STATE v. MERIDIETH (2008)

PART PUBLISHED OPINION

¶ 1 Zachary H. Meridieth appeals the Thurston County Superior Court's denial of his motion for arrest of judgment or new trial following his jury convictions for six counts of first degree child rape and six counts of first degree child molestation.   Because the juvenile court made no finding of probable cause that an enumerated offense occurred after Meridieth's 16th birthday and there is no evidence on which we could determine conclusively that an enumerated offense occurred after age 16, the automatic decline of juvenile jurisdiction was improvident.   The adult superior court was without jurisdiction.   Thus, under In re Personal Restraint of Dalluge, 152 Wash.2d 772, 775, 100 P.3d 279 (2004), we remand to adult superior court (because Meridieth is over 18), for a Dillenburg-de novo hearing on whether declination would have been appropriate.  In re Dillenburg v. Maxwell, 70 Wash.2d 331, 355, 422 P.2d 783 (1967).   If declination would have been appropriate, then the conviction stands, but if not, the defendant is entitled to a new trial in adult court.   Finally, Meridieth provides a Statement of Additional Grounds (SAG) ¹ alleging various errors that we find meritless.

FACTS

¶ 2 On August 26, 2005, the Thurston County Sheriff's Office (TCSO) received a report of multiple sexual offenses involving Meridieth.   The two alleged victims, B.A.C. (dob July 20, 1994) and A.N.S. (dob Sept. 13, 1993), disclosed to their parents that Meridieth, their cousin, had sexual contact with them on multiple occasions.

¶ 3 Detective Bergt from the TCSO interviewed both B.A.C. and A.N.S., and they told the detective that when they were 9 and 10 years old, Meridieth, who was between 15 and 16 years old at the time, was a regular overnight guest and occasionally babysat them.   The girls stated that when Meridieth was alone with them, he told them to undress, touched the private areas of their bodies with his hands and mouth, and had both girls put their hands on his penis and his penis in their mouths.   They also stated that Meridieth took turns putting his penis into their vaginas and that he made them watch while he masturbated.   During several incidents, he placed his hand over their mouths so they could not scream and held their arms so they could not get away.   He then threatened to kill them if they told anyone.   Both B.A.C. and A.N.S. stated that these incidents occurred repeatedly from the time they were 9 and 10 years old until “approximately one year ago,” when the incidents stopped.   CP at 4.

¶ 4 On August 31, 2005, Bergt interviewed Meridieth following his arrest.   Meridieth initially denied any sexual contact with the girls, but he then admitted that he put his mouth on B.A.C.'s vagina on two occasions, put his penis in her mouth on two occasions, digitally penetrated her vagina on two occasions, and put his penis between her legs without penetrating her vagina on two occasions.   He also admitted that he put his mouth on A.N.S.'s vagina on two occasions, put his penis in her mouth on two occasions, digitally penetrated her vagina on two occasions, and put his penis between her legs without penetrating her vagina on two occasions.

¶ 5 The State charged Meridieth with four counts of first degree child rape (counts I-IV) and four counts of first degree child molestation (counts V-VIII) against B.A.C. and four counts of first degree child rape (counts IX-XII) as well as four counts of first degree child molestation (counts XIII-XVI) against A.N.S. The State's original charging period was between August 1, 2003, and August 31, 2004.²

¶ 6 Meridieth was 17 years old at the time of his arrest.   Based on his age, the State booked him in the Thurston County Juvenile Detention Center.   He appeared before the Honorable Judge Pomeroy on September 1, 2005, represented by counsel.   Judge Pomeroy entered an order of automatic decline under RCW 13.04.030(e)(v)(C) signed by both Meridieth's and the State's counsel at the time.   Meridieth's counsel neither objected nor requested an extension of juvenile jurisdiction.

¶ 7 Meridieth's case proceeded to jury trial in adult court and on July 12, 2006, the jury found him guilty on all but four counts (counts IV, VIII, XII, and XVI).   The trial court set sentencing for August 11, 2006, but on August 9, 2006, Meridieth filed a motion and declaration to continue the sentencing hearing.   On the morning of the sentencing hearing, Meridieth filed a motion for new trial, arrest of judgment, or remand to juvenile court.   Although the State objected, the trial court granted Meridieth's motion for a continuance and agreed to hear his motions for arrest of judgment under CrR 7.4 and for a new trial under CrR 7.5.   The trial court ultimately denied both motions and sentenced Meridieth to a standard range sentence.

