author: W.H. “Dub” Arnold, Chief Justice. LAVENSKI R. SMITH, Justice,

text:
    Andrew Douglas GOLDEN v. STATE of Arkansas
    99-572
    21 S.W.3d 801
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000
    [Substituted opinion delivered July 13, 2000.]

      Ralph Edwin Wilson, Judge;

      Val P. Price and Terry Goodwin Jones, Law Student Admitted to Practice Pursuant to Rule XV(E)(1)(6) of Rules Governing Admission to the Bar of the Arkansas Supreme Court, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This case involves ustice. defendant has a right to have his competency to proceed determined prior to adjudication and, further, whether a juvenile has a right to assert the defense of insanity. We hold that a juvenile does have a due process right to have his competency determined prior to adjudication and, as such, reverse the trial court on this point. However, we hold that neither due process nor equal protection affords a juvenile the right to an insanity defense and, therefore, affirm the trial court on these issues.

On March 24, 1998, appellant Andrew Golden and Mitchell Johnson opened fire on their classmates at Westside Elementary School in Jonesboro, Arkansas. One teacher and four students were killed, and one teacher and nine students were wounded. At the time of the shootings, appellant Andrew Golden was eleven years old.

On March 25, 1998, a petition was filed, charging Golden and Mitchell with five counts of capital murder and ten counts of first-degree battery. At the probable cause hearing held on March 25, 1998, Golden’s attorney informed the court that he intended to raise the affirmative defense of insanity and would also be raising issues concerning Golden’s competency to proceed to trial. A separate hearing on these issues was later held.

At the hearing on these issues, Golden’s attorney argued that if the court denied Golden the right to argue lack of competency and insanity, it would violate Golden’s constitutional rights of due process and equal protection. The trial court rejected these arguments, finding that based upon the nature of juvenile proceedings, Golden was not entitled to raise the issue of whether he was competent to stand trial or to assert the insanity defense. The court reasoned that the safeguards present in juvenile proceedings allow a court to consider any alleged mental disease or defect during the disposition phase, when the court is determining the appropriate placement for the juvenile.

Following the issuance of the trial court’s order, Golden’s attorney informed the court that he wished to proceed to the adjudication hearing in order to preserve Golden’s right to argue the competency and insanity issues on appeal. An adjudication hearing was subsequently held in which the trial court adjudicated Golden guilty and sentenced him to an indeterminate period of time in the Division of Youth Services Training School. The court also provided that if Golden was released before the age of twenty-one, he would remain in a juvenile detention center for up to ninety days.

For his points on appeal, appellant asserts the following:

A. that the trial court violated his due-process rights by refusing to determine his competency, or fitness to proceed;
B. that the trial court violated his due-process rights by refusing to allow him to present an insanity defense;
C. that the trial court violated his equal-protection rights by refusing to determine whether he was competent; and
D. that the trial court violated his equal-protection rights by refusing to allow him to present an insanity defense.

As stated above, we reverse in part and affirm in part. We agree with appellant only as to his first point on appeal and hold that a juvenile does have a due process right to have his competency determined prior to adjudication; as such, we reverse the trial court on this point. Having reversed the case on due process grounds regarding competency, we decline to address appellant’s equal-protection argument in regard to the issue of competency. We affirm the trial court as to appellant’s other points on appeal regarding the insanity defense.

I. Due Process Rights

Appellant asserts that the trial court violated his due-process rights by refusing to determine his competency, or fitness to proceed, and that the trial court violated his due-process rights by refusing to allow him to present an insanity defense. We agree in regard to competency and disagree in regard to the insanity defense.

A. Competency to Stand Trial

The law is clear that defendants in criminal cases have a fundamental right not to stand trial while incompetent. See, e.g., Cooper v. Oklahoma, 517 U.S. 348 (1996); Drope v. Missouri, 420 U.S. 162 (1975). This right protects criminal defendants’ fundamental interests in their own liberty by ensuring that they are able to participate in their defense in an effort to avoid conviction and incarceration. In regard to juvenile proceedings, while the Arkansas Juvenile Code seems to presume that a defendant being tried in juvenile court is incompetent to some degree, particularly one who is under the age of fourteen, there was no statutory provision for juveniles at the time of appellant’s hearing affording juveniles the same fundamental liberty interests as adults where the issue of competency is concerned.

