Rohrbaugh v. State

Joseph Isaac Rohrbaugh v. State of Maryland, No. 2009, September Term, 2021. Opinion
by Sharer, J. Frederick.

INFANTS – RIGHTS AND PRIVILEGES AS TO ADULT PROSECUTIONS –
JUVENILE TRANSFERS AND CERTIFICATIONS – TRANSFER FROM ADULT
COURT

In a “reverse waiver” hearing, where a juvenile defendant was seeking a transfer of criminal
charges from the circuit court to the juvenile court, the circuit court did not err in placing
the burden of persuasion on the juvenile to show that a transfer of the criminal court’s
jurisdiction was in the interest of the child or society. That decision was consistent with
the relevant case law and § 4-202 of the Criminal Procedure Article of the Maryland Code,
which governs reverse waiver proceedings. The decision was also consistent with the
general policy that the moving party, in this case the juvenile, bears the burden of proof
where, as in this case, the party is asserting the affirmative of an issue or seeking to change
the status quo. Finally, the court’s decision did not violate the juvenile’s due process rights
given that: there is no constitutional right to be treated as a juvenile; a reverse waiver
hearing is a civil matter; and the relevant proceedings are replete with due process
protections.

INFANTS – RIGHTS AND PRIVILEGES AS TO ADULT PROSECUTIONS –
APPEAL AND REVIEW – DISCRETION OF LOWER COURT – JUVENILE
TRANSFERS AND CERTIFICATIONS

Circuit court did not abuse its discretion in denying juvenile’s reverse waiver motion.
Record showed that the court considered, in detail, all of the requisite statutory factors
before making its decision. In so doing, the court properly focused on the juvenile’s
amenability to treatment in the juvenile system and found that there were no programs in
the juvenile system that could address the issues defined or produce a better result than
anything in the adult system.
Circuit Court for Harford County
Case No. C-12-CR-21-000892

REPORTED

IN THE APPELLATE COURT

OF MARYLAND*

No. 2009

September Term, 2021

JOSEPH ISAAC ROHRBAUGH

v.

STATE OF MARYLAND

Zic,
Tang,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),

JJ.
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic. Opinion by Sharer, J.
2023-03-31 13:22-04:00

Filed: March 31, 2023
Gregory Hilton, Clerk

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
Joseph Rohrbaugh, a minor, was charged, in the Circuit Court for Harford County,

as an adult in two cases following two separate incidents involving a firearm. Mr.

Rohrbaugh thereafter filed a motion to have the cases transferred to the juvenile court.

Following a hearing, the circuit court denied the motion. Mr. Rohrbaugh then waived his

right to a jury trial and proceeded to a bench trial, where he pleaded not guilty pursuant to

an agreed statement of facts. After the State dismissed all but one of the charges, the court

found Mr. Rohrbaugh guilty of the remaining charge – possession of a regulated firearm

by a person under the age of twenty-one. The court sentenced Mr. Rohrbaugh to a term of

five years’ imprisonment, suspended all but time served, and imposed a four-year period

of probation. In this appeal, Mr. Rohrbaugh presents two questions for our review:

1. Did the circuit court err in placing the burden of proof on Mr. Rohrbaugh
to show that a transfer to the juvenile court was appropriate?

2. Did the circuit court err in denying Mr. Rohrbaugh’s motion to have his
cases transferred to the juvenile court?

For reasons to follow, we hold that that circuit court did not err in placing the burden

of proof on Mr. Rohrbaugh or in denying his transfer motion. Accordingly, we affirm.

BACKGROUND

Joseph Rohrbaugh, then 16 years old, was charged as an adult in two separate cases

in the circuit court. In the first case (C-12-CR-21-000879), Mr. Rohrbaugh was charged

with first-degree assault, second-degree assault, possession of a firearm, and related

offenses. Those charges stemmed from an incident that occurred in August 2021 in which

Mr. Rohrbaugh allegedly discharged a firearm during a large fight between two groups of
females. In the second case (C-12-CR-21-000892), Mr. Rohrbaugh was charged with

possession of a loaded firearm and related offenses. Those charges stemmed from an

incident that occurred in September 2021 in which Mr. Rohrbaugh was allegedly found in

possession of a firearm.

Although, ordinarily, the juvenile court, and not the circuit court, would have

exclusive jurisdiction over a child such as Mr. Rohrbaugh who was alleged to have

committed a crime, § 3-8A-03 of the Courts and Judicial Proceedings (“CJP”) Article of

the Maryland Code provides that the juvenile court does not have jurisdiction when the

minor is at least 16 years old and is alleged to have committed certain enumerated crimes.

CJP § 3-8A-03. It is undisputed that the charged crimes in both of Mr. Rohrbaugh’s cases

were properly brought in the circuit court.

After being charged, Mr. Rohrbaugh filed a motion to have his cases transferred to

the juvenile court pursuant to Maryland Code, § 4-202 of the Criminal Procedure (“CP”)

Article. Under that statute, the circuit court may transfer a case involving a child to the

juvenile court if, among other things, “the court determines by a preponderance of the

evidence that a transfer of its jurisdiction is in the interest of the child or society.”1 CP §

4-202(b)(3). In making that determination, the court is required to consider: “(1) the age

of the child; (2) the mental and physical condition of the child; (3) the amenability of the

child to treatment in an institution, facility, or program available to delinquent children; (4)

the nature of the alleged crime; and (5) the public safety.” CP § 4-202(d).

1
The statute includes additional criteria not germane to the instant appeal. CP § 4-
202(b).

2
In conjunction with his transfer motion, Mr. Rohrbaugh also filed a motion asking

the circuit court to place the burden of proof on the State. Mr. Rohrbaugh argued that,

because CP § 4-202 was “vague” as to who has the burden when a transfer motion has been

filed, the State should be required “to prove by a preponderance of the evidence that Mr.

