                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2001-CT-00345-SCT


RHEUVONIA BUCK

v.

STATE OF MISSISSIPPI


                            ON WRIT OF CERTIORARI

TRIAL JUDGE:                             HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:               WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  JAMES L. PENLEY, JR.
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: CHARLES W. MARIS
DISTRICT ATTORNEY:                       G. GILMORE MARTIN
NATURE OF THE CASE:                      CIVIL - POST CONVICTION RELIEF
DISPOSITION:                             AFFIRMED IN PART; REVERSED AND
                                         REMANDED IN PART - 2/13/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1.   We granted certiorari in this post-conviction relief case to address the issue of

whether Rheuvonia Buck's drug case was properly transferred from youth court to circuit

court. The Court of Appeals affirmed the Warren County Circuit Court's denial of Buck's

motion for post-conviction relief. Finding that Buck's case was improperly transferred, we

reverse and remand. However, we affirm the Court of Appeals' finding of no ineffective

assistance of counsel by Buck's previous representatives.
                      FACTS AND PROCEDURAL HISTORY

¶2.   Rheuvonia Buck was arrested for two counts of sale of cocaine to an undercover

informant. At the time, she was sixteen years old. At another proceeding in Warren County

Youth Court involving other members of her family, Buck and her mother requested that she

be certified as an adult. The following exchange took place before the youth court:

             Mr. Bonner [Buck's attorney]: Your Honor, this is R.B., who
             has been charged with the sale of cocaine. She is a child from
             this household, but she is not listed in this petition. She's before
             this Court to be certified as an adult today, and I was going to
             point out to the Court, that she's not a party to this particular
             cause number.

             The Court: All right. Do you have any objection to her being
             certified as an adult?

             Mr. Bonner: Your Honor, I have advised her not to seek
             certification. She has indicated and her mother has indicated to
             me that it is her wish to be certified as an adult against my
             advice and best wishes, but that's what she wants to do.

                                            ***

             The Court: You understand what you're doing? You've been
             explained this?

             R.B.: Yes, sir.

             The Court: You've been to training school before, haven't you?

             R.B.: Yes, sir.

             The Court: How many times?
             R.B.: Two.

The youth court thereafter accepted Buck's request to be certified as an adult, ordered her

confined in an adult facility, and imposed a $25,000 bond.

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¶3.    In circuit court and with different counsel, Buck entered an open plea to one count

of sale of cocaine; the second count having been dismissed by the State. The court informed

Buck that she was entering an open plea and that he could give her the maximum sentence.

After an exhaustive inquiry to determine Buck's understanding of what she was doing and

being satisfied that she did understand, the court sentenced her to ten years' imprisonment,

with five years suspended.

¶4.    On October 11, 2000, Buck filed a motion for post-conviction relief. She was

represented by yet another attorney. The motion argued a failure of statutory procedure

since no motion to transfer had been filed, neither she nor her mother understood the

ramifications of being transferred, the youth court failed to find no reasonable prospects of

rehabilitation within the juvenile justice system, and ineffective assistance of counsel. The

circuit court denied Buck's motion, finding that Buck's guilty plea had been voluntary and

that the youth court had substantially complied with statutory requirements before allowing

transfer to circuit court.

¶5.    Buck appealed, and a divided Court of Appeals affirmed, finding no ineffective

assistance of counsel, but not addressing the assigned error of the youth court's failure to

follow statutory requirements for transfer of a case. Buck v. State, 2002 WL 1278063

(Miss. Ct. App. 2002). Presiding Judge Southwick dissented without opinion. Three

additional judges, Presiding Judge King and Judges Lee and Irving, dissented, stating that

Buck's counsel's raising the issue of transfer to circuit court was constitutionally ineffective

assistance of counsel that was "akin to a confession of guilt. . . ." Id. at *4. We granted



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certiorari thereafter. Since the issue of transfer is, in our opinion, central to the resolution

of this case, we will address it.

