dissenting. In order to retain jurisdiction over charges brought against a juvenile defendant, a circuit court must find “by clear and convincing evidence,” based upon the three factors set forth in Ark. Code Ann. § 9-27-318(e) (Repl. 1998), that the “juvenile should be tried as an adult.” Ark. Code Ann. § 9-27-318(f) (Repl. 1998). Such a finding must be reversed if it is clearly erroneous. Sanford v. State, 331 Ark. 334, 348, 962 S.W.2d 335, 342 (1998). A trial court’s finding “is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Noland v. Noland, 330 Ark. 660, 672, 956 S.W.2d 173, 179 (1997).
Application of the three factors set forth in Ark. Code Ann. § 9-27-318(e) leaves me with the “definite and firm conviction” that the charges brought against appellant Joshua M. Heagerty should be transferred to the Juvenile Court. The finding of the Lonoke County Circuit Court that “clear and convincing evidence” warranted its retention of jurisdiction was “clearly erroneous.”
Í. Serious and violent offense
Section 9-27-318(e)(l) directs the Circuit Court to consider “[t]he seriousness of the offense” with which the juvenile is charged and “whether violence was employed by the juvenile in the commission of the offense.” Mr. Heagerty is alleged to have committed multiple drug offenses on school property.
No doubt the alleged offenses are “serious,” but there is no allegation of the use of violence. The mere fact “that a crime is serious without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction.” McClure v. State, 328 Ark. 35, 40, 942 S.W.2d 243, 246 (1997). See also Green v. State, 323 Ark. 635, 641, 916 S.W.2d 756, 759 (1996) (“Seriousness alone is not a sufficient basis to refuse the transfer.”); Cole v. State, 323 Ark. 136, 141-42, 913 S.W.2d 779, 782 (1996); Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992).
Mr. Heagerty is charged with having committed purely nonviolent offenses, and thus the alleged offenses, by themselves, did not warrant the Circuit Court’s retention of jurisdiction in this case. Consideration of § 9-27-318(e)(l) contributes nothing to the decision to retain jurisdiction in the Circuit Court.
2. Prior adjudicated offenses
Next, § 9-27-318 (e)(2) directs the Circuit Court to consider “[w]hether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts.”
The statute plainly asks whether the juvenile is “beyond rehabilitation under existing rehabilitation programs,” and that determination rests solely upon (1) whether the offense or offenses charged in the present action are “part of a repetitive pattern” of previously adjudicated offenses, and (2) the responses of the juvenile to any past efforts to treat and rehabilitate him or her.
Mr. Heagerty has no record of previously adjudicated offenses, and his only effort to receive treatment and rehabilitation at Recovery Way in Oklahoma proved successful. These facts are undisputed. The offenses with which Mr. Heagerty is charged in the present action, then, are not part of any “repetitive pattern” of previously adjudicated offenses, and we have, as the Court of Appeals observed, “no evidence of a faded attempt at rehabilitation.” Heagerty v. State, 62 Ark. App. 283, 288, 971 S.W.2d 793, 795 (1998). There is no showing that Mr. Heagerty is “beyond rehabilitation,” and consideration of § 9-27-318(e)(2) also clearly suggests transfer.
The majority suggests that a circuit court, in evaluating a juvenile’s transfer motion, may consider the fact that the information alleges a “multiplicity of serious charges” against the juvenile even though, at the time the transfer motion is considered, the charges are obviously not “adjudicated offenses” under § 9-27-318(e)(2). The majority cites Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992) in support of its suggestion.
A sufficient response is that Ark. Code Ann. § 9-27-318 does not permit a circuit court to retain jurisdiction on the ground that the information alleges multiple charges against the juvenile. The majority itself acknowledges that § 9-27-318(e)(2) refers only to “adjudicated offenses” and “not merely . . . charged offenses,” and it does not question the holding of the Court of Appeals that the “plain language” of § 9-27-318(e)(2) “does not allow mere non-adjudicated charges, no matter how numerous, in and of themselves to be proof of recidivism.” Heagerty v. State, 62 Ark. App. at 288, 971 S.W.2d at 795. As that Court correctly observed, § 9-27-318 (e)(2) “necessarily presupposes prior adjudications in the juvenile justice system.” Id. Thus, under the controlling statute, a “multiplicity of serious charges” alleged against the juvenile in the information provides no basis for a circuit court’s retention of jurisdiction.
Any contrary rule suggested by Hogan v. State, supra, must yield to the plain language of § 9-27-318. In the Hogan case, we affirmed the denial of a transfer motion in part because the information alleged “multiple charges of a serious nature.” We did not, however, explain how the “multiplicity of charges” in the information satisfied any of the three statutory factors in § 9-27-318(e). Since our decision in Hogan, moreover, we have not repeated the suggestion that the mere filing of multiple charges against a juvenile has any bearing on the factors that a circuit court must consider under the statute, and we have never sustained a circuit court’s finding of a “repetitive pattern” under 9-27-318 (e)(2) based upon unadjudicated offenses or unproven charges in an information. Thus, the statements in the Hogan case that are referred to in the majority opinion are contrary to the governing statute and are therefore erroneous. They should not be followed here.