Although this issue is one of first impression in Arkansas, the United States Supreme Court held, in the case of In re Gault, 387 U.S. 1 (1967), that while proceedings in a juvenile court need not conform with all the requirements of a criminal trial, primarily because of the special nature of the proceedings, essential requirements of due process and fair treatment must be met. The Court, in Gault, specifically acknowledged a juvenile’s right to constitutionally adequate notice, the right against self-incrimination, and the right to cross-examine witnesses; further, the Court explicitly heldthat a juvenile must be afforded the right to counsel during these proceedings. Id. at 41. Logically, this right to counsel means little if the juvenile is unaware of the proceedings or unable to communicate with counsel due to a psychological or developmental disability. See In the matter of Carey, 241 Mich. App. 222, 615 N.W.2d 724 (2000). Therefore, applying Gault, we hold that a juvenile must be allowed to assert incompetency and have his competency determined prior to adjudication. As such, we reverse the trial court on this point.

B. Insanity Defense

Regarding the insanity defense, this Court held in the case of K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998), that insanity is not a defense in juvenile proceedings because there is no statutory authority or case law for the defense. IN K.M., WE RELIED UPON THE U.S. Supreme Court holding in Medina v. California, 505 U.S. 437 (1992), that there is no constitutional right to an INSANITY DEFENSE; THEREFORE, IF ONE IS NOT PROVIDED FOR BY STATUTE, THEN A DEFENDANT MAY NOT ASSERT THE DEFENSE.

Clearly, there was no statutory provision in effect in Arkansas at the time of appellant’s hearing conferring upon juveniles the right to assert an insanity defense. As such, applying our holding in K.M. v. State, we hold that appellant’s due process rights were not violated by the trial court’s preclusion from allowing him to assert the insanity defense. Therefore, we affirm the trial court on this point.

II. Equal Protection Rights

Appellant asserts that the trial court violated his equal-protection rights by refusing to determine whether he was competent to proceed and that the trial court violated his equal-protection rights by refusing to allow him to present an insanity defense. We decline to address the competency argument; further, we disagree with appellant that his equal-protection rights were violated in regard to the insanity defense.

A. Competency to Stand Trial

Because this case is being reversed on due-process competency grounds, it is unnecessary in this case to address the competency issue with regard to equal protection.

B. Insanity Defense

As discussed above, this Court has already decided the issue of whether juveniles may assert the defense of insanity in K.M. v. State, supra. We cited, in support of our decision that juveniles could not assert said defense, the U.S. Supreme Court case of Medina v. California, supra., which held that there is no constitutional right to an insanity defense, so if one is not provided for by statute or case law, then a defendant may not assert it. However, this Court, in K.M., refused to address the issue under an equal protection analysis because it was not raised below. Therefore, this equal-protection argument is one of first impression for this Court.

The appellant contends that no rational basis exists for affording the insanity defense to adult criminal defendants in circuit court while not providing said defense to juvenile defendants; he contends that this undoubtedly amounts to a violation of equal protection. We disagree. Due to the very nature of juvenile proceedings and the difference in purpose of a juvenile proceeding — that being rehabilitative rather than punitive — coupled with the fact that juveniles are neither provided a trial by jury nor various other rights afforded to adult criminal defendants in circuit court, a rational basis clearly exists for affording adult criminal defendants in circuit court the right (by statute, not constitutionally), to assert the defense of insanity while not affording the same right to juveniles.