                                 STANDARD OF REVIEW

¶6.    In reviewing a trial court's decision to deny a defendant's petition for post-conviction

relief, we will not disturb the court's findings of fact unless clearly erroneous; however, we

apply the de novo standard to questions of law. Harris v. State, 757 So. 2d 195, 197 (Miss.

2000); Pickett v. State, 751 So. 2d 1031, 1032 (Miss. 1999).

                                        DISCUSSION

               I.     WHETHER JURISDICTION WAS PROPERLY
                      TRANSFERRED FROM YOUTH COURT TO
                      CIRCUIT COURT.

¶7.    Buck argues that the Warren County Youth Court's improper transfer of jurisdiction

under Miss. Code Ann. § 43-21-157 (2000) failed to confer authority in the circuit court to

act in her case. The State responds that, while procedurally irregular, the transfer order was

sufficient to transfer jurisdiction to circuit court.

¶8.    Section 43-21-157 establishes an elaborate procedure to be followed in transferring

jurisdiction from youth court to another court and states in pertinent part:

               (1)    If a child who has reached his thirteenth birthday is
                      charged by petition to be a delinquent child, the youth
                      court, either on motion of the youth court prosecutor or
                      on the youth court's own motion, after a hearing as
                      hereinafter provided, may, in its discretion, transfer
                      jurisdiction of the alleged offense described in the
                      petition or a lesser included offense to the criminal court
                      which would have trial jurisdiction of such offense if
                      committed by an adult. The child shall be represented by
                      counsel in transfer proceedings.

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(2)   A motion to transfer shall be filed on a day prior to the
      date set for the adjudicatory hearing but not more that
      ten (10) days after the filing of the petition. The youth
      court may order a transfer study at any time after the
      motion to transfer is filed. The transfer study and any
      other social record which the youth court will consider
      at the transfer hearing shall be made available to the
      child's counsel prior to the hearing. Summons shall be
      served in the same manner as other summons under this
      chapter with a copy of the motion to transfer and the
      petition attached thereto.

(3)   The transfer hearing shall be bifurcated. At the transfer
      hearing, the youth court shall first determine whether
      probable cause exists to believe that the child committed
      the alleged offense. For the purpose of the transfer
      hearing only, the child may, with the assistance of
      counsel, waive the determination of probable cause.

(4)   Upon such a finding of probable cause, the youth court
      may transfer jurisdiction of the alleged offense and the
      youth if the youth court finds by clear and convincing
      evidence that there are no reasonable prospects of
      rehabilitation within the juvenile justice system.

(5)   [Fourteen factors to be considered in determining
      reasonable prospects of rehabilitation are listed here.]

(6)   If the youth court transfers jurisdiction of the alleged
      offense to a criminal court, the youth court shall enter a
      transfer order containing:

      (a)    Facts showing that the youth court had
             jurisdiction of the cause and of the parties;

      (b)    Facts showing that the child was represented by
             counsel;

      (c)    Facts showing that the hearing was held in the
             presence of the child and his counsel;




                              5
                      (d)    A recital of the findings of probable cause and
                             the facts and reasons underlying the youth court's
                             decision to transfer jurisdiction of the alleged
                             offense;

                      (e)    The conditions of custody or release of the child
                             pending criminal court proceedings, including
                             bail or recognizance as the case may justify, as
                             well as a designation of the custodian for the time
                             being; and

                      (f)    A designation of the alleged offense transferred
                             and of the court to which the transfer is made and
                             a direction to the clerk to forward for filing in
                             such court a certified copy of the transfer order of
                             the youth court.

(emphasis added).

¶9.    In the instant case, the transfer was not initiated on motion of the youth court

prosecutor or on the youth court's own motion,1 but it was brought up by counsel in another

related case. Contrary to clear statutory requirements, there was no bifurcated transfer

hearing held, and the transfer order does not contain the requisite findings of probable cause.

The State, however, responds that Buck waived the above-quoted statutory procedure by

requesting that she be certified as an adult and transferred to circuit court.