Rohrbaugh is not amenable to treatment in the juvenile system.” The State opposed the

motion, arguing that the moving party should bear the burden of proof.

Hearing

A hearing on Mr. Rohrbaugh’s motions was held in February 2022, at which the

circuit court first addressed Mr. Rohrbaugh’s motion regarding the burden of proof. The

court ultimately denied the motion, finding that the language of the statute and the relevant

caselaw supported the State’s position that Mr. Rohrbaugh, as the moving party, should

carry the burden.

The circuit court then took up Mr. Rohrbaugh’s transfer motion. That evidence

included testimony from the following witnesses: DuWonda James, a case manager with

the Maryland Department of Juvenile Services (“DJS”); Keegan Wilson, a social worker

with the Maryland Office of the Public Defender (“OPD”); and Fontaine Ewell, a clinical

psychologist. The evidence also included the following reports: a “Transfer/Waiver

Report” prepared by DJS; a “Transfer/Waiver Assessment Staffing Team Meeting

Outcome Report” prepared by DJS; a “Transfer/Waiver Psychological Assessment Report”

prepared by Jikesha Benton-Johnson, a clinical psychologist; a “Psychosocial Assessment”

prepared by OPD; and a “Psychological Evaluation” prepared by Fontaine Ewell.

3
Mr. Rohrbaugh was born on January 25, 2005, thus he was approximately 16 years

and nine months of age when the charged crimes were allegedly committed; he had just

turned 17 years old when the transfer hearing was held. At the time, Mr. Rohrbaugh was

attending the Charles H. Hickey School, but he was receiving average to poor grades. Mr.

Rohrbaugh had been participating in virtual learning at a local high school, where he did

not complete any work and subsequently earned failing marks in all his classes. Mr.

Rohrbaugh reported that he had been suspended from school for fighting on more than one

occasion.

Mr. Rohrbaugh was 5’8” tall and weighed approximately 120 pounds. He was

diagnosed as suffering from various disorders, including anxiety, depression, and

unspecified trauma and stress-related issues. Prior to the incidents in question, Mr.

Rohrbaugh experienced a series of traumatic events. When Mr. Rohrbaugh was in the

fourth grade, a counselor with whom he had a close relationship died of cancer. Mr.

Rohrbaugh also had an older sister and an older brother who were murdered. When he was

ten years old, Mr. Rohrbaugh learned that the man with whom he and his mother were

living was not his biological father and that his actual biological father had not been in his

life because he had been incarcerated. Mr. Rohrbaugh’s mother later rekindled her

relationship with Mr. Rohrbaugh’s biological father, and the three began living together.

When Mr. Rohrbaugh was in sixth grade, he and his family were the victims of an armed

home invasion. On another occasion, Mr. Rohrbaugh was at home when the police

executed a search warrant of the home and discovered a gun.

4
Mr. Rohrbaugh had prior involvement in the juvenile justice system. In 2019, at the

age of 14, Mr. Rohrbaugh was allegedly involved in an armed robbery, which resulted in

a disposition of probation. In 2020, Mr. Rohrbaugh was allegedly involved in another

armed robbery and was subsequently detained and then released on home detention. Mr.

Rohrbaugh thereafter completed a victim awareness program, 100 hours of community

service, and several months of family therapy. The family therapy ended when Mr.

Rohrbaugh was arrested following the September 2021 incident in which he was allegedly

found in possession of a firearm. That arrest occurred pursuant to an arrest warrant that

had been issued for Mr. Rohrbaugh based on the August 2021 incident in which he

allegedly fired a gun during a brawl involving two large groups of females. The August

2021 and September 2021 incidents resulted in the charges for which Mr. Rohrbaugh was

seeking a transfer to the juvenile court.

Regarding potential dispositions in the current case, DJS recommended that Mr.

Rohrbaugh be placed in one of several DJS-operated facilities that had a “staff secure”

level of care. DJS recommended that Mr. Rohrbaugh be provided individual therapy, peer

group activities, structured academic support, and vocational training, all of which he could

receive through the juvenile system. DJS noted that Mr. Rohrbaugh would be eligible for

such services until he turned 21 years old, although placement would become more difficult

as he neared that age.

OPD agreed with DJS’s recommendations and found that DJS could appropriately

address Mr. Rohrbaugh’s behavioral, mental health, and educational needs through its

community based and residential services. OPD contended that DJS could provide Mr.

5
Rohrbaugh with the motivation to be successful and would ensure that Mr. Rohrbaugh be

held accountable to his responsibilities. OPD noted that Mr. Rohrbaugh’s “brain is still

developing and learning to navigate the world” and that such development continues until

age 24.

Dr. Benton-Johnson identified Mr. Rohrbaugh as a “moderate risk for future

violence” and highlighted several areas requiring intervention: “risk-taking/impulsivity,

peer delinquency, and history of fighting in school.” Dr. Benton-Johnson opined that Mr.

Rohrbaugh would benefit from individual therapy, structured peer group activities, and

mentoring services to address his decision-making and impulse control, to enhance his

social skills and self-regulation, and to address his compliance behavior and coping skills.

Dr. Ewell found that Mr. Rohrbaugh’s trauma-related disorder had not been fully

identified or treated. He noted that DJS had “many treatment programs” available to

individuals such as Mr. Rohrbaugh and that Mr. Rohrbaugh would benefit from those

programs. Dr. Ewell explained that the “adult system” would not provide those same

benefits and could, in fact, cause Mr. Rohrbaugh to “develop more antisocial tendencies.”

Dr. Ewell found that Mr. Rohrbaugh was “amenable to treatment” because he “attaches

well to others and has the ability to form a productive, therapeutic alliance with others.”

Circuit Court’s Findings and Ruling

At the conclusion of the hearing, the circuit court made express findings as to each

of the five factors outlined in CP § 4-202. As to the first factor, the age of the child, the

court found:

6
He is seventeen years old. Certainly he is young enough to be placed into
the juvenile system. However, I also note it is under four years left to monitor
him to the age of twenty-one and we have an awful lot of therapy that has
been recommended.