¶ 8 The primary question for this court is whether Meridieth was properly before the adult division of the Thurston Superior Court when he was tried and convicted.

ANALYSIS

I. Jurisdiction

¶ 9 Meridieth initially argues that the trial court lacked jurisdiction over him because his automatic mandatory decline was faulty.   Specifically, he alleges that the trial court relied on the incorrect version of RCW 13.04.030(1)(e)(v) when it determined that he should be automatically declined.   Br. of Appellant at 12.   He bases this assertion on the trial court's acknowledgment that the “old form of the order was used.”   Br. of Appellant at 12;  RP (Sept. 14, 2006) at 19.   He then states that under the amended version of the statute, he would not have been subject to the automatic mandatory decline because there was insufficient evidence presented at trial that he committed the first degree rape(s) after he turned 16 years old on May 25, 2004.   Meridieth contends that he was 16 for only the last 98 days of the charging period and that the record is silent as to the specific dates of his crimes.

¶ 10 The State contends that Meridieth is approaching the jurisdictional question from the wrong direction because it is the charge rather than the verdict that controls which court has jurisdiction.   Accordingly, the State needed to have probable cause to believe that only one of the offenses occurred when Meridieth was 16 or 17 years old.   The State also notes that, although Meridieth frames his allegations on appeal around the trial court's denial of his motion for arrest of judgment or new trial, he is actually arguing that insufficient evidence supported that he committed at least one rape after he turned 16.

 ¶ 11 The State is correct in the framing of the issue of jurisdiction-that is, there need only be probable cause to believe that at least one of the enumerated offenses, namely first degree child rape, occurred after Meridieth turned 16.   Meridieth is correct that the allegations and supporting documentation before the judge at the time of automatic declination do not reference specific dates for the offenses that cause an automatic decline of the matter to adult court.

¶ 12 We review a trial court's decision on a motion for arrest of judgment or new trial under an abuse of discretion standard.  State v. Russell, 125 Wash.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004 (1995);  State v. Williams, 96 Wash.2d 215, 221, 634 P.2d 868 (1981).   A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or reasons.  State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).

¶ 13 Former RCW 13.04.030 (2004) provided in relevant part:

(1) Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings:

․

(e) Relating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through 13.40.230, unless:

․

(v) The juvenile is sixteen or seventeen years old and the alleged offense is:

․

(C) Robbery in the first degree, rape of a child in the first degree, or drive-by shooting, committed on or after July 1, 1997.

¶ 14 Effective July 24, 2005, the legislature amended RCW 13.04.030(1)(e)(v) so that it now reads, “The juvenile is sixteen or seventeen years old on the date the alleged offense is committed and the alleged offense is:” (emphasis ours).   Accordingly, under the amended version, Meridieth would have been subject to automatic mandatory decline only if he was 16 or 17 on the date of the alleged offense.

¶ 15 Meridieth turned 16 on May 25, 2004.   Here, Meridieth's automatic mandatory declination occurred on September 1, 2005, over 30 days after the amendment took effect.   There is no evidence in the record indicating which version of RCW 13.04.030(1)(e)(v) Judge Pomeroy applied, although it does appear that she signed a version of the form conforming to the pre-amendment version.

¶ 16 The State agrees on appeal that the trial court should have applied the amended version of RCW 13.04.030 to Meridieth's case.   The trial court did not employ special interrogatories asking the jury to determine the specific dates for each offense.   As such, the question is whether there was probable cause given to the judge that Meridieth committed first degree child rape while he was 16, in which case the declination was proper.

