-2-20 is facially unconstitutional and remand to the Court of Appeals for consideration of Child’s remaining appellate arguments that (1) there was insufficient evidence to support the findings necessary to sentence him as an adult, and (2) his separate convictions for shooting from a motor vehicle resulting in great bodily harm and aggravated battery with a deadly weapon violate constitutional protections against double jeopardy.
{61} IT IS SO ORDERED.
Notes
. Section 32A-2-20 provides, in relevant part,
C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors:
(1) the seriousness of the alleged offense;
(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
(3) whether a firearm was used to commit the alleged offense;
(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
(5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability;
(6) the record and previous history of the child;
(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and
(8) any other relevant factor, provided that factor is stated on the record.
. The sentencing statute in Blakely set the "standard range” for second-degree kidnaping at 49-53 months but allowed a trial judge to sentence a defendant up to ten years based on a finding of "substantial and compelling reasons justifying an exceptional sentence.” Blakely,
.The criteria in Kent,
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.
6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.
Dissenting Opinion
dissenting.
{62} The Framers of the Bill of Rights would be alarmed to learn that a child can be condemned to an adult prison for up to a life sentence without at least the same constitutional protections afforded adults. In New Mexico a child who is “subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult.” NMSA 1978, § 32A-2-14(A) (1993) (amended 2009). These rights include a jury trial if the offenses alleged would be triable by jury if committed by an adult. State v. Erie M.,
{63} In this ease, the child was condemned to an adult prison for twenty-five years based on a judge’s finding, not beyond a reasonable doubt but by clear and convincing evidence, that the child was not amenable to treatment in an available treatment facility. Without this finding, the judge could only commit the child to the Children, Youth & Families Department until he reached age twenty-one, NMSA 1978, § 32A-2-19(B)(l)(d) (1993) (amended 2009); see also NMSA 1978, § 32A-2-20(B) (1993) (amended 2009), which for this child would have been three and one-half years. Thus, the severe consequence to the child was being confined in an adult prison approximately twenty-two years longer than what his factual concessions alone authorized.
{64} In America an adult cannot be imprisoned unless a jury finds, beyond a reasonable doubt, all of the facts that support imposition of the penalty. Duncan v. Louisiana,
{65} The United States Supreme Court has clearly defined the statutory maximum sentence for purposes of its analysis.
[T]he relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Id. at 303-04,
{66} In New Mexico, the basic sentence for an adult convicted of a non-capital first degree felony is eighteen years in prison, plus a period of parole and/or imposition of a fine not to exceed $15,000. NMSA 1978, § 31-18-15(A)(3), (C), & (E)(3) (1993) (amended 2007). Effective July 1, 2009, a judge may increase the sentence by up to one-third if a jury finds “beyond a reasonable doubt ... any aggravating circumstances surrounding the offense or concerning the offender.” NMSA 1978, § 31-18-15.1(A)(2) & (G) (1979) (amended 2009). Prior to its amendment in 2009, Section 31-18-15.1 authorized the judge to increase a defendant’s basic sentence by up to one-third if the judge found aggravating circumstances surrounding the offense or concerning the offender. We held that such a scheme was unconstitutional because the Sixth Amendment gave the defendant the right to have a jury make such findings beyond a reasonable doubt. Frawley,
{67} The majority acknowledge the Apprendi bright-line rule, but then mistakenly depart from it, citing to Oregon v. Ice,
AT COMMON LAW, A JURY DECIDED ALL FACTS THAT AUTHORIZED IMPOSITION OF AN ADULT SENTENCE ON A CHILD
{68} The majority rely on the “twin considerations ... historical practice and respect for state sovereignty” in declining to extend Apprendi to amenability evidentiary findings. Majority op. ¶ 39 (internal quotation marks and citation omitted). However, the majority has not accurately analyzed historical practice. The Ice majority cautiously explained that its historical inquiry is intended to honor common law practices by focusing on “whether the finding of a particular fact was understood as within ‘the domain of the jury ... by those who framed the Bill of Rights.’ ” 555 U.S. at -,
{69} Separate juvenile proceedings did not exist at common law, so it was impossible for the Framers of the Bill of Rights to understand that a judge and not a jury would make findings that authorized the imprisonment of a child in an adult prison. All the Framers could have known was that a fourteen- to eighteen-year-old child who was accused of a crime was (1) treated the same as an adult, and (2) enjoyed the same constitutional protections as an adult. The Ice Court’s focus was on consecutive sentencing of a defendant for multiple convictions. The Ice majority pointed to the historical common law practice of a judge deciding whether to impose consecutive sentences. 555 U.S. at -,
{70} I readily concede that the Legislature sought to temper the harsh effects of punishing a fourteen-year-old the same as an adult when our Legislature enacted a juvenile justice system. This noble effort to emphasize rehabilitation, however, must still pass constitutional scrutiny. We must evaluate the legislation as it is currently written to determine whether it is constitutional.
