ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JAMES MURPHY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA 01-91

DECEMBER 5, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIRST

DIVISION, [NO. CR99-4186]

HONORABLE MARION ANDREW HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Appellant James Murphy was charged with capital murder in Pulaski County Circuit Court. He was sixteen years old when the crime was allegedly committed. A hearing was held on appellant's motion to transfer the case to Pulaski County Chancery Court, Juvenile Division. During the hearing, the trial court also considered appellant's motion to suppress his statement to the police and appellant's motion to set bond. At the conclusion of the hearing, the trial court denied each of appellant's motions.

In denying the motion to transfer, the trial court announced from the bench that, "He's had a number of opportunities in juvenile court." The trial court subsequently entered an order denying the motion to transfer, and James Murphy appeals from that order. His sole argument on appeal is that the case should be reversed and remanded because the trial court failed to make written findings of fact in connection with its denial of the requested transfer.

We affirm.

At the hearing, it was established that Brian Hornes was shot and killed while driving his car late at night on October 4, 1999. James Murphy became a suspect, and after waiving his rights he gave a recorded statement to the police. In his statement James admitted that he fired shots at Brian Hornes. However, he indicated that the victim was following James's friends who were in another vehicle, and that he shot because "Brian stuck his hand out the window with his pistol like he was fixing to shoot at them." James told the police that he did not realize he killed the victim until the following day. Detective Steve Moore investigated the case and testified that no weapon was found inside or anywhere near the victim's car.

The State produced evidence that James had previously been adjudicated delinquent for three different offenses. He was found to have committed theft of property on January 31, 1997, residential burglary on March 19, 1997, and minor in possession of a handgun on July 15, 1997.

For reversal, appellant argues that the trial court erred in failing to comply with Ark. Code Ann. § 9-27-318(g) (Supp. 2001), which provides:

(g) In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court;

(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;

(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;

(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;

(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;

(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;

(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court which are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction;

(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;

(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and

(10) Any other factors deemed relevant by the court.

Specifically, appellant asserts that, because the trial court failed to make any written findings, we must reverse its decision to retain jurisdiction and remand with directions to comply with the above statute.

Appellant acknowledges that he did not request written findings from the trial court. He further acknowledges that, in Box v. State, 71 Ark. App. 403, 30 S.W.3d 754 (2000), we held that the right of a defendant to written findings in a transfer case, like any other procedural right, can be waived by failure to timely object. However, appellant now asks us to overrule Box v. State, supra, and address his argument, notwithstanding the fact that it is being raised for the first time on appeal.

The State submits that this appeal is not proper because appellant does not challenge the merits of the denial of his transfer motion. It asserts that the lack of written findings is not alone a proper basis for appeal, and thus the appeal should be dismissed. We disagreewith the State's position in this regard. Arkansas Code Annotated section 9-27-318(g) (Supp. 1999) explicitly requires written findings, and the State has provided no authority or convincing argument as to why a trial court's failure to follow this requirement could not support an appeal.

However, we agree with the State's contention that the issue is not preserved for review because it was not raised below. To preserve an argument for appeal, there must be an objection to the trial court that is sufficient to apprise the trial court of the particular error alleged, so that the trial court has the opportunity to correct the error. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). The appellant argues that, in the context of the present case, no objection was necessary to preserve the issue. He cites Jongewaard v. State, 71 Ark. App. 269, 29 S.W.3d 758 (2000), and Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001), which he asserts are in conflict with Box v. State, supra. We are not persuaded that there is any conflict among these cases.

In Jongewaard v. State, supra, the trial court denied appellant's motion to transfer to juvenile court, and made written findings of fact in support of its decision. However, the trial court failed to detail each of the ten factors listed in Ark. Code Ann. § 9-27-318(g) (Supp. 1999), and the appellant appealed on that basis. We first noted that the above statute became effective on July 30, 1999, and that since the transfer hearing was held after that date, the statute applied even though the incident leading to the proceeding occurred prior to July 30, 1999. In affirming the case, we held that while the trial court must consider each of the ten factors, it need not make written findings as to each. We announced:

In summary, the record clearly demonstrates that the trial court carefully considered the ten enumerated factors in section 9-27-318 in making the determination to retain jurisdiction. Act 1192 of 1999 requires that the ten factors be considered and the trial court render findings of fact. Contrary to appellant's argument, the act does not require trial judges to enumerate all ten factors in the findings. Instead, the statutory purpose is satisfied where the record shows that the trial court considered the factors in reaching the decision about whether to transfer a case or retain jurisdiction. We hold that the trial court's decision to retain jurisdiction is not clearly erroneous.

