Lycans v. Bordenkircher

• Decision Date: 18 November 1975
• Docket Number: No. 13552,13552
• Citation: 159 W.Va. 137,222 S.E.2d 14
• Court: West Virginia Supreme Court
• Parties: Carl Eugene LYCANS v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary.

Page 14

222 S.E.2d 14

159 W.Va. 137

Carl Eugene LYCANS v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary.

No. 13552.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1975.

Syllabus by the Court

1. A preliminary examination is not a constitutionally mandated proceeding.

2. One charged with an offense which is to be presented for indictment is entitled to a preliminary examination under the provisions of W.Va. Code, 1931, 62--1--8, as amended, and at such proceeding is entitled to the assistance of counsel.

3. One charged with a crime may waive preliminary examination.

4. A person under the age of eighteen years who is charged with the commission of a capital offense need not be transferred to the juvenile court but may, from arrest to conviction, be treated as an adult.

5. 'The term 'capital offense' as used in Code, 49--5--3, as amended, when read together with the legislative definition of 'delinquency' contained in Code, 49--1--4, as amended, means a crime which if committed by an adult is punishable by either death or life imprisonment and a person under the age of eighteen years who is charged with the offense of murder, a crime punishable by life imprisonment, is within the exception provided in Code, 49--5--3, as amended, and may be tried for such crime in any court having jurisdiction of such offense.' Point 2, Syllabus, State ex rel. Campbell v. Wood, 151 W.Va. 807, 155 S.E.2d 893.

Hostler, Logsdon & Shinaberry, Sterl F. Shinaberry, Charleston, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for appellee.

CAPLAN, Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County entered in a habeas corpus proceeding instituted in that court. Therein, the petitioner, Carl Eugene Lycans, the appellant here, sought a discharge from confinement upon sentence imposed on July 23, 1970 by the Intermediate Court of Kanawha County after his plea of guilty to the offense of 'unarmed' robbery. Thereupon, the appellant was sentenced to a term of five to eighteen years in the state penitentiary which term he is presently serving.

The appellant, Carl Eugene Lycans, sometimes herein referred to as defendant, was arrested on a warrant for armed robbery, said warrant having been issued on June 4, 1969, at which time he was sixteen years of age. Pursuant to the warrant for his arrest, the appellant was returned from the State of Florida and, on June 24, 1969, appeared before a justice of the peace. Relative thereto the docket of the justice of the peace reveals: 'The defendant waived to Grand Jury. Committed to Kanawha County Jail for Grand Jury Action. (Bond to be set by Prosecuting Attorney's office)'. This notation was contained in the office of the justice of the peace on a record designated 'Transcript of Docket--Criminal'.

Subsequently, two indictments were returned by the grand jury against this appellant, the first charging him, along with others, with the armed robbery of one Charles Watson. The second indictment charged Carl Eugene Lycans alone with the armed robbery of one Raymond Sigman. These indictments were returned at the September, 1969 Term of the Intermediate Court of Kanawha County. As reflected by an order of the Intermediate Court of Kanawha County, dated July 23, 1970, the appellant, on June 17, 1970, 'entered both a written and an oral plea of guilty to the charge of unarmed robbery, a lesser provable offense as contained in said indictment'. The second indictment alluded to above was nolled upon a motion of the state. It was upon the conviction pursuant to the guilty plea that the appellant was sentenced as noted above. That order further reveals that the appellant was assisted by counsel at the time said plea was entered.

In his attack upon the conviction and sentence in the habeas corpus proceeding in the circuit court the appellant asserted two principal grounds: (1) He was denied due process of law by virtue of the fact that he was not represented by counsel at the preliminary hearing; and, (2) neither the justice of the peace nor the intermediate court had jurisdiction to hold or try him since he was under the age of 18 years when arrested and was not transferred to the juvenile court as required by W.Va. Code, 1931, 49--5--3, as amended. Ruling against him on both assertions, the circuit court denied the writ of habeas corpus and remanded the appellant to the custody of the warden of the penitentiary. On this appeal the appellant complains that the court erred in denying relief on the aforesaid grounds and seeks a reversal of its ruling.

