Cite as 2016 Ark. App. 297
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-985
Opinion Delivered June 1, 2016
MALIK GILLIAM APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FIRST DIVISION
V. [NO. CR-2015-1135]
STATE OF ARKANSAS HONORABLE LEON JOHNSON,
APPELLEE JUDGE
REMANDED WITH INSTRUCTIONS
BRANDON J. HARRISON, Judge
Malik Gilliam appeals the denial of his motion to transfer to the juvenile division of
the circuit court. He argues that evidence of his prior history should have been excluded
pursuant to Ark. Code Ann. § 9-27-309(k) (Repl. 2015). We are unable to reach the
merits of his argument because we must remand for proper written findings.
A circuit court’s decision to retain jurisdiction of criminal charges against a juvenile
must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(h)(2).
Clear and convincing evidence is that degree of proof that will produce in the trier of fact
a firm conviction as to the allegation sought to be established. McClure v. State, 328 Ark.
35, 942 S.W.2d 243 (1997). We will not reverse a circuit court’s decision on whether to
transfer a case unless it is clearly erroneous. Nichols v. State, 2015 Ark. App. 397, 466
S.W.3d 431. A finding is clearly erroneous when, although there is evidence to support
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it, the reviewing court on the entire evidence is left with a definite and firm conviction
that a mistake has been committed. Id.
In deciding the motion to transfer, the circuit court is to consider the following
factors:
(1) The seriousness of the alleged offense and whether the protection of society
requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent,
premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight
being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation
in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been
adjudicated a juvenile offender and, if so, whether the offenses were against persons
or property, and any other previous history of antisocial behavior or patterns of
physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of
the juvenile’s home, environment, emotional attitude, pattern of living, or desire to
be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile
division of circuit court that are likely to rehabilitate the juvenile before the
expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of
the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). The circuit court is required to make written findings on
all of the above factors. Ark. Code Ann. § 9-27-318(h)(1). However, there is no
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requirement that proof be introduced against the juvenile on each factor, and the circuit
court is not obligated to give equal weight to each of these factors in determining whether
a case should be transferred. D.D.R. v. State, 2012 Ark. App. 329, 420 S.W.3d 494.
Here, the order entered by the circuit court is essentially a list of the statutory
factors with certain subdivisions either checkmarked or not checkmarked. For example:
1. The seriousness of the alleged offense and the protection of society
justifies prosecution
_√_ in the Criminal Division of Circuit Court
___ in the Juvenile Division of Circuit Court as an extended juvenile
jurisdiction
___ in the Juvenile Division of the Circuit Court
We hold that this order fails to comply with the statutory requirement for written findings
on all the statutory factors. We therefore remand with instructions to enter an order
consistent with the statute.
Remanded with instructions.
WHITEAKER and BROWN, JJ., agree.
Llewellyn J. Marczuk, Deputy Pub. Defender, by: Clint Miller, Deputy Pub.
Defender, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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