 ¶ 17 Meridieth argues that the testimony throughout the entire trial did not support a finding that any of the incidents occurred while he was 16.³  The State correctly contends that the testimony at trial is not relevant here because it is the nature of the charge that dictates jurisdiction, not the final outcome.  In re Boot, 130 Wash.2d 553, 575, 925 P.2d 964 (1996);  State v. Manro, 125 Wash.App. 165, 104 P.3d 708, review denied, 155 Wash.2d 1010, 122 P.3d 912 (2005).   Both the In re Boot court and the Manro court were interpreting the former version of RCW 13.04.030(1)(e)(v), but it does not appear that this proposition has changed.   In re Boot, 130 Wash.2d at 562, 925 P.2d 964;  Manro, 125 Wash.App. at 171-72, 104 P.3d 708.   But our legislature has carved out an exception to this rule as recognized in State v. Posey, 161 Wash.2d 638, 646, 167 P.3d 560 (2007).

¶ 18 In Posey, the juvenile defendant was acquitted for the enumerated crime that placed him in adult court and was convicted instead of a non-enumerated offense.  Posey, 161 Wash.2d at 647, 167 P.3d 560.   The Posey court held that “the alleged charge ․ properly placed [the defendant] in the jurisdiction of adult court under the statute.”  Posey, 161 Wash.2d at 647, 167 P.3d 560.   But the Posey court then determined that any juvenile properly charged in adult court of an enumerated offense is “returned” to juvenile court for imposition of sentence as a juvenile if the juvenile is convicted of a nonenumerated offense.  Posey, 161 Wash.2d at 646, 167 P.3d 560.   Our Supreme Court then stated that the legislative intent underlying the automatic decline is to impose more severe punishment on juveniles that actually committed certain criminal offenses.  Posey, 161 Wash.2d at 647, 167 P.3d 560.   This is clear in the language of RCW 13.04.030(1)(e)(v)(E)(II):

The juvenile court shall have exclusive jurisdiction over the disposition of any remaining charges in any case in which the juvenile is found not guilty in the adult criminal court of the charge or charges for which he or she was transferred, or is convicted in the adult criminal court of a lesser included offense that is not also an offense listed in (e)(v) of this subsection.

 ¶ 19 Posey's analysis-that if the juvenile is acquitted of the enumerated charge he must be “returned” to juvenile court-is not at odds with the In re Boot and Manro holdings that the charge determines the proper court jurisdiction.   Accordingly, we must determine whether probable cause existed at the time of the automatic mandatory decline hearing to support the allegations that Meridieth committed at least one of the rapes while he was 16 years old.   See Manro, 125 Wash.App. at 174, 104 P.3d 708.

¶ 20 In the prosecutor's declaration supporting probable cause, the State asserted that A.N.S. and B.A.C. told Bergt that they were 9 and 10 years old and Meridieth was between 15 and 16 years old during the charged incidents.   The girls then reported the specific details of the sexual abuse.   Both A.N.S. and B.A.C. then told Bergt that “these incidents occurred repeatedly from the time they were nine and ten years of age until the incidents stopped approximately one year ago.”   CP at 4. One year before the victims' interview would have been August 30, 2004, several months after Meridieth turned 16.   But from these scant allegations there is no specificity as to either date or type of incident that occurred after Meridieth turned 16.   Thus, on the record before us, the automatic declination was faulty.

 ¶ 21 Meridieth argued before this court that Posey applies in his case, but Posey is inapposite.  Posey did not concern the initial jurisdiction of the adult court, but rather the remedy when the defendant was acquitted of an enumerated offense.  Posey, 161 Wash.2d at 647, 167 P.3d 560.   Here, the jury convicted Meridieth of an enumerated offense.   While Posey dealt with the remainder of the offenses, none enumerated, we are concerned with enumerated offenses for which there were convictions.   While the Posey court noted that, once acquitted, he “should have been remanded to juvenile court for a decline hearing or sentencing,” ⁴ and the State conceded that Posey would not have been declined juvenile court jurisdiction, we engage in no such discussion concerning the possible outcome of a declination hearing.  Posey, 161 Wash.2d at 647, 649 n. 6, 167 P.3d 560.

