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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA B. J.H., ) NOT FOR PUBLICATION ) APPROVED FOR RELEASE Appellant, TO THE PUBLIC ) V. ) No. J-2019-2 THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) JUN 20 2019 SUMMARY OPINION JOHN D. HADDEN CLERK HUDSON, JUDGE: The Appellant, B. J. H., appeals to this Court from an order entered by the Honorable David A. Stephens, Special Judge, granting the State’s Motion to Sentence Youthful Offender as an Adult in Case Nos. YO-2018-1 and YO-2018-2 in the District Court of Caddo County. On June 12, 2018, Appellant, age 16 years and 8 months, was charged as a Youthful Offender with Assault With a Deadly Weapon in Case No. YO-2018-1 in the District Court of Caddo County. On June 28, 2018, Appellant was charged as a Youthful Offender with Count 1: Feloniously Pointing Firearm; Count 2: Assault With a Dangerous Weapon; Count 3: Malicious Injury to Property, misdemeanor; and Count 4: Assault and Battery, misdemeanor, in Case No. YO-2018-2 in the District Court of Caddo County. On July 13, 2018, the State filed in both cases a motion to sentence Appellant as an adult, pursuant to 10A O.S.2011, § 2-5-208. On July 26, 2018, October 18, 2018, and December 20, 2018, the preliminary hearing and hearings on the motion to sentence Appellant as an adult were held before Judge Stephens. The parties stipulated to the Affidavit for the Issuance of Arrest Warrant, attached to the Informations in each case, and Judge Stephens accepted the stipulation as the evidence presented for the preliminary hearing. Witnesses testified concerning the statutory criteria at issue in this matter, and a Youthful Offender Study, and Psychological Examination were admitted into evidence. After considering the evidence and arguments, Judge Stephens entered a very thorough written order granting the State’s motion to sentence Appellant as an adult. Judge Stephens found that none of the statutory guidelines could be found in favor of Appellant, under 10A O.S.2011, § 2-5-208(C)(2)(a- – g). Although he found testimony that Appellant could reasonably complete a plan of rehabilitation to be ridiculous, he noted that the State had 2 presented no evidence that Appellant could not complete a rehabilitation plan. Judge Stephens did find by clear and convincing evidence that the public would not be adequately protected if Appellant was sentenced as a youthful offender. Judge Stephens based his finding in part on the fact that Appellant, while under the supervision of OJA for violent crimes, had committed the new crimes in these cases that involved threats to kill, deadly weapons, and shots fired. Judge Stephens found Appellant should be sentenced as an adult. Appellant appeals asserting four propositions of error: I. THE COURT ABUSED ITS DISCRETION BY FINDING CLEAR AND CONVINCING EVIDENCE OF INADEQUATE PUBLIC PROTECTION AND CERTIFYING B. J. H. AS AN ADULT ON THIS GROUND; EACH STATE WITNESSES [SIC] CONCLUDED THAT THE PUBLIC WOULD BE ADEQUATELY PROTECTED IF APPELLANT WAS PLACED IN A MEDIUM SECURE OJA FACILITY AS A YOUTHFUL OFFENDER. II. APPELLANT WAS DENIED DUE PROCESS WHEN THE COURT PROCEEDED TO A CERTIFICATION HEARING WITHOUT A PRIOR DETERMINATION OF PROSECUTIVE MERIT. III. APPELLANT’S ADULT CERTIFICATION CANNOT STAND WHERE THERE WAS NEITHER A PRELIMINARY HEARING NOR A WAIVER THEREOF WITHIN 90 DAYS OF THE 3 INFORMATION. IV. THE ORDER CERTIFYING APPELLANT AS AN ADULT IS VOID DUE TO THE LACK OF SERVICE ON B. J. H.’S CUSTODIAL PARENT, GUARDIAN, OR NEXT FRIEND OF A CERTIFIED COPY OF THE INFORMATION AND WARRANT OF RIGHTS. Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), this appeal was automatically assigned to the Accelerated Docket of this Court. The proposition was presented to this Court in oral argument on April 4, 2019, pursuant to Rule 11.2(E). After hearing oral argument and considering the briefs and record in this case, this Court finds that the order of the District Court granting the State’s Motion to Sentence Youthful Offender as an Adult should be, and is hereby, AFFIRMED. ANALYSIS In Proposition I, Appellant argues that Judge Stephens abused his discretion by finding that the public would not be adequately protected if Appellant were to be sentenced as a youthful offender, under 10A O.S.2011, § 2-5-208(D). However, Judge Stephens found that none of the statutory guidelines, § 2-5-208(C)(2)(a-g), could be found in favor of Appellant. In addition to the guidelines, Judge 4 Stephens’ finding is based on the fact that, even though Appellant was under OJA supervision in the Youthful Offender system, the public was not adequately protected because Appellant committed the violent crimes against the public as charged in these cases, YO- 2018-1 and YO-2018-2. Judge Stephens’ decision is not an abuse of discretion. See J. T. A. U. State, 2018 OK CR 12, I 10, 422 P.3d 778, 781. Proposition I is denied. Petitioner’s propositions II and III are based on alleged deficiencies relating to preliminary hearing proceedings in these cases. Judge Stephens’ written order granting the State’s motion to sentence Appellant as an adult specifically states that the parties stipulated to the affidavits for issuance of arrest warrants, attached to the Informations, which were accepted as preliminary hearing evidence. The stipulation was apparently made during