
    [No. 44374.
    En Banc.
    January 27, 1977.]
    Michael Robert McRae, Petitioner, v. The State of Washington, Respondent.
    
    
      
      Robert T. Farrell, Allen M. Ressler, and John H. Hertog, Jr., for petitioner.
    
      Patrick D. Sutherland, Prosecuting Attorney, and Richard A. Strophy, Chief Criminal Deputy, for respondent.
   Horowitz, J.

This is a petition for post-conviction relief filed under CrR 7.7 by Michael R. McRae in the Court of Appeals, Division Two, the cause then being certified to this court. The issue raised is whether the doctrine of Dillenburg v. Maxwell, 70 Wn.2d 331, 413 P.2d 940 (1966) should be applied retroactively.

McRae, then approximately 16 years of age, was committed to the State Youth Authority by the Superior Court in King County on November 27,1964, on charges of car theft, drinking, and hit and run driving. On February 11, 1965, he and two other escapees from the Cedar Creek Forest Camp were arrested for stealing a car. On February 18, 1965, the chief probation officer filed a petition in the Thurston County Juvenile Court alleging the matters described and recommended the juvenile court decline jurisdiction and remand McRae to the Superior Court in Thurston County for appropriate action as an adult. The juvenile court, without a hearing or the appointment of counsel for McRae — an indigent — on February 18, 1965, declined jurisdiction and ordered McRae transferred to the superior court for further handling as an adult.

Shortly thereafter McRae was charged with grand larceny of the car last referred to. He received court appointed counsel and pleaded guilty at his arraignment. No attack was made upon the validity of the juvenile court's decline proceedings. The court deferred sentence for 3 years, upon condition among other things, that defendant maintain good behavior.

On December 23, 1965, the Thurston County prosecuting attorney filed a petition to set aside McRae's deferral of sentence for violation of conditions imposed upon sentencing. The petition alleged defendant had aided and abetted a burglary, committed larceny by passing a forged check, associated with other probationers both adult and juvenile, illegally purchased beer as a minor and had driven a motor vehicle without a valid Washington driver's license. At the hearing, McRae was informed of his right to retain counsel of his own choice and to have additional time to obtain such counsel. Defendant stated he did not desire to obtain counsel nor did he wish additional time. In February 1966, after, hearing, the court revoked the order deferring sentence and imposed the maximum 15 year sentence and directed him to pay costs of prosecution.

On May 3, 1976, more than 11 years after the February 18, 1965, declination order, McRae filed the instant petition for post-conviction relief. He contends the declination order was entered without a hearing, violating his statutory and due process rights under RCW 13.04.120 as construed in Dillenburg v. Maxwell, supra. To uphold this contention would require that Dillenburg be applied retroactively. Dillenburg did not state whether its holding applied retroactively although the decision itself was retroactively applied in that case.

The Dillenburg court held that under RCW 13.04.120 in light of Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966), a juvenile court without a hearing may not decline jurisdiction and remand a juvenile to the superior court for further proceedings. The Dillenburg court, having found Dillenburg had been remanded to the superior court without a hearing, devised a remedy for the wrong inflicted. The court held, inter alia, that if the juvenile had reached the age of 18 he would be granted a new hearing in the superior court on the propriety of the declination order. If, following the new hearing, the superior court determined the original declination order should not have been entered, then defendant should be granted a new trial. This was so notwithstanding Dillenburg himself when tried as an adult had pleaded guilty.

This court subsequently applied Dillenburg retroactively without additional and independent examination of the subject of retroactivity. State v. Williams, 75 Wn.2d 604, 453 P.2d 418 (1969); State v. Piche, 74 Wn.2d 9, 442 P.2d 632 (1968); Williams v. Rhay, 73 Wn.2d 770, 440 P.2d 427 (1968); Sheppard v. Rhay, 73 Wn.2d 734, 440 P.2d 422 (1968). In each case county juvenile courts originally waived jurisdiction without a decline hearing.