¶ 22 In re Dalluge, 152 Wash.2d at 785-86, 100 P.3d 279, clarifies the proper remedy in this case.   While the Posey court dealt with the loss of valid adult court jurisdiction, Dalluge dealt with whether a defendant ever acquired proper adult jurisdiction and what remedy would be available to that defendant, which is the same issue before us now.  In re Dalluge, 152 Wash.2d at 785, 100 P.3d 279.   In Dalluge, a 17-year-old defendant was originally charged with first degree rape, but his attorney did not object to adult superior court jurisdiction when the State reduced the charge to a nonenumerated offense.  Dalluge, 152 Wash.2d at 776, 100 P.3d 279.   Dalluge was convicted of two counts of third degree rape but asserted that he was not afforded a right to a declination hearing.  Dalluge, 152 Wash.2d at 776-77, 100 P.3d 279.   The Dalluge court held:

In Dillenburg ․ the petitioner filed for a writ of habeas corpus in superior court, arguing he was improperly tried in adult court.  [The Dillenburg court] initially concluded that the petitioner had been improperly transferred to adult court and reversed for a new trial.   However, upon reconsideration, the court concluded that where the petitioner has demonstrated that a transfer from juvenile court was faulty, the proper remedy is a de novo hearing in superior court on whether declination of juvenile jurisdiction would have been appropriate.   If declination would have been appropriate, then the conviction stands.   Otherwise, the conviction is set aside and a new trial must occur in adult criminal court if the defendant has since turned 18.   Subsequently, Washington courts have consistently applied this remedy when lack of adult criminal jurisdiction is successfully argued on appeal.

In re Dalluge, 152 Wash.2d at 785-86, 100 P.3d 279 (footnote and citations omitted).

¶ 23 We hold that the automatic declination was faulty.   As such the remedy in Dalluge is appropriate.   We remand for a de novo Dillenburg hearing under RCW 13.40.110 on whether declination of juvenile jurisdiction would have been appropriate.   If the superior court finds that declination would have been appropriate, then the conviction stands.   If the conviction is set aside, then Meridieth is entitled to a new trial in adult court because he is over 18 years of age.   There is no issue of double jeopardy if a new trial ensues.   See State v. Anderson, 96 Wash.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842, 103 S.Ct. 93, 74 L.Ed.2d 85 (1982).⁵

¶ 24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. SAG Issues

¶ 25 We address these SAG issues challenging Meridieth's convictions should the trial court find that declination was appropriate.   Meridieth raises multiple issues in his unnumbered SAG, including lists of factual allegations along with what appear to be portions of letters from his family members.   The SAG lacks merit.

A. Grounds Not Sufficient for Review

¶ 26 Although a defendant is not required to cite to the record or authority in his SAG, he must still “inform the court of the nature and occurrence of [the] alleged errors,” and this court is not required to search the record to find support for the defendant's claims.  RAP 10.10(c).  Several of Meridieth's grounds are not sufficient to allow review, and we do not reach them.6

B. Matters Outside of the Record

¶ 27 Meridieth also lists several arguments involving information not found in the record.   The following enumerated grounds relate to matters outside the record that we will not review on direct appeal.7  State v. McFarland, 127 Wash.2d 322, 338 n. 5, 899 P.2d 1251 (1995).

C. Matters of Credibility and Weight

¶ 28 Meridieth raises several grounds that relate to matters of credibility and weight.   This court does not review weight or credibility issues. 8  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).

D. Issues Already Addressed by Appellate Counsel

¶ 29 Meridieth challenges several issues that appellate counsel has addressed directly.   These include:  (1) why was Meridieth charged as an adult, and (2) was Meridieth's counsel ineffective for failing to object to the automatic mandatory decline?   We do not reconsider these issues.

E. Sufficient Evidence

¶ 30 Several of Meridieth's SAG issues appear to relate to whether there was sufficient evidence to support his convictions.   The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).   In determining whether evidence supports a jury verdict, we view “the evidence in a light most favorable to the State.”  State v. McNeal, 145 Wash.2d 352, 359, 37 P.3d 280 (2002).

¶ 31 Specifically, Meridieth alleges that “[w]ith no proof, how can [Meridieth] have 16 counts against him.”   SAG. He also contends that he did not understand his Miranda9 rights.   Viewed in the light most favorable to the State, the evidence, including testimony from both victims and Detective Bergt, was clearly sufficient to support his convictions.   Sufficient evidence also supports that Meridieth understood his Miranda rights.   Meridieth himself signed a Miranda waiver, provided two interviews including one on tape, and stated that he understood he did not have to talk and could request a lawyer at any time.   Meridieth's arguments lack merit.

