State v. Jones

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-012

Filing Date: February 16, 2010

Docket No. 30,766

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

CURTIS JONES,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Jay W. Forbes, District Court Judge

Hugh W. Dangler, Chief Public Defender
JK Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Respondent

Marsha Levick
Philadelphia, PA

for Amicus Curiae
Juvenile Law Center

OPINION

BOSSON, Justice.

{1} Defendant Curtis Jones, age 17 at the time, was originally charged as a serious

1
youthful offender with first-degree murder of an infant child. The prosecution eventually
dismissed the murder charge and substituted child abuse resulting in death—a youthful
offender offense—to which Defendant eventually pled guilty, agreed to an adult disposition,
and received an adult sentence of 18 years imprisonment. In sentencing Defendant as an
adult, the court did not first determine whether Defendant was amenable to treatment or
rehabilitation as a juvenile.

{2} Defendant argues that once the State dismissed the first-degree murder charge, he
became an alleged youthful offender, not a serious youthful offender, making him eligible
for a juvenile sentence. As a youthful offender, Defendant asks us to hold that the children’s
court lacked the authority to sentence him as an adult without first determining his
amenability to treatment or rehabilitation as a juvenile, even if he did not ask for such a
hearing and appeared to waive it. He now asks permission from this Court to withdraw his
plea and proceed to trial as an alleged youthful offender.

{3} In construing the relevant statutes and our legal precedent, we are persuaded that
Defendant is correct that he should have received an amenability determination before being
sentenced as an adult. Rather than allow Defendant the opportunity to withdraw his plea,
however, we hold that his plea is void. The Court of Appeals having decided otherwise, we
reverse and remand to the children’s court for further proceedings.

BACKGROUND

{4} On July 22, 2004, Defendant Curtis Jones and his mother took Amy May, a one-year-
old child, to the emergency room at Carlsbad Medical Center. Upon her arrival, medical
personnel determined that Amy was suffering from internal bleeding, a skull fracture, and
a bite mark on her right cheek. Because of the extent of her injuries, Amy was transferred
to the University Medical Center in Lubbock, Texas, where she died a short time later. The
subsequent medical examination yielded symptoms consistent with Amy having been
violently shaken by someone and possibly striking her head. The physician who performed
the examination also found signs of severe rectal trauma, anal tearing, and a contusion
around her anus.

{5} Defendant, who was 17 years old at the time, explained Amy’s injuries to hospital
personnel and later to a law enforcement officer. According to Defendant, on the morning
in question, his mother placed Amy on the couch for a nap and left the house to make a
phone call at a nearby club. Defendant, who was then alone in the house with Amy, heard
Amy crying a few minutes later. Defendant went to check on her and found her lying on the
livingroom floor. Defendant picked Amy up to soothe her, and she stopped crying and
began talking to him. A few moments later, however, she tensed up and stopped breathing.
Defendant attempted to perform CPR and managed to revive her. He took her to the club
to find his mother, and the three of them got a ride to the hospital. After hearing Defendant’s
explanation, which was largely identical to his mother’s, medical personnel concluded that
Amy’s injuries were inconsistent with his story and contacted law enforcement.

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{6} Ten days later, Defendant was charged with first-degree murder and bound over for
trial. The State later amended the criminal information to add two counts of criminal sexual
penetration of a minor. Because the alleged murder took place when Defendant was 17 years
old, he was charged as a serious youthful offender and set to be tried and sentenced as an
adult. Shortly thereafter, Defendant moved the court to treat him as a juvenile, claiming that
certain provisions of the Children’s Code are unconstitutional because they allow a juvenile
to be sentenced as an adult without the benefit of a jury finding that the juvenile is not
amenable to treatment as a child. The court denied the motion.

{7} As the State was building its case against Defendant, the prosecution dropped the
first-degree murder charge and amended the information, charging Defendant instead with
child abuse in the first degree. NMSA 1978, § 30-6-1(E) (1973). Shortly before trial,
Defendant entered into a plea agreement with the State in which he pled no contest to the
child abuse charge and agreed to be sentenced as an adult. In return, the State dropped the
two counts of criminal sexual penetration of a minor. The plea agreement included a
provision stating, “There is no agreement as to sentencing other than that Defendant agrees
to be sentenced as an adult.” (Emphasis omitted.) The trial court accepted the plea and
ordered a psychological evaluation of Defendant prior to sentencing.

{8} During the course of the evaluation, Defendant claimed for the first time that he was
innocent and that his mother was responsible for Amy’s death. Defendant moved the court
to allow him to withdraw his plea. After a lengthy hearing in which Defendant testified and
introduced multiple reports, transcripts, and prior testimony, the trial court denied the motion
and sentenced Defendant to the maximum adult sentence allowable; an 18-year prison term
plus two years of parole. The trial court also found that Defendant’s crime was a serious
violent offense, thereby limiting his chance for early release for good behavior under NMSA
1978, Section 33-2-34(A)(1) (1988). The court did not conduct a hearing to determine
whether Defendant was amenable to treatment as a juvenile in lieu of an adult sentence in
prison.

{9} Defendant appealed, arguing that (1) only the children’s court, and not the district
court, had jurisdiction over him once the State dropped its first-degree murder charge, and
(2) the district court erred in refusing to allow Defendant to withdraw his plea and proceed
to trial. In a memorandum opinion, our Court of Appeals affirmed Defendant’s conviction.
Defendant petitioned for review, and we granted certiorari.

DISCUSSION

Juvenile Offender Categories

{10} We explained in State v. Muniz, 2003-NMSC-021, ¶ 6, 134 N.M. 152, 74 P.3d 86,
that our Delinquency Act, NMSA 1978, §§ 32A-2-1 to -32.1 (1993, as amended through
2009), establishes three classes of juvenile offenders: serious youthful offenders, youthful
offenders, and delinquent offenders. See § 32A-2-3(C), (H) and (J). A child’s placement

3
in one of those three categories determines (1) which rules of procedure apply at trial, and
(2) the potential post-adjudication consequences the child will face if the State proves its
case.

{11} The procedural and post-adjudication requirements pertaining to serious youthful
offenders and delinquent offenders are relatively straightforward. On the one hand, the
serious-youthful-offender category is limited to juveniles between the ages of 15 and 18 who
are charged with first-degree murder. Section 32A-2-3(H). Once charged with first-degree
murder, a serious youthful offender is no longer a juvenile within the meaning of the
Delinquency Act, and therefore is no longer entitled to its protections. Id. As a result,
serious youthful offenders are subject to the Rules of Criminal Procedure for the District
Courts applicable to adults and are automatically sentenced as adults if convicted. See id.;
Rule 10-101(A)(2)(a) NMRA.

