State ex rel. Cook v. Helms

• Decision Date: 07 July 1981
• Docket Number: No. 15189,15189
• Citation: 170 W.Va. 200,292 S.E.2d 610
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. S. M. COOK, M.D.P.S. v. Teressa HELMS. *

Page 610

292 S.E.2d 610

170 W.Va. 200

STATE of West Virginia ex rel. S. M. COOK, M.D.P.S. v. Teressa HELMS. ^*

No. 15189.

Supreme Court of Appeals of West Virginia.

July 7, 1981.

Dissenting Opinion June 23, 1982.

Syllabus by the Court

1. Where it appears that it would be impossible to serve notice of a juvenile transfer hearing in a criminal case in time to give all parties concerned adequate opportunity to prepare for the hearing, good cause is shown for the continuance of that hearing beyond the seven day limit prescribed by W.Va.Code, 49-5-10(a) [1978].

2. 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. To the extent this holding is inconsistent with State v. R. H., 166 W.Va. 280, 273 S.E.2d 578 (1980) and State v. C. J. S., 164 W.Va. 473, 263 S.E.2d 899 (1980), those cases areoverruled.

Andrew S. Nason, Charleston, Peter A. Hendricks,Madison, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Richard S. Glaser, Jr., and Janet Frye Steele, Asst. Attys. Gen., Charleston, for appellee.

NEELY, Justice:

This is an appeal from a decision by the Circuit Court of Lincoln County transferring the seventeen-year-old appellant, Teressa Helms, from juvenile jurisdiction to the court's criminal jurisdiction pursuant to W.Va.Code, 49-5-10 [1978].

On 29 September 1980 Helms was charged by petition with murder under W.Va.Code, 61-2-1 [1923]. As a result of a detention hearing on the same day she was detained at the Southern Regional Detention Center. At that time the court also ordered psychological and psychiatric evaluations. On 6 October 1980 the juvenile referee held a probable cause hearing at which the State introduced evidence that Helms had cooperated with two adult males in the shotgun murder of Ernie P. Neal. At the close of the evidence, the juvenile referee found that there was probable cause to believe that Helms had committed the crime of murder alleged in the petition.

A motion to waive juvenile jurisdiction pursuant to W.Va.Code, 49-5-10(a) [1978] was filed on 20 October 1980. At the transfer hearing on 31 October 1980, the court heard testimony from three witnesses for the State and three witnesses for the appellant. The State's witnesses were a juvenile probation officer, a clinical psychologist, and the juvenile referee. The appellant presented the director of a youth service agency, the operator of the Southern Regional Detention Facility, and a therapist for Boone Human Services. The court also reviewed the psychiatric and psychological reports.

On 22 December 1980, the court entered an order granting the motion to transfer. The order incorporated an opinion letter dated 16 December 1980 in which the court stated, in part:

[T]he court finds that she has average intelligence, is competent to stand trial in this matter, and has heard no evidence to indicate to the court that if found guilty of the charge of murder in this case, that she should be given any special treatment simply because she was several months short of her eighteenth birthday.

The letter also stated that the court found probable cause to believe that she had committed the crime of murder.

The appellant seeks reversal on the basis of two primary assignments of error: first, the transfer hearing did not take place within the seven days prescribed by statute from the date of the State's motion to waive juvenile jurisdiction; and, second the court did not make a finding concerning appellant's suitability for rehabilitative treatment under the juvenile laws.

I

W.Va.Code, 49-5-10(a) [1978] provides that a transfer hearing "shall be held within seven days of a filing of a motion unless it is continued for a good cause." In this case there was good cause to continue the transfer hearing beyond the seven day limit since W.Va.Code, 49-5-10(a) [1978] also provides that, before a court may conduct a transfer hearing, there must be "reasonable notice to the child, the parents ... and the child's counsel." At the time of the motion to transfer, the appellant was locked up at a detention facility four hours away from Lincoln County; her parents lived in North Carolina; and her attorney lived outside of Lincoln County. Given these circumstances and the several days necessary to effect service of process by United States Mail, the court granted a continuance of the hearing to provide "reasonable notice" to all necessary parties. ¹ Had a continuance not been granted, all parties could not adequately have prepared for the hearing. Hence we find no error in postponing the transfer hearing beyond seven days.