In 1970 this court decided Brumley v. Charles R. Denney Juvenile Center, 77 Wn.2d 702, 466 P.2d 481 (1970). The court relied on In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), to uphold a juvenile's constitutional right to counsel in a hearing to determine if the juvenile was delinquent. Such counsel could be privately retained or if he was without funds the court would appoint one for him. Gault relied on the rationale of Kent.

The Brumley court held the right to counsel was not retroactive both on the basis of decisional law outside this state holding Gault to be prospective only and on the basis of reason. The court considered three factors pertinent: (1) The need to obtain a fair and judicious examination of whether the defendant was guilty of being a delinquent and whether retroactive application would carry out this objective, (2) whether reliance upon pre-Gault procedures by law enforcement prosecutors and the courts was justifiable, and (3) whether retroactive application would have serious consequences upon the administration of justice, in that many who had been convicted by the use of pre-Gault procedures would now seek to upset their convictions. See also Stovall v. Denno, 388 U.S. 293, 296-98, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). The Brumley court concluded from a consideration of these factors that Gault should have prospective operation only.

Dillenburg, decided before Gault, cited and relied on RCW 13.04.120 and Kent in requiring a decline hearing. The literal language of the statute prior to Dillenburg apparently had not been interpreted to require a decline hearing. Kent, using due process rationale, mandated a hearing and Dillenburg so held. Dillenburg involved a declination hearing and unlike Gault, did not involve the question of guilt or innocence of a delinquency charge. In a declination hearing, the court had power to retain jurisdiction regardless of the juvenile's guilt or innocence, provided the court determined it was in the best interests of the juvenile and society so to do. Nevertheless, the rationale of Kent and Gault was similar.

The overwhelming majority of decisions hold that neither Gault nor Kent are to be applied retroactively.** These include Brumley v. Juvenile Court, supra, which cites cases involving Gault retroactivity and at least the following cases which involve Kent retroactivity. Harris v. Procunier, 498 F.2d 576 (9th Cir. 1974); Mordecai v. United States, 421 F.2d 1133 (D.C. Cir. 1969); United States v. Wilkerson, 262 F. Supp. 596 (D.C. 1967); Eyman v. Superior Court, 9 Ariz. App. 6, 448 P.2d 878 (1969); Smith v. Commonwealth, 412 S.W.2d 256 (Ky. 1967); Bouge v. Reed, 254 Ore. 418, 459 P.2d 869, 871 (1969).

These cases emphasize or illustrate the unrealistic character of the remedy devised after a defendant is too old to be subject to juvenile court jurisdiction and thus not able to obtain the rehabilitative procedures of the juvenile court — the case here. In Bouge v. Reed, supra at 422, the court said:

If the rule of Kent were applied retroactively . . . [there could be] no satisfactory alternative for the disposition of the case. Theoretically we could refer this case back to some court to hold a hearing to determine whether in 1963 it was in the best interest of the petitioner and the public that petitioner be remanded or that juvenile court jurisdiction be retained. This was what a majority of the Washington court decided was the appropriate disposition in Dillenburg v. Maxwell, 70 Wash2d 331, 413 P2d 940, 422 P2d 783, cert den 386 US 998, 87 S Ct 1320, 18 L Ed2d 348 (1967). In our view, however, this is not realistic.

Cases such as Harris v. Procunier, supra, and Mordecai v. United States, supra, apply the same criteria for retro-activity used in Stovall v. Denno, supra, and Brumley v. Charles R. Denney Juvenile Center, supra. They conclude Kent should not be applied retroactively. In In re Harris, 67 Cal. 2d 876, 879, 434 P.2d 615, 64 Cal. Rptr. 319 (1967), the court held "Kent does not apply to cases in which the judgment became final prior to May 15, 1967, the date of the decision in Gault."