***

As to his age in the juvenile system, we have less than four years left,
if they even have that. The question is how long would he be kept at the
Youth Centers or Cullen Academy for secure treatment. Even if they have
him for four years in the adult system, we have jurisdiction in the adult
system for longer. That would be for the length of his sentence plus five
years of probation where he can do all of the programs and counseling, et
cetera.

As to the second factor, the mental and physical condition of the child, the circuit

court found:

He is 5 foot 8 inches, 120 pounds. He is of slight build. He certainly appears
to be tall enough. He has been described as being one of the smaller ones, if
not the small one among his friends and cohorts, et cetera.

On the mental side, we do have a few things. We have depression.
We have anger that relates to some familial issues about the man that he
thought was his father and then it turns out wasn’t his father and then his real
father was out of his life for ten years and now is back in and certainly that
is going to create issues. We also have the trauma related disorder and he
has had that. Not only the issues with his father and the man that he thought
was his father, we have had him witness and be a victim in a home invasion,
two siblings have been killed and a teacher … he was close to and then came
down with cancer. We have the adjustment disorder unspecified and they
relate that to isolated symptoms of anxiety and depression. Of course, that
could be related to all of these things in the past, but it could also be related
to his continuing legal problems.

As was argued, trauma has a significant impact on juveniles as the
brain is still developing. I think the argument was it is still developing up to
the age of twenty-four, which I’ll point out I don’t know if that helps him or
hurts him because that places him three years beyond juvenile jurisdiction.

7
As to the third factor, the amenability of the child to treatment in an institution,

facility, or program available to delinquent children, the circuit court found:

We have had two prior suspended commitments to the DJS that were run
apparently concurrently. He did the Victim Awareness Program. He was
doing therapy for a number of months, about approximately four months
until he was detained on these new charges.

The testimony from the psychologist is an important factor as to
amenability is [sic] the individual’s ability to make a connection with the
counselor and she indicated that he has that ability. In fact, he had done that
with the counselor that he had at that time. And yet, despite that, he re-
offends not once, but twice. It is while he is doing that therapy.

He did do the 100 hours of Community Work Service and he did the
Victim Awareness Program. He was doing the counseling and he was
cooperative with performing these assessments. Obviously that is in his own
best interest. Once again, he continues to re-offend not once, but twice and
in a major way with a gun.

***

As to the amenability to treatment, these are all offenses that occurred
while under the supervision of DJS and [were] done while he was getting
counseling. While he did two of the programs, how amendable to treatment
is he really when he continues to re-offend with a gun not once, but twice?

The psychologist once again had said a big factor to consider as to
amenability is connection with a therapist. Well, he had that here and
checking off some boxes and doing things is not the same as being amenable
to treatment. We’re looking for success and we certainly don’t have that
here.

There has been a two year involvement between [Mr. Rohrbaugh] and
DJS and there has been no improvement. In fact, the same dangerous
behavior or worse with the actual shooting of a gun over a crowd of people.
There has been no improvement in this two to three years with the
involvement of DJS. So, this Court [sees] this as a long term journey for
[Mr. Rohrbaugh], much longer than the juvenile system has even
theoretically to the age of twenty-one.

8
There is certainly convincing evidence that they can place him now,
but will his anger and trauma related disorder be fixed in the six to nine
months or the nine to twelve months? The testimony was that once you get
up into those areas, the older you get the harder it is to place. So, if this does
take a period of time we’re putting him up in that range.

There are programs in the Division of Corrections for youthful
offenders and so he would have the time while [he] is in a secure facility, …
and then we would have five full years available for probation upon release
where service and supervision can continue. So, the adult system would have
the resources to benefit [Mr. Rohrbaugh] and also protect society.

I’m sure it is in [Mr. Rohrbaugh’s] wishes to have smaller
consequences in the limited juvenile world, but that is not necessarily in his
interest. As [the State] argued, if he is discharged from supervision too early
before he gets a handle on all of these issues it certainly is not in his best
interest, certainly not in the interest of society.

As to the fourth factor, the nature of the alleged crimes, the circuit court found:

We have the August 16th, 2021 incident where he allegedly shot a bullet over
a crowd of people. At one place it said eighteen people and another place it
said thirty. Either way, it is a large crowd of women having their own fight
and he shoots a bullet over their head. One girl reported to be two feet in
front of him and the gun is pointed just one foot over her[] and then the bullet
is fired. This was apparently a gang fight of two groups of girls. So, that is
obviously a concern, the nature of the current offense.

As to the fifth factor, the public safety, the circuit court found:

The Transfer/Waiver Psychological Assessment rates him a moderate risk
for future violence without the services that they recommend. That’s
concerning enough, but his record and behavior speaks louder. We have an
armed robbery in 2019, an armed robbery in 2020, and he has been suspended
from school on at least two occasions for fighting. So, one has to wonder
with the argument about his size, et cetera, that didn’t keep him from being
engaged in two fights to the point where he would be suspended.

Despite going through DJS and while getting counseling with a
counsellor that he liked and with whom he had bonded, once again in August
we have him shooting over a crowd of people and a month and a half later
we have him in possession of a loaded handgun at a playground, eleven in
the clip and one in the chamber ready for action. These are very serious and

9
dangerous behaviors on two occasions and when you tag it into the prior
behavior it makes it seem worse.

So, going back, as to the public safety, which is a very large concern
here, we have a history of the two armed robberies. The risk to the public
safety this Court views that as being very high. Tagging into the nature of
the offenses, once again we have shooting over a crowd of people and we
also have him going around with a loaded handgun at a playground.

