FROM THE CIRCUIT COURT OF PEMISCOT COUNTY The Honorable W.
Keith Currie, Judge
R. RUSSELL, JUDGE
appeals a judgment of the circuit court finding he committed
an act that, if committed by an adult, would have constituted
the felony of making a terrorist threat in the second degree
in violation of section 574.120. Evidence adduced at the
adjudication hearing demonstrated D.C.M. was sitting in the
school cafeteria talking to another student, Jonathan,
when D.C.M. stated he felt like "blowing the school
up" or wanted to see how it feels to "shoot the
argues his attorney ("Counsel") was ineffective in
representing him in the juvenile proceeding by failing to
investigate and call Jonathan to testify at the adjudication
hearing. He also argues the circuit court abused its
discretion in denying Counsel's request for a continuance
to subpoena Jonathan. Finally, he argues the circuit court
lacked sufficient evidence to conclude beyond a reasonable
doubt that he committed an act that, if committed by an
adult, would have constituted the felony of making a
terrorist threat in the second degree.
circuit court did not abuse its discretion in denying
Counsel's request for a continuance, and, further, when
viewed in the light most favorable to the judgment, there was
sufficient evidence for the circuit court to find beyond a
reasonable doubt that D.C.M. committed an act, which, if
committed by an adult, would have constituted the felony of
making a terrorist threat in the second degree. The record is
insufficient, however, to determine whether Counsel was
ineffective. As a result, these claims cannot be addressed on
direct appeal. The case is remanded to the circuit court for
an evidentiary hearing to determine whether Counsel was
ineffective. In all other aspects, the judgment is affirmed.
was a 16-year-old high school student with autism, when the
juvenile officer in Pemiscot County filed a petition against
him. The petition alleged he had committed an act that, if
committed by an adult, would have constituted the felony of
making a terrorist threat in the second degree, and, as a
result, he was subject to the jurisdiction of the juvenile
division. Evidence adduced at the adjudication hearing
demonstrated that D.C.M. was sitting in the high school
cafeteria when another student, Tamara, overheard D.C.M. tell
a classmate, Jonathan, "I feel like blowing the school
up." A student named Zachary testified he heard D.C.M.
say that "he wanted to see how it feels like to blow up
the school and wanted - shooting up the school." Zachary
further testified, "He said that he might do it
tomorrow, the day - same day at - He said he's going to
do it tomorrow." After hearing D.C.M.'s comments,
Tamara left the cafeteria and told the school principal. The
principal called the police, and the staff isolated D.C.M in
a classroom until law enforcement officers arrived. Officers
then took D.C.M. to the juvenile office.
interviewed D.C.M., who denied making any threatening
statements and said he was only joking. Police also
interviewed Jonathan. The police report provided,
"Jonathan stated that he did not recall [D.C.M.] making
any threats or statements but that he didn't doubt it.
[Jonathan] stated that [D.C.M.] has made racial comments
towards other students but that he had not heard [D.C.M.]
make any statements."
juvenile officer filed a petition, and an adjudication
hearing was held 12 days later. The juvenile officer called
seven witnesses: four students, a police officer, and two
school principals. Two witnesses, Tamara and Zachary,
testified they heard D.C.M. make the threatening statements.
D.C.M. testified he did not make any threatening statements
and said the other witnesses were lying. Counsel then
requested a continuance to subpoena Jonathan as well as two
other students, Joshua and Marcus, who were also sitting at
the table with D.C.M. The juvenile officer objected,
asserting Counsel had access to the police report that named
all of the witnesses and, therefore, had a sufficient
opportunity to obtain the witnesses' presence at the
hearing. The circuit court denied the request.
on the evidence presented at the adjudication hearing, the
circuit court continued jurisdiction over D.C.M. and placed
him in the custody of the division of youth services for an
indefinite term. D.C.M. appeals.
turned 18 and was released from supervision approximately one
month before the case was argued and submitted. As a result,
this Court must examine whether this appeal is now
"[m]ootness implicates the justiciability of a
controversy and is a threshold issue to appellate
review," this Court must consider, either on a
party's motion or acting sua sponte, whether an
appeal is moot. Mo. Municipal League v. State, 465
S.W.3d 904, 906 (Mo. banc 2015) (alteration in original)
(quoting LeBeau v. Comm'rs of Franklin Cty, 459
S.W.3d 436, 438 (Mo. banc 2015)). "When an event occurs
that makes a court's decision unnecessary or makes
granting effectual relief by the court impossible, the case
is moot and generally should be dismissed." State ex
rel. Griffith v. Precythe, 574 S.W.3d 761, 763 (Mo. banc
2019). "A case is moot when the question presented for
decision seeks a judgment upon some matter which, if the
judgment was rendered, would not have any practical effect
upon any then existing controversy." State ex rel.