Of first consideration on this appeal is the appellant's contention that he was denied due process of law by not having been represented by counsel at the preliminary hearing before the justice of the peace. In this case the record reveals that although counsel was appointed on the day of the appellant's arrest and appearance before the justice of the peace, counsel was not notified thereof until a day following appellant's waiver of the preliminary hearing. It follows therefore, that if there was in fact a preliminary hearing the defendant was not represented by counsel at that stage of the proceedings.

The only account of the proceeding before the justice of the peace in the instant case is the transcript of the justice's docket. It is therein noted that the appellant waived his right to a preliminary examination, thereby indicating that he would take his chance with the grand jury. As a practical matter there is rarely a transcript of the exact happenings in such a proceeding before a justice of the peace. From the docket, however, it appears clear that the defendant was informed of his right to a preliminary hearing if he desired it. He waived it and there was no preliminary hearing.

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), it was held that a preliminary hearing is not a constitutionally mandated proceeding. See Spaulding v. Warden, W. Va. Penitentiary, (W.Va.) 212 S.E.2d 619 (1975); Adams v. State of Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1971). W.Va. Code, 1931, 62--1--8, as amended, provides that 'the preliminary examination shall be conducted by a justice * * * unless the defendant waives examination.' As heretofore noted, the defendant waived preliminary examination.

Since such examination is not required under either the state or federal constitution, the failure to furnish counsel in the circumstances of this case does not give rise to a constitutional consideration, unless a different conclusion is required by the fact that this defendant was a juvenile under 18 years of age.

Under W.Va. Code, 1931, 49--1--4(2), as amended, a delinquent child means 'a person under the age of eighteen years who: (2) Commits an act which if committed by an adult would be a crime Not punishable by death or lief imprisonment'. (Emphasis supplied) This appellant was charged by warrant and indictment with the offense of armed robbery. If that offense is punishable by life imprisonment, the defendant, under existing law, need not be charged with child delinquency but could be charged with a crime.

We are of the opinion that by reason of the character and gravity of the offense with which the defendant was charged, the crime of armed robbery rather than child delinquency, he was subject to prosecution as an adult, and, as an adult, could waive a preliminary hearing. Succinctly stated, the defendant, by reason of the character of the offense, as hereinafter discussed, was not a juvenile under the law and could constitutionally waive preliminary examination without the assistance of counsel as could an adult.

This brings us to the second ground assigned by the appellant. He contends that by reason of his juvenile status, being under 18 years of age, the justice of the peace and the intermediate court did not have lawful jurisdiction over him. In support thereof he cites W.Va. Code, 1931, 49--5--3, as amended, which in 1969, provided:

Except as to a violation of law which if committed by an adult would be a capital offense, the juvenile court shall have exclusive jurisdiction to hear and determine criminal charges * * * against a person who is under eighteen years of age at the time of the alleged offense.

If during the pendency of a criminal proceeding against a person in a court other than a juvenile court, it shall be ascertained, or it shall appear, that the person was under the age of eighteen years at the time of the alleged offense, the court, judge or magistrate shall immediately transfer the case with all the papers, documents, and testimony connected therewith to the juvenile court having jurisdiction.

An examination of the above quoted statute clearly reveals that the juvenile court shall have exclusive jurisdiction of a juvenile offender, 'Except as to a violation of law which if committed by an adult would be a capital offense.' Necessarily, thereunder, if a juvenile commits a capital offense he is no longer under the exclusive jurisdiction of the juvenile court but may be tried as an adult. The appellant in the instant case, in two separate indictments, was charged with two separate offenses of armed robbery. Does the commission of this crime constitute a capital offense? If so, the defendant is subject to the jurisdiction of the justice of the peace and the circuit court and is subject to the same treatment afforded an adult.

As noted above, the definition of 'delinquent child' excludes one who committed an offense punishable by death or life imprisonment. W.Va. Code, 1931, 49--1--4(2), as amended. Similarly, W.Va. Code, 1931, 49--5--3, as amended, excludes from the exclusive jurisdiction of the juvenile court one who is charged with the commission of a capital offense. Although a capital offense ordinarily connotes an offense punishable by death, such punishment is not a necessary...