F. Ineffective Assistance

¶ 32 Meridieth asserts several additional claims of ineffective assistance.   Specifically, he alleges that defense counsel postponed the hearings and trial, failed to require probable cause for Meridieth's arrest, did not admit important evidence, and was never ready to proceed to trial.   To establish ineffective assistance, Meridieth must show his attorney's performance was deficient and the deficiency prejudiced him.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   We are not required to address both prongs of the test if Meridieth makes an insufficient showing on one of the two prongs.  Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 33 First, Meridieth appears to object to his counsel's request for continuances.   But the trial court brought Meridieth to trial within his speedy trial time frame.10  Further, Meridieth waived his speedy sentencing rights so that the trial court could consider his motion for arrest of judgment.   To any extent that Meridieth is challenging his speedy trial rights, his argument is without merit.   Meridieth's other contention appears to be that his counsel's requests for multiple continuances made the judge angry with him.   But the record does not support this allegation and Meridieth is unable to show that the continuances prejudiced him in any way.   Accordingly, this claim lacks merit.

¶ 34 Meridieth next claims that his counsel failed to require the State to show probable cause to arrest him.   The record reveals that different trial counsel represented Meridieth during this stage of his case, but he provides no details for us to review.   Even if this question was properly before us, the record shows that Detective Bergt had already interviewed both victims and they alleged that Meridieth raped them.   Judge Pomeroy reviewed Detective Bergt's statement of probable cause and found it to be sufficient.   We do not address this claim, but even if we did, Meridieth's argument must fail because the statement of probable cause was sufficient.   Defense counsel's failure to object did not constitute ineffective assistance.

¶ 35 Meridieth alleges that defense counsel did not admit important evidence or call important witnesses.   Meridieth fails to identify this evidence and these witnesses, and as such, they are not properly before this court.   See RAP 10.10(c).  This argument is meritless.

G. Confession

¶ 36 Finally, Meridieth argues that the police erred by failing to allow his father or mother to attend his initial interview with Detective Bergt and accordingly, his confession was coerced.   His argument lacks merit.   The record reveals that Meridieth did not request his parents' presence at any point.   Regardless, Meridieth's waiver of his Miranda rights is not invalid because when a juvenile is over the age of 12, a parent's presence is not required.   Dutil v. State, 93 Wash.2d 84, 93, 606 P.2d 269 (1980).

¶ 37 This matter is remanded for a decline hearing consistent with the procedures set forth in Dillenburg.

¶ 38 Remanded.

¶ 39 I concur in the majority's holding and remand.   But I dissent from their ordering a new trial in adult court if, on remand, the superior court finds that the original automatic decline of juvenile jurisdiction was improper.   In dissenting, I intend no criticism of the majority for following the letter of the Washington Supreme Court's holding in Dalluge, in which the Court ordered a new trial in adult court under somewhat similar, but not the same, circumstances.  In re Pers. Restraint of Dalluge, 152 Wash.2d 772, 100 P.3d 279 (2004).

¶ 40 I am not persuaded that our Supreme Court would order a new trial under the circumstances here, where Meridieth has, in essence, already received his Dalluge remedy, albeit prematurely:  The State has already tried and convicted Meridieth in adult court, where the only identified error was the original, improvident, automatic decline of juvenile court jurisdiction.   But because he is now over the age of 21 and too old for remand to the juvenile court,¹¹ there is simply no way to remedy this previous improper decline.   Therefore, I propose that we allow his adult jury conviction to stand.

¶ 41 In support of this common sense approach, I cite a recent opinion filed by Division Three of our court in State v. Robert L. Doney, Jr., 142 Wash.App. 450, 174 P.3d 1261 (2008).   The Doney court confronted, and rejected, the prospect of remanding for the trial court to empanel a new jury to consider exceptional-sentence aggravating factors under the “Pillatos-fix” ¹² statutory amendments in RCW 9.94A.537(2), Laws of 2007, ch. 205, § 2. Division Three reasoned:

Part of the [RCW 9.94A.537(2) ] amendment stated that if a new sentencing hearing is required, the superior court can impanel a jury to consider aggravating factors that supported the previous exceptional sentence.   RCW 9.94A.537(2);  see Laws of 2007, ch. 205, § 2.

