E.B., Jr. v. Canterbury

• Decision Date: 26 June 1990
• Docket Number: No. 19565,19565
• Citation: 183 W.Va. 197,394 S.E.2d 892
• Court: West Virginia Supreme Court
• Parties: E.B., JR., V.E.B., and M.D.H., all Juveniles Under the Age of Eighteen Years v. Honorable Thomas B. CANTERBURY and the Honorable John C. Ashworth, Judges of the Tenth Judicial Circuit, and Lawrence R. Frail, Prosecuting Attorney of Raleigh County.

Page 892

394 S.E.2d 892

183 W.Va. 197

E.B., JR., V.E.B., and M.D.H., all Juveniles Under the Age of Eighteen Years v. Honorable Thomas B. CANTERBURY and the Honorable John C Ashworth, Judges of the Tenth Judicial Circuit and Lawrence R. Frail, Prosecuting Attorney of Raleigh County.

No. 19565.

Supreme Court of Appeals of West Virginia.

June 26, 1990.

Syllabus by the Court

1. "When a court finds that there is probable cause to believe that a juvenile has committed one of the crimes specified in W.Va. Code, 49-5-10(d)(1) (treason, murder, robbery involving the use of or presenting of deadly weapons, kidnapping, first-degree arson, and first-degree sexual assault), the court may transfer the juvenile to the court's criminal jurisdiction without further inquiry...." Syl. Pt. 2, in part, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981).

2. The State must follow the juvenile proceedings set forth in W.Va. Code §§ 49-5-1 to -18 (1986), and may not circumvent any rights guaranteed by constitution or statute by obtaining an indictment against a juvenile before the transfer hearing is held and a transfer to adult jurisdiction is deemed to be warranted by the circuit court. Until a juvenile is transferred to adult status, a grand jury has no jurisdiction to return a true bill against him.

Lee H. Adler, Co-Chairperson, Tenth Judicial Circuit Public Defender Bd. and Michael E. Froble, Chief Public Defender, Tenth Judicial Circuit, Beckley, for E.B., Jr., V.E.B., and M.D.H.

Kristen L. Keller, Chief Deputy Pros. Atty., and Mark Neil, Asst. Pros. Atty., Beckley, for Thomas Canterbury, John C. Ashworth, and Lawrence R. Frail.

WORKMAN, Justice:

This case is before this Court pursuant to a request by petitioners for a writ of mandamus and/or prohibition. The petitioners are three juveniles charged with capital offenses. Two of the petitioners request this Court to issue a writ of mandamus directing the prosecuting attorney of Raleigh County to dismiss indictments brought against them. The third petitioner requests this Court to issue a writ of prohibition directing the prosecuting attorney to refrain from pursuing an indictment against him and the respondent judge to refrain from acquiescing in the presentment of his case to the grand jury. The petitioners contend that the respondent prosecuting attorney's practice of seeking criminal indictments against juveniles prior to following statutory procedure for transferring them to adult criminal jurisdiction effectively denies them rights guaranteed by the United States and West Virginia Constitutions and by W.Va. Code §§ 49-5-1 to -18 (1986). We find that the practice of obtaining an adult criminal indictment against a juvenile before holding a transfer hearing is improper and that the prosecuting attorney is required to follow the statutory juvenile proceedings set forth in W.Va. Code §§ 49-5-1 to -18. Petitioner E.B., Jr., who is fourteen-years-old, was charged by a juvenile petition with aiding and abetting in a murder which occurred on January 9, 1990. E.B., Jr. was released on bond by the Honorable Chief Judge Ashworth. At the preliminary hearing on January 18, 1990, the state moved to dismiss the charges against E.B., Jr. The prosecuting attorney informed the court that the petition needed to be amended to charge E.B., Jr. as a principal and that further investigation was needed to determine whether this juvenile should be transferred to adult status. Indication was given that if E.B., Jr. was determined to be a candidate for transfer to adult status, an indictment would first be sought. ¹ Defense counsel objected at that time to the prosecuting attorney's intentions. Counsel for E.B., Jr. made the argument that this method of dismissing juvenile charges and indicting the juvenile as an adult circumvented the juvenile proceedings set up in W.Va. Code §§ 49-5-1 to -18. In particular, he argued that if an indictment is obtained and the juvenile is subsequently transferred to adult jurisdiction, the juvenile is denied protection provided by the juvenile statutory law, such as the right to a preliminary hearing and the possibility of an improvement period. Judge Ashworth granted the state's motion to dismiss, but did order that counsel be appointed to represent E.B., Jr. even though he was not then under any criminal charges.