{12} A delinquent offender, on the other hand, is a child under the age of 18 who is
determined to have committed a delinquent act—an act that, if committed by an adult, would
be a crime less serious than first-degree murder or one of the enumerated offenses of a
youthful offender. Compare § 32A-2-3(A) (listing various delinquent acts, including certain
traffic offenses, alcohol or drug-related offenses, and property-related offenses) with § 32A-
2-3(J) (listing youthful offender offenses, including second-degree murder, kidnaping,
criminal sexual penetration, and abuse of a child that results in great bodily harm or death).
Delinquent offenders are subject to the Children’s Court Rules and can only be sentenced
as juveniles. See Rule 10-101(A)(1).

{13} The requirements for youthful offenders, by contrast, are more complicated.
Youthful offenders are delinquent children who potentially face either juvenile or adult
sanctions, depending on the outcome of a special proceeding after adjudication known as an
amenability hearing. A youthful offender is a child between the ages of 14 and 18 who is
either (1) adjudicated guilty of any of a series of listed offenses which have less serious
consequences than first-degree murder, including child abuse resulting in great bodily harm
or death, or (2) adjudicated of any felony offense after having been adjudicated of three
separate felony offenses in the preceding three years. See § 32A-2-3(J). The youthful
offender category also includes children who are 14 years old and adjudicated of first-degree
murder. Id.

{14} Like serious youthful offenders, alleged youthful offenders may be subject to the
Rules of Criminal Procedure for the District Courts, see Rule 10-101(A)(2)(b), and may be
sentenced as adults, see § 32A-2-20. However, unlike a serious youthful offender, an
alleged youthful offender is not automatically treated as an adult. To treat a child as a
youthful offender—subject the child to adult sanctions—the State must comply with certain
procedural requirements of the Delinquency Act and the Children’s Court Rules. See § 32A-
2-20 (providing that before the court can impose adult sanctions, the State must give notice
of its intent to invoke an adult sentence, and that within 10 days of giving notice of its intent
to invoke an adult sentence, the State shall hold a preliminary hearing or a grand jury

4
proceeding to determine if there is probable cause to support the allegations against the
child); see also Rule 10-213 NMRA (providing that the State may give notice to invoke an
adult sentence within 10 days after the filing of the petition and that the court may, for good
cause shown, permit the State to file its notice of intent at any time before the
commencement of the adjudicatory proceeding, and that within 15 days of the State’s notice
of intent to seek adult sanctions, the court will hold a preliminary inquiry, unless the case has
been presented to a grand jury or the child has waived his right to same).

{15} Most significantly, before the trial court may sentence an adjudicated youthful
offender as an adult, the court must make two findings: (1) the child is not amenable to
treatment or rehabilitation, and (2) the child is not eligible for commitment to an institution
for the developmentally disabled or mentally disordered. See § 32A-2-20(B). The court
must make these findings after considering evidence related to the youthful offender’s
history, the nature of the crime, and the child’s potential threat to the public. See § 32A-2-
20(C).

With Dismissal of the Murder Charge Defendant Became an Alleged Youthful
Offender

{16} Defendant contends that once the State dropped the first-degree murder charge, he
should have been treated as a youthful offender from then on, rather than a serious youthful
offender. The distinction is important because, as the above framework suggests, the
consequences of being labeled a “serious youthful offender” arise early—generally at the
charging stage—rather than after notice and a hearing or post-adjudication.

{17} This means that juveniles aged 15 and up who are charged with first-degree murder
are treated differently from the start than children charged with less serious offenses. See
Muniz, 2003-NMSC-021, ¶ 15. For example, as explained above, the Rules of Criminal
Procedure for the District Courts apply to the proceedings instead of the Children’s Court
Rules. Also, the State is not required to give notice of its intent to seek adult sanctions.
Unlike a child who allegedly commits a delinquent act or a youthful offender offense, a
serious youthful offender may be detained in the general adult population of a county jail
while awaiting trial. Compare § 32A-2-12(E)(3) (providing that a serious youthful offender
may be detained in a county jail) with § 32A-2-12(A) (providing that an alleged delinquent
offender may be detained in a foster home, a facility operated by a licensed child welfare
services agency, a shelter-care facility or a detention facility for alleged delinquent children,
the child’s home or place of residence, or any other suitable place—other than a facility for
the long-term care and rehabilitation of delinquent children), and § 32A-2-12(B) (providing
that an alleged youthful offender may be detained in a facility for alleged delinquent children
or in any other suitable place—other than a facility for the long-term care and rehabilitation
of delinquent children). And most importantly, for our purposes, a serious youthful offender
is not entitled to an amenability hearing because, upon conviction of first-degree murder, the
child must receive an adult sentence.

5
{18} The State argues, and the Court of Appeals agreed, that under this Court’s holding
in Muniz, Defendant remained a serious youthful offender even after the prosecution dropped
the first-degree murder charge. 2003-NMSC-021. In Muniz, the defendant was a serious
youthful offender who, in exchange for the State dropping its first-degree murder charge,
pled guilty to tampering with evidence and conspiracy to tamper with evidence. Id. ¶ 1. The
trial court sentenced Muniz as an adult, despite his objection that he could only be sentenced
as a juvenile, because the two offenses to which he pled guilty were only delinquent acts.
Id. ¶ 3. The Court of Appeals agreed with Muniz and reversed. On certiorari, we reinstated
the child’s adult sentence, holding that the trial court retained the authority to sentence the
defendant as an adult. Id. ¶ 18. We reasoned that the Legislature, by creating the serious
youthful offender classification, expressed an intent “to treat those children charged with
first degree murder differently than other children, even if ultimately those children are not
found guilty on the first degree murder charge.” Id. ¶ 10.

{19} We note first that our holding in Muniz was largely abrogated by the Legislature in
2005 when it added two provisions to the Delinquency Act. Section 32A-2-20(G) and (H)
explicitly state that a serious youthful offender who is adjudicated for a delinquent act other
than first-degree murder must be sentenced as either a youthful offender or a delinquent
offender, depending on the nature of the adjudicated act. These amendments effectively
rejected the core of our holding in Muniz—that the trial court retains the authority to
sentence a serious youthful offender as an adult, regardless of the act for which he is
adjudicated.