Mr. Doney entered his guilty plea before April 15, 2005, which means that the “Blakely-fix” statute would not apply to him for sentencing.   [Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).]   Therefore, the trial court should not have impaneled a jury to decide the aggravating factors in this case.   However, if Mr. Doney's case is remanded, the Blakely-fix statute would apply and Mr. Doney would be entitled to a jury determination of aggravating factors.   Mr. Doney has already received two jury determinations of aggravating factors.[13]

Doney, 142 Wash.App. at 454, 174 P.3d 1261 (emphasis added).

¶ 42 As in Doney, “No decisions address the specific issue here ․,” Doney, 142 Wash.App. at 455, 174 P.3d 1261, namely whether it was harmless error ¹⁴ for the juvenile court to have declined jurisdiction and sent Meridieth to adult court for a jury trial.   Also as in Doney, the error here was whether the trial court had jurisdiction or authority to employ the procedure it followed;  aside from the procedural irregularity, in neither case was there any allegation of substantive error related to the fairness of the procedure.

¶ 43 Instructive here is Division Three's common sense resolution of the issue before it:

If this case was remanded, Mr. Doney would again have a jury determine these factors because the new statute-Laws of 2007, ch. 205, § 2-would apply to him.   The evidence supporting these factors is overwhelming;  however, Mr. Doney has already, arguably twice, received the benefit of the statute.   Thus, any error at trial was harmless and we affirm Mr. Doney's sentence.

Doney, 142 Wash.App. at 455-56, 174 P.3d 1261 (emphasis added).   I propose that we resolve the issue before us in a similar manner.

¶ 44 Just as Doney had already received his remedy-a jury determination of aggravating factors, so has Meridieth already received the remedy for which the majority would remand-a jury trial in adult court.   Thus, as in Doney, if we remand this case and the trial court determines that the juvenile court improperly declined jurisdiction, Meridieth would have a second jury trial in adult court.¹⁵  There having been no allegation of substantive error in his original adult court trial, conducting a second trial in adult court on remand would not accord Meridieth any additional right that he did not have in his earlier trial.   Nor would it mitigate any past harm.

¶ 45 As I noted at the outset, because Meridieth has already received an adult trial, there is no further meaningful remedy available to him.   Accordingly, I respectfully dissent from that part of the order of remand that would potentially require a retrial in adult court.

FOOTNOTES

1.   See RAP 10.10.

2.   Based on testimony unrelated to this appeal, on July 10, 2006, the State filed a third amended information expanding the charging period to include August 1, 2002 to August 31, 2004.

3.   Further, Meridieth contends that the rule of lenity applies here.   The rule of lenity requires this court to construe an ambiguous statute strictly and narrowly in favor of the defendant.  State v. Watson, 160 Wash.2d 1, 14, 154 P.3d 909 (2007).   As such, he argues that this court should construe the statute strictly against the State and in his favor.   But the State correctly contends that the rule of lenity is inappropriate in this case because Meridieth has not alleged that RCW 13.04.030 is ambiguous.

4.   RCW 13.40.110(1) provides in relevant part:[T]he court on its own motion may ․ file a motion requesting the court to transfer the respondent for adult criminal prosecution and the matter shall be set for a hearing on the question of declining jurisdiction.   Unless waived ․ a decline hearing shall be held when:(a) The respondent is ․ seventeen ․ and the information alleges a class A felony.When we remand this case for a decline hearing, the trial court should consider the Kent criteria before declining jurisdiction.   See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966);  State v. Holland, 98 Wash.2d 507, 515, 656 P.2d 1056 (1983).

5.   We do not address the argument of ineffective assistance of counsel because we have determined that the decline of juvenile jurisdiction was faulty and the remedy is plain.   This is consistent with the remedy in Dalluge, where our Supreme Court did not address defendant's ineffective assistance claim because any possible error would be remedied by the remand to superior court.  In re Dalluge, 152 Wash.2d at 789 n. 10, 100 P.3d 279.

