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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2354 SEPTEMBER TERM, 1999 ______________________________

IN RE: CHARLES K.

______________________________

Hollander, Kenney, Karwacki, Robert L. (Retired, Specially Assigned) JJ. ______________________________

Opinion by Hollander, J. ______________________________

Filed: November 6, 2000

What a difference a day makes; that adage aptly describes the posture of this case. In the relatively short time between

a delinquent act committed by Charles K., appellant, and the juvenile disposition hearing, appellant received all the

rehabilitative services he needed.

Had the disposition hearing

been held sooner, we would have a different case than the one now before us. Instead, we must consider whether the District

Court for Montgomery County, Juvenile Division, erred at the disposition hearing by finding Charles K. a delinquent child and in failing to dismiss the delinquency petition because, by the time of disposition, appellant was no longer in need of services or treatment. On appeal, Charles presents one question for our

consideration, which we have rephrased slightly: Did the juvenile court err in refusing to dismiss the Delinquency Petition alleging that appellant was a delinquent child when, by the time of adjudication and disposition, appellant no longer fit the statutory definition of "delinquent child"? For the reasons discussed below, we conclude that the court erred in finding appellant a delinquent child and in failing to dismiss the delinquency petition.

FACTUAL SUMMARY On May 19, 1999, Charles K. and two of his friends were playing in the woods with BB guns. All three became involved in

shooting the BB guns at several younger children who were riding their bicycles in the area. Appellant was then 13 years old, Although two of the

and the victims were 10 years of age.

victims were struck by the BBs, nobody was hurt because "the respondents Charles admitted and were his far away" at the time of the occurrence. day and

friends

were

apprehended Thereafter,

the all

same

their

involvement.

three

juveniles

were charged with delinquency based on the offenses of assault and conspiracy. We focus here on what happened to Charles.

Charles's case was "informally adjusted" by the Department of Juvenile Justice (the "Department"), after the victims and their families indicated that "they wanted consequences but not necessarily court services," and agreed to informal adjustment. As part of both the the informal Juvenile Education Charles no further adjustment, Education Program, Charles Training and to was required and to the

attend Victim letter.

Seminar write an

Awareness

apology all the

Because and

successfully services

complied were

with

conditions,

indicated,

Department recommended closure of the case. Notwithstanding the Department's recommendation, the State filed a delinquency petition on August 16, 1999, alleging that Charles K. was a delinquent child. held on October 6, 1999. An adjudicatory hearing was

Pursuant to negotiations with the

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State, Charles entered a plea of "involved" to conspiracy to commit second degree assault of three victims. presented the following statement of facts: Had the State gone forward with an adjudication, you would have heard testimony that on May 19th, 1999, officers were dispatched to 3812 Palmera (Phonetic) Lane for a report on victims who had been shot with a -- with a pellet gun. Those victims were Joseph Perry, John Perry, Travis Patrick, and Chantall Gouws, G-O-UW-S. They advised the officers that while they were outside riding their bicycles, three suspects came up to them and displayed BB guns, and shot the victims without provocation. The officer was speaking with [the] victims who identified their attackers as Theo, Charles and Joey. The officer was told by Joseph Perry that he knew where Theo lived. After going to Theo's apartment and getting no response, the officer was driving Perry back home, when he spotted Theo on Wendy Lane. The officer spoke with Theo, who advised that he was with Charles and Joey and that they had the BB guns. The officer then spoke with Charles, who advised, with his mother present, his involvement in the incident. Charles [K.] advised that Joey had the guns at his house. The officer then responded to Joseph [H.]'s apartment, and Joseph [H.] gave the officer both BB guns and two cartons of BBS. The guns were logged in at the station. All those events having occurred in Montgomery County, Maryland. That would be the State's case. As a result of the plea, the State dismissed the remaining charges reckless against Charles, including The first degree assault and The prosecutor

endangerment.

disposition

hearing

followed

immediately.