District Court proceedings on July 26, 2018, that were not transcribed. O’Dell U. State, 1982 OK CR 173, 3-4, 654 P.2d 621, 622-23 (burden rests with counsel to request and ensure proceeding is reported). Appellant has thus not preserved a proper appeal record to show Judge Stephens erred or abused his discretion regarding the parties’ 5 stipulation or the finding of prosecutive merit. Propositions II and III are denied. In Proposition IV, Appellant contends that his custodial parent, guardian or next friend was not properly served in these cases. The record shows that Appellant was served and represented by counsel throughout these proceedings. Appellant’s parents were present during proceedings in this case. There is no record of any objections to service and Appellant offers nothing to show how proceedings would have or could have been different. Proposition IV is denied. The order of the District Court of Caddo County granting the State’s Motion to Sentence Youthful Offender as an Adult in Case Nos. YO-2018-1 and YO-2018-2 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY THE HONORABLE DAVID A. STEPHENS, SPECIAL JUDGE 6 APPEARANCES IN THE APPEARANCES ON DISTRICT COURT APPEAL LETITIA BRADY CHAD JOHNSON BILL SMITH Appellate Defense Counsel DEVIN GIDDENS Oklahoma Indigent Defense Hoch, Giddens and Brady System 803 Robert S. Kerr Ave. P. O. Box 926 Oklahoma City, OK 73106 Norman, OK 73070 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT ANDREW C. BENEDICT ANDREW C. BENEDICT ABBIE WILBURN Assistant District Attorney Assistant District Attorneys Caddo County District Caddo County District Attorney’s Attorney’s Office Office 110 S.W. 2nd St., Suite 108 110 S.W. 2nd St., Suite 108 Anadarko, OK 73005 Anadarko, OK 73005 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: HUDSON, J. LEWIS, P. J.: DISSENT KUEHN, V. P. J.: NOT PARTICIPATING LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR RA 7 LEWIS, PRESIDING JUDGE, DISSENTING: Both Judge Stephens and the majority of this Court ignored evidence presented and the plain language of the law in order to reach their desired result in this case. Whenever the State believes that there is good cause to believe that a person charged as a youthful offender would not reasonably complete a plan of rehabilitation or the public would not be adequately protected if the person were to be sentenced as a youthful offender, and should receive an adult sentence, the district attorney shall file a motion for consideration of the imposition of the sentence as for an adult if the person is convicted. 10A O.S.2011, § 2-5-208(A). The State filed its motion to sentence Appellant as an adult in this case. The District Court set the matter for hearing, 10A O.S.2011, § 2-5-208(B), and ordered OJA to conduct an investigation of Appellant. 10A O.S.2011, § 2-5-208(C)(1). Judge Stephens conducted the hearing on the motion to sentence Appellant as an adult by hearing testimony from three witnesses, all associated with OJA, and admitting two reports into evidence, both prepared by the witnesses. 10A O.S.2011, § 2-5-208(C)(2). Judge Stephens considered the statutory guidelines, with the greatest weight given to subparagraphs a, b and c, and detailed findings of fact and conclusions of law that none of the statutory guidelines could be found in favor of Appellant. 10A O.S.2011, § 2-5-208(C)(2)(a – g), (D). In making his decision, Judge Stephens found the testimony that Appellant could reasonably complete a plan of rehabilitation to be ridiculous, but acknowledged that the State had presented no evidence that Appellant could not complete a plan of rehabilitation. Judge Stephens did find, not from the evidence presented at the hearing but from previous contacts with law enforcement agencies and juvenile or criminal courts, that the public would not be adequately protected if Appellant was sentenced as a youthful offender. Section 2-5-208 specifically states that “[a]fter the hearing and consideration of the report of the investigation, the court shall certify the person 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.2011, § 2-5-208(D) 2 (emphasis added). All of the testimony and all of the reports of the investigation presented at the hearing on the motion to sentence Appellant as an adult pronounced that the public would be adequately protected if Appellant were to be sentenced as a youthful offender. Those pronouncements were made with a knowledge and understanding of the record and past history of Appellant, including previous contacts with law enforcement agencies and juvenile or criminal courts and prior periods of probation and commitments to juvenile institutions. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. An abuse of discretion has also been described as “a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.” Id. When all of the evidence presented at the hearing on the State’s own motion to sentence Appellant as an adult pronounced that the public can be adequately protected if Appellant were to be sentenced as a youthful offender, it is clearly against the logic and effect of the facts presented and law pertaining to the matter at issue for Judge 3 Stephens and the majority of this Court to find by clear and convincing evidence that the public cannot be adequately protected. I dissent. 4

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