{20} However, even if Muniz were still effective, we agree with Defendant that this case
is different. In Muniz, the prosecution did not drop the first-degree murder charge until it
entered into a plea agreement with the defendant. 2003-NMSC-021, ¶ 2. In this case, the
State—with no prompting from Defendant or the trial court—voluntarily dismissed the first-
degree murder charge against Defendant, after recognizing, to its credit, that it lacked the
evidence to prove the crime. See Rule 16-308(A) NMRA (“The prosecutor in a criminal
case shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported
by probable cause . . . .”). Our reasoning in Muniz, that the Legislature intended “to treat
those children charged with first degree murder differently,” cannot apply to a situation
where the State no longer intends to treat the child “differently.” Where the charge of first-
degree murder is brought and then dismissed, it is unfair to subject the erroneously charged
child any longer to the potential consequences of serious youthful offender status.

{21} The State argues that its decision to drop the first-degree murder charge “is no
different than a similar conclusion by a judge at the directed verdict stage or by a jury during
deliberations.” We disagree. By dropping the murder charge of its own volition early in the
proceeding, the State was acknowledging that its initial suspicions about murder were not
borne out by further investigation. That is not the same conclusion a judge or jury makes
after a full airing of argument and fact. Nor is it the same decision that a prosecutor makes
when dropping a charge after negotiation and compromise for the purpose of securing a plea.
See Muniz, 2003-NMSC-021.

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{22} We, therefore, hold that Defendant was not a serious youthful offender when he
entered into his plea agreement, because he was no longer charged with first-degree murder
at the time of his plea. Rather, from the moment the State dropped the first-degree murder
charge, Defendant was a child charged with a youthful offender offense—a potential
youthful offender—and as such, he was entitled to the full range of protections afforded by
the Delinquency Act, which are discussed more fully below.

Section 32A-2-20 Requires an Amenability Hearing

{23} Defendant argues that prior to adult sentencing, “it is a requirement that the court
find the child is not amenable to treatment” and that “[t]he child must be given a hearing on
his amenability.” (Emphasis added.) We view this argument as an assertion that the court
lacks the authority to impose an adult sentence on a child without first making a
determination that the child is not amenable to treatment or rehabilitation.

{24} Section 32A-2-20 is the relevant provision of the Delinquency Act that sets forth the
responsibilities of the trial court for determining whether a youthful offender is amenable
to treatment or rehabilitation.1 The statute describes the steps the court must take before it
can sentence a youthful offender as an adult:

If the children’s court attorney has filed a notice of intent to invoke
an adult sentence and the child is adjudicated as a youthful offender, the
court shall make the following findings in order to invoke an adult sentence:

(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 the
developmentally disabled or mentally disordered.

Section 32A-2-20(B) (emphasis added). Admittedly, this section is silent about whether the
court must make an amenability determination even where, as here, the youthful offender
agrees to be sentenced as an adult. But the plain language “shall make the following
findings in order to invoke an adult sentence” strongly suggests that the Legislature intended
the court to make an amenability determination whenever it considers imposing an adult
sentence. An amenability analysis is a condition precedent to a court invoking an adult
sentence.

1
In 2009, the Legislature altered this provision from the version that was in effect
when Defendant was sentenced. The alterations are limited to one of the enumerated factors
the judge must consider in determining whether the child is amenable to treatment or
rehabilitation and do not affect our analysis.

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Legislative History of the Amenability Hearing

{25} To further inform ourselves regarding legislative intent, we look to the history of the
Children’s Code and to the Code as a whole. See N.M. Dep’t of Health v. Compton, 2001-
NMSC-032, ¶ 18, 131 N.M. 204, 34 P.3d 593. The Legislature adopted New Mexico’s first
Juvenile Code in 1917, entitled “An Act Defining Juvenile Delinquents, Providing for Their
Reformation or Punishment and Providing for the Punishment of Those Who Contribute to
Such Delinquency.” See 1917 N.M. Laws, ch. 4. Prior to that date, a juvenile charged with
a criminal offense was treated “no differently than an adult.” Peyton v. Nord, 78 N.M. 717,
723, 437 P.2d 716, 722 (1968). The Code established a juvenile court in each county and
vested it with “exclusive original jurisdiction,” over juvenile delinquents. 1917 N.M. Laws,
ch. 4, § 2; see also 1921 N.M. Laws, ch. 87, § 1 (amending 1917 N.M. Laws, ch. 4, § 2).
The Code defined a juvenile delinquent as a child under the age of 16 who

violates any laws of this state or any ordinance of any city, town or village
within this state, or who is incorrigible, or who knowingly associates with
thieves, vicious or immoral persons, or who is growing up in idleness or
crime, or who knowingly visits or enters a house of prostitution, or who
knowingly visits any saloon or dram-shop where intoxicating liquors are
sold, or who wanders about the streets in the night-time without being on any
lawful business or occupation, or who patronizes or visits any public pool-
hall, or who habitually wanders in the railroad yards or tracks or habitually
jumps or hooks onto any moving train or habitually enters any car or engine
without lawful authority, or who habitually uses vile, obscene, vulgar,
profane or indecent language in public places, or is guilty of immoral conduct
in any public place or about any school house, or who having no responsible
parent or guardian, shall habitually violate the provisions of the law with
reference to attendance on public schools.

1917 N.M. Laws, ch. 4, § 1. The Code further specified that a child found delinquent would
be adjudged a “ward of the juvenile court,” and that such an adjudication could not “be
deemed to be a conviction of crime.” Id. § 5. Interestingly, nothing in the Code allowed a
juvenile delinquent to be tried or sentenced as an adult. But see In re Santillanes, 47 N.M.
140, 159-60, 138 P.2d 503, 515-16 (1943) (holding that once a child fits the definition of
“incorrigible,” he must be tried criminally for subsequent delinquent acts). With the
exception of raising the age of a juvenile from 16 to 18, see 1929 N.M. Laws, ch. 74, § 1,
the Code remained largely unchanged for several decades.

{26} The Legislature first addressed whether a child could be tried and sentenced as an
adult when it enacted the 1943 amendments to the Code:

[N]othing in this Act shall be construed to prevent any person of whatever
age from being charged with the commission of a felony under the laws of
this state and prosecuted therefor in the District Courts of this state, and upon

8
 conviction may be sentenced to the State Penitentiary in conformity with the
criminal laws of this state in the same manner as any person.

1943 N.M. Laws, ch. 40, § 4 (emphasis omitted). Thus, the act of charging a juvenile of any
age with a felony was enough to try the child as an adult and impose an adult sentence upon
conviction.