Ultimately, the circuit court ruled that transferring Mr. Rohrbaugh’s cases to the

juvenile court would not be in the interest of Mr. Rohrbaugh or society. The court found

that it was not likely that Mr. Rohrbaugh would benefit from available DJS programs better

than he would from anything available in the adult system. The court also found that

transferring Mr. Rohrbaugh’s cases would not reduce the likelihood of recidivism or make

him a more productive, law-abiding person. The court explained that, while it “was a very

close case[,]” Mr. Rohrbaugh failed to carry his burden. The court then denied his transfer

motion.

Not Guilty Agreed Statement of Facts

Mr. Rohrbaugh thereafter waived his right to a jury trial and proceeded to a bench

trial, where he pleaded not guilty pursuant to an agreed statement of facts. As part of that

agreement, the State dismissed all but one of the charges. The remaining charge was

possession of a regulated firearm by a person under the age of twenty-one. The State then

read into the record the statement of facts, which established that, on September 28, 2021,

Mr. Rohrbaugh was arrested and found in possession of a loaded firearm. The court

subsequently found Mr. Rohrbaugh guilty of the sole charge and sentenced him to a term

10
of five years’ imprisonment, suspended all but time served, and a four-year period of

probation. This timely appeal followed.

DISCUSSION

I.

Mr. Rohrbaugh first argues that the circuit court erred in placing the burden of

persuasion on him when ruling on his transfer motion. He asserts that, because CP § 4-202

does not expressly state which party bears the burden of persuasion, the statute is

ambiguous. He further asserts that, while this Court has previously stated that the juvenile

bears the burden of persuasion at a transfer hearing, those statements should be rejected as

dicta. Mr. Rohrbaugh argues that various policy considerations dictate that the State should

bear the burden, particularly because the State, by bringing charges against a juvenile in

the adult system, is challenging the “status quo” of juvenile delinquents being treated by

the courts as juveniles rather than as adults. He also argues that placing the burden on the

State would be more convenient and equitable. Finally, Mr. Rohrbaugh maintains that CP

§ 4-202 creates a “liberty interest” for a juvenile that is entitled to constitutional

protections. He asserts that placing the burden of persuasion on the juvenile infringes upon

those protections.

The State posits that none of Mr. Rohrbaugh’s arguments have merit and that,

consequently, the circuit court did not err in placing the burden of persuasion on him. First,

the State contends that this Court has long held that, when a juvenile seeks a transfer

pursuant to CP § 4-202, the juvenile bears the burden of persuasion. The State asserts that

that precedent is not dicta and is consistent with the plain language of the statute. Second,

11
the State contends that, even if the issue had not already been settled, this Court should

nevertheless follow the general rule that the moving party bears the burden of proof. The

State argues that, for each of Mr. Rohrbaugh’s policy arguments in favor of placing the

burden of proof on the State, there is an equally compelling argument as to why the juvenile

should bear the burden. Lastly, the State asserts that Mr. Rohrbaugh’s constitutional

arguments should be rejected because there is no constitutional right to be treated as a

juvenile. The State further asserts that, even if CP § 4-202 did create a constitutionally-

protected liberty interest, placing the burden of proof on the juvenile would not hinder that

interest.

A.

Ordinarily, the juvenile court has exclusive original jurisdiction over a delinquent

child, i.e., a person under the age of 18 who is alleged to have committed an act that would

be a crime if committed by an adult. CJP § 3-8A-03; see also CJP § 3-8A-01. When

delinquency proceedings have been initiated in the juvenile court, the State may seek a

waiver of the juvenile court’s jurisdiction, and, if the waiver is granted, the State may

charge the juvenile as an adult in the criminal court. CJP § 3-8A-06. In determining

whether to waive its jurisdiction, the juvenile court must consider: (1) the juvenile’s age;

(2) the juvenile’s mental and physical condition; (3) the juvenile’s amenability to

treatment; (4) the nature of the offense and the juvenile’s alleged participation in the

offense; and (5) the public safety. CJP § 3-8A-06(e). The juvenile court cannot waive its

jurisdiction unless it determines from a preponderance of the evidence “that the child is an

unfit subject for juvenile rehabilitative measures.” CJP § 3-8A-06(d)(1). A transfer of

12
jurisdiction from the juvenile court to the criminal court is sometimes referred to as a

“waiver.” See Gaines v. State, 201 Md. App. 1, 8 (2011).

Where, however, a juvenile is at least 16 years old and is alleged to have committed

certain enumerated crimes, the juvenile court is deprived of jurisdiction, and original

jurisdiction over the juvenile lies in the adult court. CJP § 3-8A-03(d); see also Gaines,

201 Md. App. at 10. In that situation, delinquency proceedings involving the juvenile

cannot be brought in the juvenile court “unless an order removing the proceeding to the

court has been filed under § 4-202 of the Criminal Procedure Article[.]” CJP § 3-8A-

03(d)(4). Thus, if appropriate criminal charges are brought against a juvenile in the circuit

court pursuant to that court’s original jurisdiction, a juvenile court may subsequently obtain

jurisdiction over the juvenile only if the circuit court grants a motion pursuant to CP § 4-

202. Such a transfer is sometimes referred to as a “reverse transfer” or “reverse waiver.”

See Gaines, 201 Md. App. at 10-11. As noted, a circuit court may transfer jurisdiction to

the juvenile court if, among other factors, it “determines by a preponderance of the

evidence that a transfer of its jurisdiction is in the interest of the child or society.” CP § 4-

202(b)(3). And, before granting or denying a transfer request, the circuit court must

consider the five factors outlined in CP § 4-202.

As we explained in In re Ricky B., 43 Md. App. 645 (1979), although the circuit

court and the juvenile court must engage in nearly the same inquiry when deciding whether

to waive their respective jurisdictions, the burden of persuasion is different. Id. at 648-49.