{71} However, proof only of the essential elements of the charged crime is insufficient to impose an adult sentence on a child. To deprive a child of the right to have a jury determine all of the facts essential to punishing him or her as an adult is both fundamentally unfair and unconstitutional. The Legislature “may not manipulate the definition of a crime in a way that relieves the Government of its constitutional obligations to charge each element in the indictment, submit each element to the jury, and prove each element beyond a reasonable doubt.” Harris,
{72} The Court of Appeals correctly concluded that “the juvenile sentence is the baseline sentence because the adult sentence is available only if the court makes the required [additional] factual findings.” State v. Rudy B., 2009-NMCA-l04, ¶ 43,
THE SENTENCE RUDY B. RECEIVED WAS OFFENSE SPECIFIC
{73} The majority asserts that the findings by the judge were not offense specific and are predictive, which set them apart from the findings considered in Apprendi. Majority op. ¶¶36, 39. Labeling the findings as predictive is not helpful to the analysis.
If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt. A defendant may not be “exposefd] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”
Ring v. Arizona,
{74} Under New Mexico’s juvenile justice system, a judge must first make additional findings relating to both the offense and the child before the judge is authorized to sentence the child as an adult. Section 32A-2-20(C)(l)-(4) requires the judge to consider matters related to the offense.
{75} The essential inquiry is whether the findings involve a sentence for a discrete offense. Ice, 555 U.S. at -,
{76} As we recently noted in State v. Jones,
The finding of non-amenability is the trigger for the court’s authority to sentence a youthful offender as an adult. See [State v.] Muniz,2003-NMSC-021 , ¶ 16,134 N.M. 152 ,74 P.3d 86 . The finding gives the court the discretion to impose the “adult consequences of criminal behavior” on a child who would be otherwise exempt from adult punishment. [NMSA 1978,] Section 32A-2-2(A) [ (1993) (amended 2007)]. Put another way, the finding of non-amenability gives the court the necessary leverage to dislodge a youthful offender from the protective dispositional scheme of the Delinquency Act.
{77} In Jones, this Court was convinced that the Legislature intended to protect children from the adult consequences of criminal behavior. It is not congruent to state that New Mexico seeks to protect children from adult consequences of criminal behavior, and yet deprive children of the same constitutional protections enjoyed by adults accused of committing similar crimes.
{78} Once we accept that a youthful offender has a right to a jury trial, the youthful offender should benefit from the traditional functions of the jury to the same extent as an adult. In Rudy B., Judge Sutin raised a concern in his special concurrence about the United States Supreme Court plurality opinion in McKeiver v. Pennsylvania,
{79} Indeed, as I read the record, this child was sent to an adult prison, not because he was not amenable to treatment, but because of the unavailability of facilities. While the court evaluator thought that Rudy B. was only adapting to his environment, those who worked with the child while he was in the juvenile detention facility believed he was amenable to treatment. The licensed psychologist who worked with the child was of the opinion that he was amenable to rehabilitation and pointed to his voluntary attendance in group therapy that focused on issues that make violent acting-out more likely. In fact, although the child had reached the age of majority, instead of remanding him to an adult jail, an exception was made to keep him in the juvenile facility.
{80} The testimony during the hearing was more of a testament to the lack of available resources than about a child who was not amenable to treatment. It was also mentioned that because Rudy B. was not indigent, he did not qualify for some programs, and the managed care organization (Value Options at the time) would not approve his admission into one of its programs because he did not have a history of other hospitalizations or “treatment episodes.”
