Hutcherson v. Com.

• Decision Date: 03 January 1989
• Docket Number: No. 0686-87-2,0686-87-2
• Citation: Hutcherson v. Com., 375 S.E.2d 403, 7 Va.App. 534 (Va. App. 1989)
• Parties: Howard Junior HUTCHERSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 403

375 S.E.2d 403

7 Va.App. 534

Howard Junior HUTCHERSON v. COMMONWEALTH of Virginia.

Record No. 0686-87-2.

Court of Appeals of Virginia.

Jan. 3, 1989.

Kimberly B. O'Donnell (Office of Public Defender, on brief), for appellant.

Richard A. Conway, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellees.

Present: BARROW, COLE and COLEMAN, JJ.

COLEMAN, Judge.

Seventeen year old Howard Junior Hutcherson was convicted of breaking and entering, grand larceny, abduction and robbery. The Richmond Juvenile and Domestic Relations District Court, basing its decision on Hutcherson's age and the nature of the offenses, transferred him to be tried in the circuit court as an adult pursuant to Code § 16.1-269. Hutcherson objected to the transfer, contending that the juvenile court judge failed to make a required finding that he was nonamenable to treatment or rehabilitation in the juvenile system. The circuit court determined that the juvenile court's findings were proper and denied Hutcherson's motion to quash the transfer. Hutcherson challenges the refusal of both courts to dispose of his case under the provisions for juvenile offenders.

Hutcherson contends that a finding of nonamenability to treatment or rehabilitation under Code § 16.1-269(A)(3)(b) requires a juvenile court to consider the child's past contacts and prior treatments with the juvenile system. He argues that implicit in finding "nonamenability" is the requirement that a juvenile has previously been offered treatment or rehabilitation and has failed to respond. We disagree.

The plain language of Code § 16.1-269(A)(3)(b) ¹ authorizes a juvenile court judge in determining nonamenability to look to either the nature of the offense or other factors set forth in the statute. Use of the word "or" in Code § 16.1-269(A)(3)(b) allows a finding of nonamenability based solely on the nature of the offense. While past treatment efforts by the juvenile courts and the nature of the child's response are among those factors enumerated in the statute which may be considered in determining nonamenability, a past history of failure is not essential to the determination. Courts are not required to engage in a futile pursuit of juvenile treatment and rehabilitation solely because there is no history of failure to rehabilitate through the juvenile system. Other factors, particularly the nature and circumstances surrounding an offense, may establish that a juvenile offender with no prior history of treatment in juvenile court will nevertheless not be amenable to the treatment or rehabilitation services available there.

In transfer hearings, juvenile and circuit judges, when they consider the nature of the offense, must look beyond the face of the charge and consider all the circumstances surrounding the offense, the extent of the juvenile's involvement and the interests of...