Jongewaard v. State, 71 Ark. App. at 279, 29 S.W.3d at 763-64.

In Beulah v. State, supra, the appellant's transfer motion was denied and he contended on appeal that the trial court was required to make written findings with regard to all of the enumerated statutory factors. Our supreme court disagreed, and held:

In examining the language of the statute at issue, there is no indication that the General Assembly intended that the court make a specific finding as to each of the ten enumerated factors. It is only necessary that the court make written findings. The extent of the written findings is not specified. The court, however, must consider all of the factors. In this regard, we agree with the conclusion of the court of appeals that Act 1192 of 1999 does not require the circuit court " to enumerate all ten factors in the findings." See Jongewaard v. State, 71 Ark. App. 269, 279, 29 S.W.3d 758, 763 (2000).

Beulah v. State, 344 Ark. at 535, 42 S.W.3d at 466.

Neither Jongewaard v. State, supra, or Beulah v. State, supra, support appellant's position in the case at bar. In each case, the issue was whether a trial court is required to make written findings on each of the ten statutory factors. However, neither opinion addressed the issue of whether a claim that a transfer order is deficient must be raised below. Thus, neither case conflicts with Box v. State, supra, where we held that to preserve the issue it must be addressed to the trial court.

The appellant attempts to discredit Box v. State, supra, because in that case we stated, "A timely request or objection would have enabled the trial court to rule on the issue of whether the amendment applied and to correct whatever deficiency there may have been in the order." Id. at 406, 30 S.W.3d at 756. Appellant correctly notes that the amendment did apply in the above case because the hearing was held after July 30, 1999, and that this precedent had already been set in Jongewaard v. State, supra, decided three weeks earlier. However, this does nothing to change our holding in Box v. State, supra, that a request for written findings must be made below to preserve the issue for review. In arriving at this precedent, we explained:

In our view, this provision can be likened to Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997), which requires that a court "shall furnish a written statement of the evidence relied upon and the reasons revoking suspension or probation." It has been held that this right, like any other procedural right, can be waived by the failure to object. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981); Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark. App. 1980). We see no reason to apply a different rule here.

Id. at 406, 30 S.W.3d at 756. In Box v. State, supra, we did not hold that Ark. Code Ann. § 9-27-318(g) (Supp. 1999) did not apply, and our decision to affirm was based only on the appellant's failure to raise an argument below.

The appellant further argues that Box v. State, supra, must be overruled in light of our supreme court's decision in Beulah v. State, supra, that a trial court must make written findings of fact in a transfer case. However, this assertion is incorrect. We did not hold in Box v. State, supra, that written findings were unnecessary; we simply declined to address the issue because it was not raised below. As stated earlier, preservation of such anargument on appeal was not an issue in Beulah v. State, supra.

We decline appellant's invitation to overrule Box v. State, supra. Because appellant failed to request written findings below, we need not address his argument on appeal.

Finally, we acknowledge appellant's request that this case be reviewed by a nine-judge panel of this court. Any case submitted to this court for action may be heard by the court en banc or assigned to one or more divisions. See Ark. Code Ann. § 16-12-111 (Repl. 1999). However, appellant has failed to provide any authority or convincing argument to persuade us that this case should be submitted to more than one three-judge division. Arkansas Code Annotated section 16-12-113 (Repl. 1999) provides:

(a) The decision of a division must be unanimous.

(b)(1) If the decision is not unanimous, the case shall be resubmitted under rules prescribed by the Court of Appeals to the original division to which the case was submitted and to another of the divisions authorized by § 16-12-109.

(2)(A) The two (2) divisions shall then decide the case by majority vote.

(B)(i) However, if there is a tie vote, the case shall be resubmitted under rules prescribed by the Court of Appeals to the two (2) divisions that voted to decide the case with a tie vote and another of the divisions authorized by § 16-12-109.

(ii) The three (3) divisions shall then decide the case by majority vote.

A case is typically not submitted to nine judges unless there is a tie vote among two three-judge divisions. The original three-judge division unanimously votes to affirm this case, and review by additional divisions is unnecessary.

Affirmed.

Neal and Crabtree, JJ., agree.