{81} As it pertains to youthful offenders, it seems that the tail is wagging the dog. Simply stated, a youthful offender in New Mexico’s current juvenile justice system is treated the way an accused child of the same age was treated at common law. A fourteen- to eighteen-year-old child at common law was entitled to the same constitutional protections as an adult. A youthful offender in New Mexico also should be entitled to the same constitutional protections enjoyed by adults in this state. No matter how much we gloss over it, an amenability hearing is nothing more than a hearing on aggravating circumstances relating to either the offense or the offender.
{82} It is unconstitutional when only a judge, and not a jury, makes the findings necessary to increase an adult’s sentence beyond the statutory maximum. In New Mexico, a child faces an even more drastic increase in his or her sentence than an adult faces under the aggravating circumstances scheme contained in Section 31-18-15.1, which we declared unconstitutional. We should not tolerate this disparity in treatment. When the words “no person” appear in the Fifth Amendment of the United States Constitution and the words “the accused” appear in the Sixth Amendment, we should not interpret them to mean “no adult person” or “the adult accused.” Similarly, when Article II, Section 12 of the New Mexico Constitution confers the right of trial by jury “to all” and Article II, Section 18 states that “no person” shall be deprived of liberty without due process of law, we should not interpret them to mean “to all adults ” or “no adult person.”
{83} Ironically, if the Legislature wrote a law to mirror reality, it would be constitutional. By this statement, I mean that the Legislature could have written a law that authorized a judge to sentence a child as an adult based solely on the facts relating to the charged offense as found by a jury beyond a reasonable doubt. The judge could then consider the child’s amenability to treatment in available facilities to mitigate the adult sentence. Because commitment to a treatment facility would be within the range authorized by law, the judge, not a jury, could find the mitigating facts, but that is not how the legislation is written. The legislation quite clearly requires additional findings before the judge can impose an adult sentence on a child. Because the additional findings must be made by a jury beyond a reasonable doubt, the next question is whether the legislation is unconstitutional on its face or as it is applied.
{84} In my opinion, the legislation is unconstitutional as it is applied, since nothing in the Delinquency Act precludes a judge from empaneling a jury during an amenability hearing. Section 32A-2-20(B) requires “the court” to make the additional findings. This language is different than the language in Section 31-18-15.1, which we declared to be unconstitutional. In Section 31-18-15.1, the Legislature specifically required the judge to make the findings of aggravating circumstances. Frawley,
{85} Permitting a jury to make these findings does not create any problems and it is consistent with the jury’s traditional role to act as the finder of fact, the community conscience, and as a bulwark between the State and the accused, protecting ordinary people from government overreaching. One of common law’s longstanding tenets is that the ‘“truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” Blakely,
{86} In this case, the sentencing judge heard testimony from both lay people and experts before making the findings that authorized her to sentence the child to an adult sentence in an adult prison. Every day in our courtrooms, jurors from a variety of educational and socioeconomic backgrounds are called upon to weigh similar evidence from a variety of experts. Significantly, jurors are also authorized to consider both mitigating circumstances regarding the offense and the defendant in capital punishment proceedings when deciding whether the defendant should be sentenced to death, including whether the defendant “is likely to be rehabilitated.” UJI 14-7029 NMRA.
{87} Most of the Bill of Rights is procedural. Procedure distinguishes the rule of law from rule by whim. Steadfast adherence to procedure provides the greatest assurance that there will be equal justice under law. To deprive a child of the same jury protections afforded an adult is not equal justice.
{88} For the foregoing reasons, I respectfully dissent.
. As noted by the majority in this case, the juvenile justice system has evolved with different goals at different times. At times the legislation emphasized rehabilitation, and at other times the legislation was more concerned with retribution.
. In this case, at the time the child entered his plea, he necessarily admitted the essential facts under Section 32A-2-20(C)(2)-(4). Shooting at or from a motor vehicle with great bodily harm requires willful discharge of a firearm that injures a person. NMSA 1978, § 30-3-8(B) (1987) (amended 1993). However, not all crimes that might result in a child being charged as a youthful offender have all of the elements of Section 32A-2-20(C)(2)-(4), such as robbery.
. Recently in Graham v. Florida, — U.S. -, -,
. Jurors are also entrusted in civil litigation with finding facts regarding future damages such as loss of earning capacity, future pain and suffering, and such other "predictive findings.”