{27} This expansive approach to the criminal treatment of juveniles was tempered by the
1955 amendments to the Code. That version of the Code restricted adult treatment to
“juvenile[s] over the age of fourteen years.” 1955 N.M. Laws, ch. 205, § 9. The Legislature
further limited the range of children who could be treated as adults to those who are not
“proper subject[s] for reformation or rehabilitation.” Id. The amendment did not specify
how the juvenile court was to determine whether a child was “a proper subject for
reformation or rehabilitation.” The inclusion of this language signaled the inception of the
amenability inquiry that is the focus of this Opinion.

{28} In 1972, the Legislature revamped New Mexico’s juvenile justice system when it
enacted the Children’s Code. See 1972 N.M. Laws, ch. 97. The change was likely prompted
by a trio of contemporary United States Supreme Court decisions that expanded
constitutional protections for juveniles. See Kent v. United States, 383 U.S. 541, 553 (1966)
(holding that a juvenile court may not waive its jurisdiction and transfer a juvenile offender
to a criminal court without a hearing, effective assistance of counsel, and a statement of
reasons); In re Gault, 387 U.S. 1, 33-34 (1967) (holding that juveniles are entitled to certain
constitutional protections in adjudication proceedings, including the right to counsel); In re
Winship, 397 U.S. 358, 368 (1970) (holding that a juvenile is entitled to proof beyond a
reasonable doubt in an adjudication proceeding). The new Code, based on a model statute
created by the U.S. Department of Health, Education, and Welfare, provided a
comprehensive approach to the adjudication and disposition of alleged delinquent children.
See 1972 N.M. Laws, ch. 97, § 4(C); see also Theodore E. Lauer, The New Mexico
Children’s Code: Some Remaining Problems, 10 N.M. L. Rev. 341, 344 (1980) (“The model
statute was written to strengthen the rights of children in the juvenile court; it retained the
traditional juvenile court framework in large part, but embodied what was then the most
advanced thinking in terms of children’s rights and procedural safeguards.”). The Code also
made reference to the Supreme Court adopting rules of procedure for the newly established
children’s court division of the district courts. See 1972 N.M. Laws, ch. 97, § 4.

{29} The 1972 Children’s Code included a further refinement of the court’s authority to
try and sentence an alleged juvenile offender as an adult. Under NMSA 1953, Section 13-
14-27(A)(1) (Vol. 3, Repl., Part 1), the children’s court could waive its jurisdiction and
“transfer the matter for prosecution in the district court,” provided the child was 16 years of
age and charged with a felony. As a condition to transfer, the court was required to hold an
evidentiary hearing, similar to the amenability proceeding in today’s Delinquency Act, to
determine if it was appropriate to try and sentence the child as an adult. Section 13-14-
27(A)(2). To justify transferring the child to the district court,

9
 (4) the court [had to find] upon the hearing that there are
reasonable grounds to believe that:

(a) the child committed the delinquent act alleged; and

(b) the child is not amenable to treatment or rehabilitation as a
child through available facilities; and

(c) the child is not committable to an institution for the mentally
retarded or mentally ill; and

(d) the interests of the community require that the child be placed
under legal restraint or discipline.

Section 13-14-27(A)(4)(a)-(d) (emphasis added). Upon transfer, the child was both tried and
sentenced as an adult.

{30} In 1975, the Legislature added a provision that lowered the threshold for transfer to
district court for certain serious offenses. See Lauer, supra, at 370 (noting that the
amendment was passed in reaction “to the contention that the recited safeguards were too
stringent in cases of serious crimes and that the age requirement was too limiting,
particularly in murder cases”). The amendment allowed the “discretionary transfer to
criminal court” of matters where the juvenile was at least 15 years old and accused of
murder, or at least 16 years old and accused of a felony enumerated in the statute. See 1975
N.M. Laws, ch. 320, § 4(A)(1) (including assault with intent to commit a violent felony,
kidnaping, aggravated battery, dangerous use of explosives, aggravated burglary, and
aggravated arson). When the court’s discretion to transfer was invoked, it only had to hold
a hearing and “consider” the child’s amenability to treatment and make a finding that it had
“reasonable grounds to believe that the child committed the alleged delinquent act.” Id. §
4(A)(5); see also State v. Doe, 100 N.M. 649, 650, 674 P.2d 1109, 1110 (1983) (holding that
the statute only requires consideration of child’s amenability—not a specific finding). These
relaxed requirements made it easier to transfer a proceeding to the district court for an adult
trial and sentencing when the juvenile was accused of a serious felony. They foreshadowed
the youthful offender and serious youthful offender categories we have today.

{31} In 1993, our Legislature again changed its tack, creating a unique approach to
delinquency matters. See Daniel M. Vannella, Note, Let the Jury Do the Waive: How
Apprendi v. New Jersey Applies to Juvenile Transfer Proceedings, 48 Wm. & Mary L. Rev.
723, 753 (2006); see also Kelly K. Waterfall, Note, State v. Muniz: Authorizing Adult
Sentencing of Juveniles Absent a Conviction that Authorizes an Adult Sentence, 35 N.M. L.
Rev. 229, 231 (2005) (noting that New Mexico joined a nationwide movement to “crack
down on juvenile crime, and generally . . . expand[] eligibility for criminal court processing
and adult correctional sentencing”). By enacting the Delinquency Act, which is still in force
today, the Legislature established the now-familiar juvenile offender trichotomy described

10
in the first section of this Opinion. As previously discussed, the Act provides that only
serious youthful offenders charged with first-degree murder can be tried in district court and
automatically sentenced as adults if convicted. All others remain in the juvenile system until
after adjudication and may be sentenced as adults only after an amenability hearing.

{32} Thus, on the one hand, the Delinquency Act made it easier to prosecute a child
charged with first-degree murder as an adult—a transfer hearing is no longer necessary. On
the other hand, the Act extended the protections of the juvenile system to all other alleged
juvenile offenders by treating them as children throughout the adjudication
process2—effectively eliminating the trial court’s ability to waive or transfer a juvenile
proceeding. We interpret this legislative history as evidence of an evolving concern that
children be treated as children so long as they can benefit from the treatment and
rehabilitation provided for in the Delinquency Act.

{33} With this most recent version of the Children’s Code, the Legislature moved away
from an approach that had previously afforded wide latitude to the courts in sentencing
children as adults. It is no longer the case that a child accused of any felony potentially can
be tried and sentenced as an adult. Compare NMSA 1953, § 13-14-27 (1972, as amended
through 1975) with § 32A-2-3(J) (2009) (listing offenses that expose a child to adult
sanctions). Similarly, with the exception of a serious youthful offender, the Legislature no
longer allows a child to be sentenced as an adult without the court first finding that the child
is not amenable to treatment. Compare NMSA 1953, § 13-14-27.1 (1975) with § 32A-2-
20(B)(1) (2009).

