¶ 12. With appropriate respect for the opinion of my colleagues in the majority, I am compelled to dissent on the issue of whether Buck received effective assistance of counsel in the Youth Court of Warren County. I believe that Buck was poorly and constitutionally ineffectively served by her attorney.
¶ 13. Pursuant to Section 43-21-151(1) Mississippi Code Annotated, the youth court shall have exclusive original jurisdiction of all proceedings concerning a delinquent child,1 except:
(a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court:
(b) Any act attempted or committed by a child with the use of a deadly weapon, the carrying of which concealed is prohibited by section 97-37-1, or a shotgun or a rifle, which would be a felony if committed by an adult, will be in the original jurisdiction of the circuit court.
¶ 14. While placing exclusive original jurisdiction of delinquent children in the youth court, the legislature has provided that the youth court may "either on motion of the youth court prosecutor or on the youth court's own motion," transfer a case to the appropriate adult court. A transfer pursuant to Section 43-21-157 requires at least ten days' notice, and representation by counsel at a bifurcated hearing. Section43-21-157(3) requires that the youth court first make a determination that probable cause exists to believe that an *Page 868 offense has been committed, and the juvenile committed the offense.
¶ 15. Under Section 43-21-157(4) the youth court may only transfer if it "finds by clear and convincing evidence2 that there are no reasonable prospects of rehabilitation within the juvenile justice system."
¶ 16. In considering the prospects for treatment within the juvenile system, the youth court, pursuant to Section 43-21-157(5), is required to consider and make a finding on the following factors:
(a) Whether or not the alleged offense constituted a substantial danger to the public;
(b) The seriousness of the alleged offense;
(c) Whether or not the transfer is required to protect the community;
(d) Whether or not the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
(e) Whether the alleged offense was against persons or against property, greater weight being given to the offense against persons, especially if personal injury resulted;
(f) The sophistication, maturity and educational background of the child;
(g) The child's home situation, emotional condition and life-style;
(h) The history of the child, including experience with the juvenile justice system, other courts, probation, commitments to juvenile institutions or other placements;
(i) Whether or not the child can be retained in the juvenile justice system long enough for effective treatment or rehabilitation;
(j) The dispositional resources available to the juvenile justice system;
(k) The dispositional resources available to the adult correctional system for the child if treated as a adult;
(l) Whether the alleged offense was committed on school property, public or private, or at any school-sponsored event, and constituted a substantial danger to other students;
(m) Any other factors deemed relevant by the youth court;
¶ 17. While this Court does not have the youth court record before it, there is nothing in the record before us, which allows us to say with confidence that these things were considered.
¶ 18. If after consideration of Section 43-21-157(5) factors, the youth court finds transfer to be appropriate, Section 43-21-157(6) requires that:
*Page 869(6) If the youth court transfers jurisdiction of the alleged offense to a criminal court, the youth court shall enter a transfer order containing:
(a) Facts showing that the youth court had jurisdiction of the cause and of the parties;
(b) Facts showing that the child was represented by counsel;
(c) facts showing that the hearing was held in the presence of the child and his counsel;
(d) A recital of the findings of probable cause and the facts and reasons underlying the youth court's decision to transfer jurisdiction of the alleged offense;
(e) the conditions of custody or release of the child pending criminal court proceedings, including bail or recognizance as the case may justify, as well as a designation of the custodian for the time being; and(f) A designation of the alleged offense transferred and of the court to which the transfer is made and a direction to the clerk to forward for filing in such court a certified copy of the transfer order of the youth court.
¶ 19. The order entered by the youth court does not meet these requirements. The transfer order is a part of the record before this Court.
That order provides:
This cause came on for hearing on April 8, 1999 on the Motion of the State of Mississippi to certify as an adult Rhevonia Buck, a minor child whose date of birth is August 4, 1982, for a charge of sale of cocaine which allegedly occurred in Warren County, Mississippi on April 2, 1999, and the Court being satisfied with the jurisdiction of the subject matter and of the parties and having heard the Motion of the State and counsel for the youth having announced that the youth and her mother have agreed to the certification, and the Court being of the opinion that the relief sought should be granted, it is therefore,
ORDERED AND ADJUDGED that the jurisdiction of the youth, Rhevonia Buck, whose date of birth is August 4, 1982, as well as the charge of sale of cocaine which occurred in Warren County, Mississippi on April 2, 1999, are hereby transferred to the Circuit Court of Warren County, Mississippi for further proceedings. That all procedural matters pursuant to the Youth Court Act with regards to the certification have been complied with. That bond is hereby set at $25,000.00 returnable to the next Term of the Warren County Grand Jury. The Sheriff of Warren County, Mississippi is hereby ordered to take custody of the youth and to transfer her to the Warren County adult jail.
ORDERED AND ADJUDGED this the 8th day of April, 1999.
¶ 20. The order is signed by the youth court judge and approved as to form by the youth court prosecutor and Buck's counsel.
¶ 21. While the majority states that Buck was certified at her request, the order states that it was the request of the prosecutor, and agreed to by Buck. This appears to recognize that a court cannot of its own volition, expand or contract its jurisdiction except as allowed by law. Transfer is a matter of jurisdiction. The statutes of this state do not provide for a transfer request by a juvenile, or her counsel.
¶ 22. Indeed, to even call the matter to the court's attention is constitutionally ineffective assistance of counsel. Such an act is akin to a confession of guilt by defendant's counsel, when there is no benefit to be gained by the defendant. This is particularly true where, as in this case, counsel's actions subjected Buck to a far harsher penalty than could have been imposed upon her in the juvenile system.
¶ 23. The law has predetermined that juveniles are special people, who cannot abrogate their rights, except under very limited circumstances. In re Winship, 397 U.S. 358, 359 (1970); see also InInterest of Gressett, 272 So.2d 921, 922 (Miss. 1973).
¶ 24. This recognition of special circumstances is further set out in Section 43-21-311(4) which forbids the interview or an interrogation of a child in a detention facility without prior youth court approval. *Page 870
¶ 25. I believe the actions of the Warren County Youth Court failed to comply with the statutory and constitutional protections accorded Buck, and these failures did not effectively transfer jurisdiction to the circuit court. I also believe that counsel provided constitutionally ineffective assistance counsel. For these reasons, I would reverse and remand this case to the Warren County Youth Court.
LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act or, while being required to attend an alternative school program provided under Section 37-13-92, willfully and habitually absents himself therefrom.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Mississippi Schools Compulsory Attendance Law, violations of the Uniform controlled Substances Law and violent behavior.