¶10.   The very purpose of the Youth Court Law is to preclude allowing Buck to do what

she did. A youth court is a division of a county court if the county has a county court, or a

division of a chancery court. Miss. Code Ann. § 43-21-107. As such, "No proceeding by



       1
        The order transferring Buck's case to circuit court indicated that it was on the State's
motion. Since it was Buck who initiated the certification and transfer, it appears that the
State acquiesced in her request. The statute does not contemplate a juvenile's transfer
request.

                                               6
the youth court in cases involving children shall be a criminal proceeding but shall be

entirely of a civil nature." (emphasis added). The Legislature's goal in creating the youth

court was one of rehabilitation:

              This chapter shall be liberally construed to the end that each
              child coming within the jurisdiction of the youth court shall
              become a responsible, accountable and productive citizen, and
              that each such child shall receive such care, guidance and
              control, preferably in such child's own home as is conducive
              toward that end and is in the state's and the child's best interest.
              It is the public policy of this state that the parents of each child
              shall be primarily responsible for the care, support, education
              and welfare of such children; however, when it is necessary that
              a child be removed from the control of such child's parents, the
              youth court shall secure proper care for such child.

Miss. Code Ann. § 43-21-103. Thus, the objective of all those involved should focus on

rehabilitation and what is in the best interests of the child. The Louisiana Supreme Court

stated as much in finding "the unique nature of the juvenile system is manifested in its

noncriminal, or 'civil' nature, its focus on rehabilitation and individual treatment rather than

retribution, and the state's role as parens patriae in managing the welfare of the juvenile in

state custody." In re C.B., 708 So. 2d 391, 396-97 (La. 1998). This goal surely is the

reason for the stringent procedural requirements, for a transfer sends a child from a civil

court with a paramount goal of rehabilitation to a criminal court with goals of incarceration

and retribution.

¶11.   It certainly appears that Buck knew precisely what she was doing in requesting

certification and transfer to circuit court, although doing so defies any all notions of common

sense and self-preservation. We cannot, however, get past the proposition that the State and



                                               7
the youth court, in their exercise of their parens patriae duties to Buck, would have found

that certification would be beneficial to her. Nonetheless, the Youth Court judge should not

have transferred without the specific statutory findings and conducting a bifurcated hearing.

               II.    WHETHER BUCK RECEIVED INEFFECTIVE
                      ASSISTANCE OF COUNSEL.

¶12.   On the issue of ineffective assistance of counsel, we agree with the Court of Appeals

that Buck's representation before the youth court and circuit court was not ineffective. At

the youth court proceeding, Buck was adamant about being transferred to circuit court

despite her attorney's professed opposition to doing so. As for the guilty plea in circuit

court, we echo the Court of Appeals' observation that Buck's circuit court counsel opposed

her entering an open plea. The rule regarding ineffective assistance of counsel in the context

of a guilty plea is that

               when a convicted defendant challenges his guilty plea on
               grounds of ineffective assistance of counsel, he must show
               unprofessional errors of substantial gravity. Beyond that, he
               must show that those errors proximately resulted in his guilty
               plea and that but for counsel's errors he would not have entered
               the plea.

Reynolds v. State, 521 So. 2d 914, 918 (Miss. 1988). Buck has failed to establish that her

representation prejudiced her. On the contrary, all of the prejudice she sustained came of

her own volition despite the opposition of her attorneys. We therefore affirm the circuit

court and the Court of Appeals on this issue.

                                      CONCLUSION




                                              8
¶13.   We certainly do not wish to see criminal defendants take a tactical gamble and then

cry "foul" when it backfires. However, the statutory youth court transfer procedure is

comprehensive and must be followed. The consequences of carving exceptions are far too

grave. We therefore affirm the Warren County Circuit Court and the Court of Appeals on

the finding that Buck's counsel was not ineffective, reverse on the issue of transfer of

jurisdiction, and remand to the circuit court with instructions that it (1) vacate Rheuvonia

Buck's conviction and sentence and (2) transfer this case to the Warren County Youth Court

for further proceedings consistent with this opinion.

¶14.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

    PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ.,
CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




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