2
Rule 10-101(A)(2)(b) provides that, unless the Children’s Court Rules specifically
provide, the Rules of Criminal Procedure for the District Courts apply to alleged youthful
offenders after the State gives notice of its intent to invoke adult sanctions. We adopted the
Rule shortly after the 1993 enactment of the Children’s Code. Our unpublished commentary
indicates that because an alleged youthful offender potentially faces an adult sanction, we
chose to apply the Rules of Criminal Procedure in an effort to provide more protections than
the Children’s Court Rules do. Specifically, we intended to extend the right to bail, the
statutory right to three telephone calls within 20 minutes after detention, and in a warrantless
arrest and detention case, the right to be given a copy of the criminal complaint prior to
transfer to custody of a detention facility, and the right to a prompt probable cause
determination. With the exception of the right to bail, we are no longer convinced that the
above-mentioned rights justify forfeiting the additional protections afforded juveniles in the
Children’s Court Rules. Compare, e.g., Rule 10-243 NMRA (providing that the adjudicatory
hearing shall commence within 30 days for a child held in detention and within 120 days for
a child not in detention) with Rule 5-604 NMRA (providing that a trial shall commence
within six months). The issue is beyond the scope of this Opinion, but we encourage the
Children’s Court Rules Committee to revisit the question of which rules best protect the
rights and interests of children.

11
{34} Taken as a whole, this history demonstrates a carefully calibrated grant of judicial
authority to sentence children as adults. In light of the relatively long lineage of the
amenability proceeding, its continued presence in the Delinquency Act cannot be ignored
or tacitly diminished. We are persuaded that the Legislature intended to make an
amenability determination a necessary predicate to the court’s exercise of adult sentencing
authority. Cf. Kent, 383 U.S. at 560-61 (holding that a transfer hearing is a “critically
important proceeding” because, under a juvenile statutory scheme, “non-criminal treatment
is to be the rule—and the adult criminal treatment, the exception” (internal quotation marks
and citation omitted)).

Purpose of the Amenability Hearing

{35} Our interpretation of legislative intent is also supported by the primary purpose of
the Act, which is

consistent with the protection of the public interest, to remove from children
committing delinquent acts the adult consequences of criminal behavior, but
to still hold children committing delinquent acts accountable for their actions
to the extent of the child’s age, education, mental and physical condition,
background and all other relevant factors.

Section 32A-2-2(A). Thus, unlike the adult criminal justice system, with its focus on
punishment and deterrence, the juvenile justice system “reflects a policy favoring the
rehabilitation and treatment of children.” State v. Jose S., 2007-NMCA-146, ¶ 16, 142 N.M.
829, 171 P.3d 768.

{36} The potential consequences flowing from a juvenile disposition clearly evince the
Legislature’s consistent intent to protect children, if at all possible, from the adult
consequences of criminal behavior. For example, instead of being “convicted” and
“sentenced” like an adult, a delinquent child is “adjudicated” and receives a “disposition”
that “shall not be deemed a conviction of crime.” Section 32A-2-18(A); see also, e.g., 1917
N.M. Laws, ch. 4, § 5 (providing that an adjudication of juvenile delinquency cannot be
deemed a conviction of crime). Similarly, a juvenile disposition does not carry with it any
of the “civil disabilities ordinarily resulting from conviction of a crime” and cannot “operate
to disqualify the child in any civil service application or appointment.” Section 32A-2-
18(A). The Legislature also severely curtailed the admissibility in a subsequent proceeding
of a juvenile disposition and any evidence offered against a child in a juvenile hearing. See
id. (stating that a juvenile disposition and supporting evidence can only be used in
sentencing proceedings after the conviction of a felony “for the purpose of a presentence
study and report”).

{37} Similarly, Section 32A-2-19 delimits the court’s authority and discretion to hold a
child accountable after being adjudicated delinquent. The court may impose a fine, order
the child to pay restitution, or place the child on probation. Section 32A-2-19(B). The court

12
may also transfer legal custody of the child to “an agency responsible for the care and
rehabilitation of delinquent children” for commitment to a “facility for the care and
rehabilitation of adjudicated delinquent children” for a period of up to two years that can be
extended year-by-year until the child’s twenty-first birthday. Section 32A-2-19(B)(1)(a);
see also § 32A-2-23(D), (E) (allowing prior to expiration of long-term commitment or
judgment of probation, as provided in Section 32A-2-19, the court may extend for additional
year until child reaches 21 if it finds necessary). These measures reflect the Legislature’s
intent to insulate delinquent children from the potentially life-long consequences under the
adult criminal justice system that may flow from a bad decision. Cf. Roper v. Simmons, 543
U.S. 551, 570 (2005) (“[T]he relevance of youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient; as individuals mature, the impetuousness
and recklessness that may dominate in younger years can subside.” (Internal quotation
marks and citation omitted.)).

{38} The amenability hearing is the sole device provided by the Legislature to determine
whether, for a specific youthful offender, the above-mentioned consequences can be
effective. The finding of non-amenability is the trigger for the court’s authority to sentence
a youthful offender as an adult. See Muniz, 2003-NMSC-021, ¶ 16. 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. Section 32A-2-2(A). 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.

Waiver

{39} The State concedes that Defendant was entitled to an amenability hearing, but argues
that he waived that right when he agreed to be sentenced as an adult. The State relies on a
lone statement from our Court of Appeals in support of its position that Defendant waived
his right to an amenability hearing. See State v. Michael S., 1998-NMCA-041, ¶ 11, 124
N.M. 732, 955 P.2d 201 (“Respondent agreed in the plea and disposition agreement that he
could be sentenced to an adult sentence of six years, of which zero to four years could be
suspended, thereby eliminating any need for a dispositional hearing at which the State
needed to prove that the conditions pursuant to which an adult sentence may be imposed
were met.” (Emphasis added.)). We are aware of only one other decision from the Court of
Appeals that apparently assumed that a child could waive an amenability hearing. See State
v. Muniz, 2000-NMCA-089, ¶ 19, 129 N.M. 649, 11 P.3d 613 (remanding and giving the
defendant the option to accept an adult sentence, thereby waiving his right to an amenability
determination), rev’d, 2003-NMSC-021. But see id. ¶ 28 (Kennedy, J., concurring in part
and dissenting in part) (“We . . . should not suggest that waiving one’s status as a child under
the Children’s Code is an option.”). However, neither case expressly considered the waiver
issue, and thus neither can be relied on as authority for the State’s argument.