Further, the juvenile code provides a number of alternatives for the judge to consider and recommend in regard to disposition, including treatment, commitment, transfer of legal custody, and other alternatives regarding placement in a community-based program as opposed to a youth services center. See Ark. Code Ann. § 9-27-330 (Repl. 1998). In adult criminal circuit court, the trial judge has no options regarding disposition where a defendant suffering from a mental disease or defect is concerned. In circuit court, the defendant, if proven to be insane, is simply locked away in the State mental hospital until he becomes sane, at which time he will be tried.

Clearly, a rational basis exists for affording juvenile defendants less procedural rights than those charged in criminal circuit court, primarily because of the special nature of the proceedings. After all, criminal defendants in circuit court could potentially face life imprisonment, or even a death sentence, unlike those charged in juvenile court. For these reasons, we affirm the trial court on this point, as well.

Reversed and remanded in part; affirmed in part.

Smith, J., dissenting.

LAVENSKI R. SMITH, Justice,

dissenting. I concur in the majority’s opinion ice, points save the issue of Golden’s competency to stand trial. I would affirm the trial court’s denial of a competency hearing. I do so because the distinctions that exist between juvenile court proceedings and adult criminal proceedings are substantial and are rationally based upon the differences between adults and children. Although according a juvenile the right to a competency hearing appears equitable, it is, I submit, unwise. It reflects the continued erosion of all distinction between juvenile court and adult criminal courts. This erosion could ultimately lead to the irrelevance of juvenile codes in general.

A juvenile does not have a fundamental due process right to not be deprived of their liberty as a result of a hearing during which they were incompetent. The State’s ’parens patriae’ interest, under proper circumstances subordinates the child’s liberty interest. Schall v. Martin, 467 U.S. 253, 265 (1984). A juvenile has a liberty interest, which the U.S. Supreme Court describes as “substantial,” but of which they also state that “that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody.” Schall, 467 U.S. at 265. The U.S. Supreme Court in this same opinion also states, “Children by definition are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its role as parens patraie.” Id.

The distinctions existing between juveniles and adults are recognized by the legislature in Ark. Code Ann. § 9-27-102, which states, “The General Assembly recognizes that children are defenseless and that there is no greater moral obligation upon the General Assembly than to provide for the protection of our children and that our child welfare system needs to be strengthened by establishing a clear policy of the state that the best interests of the children must be paramount and shall have precedence at every stage of juvenile court proceedings....” This is consistent with the parens patriae interest as discussed in the U.S. Supreme Court cases. Implicit in the General Assembly’s statement is the recognition that a juvenile will not be competent in the sense an adult would be, because they are assumed not to have the capacity to take care of themselves. In fact, the juvenile proceedings are designed to accomplish its ends without regard to the juvenile’s competence because its absence is presumed.

As referenced by the majority, “[T]here is no doubt that the Due Process Clause is applicable in juvenile proceedings.” Schall, 467 U.S. at 263. The U.S. Supreme Court went on to note the issue in the application of the Due Process Clause “is to ascertain the precise impact of the due process clause requirement upon such proceedings.” In re Gault, 387 U.S. 1, 13-14 (1967), cited in Schall, 467 U.S. at 263. The Supreme Court then went on to note it had decided in the past that the Due Process Clause required application of certain constitutional rights enjoyed by adults and did apply to minors. The court listed the rights, including notice of charges, right to counsel, privilege against self-incrimination, right of confrontation, and proof beyond a reasonable doubt. Schall,467 U.S. 263. The Supreme Court then notes that the Constitution does not mandate elimination of all differences in the treatment of juveniles. At issue in Schall was whether preventative detention of juveniles, as set out in the New York statute, was “compatible with the ‘fundamental fairness’ required by due process.” Id. “We do not mean...to indicate that the hearing must conform with all of the requirements of a criminal trial or even that of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” In re Gault, 387 U.S. 1, 30 (1966), (citing Kent v. State, 383 U.S. 541, 562 (1966)). The Supreme Court in Schall stated that the inquiry required was two fold: whether the statute served a legitimate State objective, and whether the procedural safeguards are adequate.