FN6.  These include:• Officer Solomon's impression that Officer Bergt did not intend to arrest Meridieth.• Defense counsel's failure to “put anything into evidence.”• B.A.C. feared Detective Bergt instead of Meridieth.• Where “it” happened.• The jury did not believe A.N.S. or B.A.C.'s testimony.• No evidence, DNA, witnesses, proof or fingerprints.• What do “they” mean by “frequent guests[?]”• No defense evidence was submitted.• No expert for the defense.• No medical evidence that either girl was violated.• No phone analysts on unauthorized taped confession.• The confession was “co horsed.”• Detective Bergt stood in the same room as Meridieth when he made his phone call.• A.N.S. and B.A.C. are always driven to the bus stop.• What about hearsay?• A.N.S. and B.A.C. talked to each other before they wanted to answer questions.• B.A.C.'s father is a “paranoid psycho.”• Why wait to tell story?• Why was Meridieth's brother not questioned?• Both girls are very competitive.• Meridieth did not get his driver's license until June 25, 2007.• How did Meridieth get transportation?• Meridieth only gave B.A.C. a ride once.• Meridieth did not receive an escort from the courtroom.• A.N.S. and B.A.C. continued cheerleading.• “[Meridieth] did not call me.   I was already at Doug and Michelle's house when he called home.”• Bonnie said that Meridieth indicated only that he confessed to something of a sexual nature.SAG (note:  the SAG is unnumbered)..  FN6.  These include:• Officer Solomon's impression that Officer Bergt did not intend to arrest Meridieth.• Defense counsel's failure to “put anything into evidence.”• B.A.C. feared Detective Bergt instead of Meridieth.• Where “it” happened.• The jury did not believe A.N.S. or B.A.C.'s testimony.• No evidence, DNA, witnesses, proof or fingerprints.• What do “they” mean by “frequent guests[?]”• No defense evidence was submitted.• No expert for the defense.• No medical evidence that either girl was violated.• No phone analysts on unauthorized taped confession.• The confession was “co horsed.”• Detective Bergt stood in the same room as Meridieth when he made his phone call.• A.N.S. and B.A.C. are always driven to the bus stop.• What about hearsay?• A.N.S. and B.A.C. talked to each other before they wanted to answer questions.• B.A.C.'s father is a “paranoid psycho.”• Why wait to tell story?• Why was Meridieth's brother not questioned?• Both girls are very competitive.• Meridieth did not get his driver's license until June 25, 2007.• How did Meridieth get transportation?• Meridieth only gave B.A.C. a ride once.• Meridieth did not receive an escort from the courtroom.• A.N.S. and B.A.C. continued cheerleading.• “[Meridieth] did not call me.   I was already at Doug and Michelle's house when he called home.”• Bonnie said that Meridieth indicated only that he confessed to something of a sexual nature.SAG (note:  the SAG is unnumbered).

FN7.  These include:• The phone tap was signed by the same judge that issued the no-contact order for Meridieth's father.• John the Jailor told Meridieth that his paperwork was not signed by the supervisor.• B.A.C.'s father was sexually abused as a child.• Why did deputy Solomon draw his taser outside the front door?• A.N.S. and B.A.C. have access to pornography in their rooms.• Why was Meridieth shown on KING 5 TV?• Why is money being paid towards any LFO's or restitution?• What about the Midway address roommate?• Larry has guns.• Debra and Cindie abused state leave and they threatened to go to the media.• A.N.S. and B.A.C. were allowed to dress provocatively.• A.N.S. and B.A.C. maintained good grades, continued cheerleading and went on campouts.• Chuck attempted suicide three or more times.• Chuck was in the psych ward.• Defense counsel did not try to “pole” the jury to aid with appeal.• The State offered Meridieth a deal that he was not eligible for.SAG..  FN7.  These include:• The phone tap was signed by the same judge that issued the no-contact order for Meridieth's father.• John the Jailor told Meridieth that his paperwork was not signed by the supervisor.• B.A.C.'s father was sexually abused as a child.• Why did deputy Solomon draw his taser outside the front door?• A.N.S. and B.A.C. have access to pornography in their rooms.• Why was Meridieth shown on KING 5 TV?• Why is money being paid towards any LFO's or restitution?• What about the Midway address roommate?• Larry has guns.• Debra and Cindie abused state leave and they threatened to go to the media.• A.N.S. and B.A.C. were allowed to dress provocatively.• A.N.S. and B.A.C. maintained good grades, continued cheerleading and went on campouts.• Chuck attempted suicide three or more times.• Chuck was in the psych ward.• Defense counsel did not try to “pole” the jury to aid with appeal.• The State offered Meridieth a deal that he was not eligible for.SAG.