{40} The State’s position that Defendant waived his right to an amenability hearing finds
some support in Rule 10-213(B), which expressly allows waiver of one of the directives of

13
Section 32A-2-20(A)—the right to a preliminary inquiry or a grand jury proceeding.
However, the State does not cite, and we are unable to find, any such provision that allows
a child to waive the right to an amenability hearing. Nothing in the Delinquency Act
indicates that the Legislature ever contemplated that a court could sentence a child as an
adult without first making its own determination on the question of amenability to treatment.

{41} Instead, Section 32A-2-20(B) suggests the opposite—the court “shall make” a
finding that the child is not amenable to treatment or rehabilitation “in order to invoke an
adult sentence.” (Emphasis added.) Furthermore, Section 32A-2-20(C) lists seven factors
that a trial court must consider in making its amenability determination,3 and none of those
factors, standing alone, is dispositive. The trial court must consider each of them, plus “any
other relevant factor” in determining whether the child is amenable to treatment or
rehabilitation. Section 32A-2-20(C)(8). Taken together, these two provisions clearly
suggest that it is the court’s individual responsibility to make a case-by-case determination
with regard to each youthful offender’s amenability to treatment or rehabilitation.

{42} We also find it instructive that the trial court must make these findings even for a
youthful offender who has been sentenced previously as an adult. See § 32A-2-20(D)
(stating that there is a rebuttable presumption that such a child is not amenable to treatment
or rehabilitation). A court may not simply rely on a previous finding of non-amenability in
a prior proceeding. This indicates that the Legislature intended the trial court to make an
amenability determination each time a child is potentially exposed to adult sanctions.

3
Section 32A-2-20(C) provides:
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 sophistication and maturity of the child as determined
by consideration of the child's home, environmental situation, social and
emotional attitude and pattern of living;
(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.

14
{43} This conclusion is supported by the United States Supreme Court’s decision in Kent,
383 U.S. 541. There, the Court considered whether the juvenile court had complied with the
District of Columbia’s juvenile transfer process. Id. at 542. The juvenile court waived
jurisdiction and transferred the proceeding to the criminal court without making the
necessary findings. Id. at 548. The Court observed, “[I]t is implicit in (the Juvenile Court)
scheme that non-criminal treatment is to be the rule—and the adult criminal treatment, the
exception which must be governed by the particular factors of individual cases.” Id. at 560-
61 (emphasis added) (internal quotation marks and citation omitted). As a result, the Court
held that a waiver or transfer hearing was a “critically important proceeding” and “that it is
incumbent upon the Juvenile Court to accompany its waiver order with a statement of the
reasons or considerations therefor.” Id. (internal quotation marks and citation omitted).

{44} Although Kent dealt with pre-trial transfer proceedings, we find the Supreme Court’s
reasoning persuasive. Like the legislative scheme in Kent, the Delinquency Act makes clear
that “non-criminal treatment is the rule,” unless the child is charged with first-degree
murder. As a result, because the amenability hearing is the exclusive tool for invoking the
exception of adult criminal punishment, we agree with Kent that it is a “critically important
proceeding” and “that it is incumbent on the Juvenile Court” to follow the requirements
spelled out in Section 32A-2-20 before sentencing a child as an adult.

{45} Our Legislature directed the trial court to determine whether a juvenile disposition
would be an effective sanction for a youthful offender. This is undoubtedly because, as the
United States Supreme Court recently recognized, “[t]he personality traits of juveniles are
more transitory, less fixed” so that “[there is] a greater possibility . . . that a minor’s
character deficiencies will be reformed.” Roper, 543 U.S. at 570 (internal quotation marks
and citation omitted). Furthermore, as the Court also noted, “juveniles still struggle to define
their identity,” so “[t]he susceptibility of juveniles to immature and irresponsible behavior
means ‘their irresponsible conduct is not as morally reprehensible as that of an adult.’” Id.
(quoting Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)). Therefore, to sentence a child
as an adult, the trial court must make a conscious determination that, in spite of the
foregoing, the child is beyond reform—that instead of a chance at rehabilitation, the child
must be separated from society and placed in the confines of an adult correctional facility.
This is not a responsibility to be taken lightly.

{46} We are convinced that the Legislature did not intend this responsibility to be
bargained away. The amenability determination is not like certain rights which can be
waived. See, e.g., U.S. Const. amend. VI (guaranteeing an accused the right to a jury trial
and to confront the witnesses against him). The amenability determination implicates more
than just the personal rights of a child. The Delinquency Act requires that this determination
be made “consistent with the protection of the public interest.” Section 32A-2-2(A). Thus,
the trial court must weigh not only the interests of the child, but also the interests of the
child’s family and of society as a whole. See § 32A-2-2. We are hard-pressed to conceive
of a decision that cuts closer to the core of society’s interest than an election to give up on
one of its children. This responsibility ought not be used as currency in the plea-bargaining

15
process. Simply put, the amenability determination is not the child’s choice to be traded
away.4

{47} We note that our Court of Appeals has previously indicated much the same view,
though not in an identical context. In State v. Hunter, 2001-NMCA-078, 131 N.M. 76, 33
P.3d 296, our Court of Appeals considered whether the trial court had the authority to
sentence a serious youthful offender as an adult—after only a typical adult sentencing
hearing—when he was found guilty of the youthful offender offenses of second-degree
murder and tampering with evidence. The court answered in the negative, holding “[w]e
deem it fundamental that children who are not convicted of first degree murder and who
appear to be amenable to rehabilitation have a basic and essential right not to be sentenced
as adults unless the trial court fulfills the requirements of Section 32A-2-20(B) and (C).” Id.
¶ 12 (emphasis added).