We apply the foregoing principles to this case. We assume arguendo (1) law enforcement personnel and the courts in good faith relied upon the pr e-Gault and pre-Kent rationales and procedures and (2) 11 years after Dillenburg, there may be no remaining pre-Dillenburg declination of jurisdiction orders in this state to be invalidated. The controlling question on retroactivity concerns the significance of the unavailability of juvenile court correctional rehabilitative measures because defendant is too old to be subject to juvenile court jurisdiction. It must be remembered the availability of such rehabilitative measures is a factor relevant to whether the juvenile court should decline jurisdiction. Kent v. United States, supra at 567 (factor 8). See In- re Burtts, 12 Wn. App. 564, 530 P.2d 709 (1976). In refusing to apply Gault's right to counsel on a retroactive basis, the Brumley court stated at page 708, that retroactivity "would add little to the social and psychological attitude of the individual involved nor presently contribute in any measurable degree to the philosophy giving rise to the Gault rule." The same thing may be said of the Kent rule. See Bouge v. Reed, supra.

In the instant case, the juvenile court erred in declining jurisdiction and remanding McRae to the superior court without a hearing notwithstanding RCW 13.04.120 before Dillenburg and Kent were decided. Dillenburg made it clear the decision in Kent was decisive. Dillenburg's rationale meant the decision in Kent buttressed the conclusion the McRae decline order was erroneous. McRae could have attacked the decline order following Dillenburg but he waited over 11 years to pursue his attack upon the decline order when he filed his application for post-conviction relief. However, when he filed that application, the juvenile court had lost jurisdiction to give him the benefit of the rehabilitative ifieasures he would have received so long as he was a juvenile. Whether those measures would have been beneficial or successful in accomplishing rehabilitation is at least speculative. Certainly McRae's history following the declination order, including the events which caused the revocation of his deferred sentence, suggest that McRae might not have benefited particularly from the use of those measures during the remaining time the juvenile court had jurisdiction over him.

Meanwhile in that 11-year period the difficulties of proof may well have increased. Whether witnesses and evidence when McRae pleaded guilty to the grand larceny charge of car theft are still available we do not know. If not available, McRae, notwithstanding he pleaded guilty to the charge, may not be tried or if tried will probably be acquitted for want of proof. On the other hand, if the evidence is available, the likelihood that he will be acquitted of the charge to which he pleaded guilty seems insubstantial. Under the first alternative, an admittedly guilty defendant will escape conviction; under the second a new trial will not change the conviction adjudged more than 11 years ago. The Dil-lenburg remedy of a new trial in the instant case seems inappropriate or to use the language of Bouge v. Reed, supra, "not realistic."

Mordecai v. United States, supra at 1138, in emphasizing what it considered the controlling factor in refusing to hold Kent retroactive said:

In evaluating the effect on the administration of justice of a decision to apply Kent retroactively, however, we must consider not only the number of waivers affected, but the availability of an adequate remedy at this late date for those improperly waived. We find the latter consideration decisive in this case. When a new trial is required by the retroactive application of a new standard, both the individual and the state may be handicapped by the disappearance of witnesses and other evidence over time. Often these difficulties must be faced. But their magnitude is a valid consideration in determining whether to make a decision retroactive.

The fact that a remedy for the wrong claimed is no longer efficacious is relevant in determining whether a writ of habeas corpus should be granted.

If Dillenburg is not applied retroactively, denial of McRae's petition for post-conviction relief in the nature of an application for habeas corpus is required. We hold against a retroactive application whether (1) we apply RCW 13.04.120 alone or in light of the due process rationale of Kent or (2) whether we hold the Brumley rationale and additional decisional law so undermines the basis for continuing, to hold Dillenburg retroactive as to require us to hold against retroactivity.

Denied.

Wright, C.J., and Rosellini, Hamilton, Stafford, Utter, Brachtenbach, and Dolliver, JJ., concur.  