Because the U.S. Supreme Court speaks of a “legitimate State objective,” the applicable test is the “rational basis test.” Arkansas Hosp. Ass’n v. Arkansas State Bd of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989). That test is whether there is any rational basis connected to a legitimate State purpose. The statute may not be arbitrary or capricious. Streight v. Ragland Comm’r, 280 Ark. 206, 655 S.W.2d 459 (1980); see also, Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999). I would hold that there is a rational basis for the juvenile code not providing for competency hearings in juvenile cases. Therefore, I respectfully dissent.

       Golden’s attorney agreed to stipulate to the facts of the case; however, he did not plead guilty; in other words, he did not stipulate to the intent. He chose to proceed to trial rather than appeal interlocutory from the court’s order regarding the competency and insanity issues.

       Although it may not be applied retroactively, it should be noted that when the General Assembly amended the juvenile code in 1999, it added an entire section on competency, found at Ark. Code Ann. § 9-27-502 (Repl. 1999). The new language provides for a determination of capacity to stand trial for juveniles charged with certain crimes (capital murder being one of them). Further, it properly provides for an “age appropriate” capacity standard to apply to juveniles, which is different than that of adults.

       It should be noted that while the applicable juvenile code does not speak in terms of insanity as a defense, the 1999 amendment has included an evaluation of the juvenile’s mental state and capacity with regard to mental disease or defect as part of the process of evaluating a juvenile under the age of thirteen who is charged with capital murder or murder in the first degree.


source: Caselaw Access Project

author: TOM Glaze, Justice.

license: Public Domain

text:
    Tillman HUNTER, Jr. v. STATE of Arkansas
    00-148
    19 S.W.3d 607
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      Ted C. Capeheart, Juvenile Judge;

      Kinard, Crane & Butler, P.A., by: David F. Butler, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Tillman Hunter, age fifteen years, ce. driving a pickup truck and passing a logging truck on Highway 71 north of Magnolia when he collided with an oncoming vehicle, containing three women, Teresa Rich, Doris Chaney, and Rachael Hill, and a fourteen-month-old girl, Kyla Hill. The three women died. One of the women was pregnant, and her fetus was killed, as well. Tillman was charged as a juvenile with three counts of negligent homicide. After a trial, and after the judge denied Tillman’s motion for directed judgment, the judge found Tillman committed the offenses, and adjudicated him a delinquent. The judge then allowed the State to introduce victim-impact evidence over Tillman’s objection. Subsequently, the judge entered a disposition order, sentencing Tillman to (1) probation until he is eighteen years old, (2) a ten-week boot camp program, and (3) performance of 400 hours of community service. Also, Tillman’s driver’s license was revoked for one year. He raises three points for reversal.

We first consider Tillman’s argument that the trial judge erred by refusing to grant a directed verdict. In making this argument, he asserts the evidence was insufficient to support the judge’s findings of negligent homicide. We disagree.

The negligent homicide offenses with which Tillman was charged are based on Ark. Code Ann. § 5-10-105(b)(l) (Repl. 1997), which provides that a person commits negligent homicide if he negligendy causes the death of another person. Section 5-10-105(b)(2) designates the offense a Class A misdemeanor. Negligence under the statute is a term of art defined under Ark. Code Ann. § 5-2-202(4) (Repl. 1997), which provides as follows:

“Negligently.” A person acts negligently with respect to attendant circumstances or a result of his conduct when he should be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. (Emphasis added.)

In the commentary to the above section, it is noted that negligent conduct is distinguished from reckless conduct primarily in that it does not involve the conscious disregard of a perceived risk. In order to be held to have acted negligently under § 5-10-105, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it. It requires only a finding that under the circumstances he should have been aware of it and his failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. See Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).

In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases. McGill v. State, 60 Ark. App. 246, 962 S.W.2d 382 (1998). When the sufficiency of the evidence is challenged on appeal, we consider only the proof that tends to support the finding of delinquency, and we view the evidence in the fight most favorable to the State. Id. We will affirm if the delinquency adjudication is supported by substantial evidence. Id.