{48} We agree with the views expressed in Hunter, and we read Section 32A-2-20 as
going one step further: the trial court lacks the statutory authority to impose an adult
sentence on any youthful offender without complying with Section 32A-2-20. It follows that
the parties lack the ability to bargain away the court’s own responsibility. As a result, in the
case before us, we reverse the Court of Appeals and hold that the trial court could not accept
the plea bargain and sentence Defendant as an adult without first conducting an amenability
hearing and making the necessary findings.5 Consequently, an essential term of the plea

4
Our case law is also replete with references to the mandatory nature of the
amenability determination. See, e.g., State v. Stephen F., 2006-NMSC-030, ¶ 12, 140 N.M.
24, 139 P.3d 184 (noting that in order to make the “critical determination” of whether to
sentence a youthful offender as an adult or as a juvenile, “the Children’s Code requires the
court to determine whether the child is amenable to treatment or is eligible for commitment
to an institution for children with disabilities” (emphasis added)); Muniz, 2003-NMSC-021,
¶ 16 (holding that a serious youthful offender who pled to a delinquent offense could
nonetheless be sentenced as an adult, but stating that an adult sentence is not automatic, and
instead the court must apply the provisions of Section 32A-2-20); State v. Ira, 2002-NMCA-
037, ¶ 3, 132 N.M. 8, 43 P.3d 359 (“To impose an adult sentence on an adjudicated youthful
offender, the court must find that (1) the child is not amenable to treatment or rehabilitation
as a child . . . .” (Emphasis added.)). But see Michael S., 1998-NMCA-041, ¶ 11 (noting in
dicta that the defendant, a youthful offender, waived his right to appeal all issues, including
his right to an amenability hearing, except those explicitly reserved in his plea agreement).
5
That being said, we commend the trial judge in this case for ordering a
psychological evaluation of Defendant prior to sentencing but after he agreed to be sentenced
as an adult. Although our criminal code treats everyone who is of majority age the same for
the purposes of sentencing, trial judges have the statutory authority to sentence serious
youthful offenders and youthful offenders to less than the statutory maximum. See NMSA
1978, § 31-18-15.1(C) (1993) (allowing a sentencing judge to reduce a serious youthful

16
agreement is void, and for reasons explained below, the entire plea must fall. Cf. State v.
Pieri, 2009-NMSC-019, ¶ 33, 146 N.M. 155, 207 P.3d 1132 (“[I]f the court accepts a
defendant’s plea in exchange for a guaranteed, specific sentence and that sentence is not
imposed, the court must give the defendant an opportunity to withdraw his or her plea.”).

{49} We recognize that the rule that we announce today is a new rule and that we must
determine how it is to be applied. See State v. Frawley, 2007-NMSC-057, ¶ 35, 143 N.M.
7, 172 P.3d 144 (“‘A new rule is defined as a rule that . . . was not dictated by precedent
existing at the time the defendant’s conviction became final.’” (quoting Whorton v. Bockting,
549 U.S. 406, 416 (2007) (alteration in original)). New rules generally apply “only to cases
on direct review,” and not to collateral proceedings. Id. ¶ 34. Because we see no
justification for applying today’s rule retroactively, we hold that the rule applies only to this
and all other “cases in which a verdict has not been reached and those cases on direct review
in which the issue was raised and preserved below.” State v. Magby, 1998-NMSC-042, ¶
18, 126 N.M. 361, 969 P.2d 965, overruled on other grounds by State v. Mascareñas, 2000-
NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221.

{50} As a final point, Defendant argues in the alternative that his plea agreement should
be set aside because he did not waive his right to an amenability hearing in a knowing and
voluntary manner. Specifically, Defendant claims that he was never notified of his right to
an amenability hearing; consequently, he did not realize that he could have been sentenced
as a juvenile but for the plea agreement. We agree with Defendant that a youthful offender
must be informed of his right to an amenability determination before agreeing to be
sentenced as an adult. We further acknowledge that it does not appear from the record that
Defendant was ever notified of that right. However, in light of our holding today, we need
not discuss the issue further. Given that Defendant could not have waived his right to an
amenability hearing, we need not address whether he did so knowingly and voluntarily in
this instance.

Procedural Ramifications on Remand

{51} This case presents a difficult problem on remand—unless, of course, the State
decides not to pursue its case against Defendant, or, at trial, he is not adjudicated guilty of
the charged offenses. Assuming the State pursues its case, Defendant will be 23 years old

offender’s or youthful offender’s sentence by more than one-third of the basic sentence);
NMSA 1978, § 31-18-15.3(D) (1993) (providing that the court may sentence a serious
youthful offender to less than the mandatory adult term). Many young adults are still in the
process of developing emotionally and psychologically and may be served better by a shorter
sentence that still punishes but does not transform the offender into a hardened criminal.
The judge in this case had the discretion to sentence Defendant to a prison term of zero to
eighteen years. The investigation the judge undertook in this case put him in a better
position to exercise that authority intelligently.

17
by the time this Opinion is filed, but the Children’s Code requires that he be treated as a
juvenile. See NMSA 1978, § 32A-1-8(A) (2009) (providing that the children’s court has
“exclusive original jurisdiction” over a person who is 18 years of age or older and was a
child at the time the alleged act was committed). However, Defendant asks only that “[t]his
case . . . be remanded so that [Defendant] may withdraw his plea and the matter can properly
proceed in children’s court.” The State does not offer an alternative to allowing Defendant
to withdraw his plea other than its argument that the plea was valid.

{52} At a minimum, our holding today requires us to invalidate that portion of the plea
agreement requiring Defendant to be sentenced as an adult. On reflection, however,
Defendant’s entire plea must fall intact. See State v. Gibson, 96 N.M. 742, 743, 634 P.2d
1294, 1295 (Ct. App. 1981) (“[A] plea bargain stands or falls as a unit.”). It would be unfair
to the State to simply remand for an amenability hearing and re-sentencing when the State
apparently dropped the two CSPM charges against Defendant in exchange for his agreement
to be sentenced as an adult. To do so would allow Defendant to keep both the benefit of his
original bargain and of our holding today. And it might be equally unfair to Defendant. We
find it impossible to determine with any degree of confidence whether Defendant would
have agreed to plead guilty had he been aware of his unconditional right to an amenability
hearing.

{53} Thus, we grant Defendant his requested relief to the extent that we remand this case
to the children’s court where the parties may proceed in light of the voided plea agreement.
Cf. Jose S., 2007-NMCA-146, ¶ 22 (remanding a 21-year-old for sentencing under the
Delinquency Act because the child asked for only a new sentencing hearing). Despite the
apparent absurdity of re-trying Defendant at his age as a juvenile, we are hard-pressed to
come up with an alternative. Furthermore, we would intrude on the exclusive domain of the
Legislature if we were to interfere with the jurisdiction of the children’s court. See N.M.
Const. art. VI, § 13 (granting district courts “such jurisdiction of special cases and
proceedings as may be conferred by law”); In re Santillanes, 47 N.M. at 148, 138 P.2d at
508 (holding that the conferring of “jurisdiction of special cases and proceedings,” such as
juvenile proceedings, “is at the disposal of the legislature”).

