OPINION
¶ 1 The Appellant, K.M.C., appeals to this Court from an order entered by the Honorable William C. Kellough, District Judge, granting the State's motion to sentence Appellant as an adult in Case No. CF-2008-4793 in the District Court of Tulsa County. On September 29, 2008, Appellant was charged by Information as a Youthful Offender with the offenses of Count 1: Assault and Battery With a Deadly Weapon; Count 2: Attempted Robbery With a Firearm; and Count 3: Burglary — First Degree. The crimes allegedly occurred on or about September 23, 2008, when Appellant was seventeen years, two months old.
¶ 2 After Appellant was bound over for trial at preliminary hearing, the State filed a motion to sentence Appellant as an adult, pursuant to 10A O.S.Supp. 2009, § 2-5-208[10A-2-5-208].1 The hearing on the motion to sentence Appellant as an adult was held before Judge Kellough on February 27, March 6, and March 9, 2009. The only witness called at the hearing was the Office of Juvenile Affairs ("OJA") employee who prepared the Youthful Offender Study on Appellant. The OJA employee addressed the facts of this case with regard to the statutory factors to be considered in determining a motion to sentence a youthful offender as an adult. 10A O.S.Supp. 2009, § 2-5-208[10A-2-5-208](C)(2). The OJA employee opined that Appellant should be sentenced as an adult. (Tr. 21). The basis for that opinion was because Appellant did not have enough time before he would be turning eighteen years and five months. Id. The Youthful Offender Study filed in this case states that "OJA believes that this youth may be amenable to treatment but due to the defendant turning 18 years-old in July of this year, he will not have time to complete any treatment program that would be appropriate through the Office of Juvenile Affairs." (O.R. 75).
¶ 3 At the conclusion of the evidence and arguments, Judge Kellough stated "it'll be very clear to the Court of Criminal Appeals that, in essence, my finding is based on the time constraint, and recognizing it." (Tr. 44). Judge Kellough's written order states that the prospects for adequate protection of the public are limited because of Appellant's age (17 years and 7 months) and the fact he would be released from OJA supervision at 18 years, 5 months. (O.R. 96). The written order further states Appellant may be amenable to treatment, but is not likely to successfully complete a plan of rehabilitation as a youthful offender based on his age and the time limitation imposed by his release from OJA supervision at age 18 years and 5 months, pursuant to 10A O.S.Supp. 2009, § 2-5-209[10A-2-5-209](B)(1)(a).2 Id. Judge Kellough granted the State's motion to sentence Appellant as an adult. Appellant brings this appeal.
¶ 4 On appeal Appellant raises the following propositions of error:
1. It was an abuse of discretion in light of the purposes of the Youthful Offender Act for the District Court to grant the State's motion to sentence Appellant as an adult.
2. 10 O.S.Supp. 2008, § 7306-2.9[10-7306-2.9](b) denies Appellant, who was 17 years of age at the time of the alleged crime, the equal protection of the law because it creates a subclass (17 year olds) within the youthful offender class (15, 16, and 17 year olds) whom the law affects differently than youthful offenders 15 and 16 years of age. Due to time constraints imposed by the law, 17 year-old youthful offenders are in effect denied youthful offender sentencing and thus *Page 737 status. This classification is wholly irrelevant to the purpose of the Youthful Offender Act and to the intent of the Legislature in creating the Youthful Offender Act.
¶ 5 Pursuant to Rule 11.2, Rules of the Oklahoma Court of CriminalAppeals, Title 22, Ch. 18, App. (2009), this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions were presented to this Court in oral argument on June 25, 2009, pursuant to Rule 11.2(E). At the conclusion of oral argument, this Court voted three to two to reverse the District Court's order granting the State's motion to sentence Appellant as an adult, and to remand the matter to the District Court for further proceedings in the youthful offender system. This Court issued a written order reflecting the decision and allowing District Court proceedings to resume, with a notation that this published decision would follow. K.M.C. v. State, No, J-2009-258 (Okl.Cr. June 30, 2009) (not for publication).