“When a juvenile stands accused of one of those offenses expressly excluded from juvenile

court jurisdiction, he or she carries the burden of establishing … that the adult or criminal

13
court should waive jurisdiction to the juvenile court.” Id. at 649. “On the other hand, when

it is the State that seeks a waiver of jurisdiction from the juvenile court to the adult or

criminal court, the State shoulders the onus of showing by a preponderance of the evidence

that a weighing of five factors tilts in favor of waiver and, patently, against the juvenile.”

Id.

Since our decision in In re Ricky B., we have repeatedly emphasized that the juvenile

bears the burden of persuasion at a reverse waiver hearing. E.g., Gaines, 201 Md. App. at

9-10 (noting that, at a waiver hearing, “[t]he burdens of production and persuasion fall on

the State[,]” whereas, at a reverse waiver hearing, “the juvenile bears the burden of

persuasion”); Whaley v. State, 186 Md. App. 429, 444 (2009) (“The burden is on the

juvenile to demonstrate that under [the] five factors, transfer to the juvenile system is in

the best interest of the juvenile or society.”); Crosby v. State, 71 Md. App. 56, 63 (1987)

(“In the juvenile court the burden is on the State to establish that the juvenile system does

not offer a viable chance to the juvenile for rehabilitation, whereas at the circuit court level

the burden is on the juvenile to demonstrate he or she is suitable for rehabilitation[.]”).

Against that backdrop, we hold that the circuit court in the instant case did not err

in placing the burden of persuasion on Mr. Rohrbaugh. The above caselaw makes clear

that the burden is on the State when a waiver of the juvenile court’s jurisdiction is sought,

and the burden is on the juvenile when a reverse waiver is sought. That allocation of the

parties’ burdens is consistent with the plain language of the respective statutes. In a waiver

proceeding, it must be shown “that the child is an unfit subject for juvenile rehabilitative

measures.” CJP § 3-8A-06(d)(1). In a reverse waiver proceeding, it must be shown “that

14
a transfer of [the criminal court’s] jurisdiction is in the interest of the child or society.” CP

§ 4-202(b)(3). Given that the State is the party seeking a waiver to the criminal court and

the juvenile is the party seeking a reverse waiver to the juvenile court, it stands to reason

that it is the moving party who must make those affirmative showings under the respective

statutes. To allocate the burdens any other way would make little sense. For instance,

were the State required to carry the burden in opposing a juvenile’s request for a reverse

waiver, it would have to show that a transfer of the criminal court’s jurisdiction was not in

the interest of the child or society. Such a requirement would be contrary to the statute’s

plain language, which, as noted, unambiguously states that the criminal court must

determine “by a preponderance of the evidence that a transfer of its jurisdiction is in the

interest of the child or society.” Id. (emphasis added).

Mr. Rohrbaugh argues that the aforementioned cases are not controlling. Relying

on State v. Baby, 404 Md. 220 (2008), Mr. Rohrbaugh insists that the statements we made

in those cases concerning the burden of persuasion should be disregarded as “obiter

dictum” because “the decisions in those cases did not rest upon the allocation of the burden

issue.”

We are not persuaded. First, Mr. Rohrbaugh’s reliance on State v. Baby is

misplaced. There, the Court refused to give precedential weight to a statement it had made

in Battle v. State, 287 Md. 675 (1980), in which the Court suggested that there can be no

rape if a woman consents prior to penetration and then withdraws that consent following

penetration. Baby, 404 Md. at 246. The Court, in holding that its statement in Battle should

be characterized as obiter dictum and thus be given no precedential weight, noted that the

15
statement “was not made on a point that was argued by counsel and deliberately addressed

by this Court, but rather was a collateral statement.” Id. The Court further noted that its

“decision in Battle was not dependent upon this statement; the holding would indeed be

unaffected were that language to be removed.” Id. The Court explained that the statement

at issue appeared “to be tacked on as an articulation of the converse of the Court’s previous

statement” and was “not subjected to any analysis as to its application[.]” Id.

By contrast, in each of the cases from this Court regarding the burden of persuasion

at a reverse waiver hearing, the propriety of a court’s decision regarding waiver or reverse

waiver was directly at issue. E.g., Gaines, 201 Md. App. at 8-23; Whaley, 186 Md. App.

at 443-51; Crosby, 71 Md. App. at 59-68; In re Ricky B., 43 Md. App. at 648-50. Thus, it

cannot be said that the statements made in those cases concerning the burden of persuasion

were collateral to our subsequent decisions, nor can it be said that those decisions were

independent of how the parties’ burdens were allocated. See Bricker v. Warch, 152 Md.

App. 119, 137-38 (2003) (“[I]t is important to note, and it should always be noted in every

case, on which party the burden of persuasion rested.”).

Moreover, whether the appropriate standard of proof has been applied in a case is

an issue of law. Maryland Bd. of Physicians v. Elliott, 170 Md. App. 369, 425 (2006).

And, as the Court has made clear, “[w]hen a question of law is raised properly by the issues

in a case and the Court supplies a deliberate expression of its opinion upon that question,

such opinion is not to be regarded as obiter dictum, although the final judgment in the case

may be rooted in another point also raised by the record.” Schmidt v. Prince George’s

Hosp., 366 Md. 535, 551 (2001). Thus, our deliberate expression of our opinion regarding

16
the legal question of which party bears the burden in a waiver or reverse waiver case cannot

be considered obiter dictum.

Lastly, we note that our decisions allocating the burden of persuasion to the juvenile

in a reverse waiver hearing have stood for over 40 years without any change in the statute.

We interpret the Legislature’s silence as tacit approval of our decisions. See Wadsworth v.

Sharma, 479 Md. 606, 622 (2022) (“We presume that the General Assembly is aware of

this Court’s interpretation of its enactments and, if such interpretation is not legislatively

overturned, to have acquiesced in that interpretation.”) (quotation marks and citations

omitted).

B.

Assuming without deciding that the burden of persuasion issue remains unsettled,

we would nevertheless hold that the circuit court did not err in placing the burden on Mr.