{54} As a matter of due process and fundamental fairness, Defendant should be returned
as closely as possible to his rightful position: the position he was in before the trial court
sentenced him as an adult without making a determination of whether he was amenable to
treatment or rehabilitation. See State v. Vallejos, 1997-NMSC-040, ¶ 31, 123 N.M. 739, 945
P.2d 957 (“The right to substantive due process embodies principles of fundamental fairness
and entitles every individual to be free from arbitrary or oppressive government conduct.”).
At that time, Defendant presumptively was entitled to a disposition under the Delinquency
Act—a disposition geared toward reform and reintegration into society, rather than one
aimed at punishment and deterrence. This presumption of amenability to treatment or
rehabilitation is the essence of our juvenile dispositional scheme. To offer Defendant less
now would be unfair, despite the literal dictates of the Delinquency Act.

18
{55} Therein lies the conundrum. To our knowledge, our juvenile system is not equipped
to treat or rehabilitate an individual over the age of 21; nor is our adult criminal system
likely equipped to provide the type of treatment or rehabilitative opportunities that are
available to a juvenile. Defendant is in a sort of juvenile/criminal purgatory: he has rights
as a juvenile and yet he may be too old to benefit from them.

{56} What is worse, the legal system and the legislative scheme of the Delinquency Act
bear much of the fault for his predicament. Defendant should have had an amenability
determination over three years ago, before he served time in prison and before he lost the
protections of the Delinquency Act. As a result, if adjudicated a youthful offender,
Defendant deserves—at the very least—an open-minded inquiry into the availability of
alternative facilities or treatments for young adults that might approximate those available
under the Delinquency Act. Therefore, in the event the State successfully pursues its case
against Defendant and reaches an amenability hearing on remand, we order the trial judge
to consider evidence of (1) whether Defendant is amenable to treatment or rehabilitation at
his age at the time of the hearing, and (2) whether any available facilities or sentencing
alternatives exist in the adult corrections system for providing that treatment.

{57} As our Court of Appeals noted nearly eight years ago, New Mexico desperately
needs a legislative solution to the sentencing gaps created by the Delinquency Act and the
criminal justice system. See Ira, 2002-NMCA-037, ¶¶ 25-32 (urging the Legislature to
consider sentencing alternatives for juveniles and providing examples of the approaches of
other jurisdictions); id. ¶¶ 50-55 (Bosson, C.J., specially concurring). Defendant’s situation
is not unique. See, e.g., Jose S., 2007-NMCA-146, ¶ 22 (noting that sentencing on remand
“is complicated by the fact that Child is too old to be sentenced as a juvenile because he is
twenty-one”).

{58} Indeed, the Delinquency Act plainly anticipates a situation where, as here, a “juvenile
grown into adulthood” must be tried as a child, yet remains presumptively eligible for
treatment or rehabilitation. Application of Johnson, 178 F. Supp. 155, 164 (D.N.J. 1957)
(holding that a Juvenile Court can properly exercise jurisdiction over individuals past the age
of 18 but that the age relationship must be a reasonable one). However, such an individual
has effectively “aged out” of the rehabilitative mechanisms available under the Delinquency
Act. See § 32A-2-19 (providing that the children’s court does not retain jurisdiction over
delinquent offenders past the age of twenty-one). As a result, the accused may receive an
adult sentence for an act that was committed at an age when the accused may have lacked
the ability to appreciate the gravity or consequences of his actions. See Roper, 543 U.S. at
570. Thus, the child loses any meaningful chance at treatment or rehabilitation on the one
hand, and gets punished for an act potentially lacking the culpability required for an adult
sentence. Such a result does not accomplish the ends of either the juvenile or adult justice
systems. We urge the Legislature and any other interested groups to address this issue.

Defendant’s Remaining Issues on Appeal

19
{59} Defendant makes two final arguments on appeal. First, Defendant argues that the
Court of Appeals erred in holding that the Apprendi issue raised by Defendant at trial is not
viable on appeal because Defendant is not entitled to an amenability hearing. See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000) (holding that a criminal defendant is entitled to a
finding by a jury beyond a reasonable doubt of any fact that increases a sentence beyond the
maximum amount prescribed by statute). Although we reverse and hold that Defendant has
a right to an amenability hearing, we decline to reach the Apprendi issue here, as the matter
is not yet ripe for our review. Defendant never had an amenability hearing, and it remains
unclear whether he ever will. Consequently, the Court of Appeals’ recent decision in State
v. Rudy B. is controlling. 2009-NMCA-104, ¶ 53, 147 N.M.45, 216 P.3d 810, cert. granted,
2009-NMCERT-009 (No. 31,909, Sept. 15, 2009) (holding that a youthful offender may only
be sentenced as an adult after a jury finding beyond a reasonable doubt that the juvenile is
not amenable to treatment or rehabilitation).

{60} Defendant also argues for the first time in this appeal that his sentence to an adult
prison facility before the age of 21 amounts to cruel and unusual punishment under the 8th
Amendment. Our Court of Appeals has addressed this question before, and we see nothing
in this case that merits departing from those prior rulings. See, e.g., Ira, 2002-NMCA-037,
¶ 24 (holding that a 91 1/2-year adult sentence for a juvenile did not constitute cruel and
unusual punishment).

CONCLUSION

{61} We reverse the Court of Appeals on the issue of Defendant’s right to an amenability
hearing and remand to the children’s court for proceedings consistent with this Opinion.

{62} IT IS SO ORDERED.

____________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________

20
CHARLES W. DANIELS, Justice

Topic Index for State v. Jones, No. 30,766

AE APPEAL AND ERROR
AE-RH Rehearing on Appeal
AE-RM Remand

CD CHILDREN
CD-CC Children’s Code
CD-CR Children’s Court
CD-CT Children’s Court Rules
CD-RE Rehabilitation
CD-TC Transfer to District Court
CD-SO Serious Youthful Offender*
CD-YO Youthful Offender*
CD-DO Delinquent Offender*
CD-DA Delinquency Act*
CD-AS Adjudication/Sentencing*

CT CONSTITUTIONAL LAW
CT-RF Right to Confrontation
CT-WR Waiver of Rights

CL CRIMINAL LAW
CL-CN Child Abuse and Neglect
CL-CP Criminal Sexual Penetration
CL-SE Sexual Exploitation of Children
CL-SX Sexual Offenses

CA CRIMINAL PROCEDURE
CA-NP Nolo Contendere Plea
CA-PP Plea and Plea Bargaining
CA-PM Post Conviction Proceedings
CA-PI Prospective Application
CA-RJ Right to Trial by Jury
CA-SN Sentencing

JR JURIES
JR-RT Right to Trial by Jury

ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent

21
*Denotes suggested new topic for index

22