Gardner v. Boyer, 561 S.W.3d 389, 394 (Mo. banc 2018)
(quoting State ex rel. Hawley v. Heagney, 523 S.W.3d
447, 450 (Mo. banc 2017)). If a case is moot, this Court can
exercise its discretion to decide the case on the merits if
one of two narrow exceptions to the mootness doctrine exist:
"(1) when a case becomes moot after submission and
argument; and (2) when the issue raised is one of general
public interest and importance, recurring in nature, and will
otherwise evade appellate review." State ex rel.
Peters-Baker v. Round, 561 S.W.3d 380, 384-85 (Mo. banc
2018) (citations omitted).
D.C.M. and the State argue a decision by this Court would
impact D.C.M and urge this Court to decide this case on its
merits. While D.C.M. recently turned 18 and has since been
released from supervision, a record of his adjudication would
remain. Juvenile records for offenses that would be felonies
if committed by an adult are open to the public to the extent
criminal proceeding records are open to the public. Section
211.321.2(2). The offense of making a terrorist threat in the
second degree is such a felony. See section
574.120. The question whether an appeal of a case
in which a juvenile has been released from supervision
implicates the mootness doctrine is one of first impression
for this Court.
case factually analogous to the one here, but in a criminal
context, this Court addressed the merits of an adult's
appeal of his conviction despite that he had been pardoned.
State v. Jacobson, 152 S.W.2d 1061, 1064 (Mo. 1941).
Although the pardon allowed him not to serve his sentence,
the appeal was not moot because the underlying conviction
remained on his record. Id. Jacobson emphasized that
an individual should have the opportunity "to remove the
discredit and stigma flowing from the judgment of
conviction." Id. Further, if convicted of
another crime in the future, Jacobson recognized the
defendant would be subject to greater penalties due to his
prior conviction. Id. As a result, this Court
concluded the case was not moot because there was "still
a substantial element of controversy existing."
Jacobson, D.C.M. should be given the opportunity to
remove the discredit and stigma associated with his record of
adjudication. Even though D.C.M. has been released from
supervision, his conduct would have constituted a felony had
he been an adult at the time he committed the act. If D.C.M.
is tried in the future for a criminal offense, evidence of
this prior juvenile adjudication could be introduced. See
S.B.A., 530 S.W.3d at 620. For these reasons, this case
is not moot, as addressing this appeal would have a practical
effect on an existing controversy. See Gardner, 561
S.W.3d at 394. Accordingly, this Court will review the merits
of the appeal.
Ineffective Assistance of Counsel
argues that he had a due process right to the effective
assistance of counsel in his juvenile proceeding and that
Counsel violated this right when he failed to investigate and
call Jonathan to testify, as well as when Counsel elicited
and failed to object to certain testimony. The State
recognizes juveniles have a due process right to effective
assistance of counsel under Missouri law but argues D.C.M.
cannot raise these claims on direct appeal and, even if he
could raise these claims, Counsel did not provide ineffective
assistance. The issue of what procedure should be followed
when reviewing ineffective assistance of counsel claims in
juvenile cases is a question of law that receives de
novo review. See Grado v. State, 559 S.W.3d
888, 895 (Mo. banc 2018).
well-established that a child has a right to counsel at a
delinquency proceeding pursuant to the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
In re Gault, 387 U.S. 1, 36 (1967), overruled on
other grounds by Allen v. Illinois, 478 U.S. 364, 372-73
(2008); see also Rule 115.02 ("In any
proceeding under subsection 1 of section 211.031, RSMo, the
court shall appoint counsel for the juvenile when necessary
to assure a full and fair hearing."). This right to
counsel implies that counsel must be effective.
Gault, 387 U.S. at 30; In re R.G., 495
S.W.2d 399, 403 (Mo. 1973). The due process right to counsel
"would be hollow were there no accompanying requirement
counsel be effective." Grado, 559 S.W.3d at
the right to effective assistance of counsel, no statute or
case from this Court provides a mechanism for a committed
juvenile to raise an ineffective assistance of counsel claim.
D.C.M. encourages this Court to address the claims on direct
appeal. The State, on the other hand, argues direct appeal is
a "suboptimal path" for juveniles to raise
ineffective assistance claims, suggesting the legislature
should adopt a statutory procedure or this Court should adopt
a rule setting forth a procedure.
deciding whether claims for ineffective assistance of counsel
can be addressed on direct appeal, the pertinent question is
whether the record is sufficient to address the claim.