Rohrbaugh. Ordinarily, the moving party has the burden of production and persuasion.

Epps v. State, 193 Md. App. 687, 702 (2010). Although that allocation may change

depending on the circumstances of a particular case, “the general practice is to allocate the

burden of proof to the party asserting the affirmative of an issue, or seeking to change the

status quo.” Garrett v. State, 124 Md. App. 23, 28 (1998).

Here, Mr. Rohrbaugh was the moving party, and it was he who was asserting the

affirmative of the issue. That is, Mr. Rohrbaugh was the party asserting that a transfer of

the circuit court’s jurisdiction was “in the interest of the child or society.” CP § 4-

202(b)(3).

17
Mr. Rohrbaugh was also the party seeking to change the status quo. All of the

charges in the instant case were properly brought in the circuit court, as the juvenile court

was deprived of jurisdiction pursuant to CJP § 3-8A-03. Had Mr. Rohrbaugh done nothing,

that is, had the status quo been maintained, then the charges would have remained in the

circuit court. By filing his reverse waiver motion, Mr. Rohrbaugh was asking the circuit

court to alter the status quo and waive its jurisdiction in favor of a transfer to the juvenile

court. As such, Mr. Rohrbaugh was properly required to prove, by a preponderance of the

evidence, that a reverse waiver was appropriate.

Mr. Rohrbaugh argues that the State, not he, was the party seeking to change the

status quo because “the State desires change when it seeks to treat juveniles as adults.” Mr.

Rohrbaugh is mistaken. By charging Mr. Rohrbaugh in circuit court, the State was not

desiring change; rather, the State was merely following the law as set forth by the

Legislature. While delinquent juveniles are ordinarily treated in the juvenile system, 16-

year-old juveniles who are alleged to have committed certain crimes are not. In fact, those

juveniles must be prosecuted in a criminal court and cannot be treated in the juvenile

system unless the criminal court waives its jurisdiction. In that situation, it is the juvenile

who is seeking change when he files for a reverse waiver.

We are similarly unpersuaded by Mr. Rohrbaugh’s various “policy” arguments.2

While it may be, from the juvenile’s perspective, more convenient and equitable to place

2
For the sake of brevity, we have omitted some of the details of Mr. Rohrbaugh’s
policy argument. We did, however, consider the entirety of Mr. Rohrbaugh’s argument
and found it unpersuasive.

18
the burden on the State, it is just as convenient and equitable to place the burden on the

juvenile. For instance, given that the State is likely opposing the juvenile’s motion for a

reverse waiver, it would be incongruous to require the State to bear the burden of gathering

and producing information, such as potential juvenile placements, that would lend support

to the motion. Moreover, because the circuit court’s decision to waive its jurisdiction is

based in large part on the needs and circumstances of the juvenile, it would be more

convenient to place the burden of production on the juvenile rather than the State, as the

juvenile is in a better position to provide the requisite information.

Finally, we note that Mr. Rohrbaugh, in setting forth his argument, relies heavily on

language from Davis v. State, 474 Md. 439 (2021). That reliance is misplaced. There, the

Court considered “what is meant by ‘amenability’ under CP § 4-202(d) and how that relates

to the other four factors listed in that statute.” Id. at 451. Although the Court engaged in

a lengthy discussion of the circuit court’s duties in evaluating the five factors pursuant to a

reverse waiver motion, at no point did the Court state, or even suggest, that the State bore

the burden of proving the applicability (or non-applicability) of any of those factors. Id. at

451-67.

C.

Mr. Rohrbaugh argues that allocating the burden of persuasion to the juvenile

implicates the juvenile’s due process rights. He maintains, therefore, that we should apply

the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), a case in which

the Supreme Court held that, when an individual’s due process rights are implicated, a

court should consider three factors: 1) “the private interest that will be affected by the

19
official action;” 2) “the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or substitute procedural

safeguards;” and 3) “the Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement

would entail.” Id. at 334-35. Mr. Rohrbaugh argues that those factors weigh in the

juvenile’s favor because a juvenile has a substantial interest in a juvenile adjudication;

because allocating the burden on the juvenile carries the risk that he will be erroneously

classified as an adult offender and may deprive the court of necessary information; and

because the State has an interest in making sure that children who are amenable to treatment

are adjudicated in the juvenile system.

We are not persuaded by any of these arguments. First, we do not agree that a

juvenile’s constitutional rights are implicated by allocating the burden of proof to the

juvenile. As the State correctly notes, “there is no constitutional right to be treated as a

juvenile.” Miles v. State, 88 Md. App. 360, 390 (1991) (quotation marks and citation

omitted). Moreover, because a reverse waiver hearing is a civil matter, the allocation of

the burden of persuasion would not ordinarily implicate due process rights. See Schaffer

ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005) (“[O]utside the criminal law area, where

special concerns attend, the locus of the burden of persuasion is normally not an issue of

federal constitutional moment.”) (quotation marks and citation omitted). Finally, we have

previously rejected due process challenges to the transfer statute, noting that “Maryland’s

legislative scheme of waiver is not violative of any of [a juvenile’s] due process rights”

20
and that a juvenile is “afforded the full panoply of constitutional safeguards in the ensuing

trial.” Miles, 88 Md. App. at 390-92 (quoting In re Samuel M., 293 Md. 83, 96 (1982)).

Assuming, arguendo, that Mr. Rohrbaugh’s due process rights were implicated and

that the Mathews’ balancing test applied, allocating the burden of persuasion to him

comports with that test. Although it is beyond question that a juvenile has an interest in

being treated in the juvenile system, the Legislature has already determined that juveniles

such as Mr. Rohrbaugh, i.e., juveniles who are of a certain age and are alleged to have

committed certain crimes, are beyond the jurisdiction of the juvenile court system and must

be prosecuted in the adult system. In those situations, the State’s Attorney is not

“choosing” to pursue a case in the adult court; rather, the choice has been made by the

Legislature. If the juvenile then wishes to be “treated” in the juvenile system, he or she

must file a reverse waiver motion pursuant to CP § 4-202. It should therefore be up to the

juvenile to show that the juvenile system is the more appropriate forum, given the

Legislature’s clear mandate that the juvenile be prosecuted in the adult system.