3. Prospects for rehabilitation
Finally, § 9-27-318 (e)(3) directs the Circuit Court to consider the juvenile defendant’s “prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.”
This third factor virtually requires transfer of Mr. Heagerty’s case to Juvenile Court. The evidence overwhelmingly demonstrates that Mr. Heagerty’s “prospects for rehabilitation” are strong. As the Court of Appeals observed, Mr. Heagerty, on account of the treatment he received at Recovery Way, “was on the road to rehabilitation even before the charges had been filed against him.” Heagerty v. State, 62 Ark. App. at 288, 971 S.W.2d at 795.
The majority concludes, however, that the fact that Mr. Heagerty is currendy 19 years old and thus cannot be “committed” to a youth-services facility “adversely reflects upon,” and “diminish[es],” “his prospects for rehabilitation.” I strongly disagree with the majority on this point.
It is true that a juvenile over the age of eighteen cannot be “committed” to the Division of Youth Services. See Ark. Code Ann. §§ 9-27-331(a)(l) (Repl. 1998); 9-28-208(d) (Repl. 1998). It is also true that, in our past decisions, we have said that a juvenile has little chance for rehabilitation in the juvenile justice system if he or she cannot be “committed” to a Youth Services facility. In Rice v. State, 330 Ark. 257, 260, 954 S.W.2d 216, 218 (1997), we “dispensed” with the juvenile’s rehabilitation arguments and focused solely on his age. We said that, because the juvenile was eighteen, “his potential for rehabilitation within the juvenile system is nil.” We concluded that the juvenile was “beyond the age when he can be rehabilitated in the juvenile justice system.” See also Smith v. State, 328 Ark. 736, 740, 946 S.W.2d 667, 670 (1997); Jensen v. State, 328 Ark. 349, 353, 944 S.W.2d 820, 822 (1997); Brooks v. State, 326 Ark. 201, 204, 929 S.W.2d 160, 162 (1996)(“The chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18.”).
The current Juvenile Code was enacted in 1989. Some two years later, in Bright v. State, 307 Ark. 250, 251, 819 S.W.2d 7, 8 (1991), we observed for the first time that a juvenile offender’s ineligibility to be “committed” to a facility was an important factor in assessing his or her “prospects for rehabilitation.” But see Evans v. State, 287 Ark. 136, 142-43, 697 S.W.2d 879, 883 (1985) (making similar observation with respect to prior Juvenile Code). Since the Bright case, we have not departed from that interpretation of the Juvenile Code of 1989.
In the present case, however, we are asked for the first time to reconsider our holdings in the above cases in light of certain amendments to the Juvenile Code passed by the General Assembly in 1995. Those amendments appear at Ark. Code Ann. § 9-27-330 (Repl. 1998), and their effect, as the Court of Appeals observed, was to expand “the dispositions available to the juvenile court upon a finding of delinquency.” Heagerty v. State, 62 Ark. App. at 290, 971 S.W.2d at 796. Even if a juvenile is over the age of eighteen and is therefore ineligible to be “committed” to a youth-services center, other rehabilitation programs are now available to him or her pursuant to § 9-27-330. The “alternate dispositions,” aside from commitment to a youth-services center, include, among others, the following: probation, fines, restitution, community service, and “residential detention with electronic monitoring.”
In light of the “alternate dispositions” now available under § 9-27-330, it is no longer true that a juvenile’s prospects for rehabilitation are “nil” simply because he or she cannot, on account of age, be “committed” to a Youth Services facility. The General Assembly has made other rehabilitation programs available to juveniles regardless of their age. Section 9-27-330 clearly obligates the courts to assess a juvenile’s prospects for rehabilitation in light of those alternate programs, and thus we can no longer “dispense” with a juvenile’s arguments concerning rehabilitation by focusing solely on his or her age. The General Assembly, acting within its authority, has simply “changed the law” on this issue, and our duty is to follow it.
The majority, however, stubbornly clings to case law that originated prior to the current § 9-27-330. While acknowledging the various rehabilitation programs now available to Mr. Heagerty, the majority obsesses over the fact that commitment is not a “rehabilitative prospect” for Mr. Heagerty. Under the current § 9-27-330, however, that fact is no longer dispositive of the question posed by § 9-27-318 (e)(3) — i.e., whether Mr. Heagerty has any prospect for rehabilitation in the juvenile justice system. He clearly does in light of the recently amended statute.
The majority’s decision in this case will result in a trial in a circuit court where a young college student who is at least well on the road to rehabilitation will face the possibility of an extended prison sentence because he cannot be “committed” by a juvenile court. Instead, he will face the prospect of being “committed” to an institution where his prospects for sustaining his rehabilitation will indeed be “nil.”
I respectfully dissent.
Thornton, J., joins in this opinion.