Considering the sufficiency of the record when determining
whether ineffective assistance of counsel claims can be
addressed on direct appeal is consistent with the approach
taken by this Court in termination of parental rights and
sexually violent predator cases. See In re Adoption of
C.M.B.R., 332 S.W.3d 793, 820 n.22 (Mo. banc 2011)
(clarifying that ineffective assistance of counsel claims
could be addressed on direct appeal when such claims could be
sufficiently evaluated on the record), overruled on other
grounds by S.S.S. v. C.V.S., 529 S.W.3d 811, 816 n.3
(Mo. banc 2017); Grado, 559 S.W.3d at 897
(addressing claim of ineffective assistance of counsel in a
sexually violent predator proceeding when all claims
"involve[d] counsel's actions at trial, and [were]
evident on the record"). In accordance with this
precedent, this Court will review the record and, if the
record is sufficient, address D.C.M.'s ineffective
assistance of counsel claims on direct appeal.
of ineffective assistance of counsel typically cannot be
addressed on direct appeal, however, when "issues are
likely to arise regarding ... counsel's failure to
adequately investigate or prepare for trial, or counsel's
failure to pursue defenses or witnesses."
Grado, 559 S.W.3d at 897 (quoting In re
Carmody, 653 N.E.2d 977, 985 ( Ill. App. 1995)). In each
of these scenarios, the record is likely to be incomplete
with respect to the claim of ineffective assistance.
alleges Counsel was ineffective for failing to investigate
and call Jonathan to testify. The record is clear Jonathan
was sitting next to and talking with D.C.M. when D.C.M.
allegedly made the threatening statement. Despite having
access to the police report detailing Jonathan's
interview with the police, Counsel called no witnesses other
than D.C.M. and was unaware that Jonathan was a potential
witness until the day of the hearing, indicating Counsel
failed to consider the police report. When asking for a
continuance to subpoena Jonathan as well as two other
students sitting at the table with D.C.M., Joshua and Marcus,
Your Honor, [D.C.M] has provided names of a Joshua , a
Jonathan  and a Marcus somebody that was at his table, and
I wasn't provided that information and wasn't
provided any opportunity, if I could, to subpoena these
people to testify. I would like to have some opportunity to
have them present, Your Honor, since he's denied the fact
that [Zachary] was - was not at his table, but he does
testify that a Joshua , a Jonathan , and a Marcus or
Demetrius or whoever - whatever his name was, was also at the
record is silent, however, regarding what Jonathan's
testimony would have been or whether Jonathan was able to be
located by D.C.M.'s attorney. While the police report
provides some indication as to what Jonathan's testimony
might have been, Jonathan's statements were not under
oath, and the report is not a substitute for sworn testimony
in court. Had Jonathan been located, his testimony could have
unequivocally supported D.C.M.'s defense, as the police
report indicated that Jonathan did not hear D.C.M. make a
threatening statement. But it is also possible Jonathan's
testimony could have cast doubt on D.C.M.'s defense, as
the police report further reflects Jonathan stated he
"wouldn't doubt" D.C.M. made threatening
also told police he was aware D.C.M. had made racial comments
toward other students. This statement directly conflicts with
D.C.M.'s testimony that he never made racial comments and
would not be beneficial to D.C.M. "If a potential
witness's testimony would not unqualifiedly support a
defendant, the failure to call such a witness does not
constitute ineffective assistance." Worthington v.
State, 166 S.W.3d 566, 577 (Mo. banc 2005).
in Grado, in which the claim involved the
counsel's failure to object to evidence and was evident
on the record, 559 S.W.3d at 897, the record is incomplete
with respect to D.C.M.'s claim. This Court cannot
speculate as to whether Jonathan would have been located or
what his testimony would have been. Without knowing this
information, it cannot be determined on this record whether
Counsel was ineffective.
the legislature nor this Court's rules have established
how to address claims of ineffective assistance in a juvenile
hearing when the record is insufficient to do so on direct
appeal. D.C.M. encourages this Court to remand for an
evidentiary hearing in the circuit court or to appoint a
master on appeal pursuant to Rule 68.03.
such as Georgia and Illinois remand the case to the circuit
court for an evidentiary hearing and finding regarding
whether counsel was ineffective. See D.C., 705
S.E.2d at 314 (remanding the case for an evidentiary hearing
and determination on the ineffective assistance claims);
Alonzo, 40 N.E.3d at 1234 ("Such a hearing will
give [the juvenile] a full opportunity to prove facts
establishing ineffectiveness of counsel, the State a full
opportunity to present evidence to the contrary, and the
establishment of a factual record on the issue."). An
evidentiary hearing would allow a record to be established
regarding whether Jonathan could have been located to testify
and what his testimony would have been, as well as other
evidence pertaining to D.C.M.'s counsel's
effectiveness. An evidentiary hearing is preferable to a
special master in this context because the additional
findings and conclusions will be made by the circuit court,
which is already familiar with the case. Accordingly,
the case is remanded for an evidentiary hearing to determine
whether Counsel was ineffective. If the circuit court finds
Counsel ineffective, D.C.M. should be granted a new
adjudication hearing. Alonzo, 40 N.E.3d at 1234. If
D.C.M.'s claim is rejected, he can appeal, and the record
on appeal will include the new evidence.
The Circuit Court's Denial of D.C.M.'s ...