Opinion
No. CR-05-1026.
Decided September 29, 2006.
Appeal from Morgan Circuit Court (JU-93-750.11; JU-93-750.12; JU-93-750.15)
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., and Baschab and Wise, JJ., concur. Shaw, J., concurs in the result. Cobb, J., dissents, with opinion.
The Morgan County Juvenile Court adjudicated P.J.B. guilty of two counts of harassment and one count of making a terrorist threat, violations of §§ 13A-11-8(a)(1)a., 13A-11-8(a)(2), and 13A-10-15(a)(1)b., Ala. Code 1975, and committed him to the Department of Youth Services. P.J.B. appealed the finding of guilt as to the terrorist-threat count and argued that the State failed to prove the charge. The majority does not address the argument in its unpublished per curiam memorandum; instead it states: "[E]ven if the evidence was insufficient to warrant a finding of guilt on the charge of making a terrorist threat, this would not require reversal of P.J.B.'s adjudication of delinquency." The majority cites Chambers v. State, 497 So. 2d 607 (Ala.Crim.App. 1986), in which this Court held that, even when the adjudication of guilt is set aside as to one charge, the adjudication of delinquency would not be affected because the juvenile was also found guilty of two other charges. For the following reasons, I must dissent.
First, the record in this case does not support a guilty finding on the charge of making a terrorist threat. The State alleged that P.J.B. made a terrorist threat because he threatened to damage property and he disrupted school activities. Specifically, the State presented evidence to show that P.J.B. told the school-bus driver that he was going to burn a cornfield, which was not located on school property, and, even though she did not know whether P.J.B. intended to do what he said, the bus driver told the school principal. The principal and a police officer spoke to P.J.B. about the threat, and P.J.B. told them he was kidding when he told the driver that he was going to burn a cornfield. The principal testified that, speaking with P.J.B. about the threat disrupted the principal's normal duties. A principal speaking with a student about a disciplinary matter is one of a principal's regular duties; thus, under no rational analysis could it be argued that P.J.B. committed a terrorist threat. My research has revealed no Alabama caselaw involving a charge under the terrorist-threat statute. Therefore, this would have been the first opportunity for our Court to consider the application of that statute. An examination of the merits of P.J.B.'s claim would have been appropriate for this reason, too.
I am aware that, based on this Court's holding in Chambers v. State, P.J.B.'s adjudication of delinquency could stand even if the majority had examined the merits of the terrorist-threat charge and set aside the finding of guilt as to it. However, I joined Judge Shaw in a special concurrence in J.G.J. v. State, 814 So. 2d 313, 313 (Ala.Crim.App. 2001), a case presenting the same circumstances as those before us. Judge Shaw stated: "I question the wisdom of allowing an erroneous finding of guilt as to one of the charged offenses on which that adjudication was based to go uncorrected by either this Court or the trial court." Not only do I believe that the case should be remanded with instructions for the juvenile court to vacate the erroneous finding of guilt, I also believe that the juvenile court should have the opportunity to reconsider its delinquency adjudication and its disposition, without consideration of the finding of guilt as to the terrorist-threat count. P.J.B. was committed to the Department of Youth Services; the juvenile court might order another disposition if the terrorist-threat charge was not considered along with the two harassment charges.
Furthermore, the terrorist-threat charge will remain on P.J.B.'s juvenile record and will be subject to consideration by any other juvenile court or by a circuit court if P.J.B. is even considered for youthful-offender status. E.g., Buford v. State, 891 So. 2d 423, 432 (Ala.Crim.App. 2004). In this era of terrorist attacks and the fears associated with such attacks, an adjudication on this charge will unfairly prejudice P.J.B. in any subsequent criminal proceedings. In the present times, following the terrorist attacks on the United States that occurred on September 11, 2001, any insinuation that someone has been involved in terrorist activities, and even more so a finding of guilt on a charge of making a terrorist threat, will have an enormous impact on that person's life. Consequently, the charge should not be lightly made and must be given serious consideration by any Court after such a charge is made.
Finally, I believe this Court should review its holding inChambers v. State. I believe the better practice in cases such as Chambers and the one before us would be to remand the case with directions that the juvenile court vacate the finding of guilt on the erroneous charge and reconsider the finding of delinquency and the disposition on the remaining charges. This would better protect the rights of the juvenile offender and would return to the juvenile court the discretion to reconsider the proper disposition, especially because, in some cases, the juvenile court might determine that a less restrictive disposition or placement would be appropriate. See § 12-15-71(c), Ala. Code 1975.
For the foregoing reasons, I dissent.