In reviewing the record, it clearly reveals substantial evidence showing Tillman’s driving involved a gross deviation from the standard of care that a reasonable person would have observed in Tillman’s situation. Tillman had previously operated his motorcycle on this same highway and said that he was fairly familiar with the roads, as well as the double-yellow, no-passing fines. Tillman testified it was raining as he was following behind the logging truck for a couple of miles, and he had his mind set on passing the truck. He further conceded that, although he was unable to see because of the mist and spray coming from the back of the logging truck, he still attempted to pass it as he crossed double yellow fines going up a hill. Tillman also related that, when he began to pass, the mist and spray only cleared when he was about “one-third of the way up the truck,” and that is when he first saw the vehicle coming from the opposite direction over the crest of the hill. Based on these facts alone, we hold the trial judge was correct to deny Tillman’s motion for directed verdict.

We next consider Tillman’s point for reversal that the trial judge erred in allowing victim-impact evidence during the disposition stage of the proceedings. He asserts that because the intent of the disposition hearing provisions of the juvenile code is to avoid treating juveniles as criminals, see Act 763 of 1991, § 8, then victim-impact evidence has no relevance and serves no purpose other than to prod the court to impose a heavier sentence.

The statute concerning victim-impact evidence is Ark. Code Ann. § 16-97-103 (Supp. 1999). This section provides as follows: For purposes of this argument, the most relevant word in the statute is “sentencing.” Juveniles are not “convicted” and “sentenced”; they are “adjudicated” and have their cases go to “disposition.” This distinction is the very heart of the juvenile system. See Ark. Code Ann. § 9-27-302(3) (one of purposes of juvenile code is to “substitute] for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative restitution”). See also Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995) (idea behind juvenile code was “the notion of offering special protections to juveniles in the hopes of putting them on a separate track ending somewhere other than the Department of Correction”).

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following. . .:
(4) Victim-impact evidence or statements^]

Evidence presented under § 16-97-103 is intended to be used to give the sentencer, whether the trial judge or the jury, all evidence relevant to sentencing. Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997) (emphasis added). It must be relevant, and it is governed by the rules of evidence regarding admissibility and exclusion. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). While the rules of evidence and the rules of criminal procedure apply in juvenile proceedings, Ark. Code Ann. § 9-27-325(e) and (f) (Supp. 1999), § 16-97-103 is neither a rule of evidence nor a rule of criminal procedure. Section 16-97-103 and its reference to victim-impact evidence simply do not appear in those portions of the juvenile code regarding disposition. Ark. Code Ann. § 9-27-329, - 330, and -331 (Supp. 1999); cf. Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994) (sentencing is “entirely a matter of statute”).

The State argues that victim-impact evidence need only be relevant under the rules of evidence, and that the testimony in this case was relevant in that it enabled the trial court to “ascertain the seriousness of Tillman’s offenses and his behavior was sanctioned appropriately.” The argument begs the question. The court already knew that Tillman’s conduct was responsible for the deaths of three adults and a viable fetus. The delinquency petition itself informed the court that people had been killed and that Tillman was charged with three misdemeanor counts of negligent homicide. In sum, victim-impact evidence simply was unnecessary to impress upon the court the seriousness of the offense.

The State also argues that the fact that the General Assembly found victim-impact evidence to be relevant to sentencing in criminal proceedings “is an indication that it can be relevant in a juvenile-court disposition hearing.” However, juvenile disposition hearings are not criminal proceedings, and the mere fact that evidence may be relevant in one context does not mean that it is relevant in all contexts. We conclude that the trial judge was in error in ruling victim-impact evidence permissible in Tillman’s juvenile disposition hearing. We add that, if the General Assembly had intended victim-impact evidence to apply in juvenile proceedings, it could have easily and clearly provided for it.