FN8.  These include:• A.N.S. and B.A.C. lied because the medical exams came back negative.• B.A.C. was scared of Detective Bergt.• A.N.S. and B.A.C. changed their stories about how many times the rapes occurred.• A.N.S. and B.A.C. made up their story after talking to Jenny.• All allegations stopped in April 2004.• A.N.S. told Tammy that Meridieth did not do anything.• B.A.C. said the bedroom was locked when it was not.• B.A.C. originally said that Meridieth put his penis in “all three holes,” but later changed her story.• A.N.S. said that Meridieth put his penis inside of her when he baby-sat her, but he did not baby-sit her.• He did not threaten to kill her.• The seventh through tenth pages of the SAG contain allegations from A.N.S., B.A.C., and Bergt that Meridieth alleges are lies in addition to reiteration of his own testimony that he claims is true.SAG..  FN8.  These include:• A.N.S. and B.A.C. lied because the medical exams came back negative.• B.A.C. was scared of Detective Bergt.• A.N.S. and B.A.C. changed their stories about how many times the rapes occurred.• A.N.S. and B.A.C. made up their story after talking to Jenny.• All allegations stopped in April 2004.• A.N.S. told Tammy that Meridieth did not do anything.• B.A.C. said the bedroom was locked when it was not.• B.A.C. originally said that Meridieth put his penis in “all three holes,” but later changed her story.• A.N.S. said that Meridieth put his penis inside of her when he baby-sat her, but he did not baby-sit her.• He did not threaten to kill her.• The seventh through tenth pages of the SAG contain allegations from A.N.S., B.A.C., and Bergt that Meridieth alleges are lies in addition to reiteration of his own testimony that he claims is true.SAG.

FN9. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)..  FN9. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

FN10.  The final agreed continuance placed Meridieth's speedy trial date at August 2, 2006, but his trial commenced on July 5, 2006..  FN10.  The final agreed continuance placed Meridieth's speedy trial date at August 2, 2006, but his trial commenced on July 5, 2006.

11.   RCW 13.40.020(14) (a “juvenile” is a person under 18 years of age);  RCW 13.04.030(1)(e) and Monroe v. Soliz, 132 Wash.2d 414, 419, 939 P.2d 205 (1997) (juvenile courts have exclusive original jurisdiction over juveniles alleged to have committed offenses).

12.   State v. Pillatos, 159 Wash.2d 459, 150 P.3d 1130 (2007) (holding that sentencing law changes-authorizing the empanelling of a special jury to determine aggravating circumstances for exceptional sentence purposes-do not apply to cases in which trials have already begun or pleas have already been accepted before the April 15, 2005 effective date of the legislation).

13.   The court further noted, “Mr. Doney was given notice that the State intended to seek an exceptional sentence.   And the facts supporting an aggravating circumstance were proved to a jury beyond a reasonable doubt.”  Doney, 142 Wash.App. at 454, 174 P.3d 1261.

14.   Holding the premature jury finding of aggravating factors harmless, the court reasoned:In State v. Hughes, 154 Wash.2d 118, 147, 110 P.3d 192 (2005), the Supreme Court of Washington held that Blakely error is structural and, therefore, can never be harmless.   However, Hughes was overturned by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), which held that Blakely error could be subject to a harmless error analysis.   Constitutional error is harmless if the court is convinced beyond a reasonable doubt that, absent the error, the same result would have occurred at sentencing.Doney, 142 Wash.App. at 454-55, 174 P.3d 1261.

15.   And if the trial court determines that juvenile court properly declined jurisdiction, Meridieth's previous adult jury trial conviction would remain intact.   Either way, however, he ends up with an adult jury trial, not a juvenile court trial, even if a juvenile court trial is what he should have received in the first place.

BRIDGEWATER, P.J.