Even with the burden of proof being allocated to the juvenile following the filing of

a reverse waiver motion, the subsequent proceedings are replete with due process

protections. When a reverse waiver motion is filed, a court cannot deny the motion until it

has evaluated, in considerable detail, the five factors outlined in the statute. See Davis,

supra, 474 Md. at 462-67. No one factor can be given undue weight, and all of the factors

must be considered with an eye toward the juvenile’s amenability to treatment in the

juvenile system. Id. During the course of those proceedings, the juvenile’s police and

court records remain confidential. CP § 4-202(i). Finally, if the court denies the motion

21
and the juvenile is subsequently prosecuted in the adult system, he or she is “afforded the

full panoply of constitutional safeguards in the ensuing trial.” Miles, 88 Md. App. at 392.

In sum, we hold that the circuit court did not err in placing the burden of proof on

Mr. Rohrbaugh. The court’s decision was consistent with the caselaw and did not infringe

upon Mr. Rohrbaugh’s constitutional rights.

II.

Mr. Rohrbaugh next claims that the circuit court erred in denying his reverse waiver

motion. He argues that the court abused its discretion in three ways: by putting too much

emphasis on the fact that Mr. Rohrbaugh would only be eligible for juvenile services until

age 21; by assuming that he was guilty of the underlying charges; and by finding that there

were programs in the adult system to treat youthful offenders, even though no such

evidence was presented at the hearing. The State contends that the court properly and

thoroughly considered all five factors and did not abuse its discretion in denying the

motion.

As previously noted, CP § 4-202 states that a criminal court may transfer a case

involving a child to the juvenile court if, among other things, “the court determines by a

preponderance of the evidence that a transfer of its jurisdiction is in the interest of the child

or society.” CP § 4-202(b)(3). In making that determination, the court is required to

consider: “(1) the age of the child; (2) the mental and physical condition of the child; (3)

the amenability of the child to treatment in an institution, facility, or program available to

delinquent children; (4) the nature of the alleged crime; and (5) the public safety.” CP §

22
4-202(d). We review the court’s decision for abuse of discretion. Whaley, 186 Md. App.

at 444.

In Davis v. State, Judge Wilner explained that the five factors “are not in competition

with one another” and that, while they all must be considered, “they are necessarily

interrelated and, analytically, they all converge on amenability to treatment.” Davis, 474

Md. at 464. The Court reasoned that, while considerations such as public safety are

important, the overarching question is whether there is “a program [in the juvenile system]

that can provide immediate safety to the public and make recidivism less likely[.]” Id. at

465. If so, the Court concluded, “absent some other circumstance, the child should be

transferred to … the juvenile system.” Id. If, on the other hand, there is no program in the

juvenile system available to the child that is “competent to address the issues defined” and

“from which the child likely can benefit in a way that will produce better results than

anything in the adult system and significantly lessen his danger to the public, a reverse

waiver request should be denied[.]” Id. at 465-66.

Here, the circuit court found that, while Mr. Rohrbaugh was “young enough to be

placed into the juvenile system[,]” he would only be eligible for juvenile services until age

21. The court expressed concern about that limited time frame given that an “awful lot of

therapy … has been recommended.” The court noted that it had “jurisdiction in the adult

system for longer” and that, during that time, Mr. Rohrbaugh could “do all of the programs

and counseling, et cetera.”

Considering the mental and physical condition factor, the circuit court found

nothing physically wrong with Mr. Rohrbaugh, despite his somewhat small stature. The

23
court noted that there were “a few things” on “the mental side,” including depression,

anxiety, and a trauma-related disorder stemming from “the issues with his father and the

man that he thought was his father,” the incident in which he was a victim of a home

invasion, and the loss of several family members and close friends. The court noted that,

while “trauma has a significant impact on juveniles as the brain is still developing[,]” the

evidence established that a child’s brain “is still developing up to the age of twenty-four[.]”

The court explained that it was unsure “if that helps him or hurts him because that places

him three years beyond juvenile jurisdiction.”

Reviewing the key factor, Mr. Rohrbaugh’s amenability to treatment in an

institution, facility, or program available to delinquent children, the circuit court noted that

Mr. Rohrbaugh had “two prior suspended commitments to the DJS” for which he received

services, which included a victim awareness program, 100 hours of community service,

and several months of therapy. The court noted that, while Mr. Rohrbaugh was receiving

that therapy, he was arrested on the current charges, which stemmed from two separate

incidents involving a firearm. The court posited: “While he did two of the programs, how

amenable to treatment is he really when he continues to re-offend with a gun not once, but

twice?” The court found that, despite “a two year involvement between [Mr. Rohrbaugh]

and DJS[,]” there had been “no improvement.” Instead, the court found, “the same

dangerous behavior or worse” had continued “with the actual shooting of a gun over a

crowd of people.” The court found that Mr. Rohrbaugh had “a long term journey” that was

“much longer than the juvenile system has even theoretically to the age of twenty-one.”

The court noted that, while there was evidence that DJS could place Mr. Rohrbaugh at the

24
current time, the evidence also showed that placement would become harder as Mr.

Rohrbaugh aged. The court noted that there were “programs in the Division of Corrections

for youthful offenders” and that Mr. Rohrbaugh “would have the time while [he] is in a

secure facility, … and then we would have five full years available for probation upon

release where service and supervision can continue.” The court reasoned that “the adult

system would have the resources to benefit [Mr. Rohrbaugh] and also protect society.”