II

Turning now to the appellant's second assignment of error, we hold today 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.Code, 49-5-10(d)(1), ² the court may transfer the juvenile to the court's criminal jurisdiction without further inquiry. To the extent this holding is inconsistent with State v. R. H., 166 W.Va. 280, 273 S.E.2d 578 (1980) and State v. C. J. S., 164 W.Va. 473,263 S.E.2d 899 (1980), those cases are overruled.

We reach this conclusion on the basis of a close examination of the provisions of the W.Va.Code, 49-5-10(d) as amended in 1978. ³ The standards for transfer are set out in this provision, which contains five categories of crimes coupled with conditions relating to age and past juvenile record. With respect to four of the categories, subsections (2) through (5), the statute provides that, before ordering a transfer, the court must do two things: first, consider the juvenile's "mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors" and second, find that there is probable cause to believe that the juvenile committed one of the crimes described in the four subsections. However, with respect to subsection (1), dealing with the most serious crimes, transfer may be ordered solely on a finding of probable cause to believe that the child committed any one of those enumerated crimes. Subsection (1) contains a clause which is not found in any of the other four subsections. This clause provides that, when probable cause is found as to one of the crimes listed in subsection (1), "the existence of such probable cause shall be sufficient grounds for transfer without further inquiry...." From this we conclude that the Legislature intended to relieve courts from making any inquiry into the juvenile's "personal factors" when the court believes that the seriousness of the crime alone warrants the child's being treated as an adult. State v. C. J. S., 164 W.Va. 473, 270 S.E.2d 135 (1980) (Miller, J., concurring in part and dissenting in part).

The 1978 revision of W.Va.Code, 49-5-10(d) was intended to eliminate the impossible burden of proof previously required of the State in a transfer hearing. Under the earlier statute on this subject the State had to demonstrate that there were no reasonable prospects of rehabilitation and that the child was so beyond redemption that there was no choice but to treat the child as an adult felon. E.g., State v. Bannister, 162 W.Va. 447, 250 S.E.2d 53 (1978); State ex rel. E. D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978). However, while the trial courts are now insulated from a subjective review concerning whether there was "sufficient evidence" to support their conclusion to transfer, the statute does not preclude a trial court judge from considering evidence about the child's "personal factors," even in circumstances where the child is accused of the enumerated serious crimes.

The trial court may still determine to treat a child under the juvenile laws, even where serious crimes are committed, if the court believes such treatment is warranted. In the present case the court did more than required by Code, 49-5-10(d). He conducted a thorough inquiry into the appellant's personal background and heard from five witnesses concerning the appellant's mental and physical status, which we conclude is an entirely commendable approach to a very difficult problem.

Accordingly, for the reasons set forth above, the judgment of the Circuit Court of Lincoln County transferring the appellant to the jurisdiction of the criminal court is affirmed.

Affirmed.

McGRAW, Justice, dissenting:

I dissent to syllabus point 2 of the majority opinion which, in effect, overrules not only State v. R. H., supra, and State v. C. J. S., supra, but an entire line of decisions which heretofore guaranteed fundamental constitutional protections for juveniles. The majority is apparently of the belief that the West Virginia and United States Constitutions do not apply to persons who are unfortunate enough to be less than eighteen years of age and accused of one of the crimes enumerated in W.Va.Code § 49-5-10(d)(1) [1978]. It occurs to me that all juveniles, regardless of the crime of which they are accused, are entitled to due process, and I therefore cannot agree with the majority's position.

In Kent v. United States, 383 U.S. 451, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court held that due process requires that a juvenile be afforded a meaningful transfer hearing before the court can waive juvenile jurisdiction. We adopted and applied the holding of Kent in State v. McCardle, 156 W.Va. 409, 194 S.E.2d 174 (1973), where we stated:

Certainly, juveniles should not be immune from appropriate disciplinary action when they violate the law, but juvenile proceedings, ostensibly under the philosophy of parens patriae, do not permit procedural arbitrariness. Under the guise of parental protection the...