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With

respect of the

to

disposition,

Ms. the

Josephson,1 court of

a the

representative

Department,

advised

programs Charles had already completed in connection with the informal adjustment. were indicated and She also said that no further services therefore she recommended closure of the

case, stating: This was actually the first contact for Charles [K.]. He currently lives with his mother. There are no reported behavoiral [sic] problems at home. He is abiding by a curfew of 8:00 every evening. He also -he's been attending Parkland Middle School. He's currently in the eighth grade. He has above-average grades, behavior -- no reported troubles at school. His attendance has been excellent. He is in a special education program at school, intensity level 4. And he's about to transition to regular classes for his main subjects. He is currently -- he was diagnosed with attention deficit and is taking Ritalin, and he's also on asthma medication. He has been attending group therapy at school since 1998. There is no suspicion or evidence of drug and alcohol use. This was a case that was originally informally adjusted by Juvenile Justice. Charles was asked at that time to attend the Juvenile Education Training Seminar. He was to attend the Victim Awareness Education Program, and write an apology letter. And he has successfully completed all of those conditions. So based on the fact that this is his only contact, he has no reported behavioral problems, and has complied with the conditions of his informal adjustment, we are recommending that this case be closed. No services are indicated at the time.

Ms. Josephson was not under oath, and her first name is not mentioned in the transcript. -4-

1

Thereafter,

relying

on

the

statutory

definition

of

a

delinquent child, appellant's attorney asked the court to "make a finding of not a delinquent child and dismiss the petition . . . ." Appellant's counsel further said:

I'm in agreement with the -- the Department's recommendation. Frankly, I think this is a case that -- that fits the statutory definition of not a delinquent child. Other than the facts of the offense, there's nothing before the Court that tells us that Charles is in need of guidance, treatment or rehabilitation. It's indicated that the case is here at the State's Attorney's election, not due to informal adjustment recommended and flubbed; not due to victims are incensed and seeking justice. Not due to restitution unpaid, intransigence, anything like that. * * * I mean, he's very bright, he does well in school. But it's just sort of -- they're out there playing and it's just sort of recklessness and they just keep shooting one thing and moving on up to bigger and bigger targets until they're shooting at these other kids. Which is entirely wrong, he understands that, and I think he's taken responsibility. I just don't see that in this case there's any evidence to the contrary, other than simply the acts in the case, particularly where there's no evidence that my client discharged the weapon -- that he needs further guidance on this issue. In response, the State said: Your Honor, I ask that you not make a finding of no delinquency. But I would agree that it's actually kind of refreshing that they probably don't need at this point any further services. I -- it sounds like they are all on the ball, and it sounds like their parents are -- are on the ball, too, and really come down hard on them. And I think that with that in -5-

place, there's not much more the Department could do. The reasoning juvenile that court refused met the to dismiss the of petition, "delinquent

appellant

definition

child" on the date of the offense, even if he did not need services on the date of disposition. Instead, the court opted The

to close the case, given that no services were then needed. court explained: The definitions of delinquent act and child are set out, as [appellant's counsel] 3-801 (k) and (l). Delinquent act means an act which would be a crime if committed by Obviously, that -- there has been such here. delinquent indicated, act -- an an adult.

Delinquent child is a child who has committed a delinquent act and requires guidance, treatment or rehabilitation. And I take that to not necessarily to be -- to mean as of the date of the adjudication, but rather as of the date of the -- of the offense. And I think that these -- that these young men did -- did require guidance and some degree of rehabilitation at that time. So I'm not going to dismiss the petitions. How -- because I do find that -- that they were, by virtue of these acts, delinquent children. However, I am going to go along with the recommendation that no -- since no further services are necessary at this point, that the -- that the cases can be closed . . . . You all did a really good job of doing what you had to do after this was -after this was done. * * * . . . I realize people make mistakes young, but this could have been a real benefit from -- from what you learned in hoping I don't ever have to see any of again. Okay? -6when they're whopper. So this, and I'm you back here

All right, then the cases will be closed, then, without further services. The docket entries reflect the following for October 6, 1999, in pertinent part: "Respondent plea entered. Hamilton heard the Adjudication. Judge Barry

Court found the Respondent to

be a delinquent child per Count #9 as amended in the Petition and declared a ward of the Court . . . . Court further ordered the case closed." entered an "Order (Emphasis added). For In addition, the court finding "that the

Adjudication,"

respondent is a delinquent child," and "is made and declared to be a ward of this Court." also states "case closed." (Emphasis added). The court order

DISCUSSION On appeal, appellant contends that the juvenile court erred by finding him delinquent and by failing claims to dismiss because the the

delinquency

petition.

Appellant

that,

juvenile court found that he was not in need of services at the time of disposition, he was not a delinquent child under the Juvenile Causes Act (the "Act"), Maryland Code (1974, 1998 Repl. Vol., 1999 Supp.),

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