¶ 6 When deciding a motion to sentence a youthful offender as an adult, the District Court shall certify the youthful offender as eligible for the imposition of an adult sentence only if it finds by clear and convincing evidence that there is good cause to believe that the accused person would not reasonably complete a plan of rehabilitation or that the public would not be adequately protected if the person were to be sentenced as a youthful offender. 10A O.S.Supp. 2009, § 2-5-208[10A-2-5-208](D). It is the purpose of the Youthful Offender Act to better ensure the public safety by holding youths accountable for the commission of serious crimes, while affording courts methods of rehabilitation for those youths the courts determine, at their discretion, may be amenable to such methods. 10A O.S.Supp. 2009, § 2-5-202[10A-2-5-202](B).3 Effective November 1, 2006, the Oklahoma Legislature added Section 7306-2.7a to the Youthful Offender Act, which specifically provided:
"It is the intent of the Legislature to fully utilize the Youthful Offender Act as a means to protect the public while rehabilitating and holding youth accountable for serious crimes. The Legislature finds that eligible seventeen-year-olds should have the opportunity to be processed as youthful offenders as provided by law and held accountable through the various provisions of the Youthful Offender Act for custody, institutional placement, supervision, extended jurisdiction within the Office of Juvenile Affairs, and the ability to transfer youthful offenders to the Department of Corrections when incarceration or additional supervision is required beyond the maximum age allowed in the Office of Juvenile Affairs. No older youth should be deemed ineligible or denied consideration as a youthful offender who is otherwise lawfully eligible based upon the age of the youth being seventeen (17) years. To deny access to an otherwise eligible older youth without cause is to circumvent the original intent of the Legislature in creating the Youthful Offender Act."
10A O.S.Supp. 2009, § 2-5-207[10A-2-5-207].4
¶ 7 Based upon the above-cited statutes, this Court will not affirm orders granting motions to sentence youthful offenders as adults when the primary evidence and the only reasoning used to support the order is the age of the youthful offender. At the hearing on the motion to sentence Appellant as an adult, an OJA employee recommended that Appellant be sentenced as an adult. (Tr.21). The basis for that opinion was primarily the time frames and the conclusion Appellant doesn't have enough time to reasonably complete a plan of rehabilitation because of his age and the eighteen year and five month cutoff. Id. The Youthful Offender Study filed in this case states that "OJA believes that this youth may be amenable to treatment but due to the defendant turning 18 years-old in July of this year, he will not have time to complete any treatment program that would be appropriate through the Office of Juvenile Affairs." (O.R. 75).
¶ 8 In granting the State's motion to sentence Appellant as an adult in this case, Judge Kellough stated "it'll be very clear to the Court of Criminal Appeals that, in essence, *Page 738 my finding is based on the time constraint, and recognizing it." (Tr. 44). Judge Kellough's written order states that the prospects for adequate protection of the public are limited because of Appellant's age (17 years and 7 months) and the fact he would be released from OJA supervision at 18 years, 5 months. (O.R. 96). The written order further states Appellant may be amenable to treatment, but is not likely to successfully complete a plan of rehabilitation as a youthful offender based on his age and the time limitation imposed by his release from OJA supervision at age 18 years and 5 months, pursuant to 10A O.S.Supp. 2009, § 2-5-209[10A-2-5-209](B)(1)(a). Id. Based upon this evidence, we find Appellant cannot be deemed ineligible or denied consideration as a youthful offender based upon his age being seventeen (17) years. 10A O.S.Supp. 2009, § 2-5-207[10A-2-5-207]. We find that to deny Appellant access to youthful offender treatment would be to circumvent the original intent of the Legislature in creating the Youthful Offender Act. Id.
¶ 9 We find further statutory support for finding that age cannot be the reasoning used to sentence a youthful offender as an adult. The crimes for which a juvenile is charged as a youthful offender are all serious in nature. 10A O.S.Supp. 2009, §§ 2-5-202[10A-2-5-202](A), 2-5-205(A), and 2-5-206(A), (B). Any juvenile committing such a serious crime would require treatment for an extended period of time5 in order to complete a plan of rehabilitation and to adequately protect the public. If youthful offenders were denied such extended treatment solely because it couldn't be completed by the time they turned eighteen years and five months old, it would effectively eliminate from treatment consideration most of the juveniles charged as youthful offenders and would basically render the Youthful Offender Act useless. This Court will not presume the Legislature to have done a vain thing. State v. DistrictCourt of Oklahoma County, 2007 OK CR 3, ¶ 17, 154 P.3d 84, 87.
DECISION ¶ 10 The order of the District Court of Tulsa County granting the State's motion to sentence Appellant as an adult in Case No. CF-2008-4793 is REVERSED and this case is REMANDED for further proceedings in the youthful offender system. Pursuant to Rule 3.15, Rules of the OklahomaCourt of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE isORDERED issued upon the delivery and filing of this decision.
C. JOHNSON, P.J. concurs.
A. JOHNSON, V.P.J., and LUMPKIN, J., dissents.
LEWIS, J. specially concurs.