Having held that victim-impact evidence is inapplicable in juvenile proceedings, we now address the question whether such error prejudiced Tillman and mandates a reversal. Tillman makes the point that the judge’s remarks reflect that he utilized victim-impact evidence from the six witnesses in punishing him rather than imposing a disposition based on his best interests. For example, Tillman notes the judge’s comments — based upon victim-impact testimony — that, “I hope you’ll be thinking every time you eat a tomato or hear a blue bird sing or think about Mother’s Day, the Razorbacks, all these people that you’ve caused their death, they won’t do those little things anymore.” In addition, the judge expressed a reluctance to place Tillman in the Southern Arkansas Youth Center because he “probably would not stay there two weeks.” After these remarks, the judge placed Tillman on probation until he turns eighteen years old, scheduled him for a ten-week boot camp program, required him to perform 100 hours of public service for each person killed and injured as a result of his gross negligence. The judge also suspended Tillman’s driver’s license for one year.

While the judge appeared quite mindful of the victim-impact testimony when he entered his disposition order, Tillman does not argue that the dispositions were not authorized by statute. See § 9-27-330. In fact, it could be argued that being ordered to serve any time at the youth services center might be perceived or considered to be worse than being assigned to a boot camp program or being placed on probation. In short, it is difficult to discern exactly what prejudice Tillman has suffered and how he is to be benefitted by our remanding the case for another disposition hearing. Our court will not review the severity of the dispositions so long as they were authorized by law, as is the case here. Cf., Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). Tillman has faded to show exactly how he was prejudiced by the judge’s erroneous ruling to permit victim-impact testimony in these circumstances. But see Arkansas Dep’t of Human Servs. v. State, 319 Ark. 749, 894 S.W.2d 592 (1998) (court reversed and remanded juvenile case where trial court lacked statutory authority to order commitment to a serious offender program within the youth services center). (Emphasis added.)

Finally, Tillman urges the trial judge erred because the judge sentenced Tillman on the basis of retributive punishment as opposed to considering the best interest of the juvenile. Tillman, however, never objected to the pronounced dispositions in order to preserve this point. See State v. Montague, 341 Ark. 144, 143 S.W.3d 867 (2000). Likely, no objection was interposed because the dispositions were within statutory range and lawful.

For the reasons set out above, we affirm the trial judge’s decision as modified.

       We note that negligent homicide under Ark. Code Ann. § 5-10-105(a)(l) can be a Class D felony if it is shown a person negligently causes the death of another as a result of operating a vehicle while intoxicated or if the person has one-tenth of one percent or more by weight of alcohol in his or her blood.

       The commentary to the manslaughter provision, Ark. Code Ann. § 5-10-104 (Repl. 1997), explains that, if death is produced by an actor’s reckless conduct, felony liability is imposed, but if negligent behavior is involved, § 5-10-105 provides coverage.

       He also later said that he did not remember double-yellow lines on this stretch of highway. •

       It is noteworthy to mention that Act 1192 of 1999, the Extended Juvenile Jurisdiction Act, was enacted on April 7, 1999, (after the deaths here) and it amends various provisions of the Juvenile Code. Until this new Act, victim-impact evidence was not mentioned in the Code, and even under Act 1192, none of its provisions are applicable to negligent-homicide misdemeanor offenses. See §§ 1(a)(3), 6, 7, and Ark. Code Ann. § 9-27-318 (Supp. 1999).

       This act amended Ark. Code Ann. § 9-27-330, one of the disposition sections of the juvenile code. Section 8 is the emergency clause of the act, which reads, “It is hereby found and determined by the General Assembly that it is necessary to prohibit the unnecessary incarceration of juveniles, to prohibit such juveniles from being treated as criminals, to place such juveniles under proper case; and that the immediate passage of this act is necessary for the protection of juveniles.

       We do note that, without objection, the juvenile judge here provided for 400 hours of volunteer service and § 9-27-330(a)(9) limits such service to 160 hours. We do not address whether the hours of volunteer service under the statute can be ordered in each count for which a delinquent has been adjudicated, since that argument has not been made.