On November 4, 1989, V.E.B., who is sixteen-years-old, was arrested and charged by juvenile petition with murdering another youth on November 3, 1989. A preliminary hearing was not set pursuant to the juvenile statutory procedure, but V.E.B. was instead indicted by the grand jury on January 11, 1990, for first degree murder. Six days later, the prosecuting attorney filed a motion to transfer V.E.B. to criminal jurisdiction in Raleigh County, citing W.Va. Code § 49-5-10(d)(1) as authority to transfer. ² Counsel for V.E.B. objected to the transfer to adult jurisdiction at the transfer hearing held on January 25, 1990. Counsel argued that the State's failure to proceed under the juvenile statutes and instead to indict the juvenile deprived him of his constitutional and statutory rights. At this hearing, the prosecuting attorney agreed to continue the matter in order to permit review of this procedure by this Court.

Petitioner M.D.H. was also indicted by the grand jury on January 11, 1990. M.D.H., who is fourteen-years-old, was charged with five counts of first degree sexual assault and sexual abuse. The record shows that a juvenile petition was filed against M.D.H. in December 1989, but apparently no action was taken pursuant to the juvenile statutes. The prosecution made a motion to transfer M.D.H. to adult jurisdiction and the transfer hearing for M.D.H. was held on January 25, 1990. The same arguments were made with regard to M.D.H. as had been made in the case of V.E.B. As with V.E.B., the matter of transfer of M.D.H. was continued to allow review of this procedure by this Court.

In the case before us, petitioners contend that procedures set forth in the juvenile statutes were not followed; and that the state's practice of obtaining indictments against juveniles prior to transfer to adult criminal jurisdiction is violative of W.Va. Code §§ 49-5-1 to -18 and constitutes a deprivation of rights guaranteed under the West Virginia and United States Constitutions. Respondents argue that this Court has expressly determined in Arbogast v. R.B.C., 171 W.Va. 737, 301 S.E.2d 827 (1983) that a juvenile can be tried under an indictment which was returned prior to holding a transfer hearing where the court subsequently relinquished its juvenile jurisdiction.

In resolving this issue, it is necessary to review the statutes relating to juvenile proceedings. The current juvenile statute, W.Va. Code §§ 49-5-1 to -18 was amended and revised substantially in 1977. The revisions and amendments to this statute resulted in a much more detailed account of how a juvenile accused of criminal conduct is to be taken through the criminal process, and what rights he should be afforded at each step of the process. It is interesting to note that the transfer section, 49-5-1, was added in the 1977 amendments to the juvenile statute. Prior to the 1977 amendments, a juvenile charged with a capital offense was not entitled to special treatment as a juvenile offender, and was instead subject to adult criminal jurisdiction immediately by virtue of the nature of the offense charged. See W.Va. Code § 49-5-3 (1975); State ex rel. Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223 (1953); cert. denied, 345 U.S. 967, 73 S.Ct. 954, 97 L.Ed. 1385 (1953).

Under current law, when a person under the age of eighteen commits an offense which would be a criminal offense if committed by an adult, ³ such person is charged with that offense by means of a juvenile petition, pursuant to W.Va. Code § 49-5-7(a). West Virginia Code § 49-5-9(a) provides that once a petition has been filed and the juvenile is in custody, a preliminary hearing shall be held within ten days. At this preliminary hearing, the juvenile is informed of his right to be represented by counsel at all stages of the proceedings and is informed of his right to a jury trial. W.Va. Code § 49-5-9(a)(1) and -(5). The juvenile is entitled at this preliminary hearing to move for an improvement period for a time period not to exceed one year. ⁴ If the court determines at the conclusion of the preliminary hearing that there is probable cause to believe the child is a delinquent child, the next step in the juvenile process is an adjudicatory hearing. W.Va. Code § 49-5-9(a)(3).

Once the adjudicatory hearing is set, the prosecuting attorney may file a written motion at least eight days prior to the hearing date, asking the court to transfer jurisdiction of the matter from juvenile to adult jurisdiction. A transfer hearing shall be held within seven days of the filing of the motion to transfer unless a continuance is granted for good cause. W.Va. Code § 49-5-10(a). According to W.Va. Code § 49-5-10(d)(1),

The court may, upon consideration of the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is a probable cause to believe that: The child has committed the crime of ... murder ... [or] sexual assault in the first degree ...;

We found, however, in State ex rel. Cook v. Helms, 170 W.Va. 200 , 292 S.E.2d 610 (1981), that:

When a court finds that there is probable cause to believe that a juvenile has committed one of the crimes specified in W.Va....