Addressing the nature of the alleged crimes, the circuit court highlighted “the

August 16th, 2021 incident where [Mr. Rohrbaugh] allegedly shot a bullet over a crowd of

people.” The court found that the nature of the crime was “obviously a concern[.]”

Finally, as to the public safety factor, the circuit court noted that the

“Transfer/Waiver Psychological Assessment rate[d] [Mr. Rohrbaugh] a moderate risk for

future violence without the services that they recommend.” The court found that

assessment to be “concerning enough” but found that Mr. Rohrbaugh’s “record and

behavior speaks louder.” The court noted that Mr. Rohrbaugh had “been suspended from

school on at least two occasions for fighting” and was involved in an armed robbery in

2019 and another armed robbery in 2020. The court reiterated that, despite Mr. Rohrbaugh

receiving services through DJS following the armed robberies, “once again in August we

have [Mr. Rohrbaugh] shooting over a crowd of people and a month and a half later we

have him in possession of a loaded handgun[.]” Based on those findings, the court

determined that it was not in the interest of Mr. Rohrbaugh or society to transfer his cases

to the juvenile court.

25
We hold that the circuit court did not err in denying Mr. Rohrbaugh’s reverse waiver

motion. Not only did the court consider all five statutory factors in great detail, but it did

so with a clear focus on Mr. Rohrbaugh’s amenability to treatment in the juvenile system.

The court found that, while there were some circumstances that supported the reverse

transfer, there were other, more critical circumstances to indicate that a reverse transfer

was unlikely to provide immediate safety to the public and reduce the chance of recidivism.

Those latter circumstances included: the limited time Mr. Rohrbaugh would be subject to

the juvenile court’s jurisdiction; the waning availability of services in the juvenile system

for juveniles who are nearing age 21; the nature and extent of Mr. Rohrbaugh’s mental

health needs; the fact that Mr. Rohrbaugh had been receiving treatment in the juvenile

system for two years following two separate gun-related offenses; the fact that Mr.

Rohrbaugh was arrested on the current charges while he was receiving those services; and

the fact that the current charges involved two separate gun-related incidents, one of which

included the discharge of the firearm. The court found that, although there were programs

available to Mr. Rohrbaugh in the juvenile system, those programs were likely insufficient

given that he had already been exposed to some of those programs and had subsequently

been arrested twice for gun-related offenses. The court reasoned that Mr. Rohrbaugh

would benefit more from the services available via the adult system, particularly because,

unlike in the juvenile system, there were no pressing time constraints on the court’s ability

to address Mr. Rohrbaugh’s considerable issues.

In short, the court determined that there were no programs in the juvenile system

that were “competent to address the issues defined” and “from which the child likely can

26
benefit in a way that will produce better results than anything in the adult system and

significantly lessen his danger to the public[.]” Davis, 474 Md. at 465-66. Accordingly,

we cannot say that the court abused its discretion in denying Mr. Rohrbaugh’s reverse

transfer motion.

We find no merit in Mr. Rohrbaugh’s specific claims of error. First, the circuit court

did not place too much emphasis on the fact that Mr. Rohrbaugh would only be eligible for

juvenile services until age 21. According to Mr. Rohrbaugh, the court “should have

considered the best available intervention to increase the probability of [his] future

success” and to “make him ‘a more productive and law-abiding person.’” (Quoting Davis,

474 Md. at 464.) That is precisely what the court did. The court determined that the best

available intervention was to keep Mr. Rohrbaugh in the adult system. Although the court

based that determination in part on Mr. Rohrbaugh’s age, the court also considered the

other four factors in reaching that decision. There is simply no support in the record that

the court placed “too much emphasis” on the fact that Mr. Rohrbaugh would only be

eligible for juvenile services until age 21.

As to Mr. Rohrbaugh’s claim that the circuit court assumed him guilty of the

charged crimes, we do not perceive any error. To be sure, the court did imply some

modicum of guilt when it stated that Mr. Rohrbaugh had “re-offended.” Nevertheless, we

cannot say that the court was assuming Mr. Rohrbaugh guilty, nor can we say that the court

erred in making some inferences regarding Mr. Rohrbaugh’s alleged participation in the

charged crimes. As we have explained, any consideration of the nature of the alleged

crimes necessarily involves some assumption as to the juvenile’s participation:

27
[E]ven if the circuit court had weighed the level of appellant’s alleged
participation [in the alleged crimes], it would not have erred in doing so. It
is difficult, if not impossible, to consider “the nature of the alleged crime,”
which the court must do, without considering the actions taken by the alleged
perpetrators to commit that crime. Thus, we do not interpret that factor in
the reverse waiver statute as being completely divorced from consideration
of the actions taken by the alleged perpetrators.

Gaines, 201 Md. App. at 14; cf. Whaley, 186 Md. App. at 439 (holding that the court erred

in assuming that the charges against the juvenile were true and in stating that it had to

accept those facts in making its decision).

Finally, we are not convinced that the circuit court erred in finding that there were

programs in the adult system to treat youthful offenders, even though there was no evidence

in the record regarding Mr. Rohrbaugh’s eligibility for such programs. As the body

responsible for sentencing defendants in the adult system, the court certainly could take

judicial notice of programs within that system and about which the court was aware.

Moreover, the court, in making those statements, was not suggesting that the programs

available through the juvenile system would also be available in the adult system. Rather,

the court, in determining that the programs in the juvenile system were insufficient under

the circumstances, was merely observing that, in the adult system, there are programs

available for youthful offenders such as Mr. Rohrbaugh.

In sum, we hold that the circuit court did not abuse its discretion in denying Mr.

Rohrbaugh’s reverse waiver motion. The court conducted a thorough analysis of each of

28
the statutory factors and issued a well-reasoned decision based on those factors and the

circumstances of the case.

JUDGMENT OF THE CIRCUIT COURT
FOR HARFORD COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.

29