State ex rel. D. D. H. v. Dostert, Nos. 14602

CourtSupreme Court of West Virginia
Writing for the CourtNEELY; McGRAW
Citation165 W.Va. 448,269 S.E.2d 401
PartiesSTATE ex rel. D. D. H. et al. v. The Honorable Pierre E. DOSTERT, Judge, etc., Brenda Casteel, Supt., etc., etal. STATE ex rel. D. D. H. et al. v. The Honorable Pierre DOSTERT, Judge, etc., et al. STATE of West Virginia v. D. D. H.
Decision Date15 July 1980
Docket NumberNos. 14602,14603 and 14769

Page 401

269 S.E.2d 401
165 W.Va. 448
STATE ex rel. D. D. H. et al.
v.
The Honorable Pierre E. DOSTERT, Judge, etc., Brenda
Casteel, Supt., etc., etal.
STATE ex rel. D. D. H. et al.
v.
The Honorable Pierre DOSTERT, Judge, etc., et al.
STATE of West Virginia
v.
D. D. H.
Nos. 14602, 14603 and 14769.
Supreme Court of Appeals of West Virginia.
July 15, 1980.
Dissenting Opinion July 16, 1980.

Page 404

Syllabus by the Court

1. Where a child is adjudicated delinquent for having committed an act which would be a crime if committed by an adult upon evidence which would not be admissible in a criminal trial, the delinquency adjudication must be reversed.

2. Joyriding is a lesser included offense to the crime of larceny of an automobile; accordingly, syl. pt. 6 of State v. Bailey, W.Va., 220 S.E.2d 432 (1975) is overruled.

[165 W.Va. 449] 3. While under W.Va. Code, 49-5-13(a) (1978) there is an initial obligation on the part of the juvenile probation officer or the State Department of Welfare comprehensively to explore all alternative placements short of incarceration in an industrial school, once a court tentatively concludes that there is no alternative but incarceration, there is an obligation on the part of the child's retained or appointed counsel to explore all alternative placements short of incarceration in an industrial school and to present to the court a comprehensive program of rehabilitative treatment not involving incarceration. In this regard it is not sufficient for counsel to suggest upon the record as an abstract proposition that there are alternatives, but rather counsel must explore whether such alternative facilities will actually accept the child, and if so upon what terms and conditions.

4. In a juvenile proceeding it is the obligation of a trial court to make a record at the dispositional stage when commitment to an industrial school is contemplated under W.Va. Code, 49-5-13(b)(5) (1978) and where incarceration is selected as the disposition, the trial court must set forth his reasons for that conclusion. In this regard the court should specifically address the following: (1) the danger which the child poses to society; (2) all other less restrictive

Page 405

alternatives which have been tried either by the court or by other agencies to whom the child was previously directed to avoid formal juvenile proceedings; (3) the child's background with particular regard to whether there are pre-determining factors such as acute poverty, parental abuse, learning disabilities, physical impairments, or any other discrete, causative factors which can be corrected by the State or other social service agencies in an environment less restrictive than an industrial school; (4) whether the child is amenable to rehabilitation outside an industrial school, and if not, why not; (5) whether the dual goals of deterrence and juvenile responsibility can be achieved in some setting less restrictive than an industrial school and if not, why not; (6) whether the child is suffering from no recognizable, treatable determining force and therefore is entitled to punishment; (7) whether the child appears willing to cooperate with the suggested program of rehabilitation; and, (8) whether the child is so uncooperative or so ungovernable that no program of rehabilitation will be successful without the coercion inherent in a secure facility.

5. Since the treatment available in our juvenile justice system is often disguised punishment, particularly as the severity of [165 W.Va. 450] the commitment increases, the court cannot justify incarceration in a secure, prison-like facility on the grounds of rehabilitation alone; notwithstanding improvements in the educational and counseling facilities of our industrial schools, secure, prison-like facilities are still dangerous and coercive and the selection of an industrial school as the appropriate disposition must be grounded on the factors set forth in syllabus point 4 of this case, and not on the fact that treatment can be afforded more cheaply or conveniently in a secure facility.

6. "In considering the least restrictive dispositional alternative for sentencing a juvenile, a juvenile court must consider the reasonable prospects for rehabilitation of the child as they appear at the time of the dispositional hearing, with due weight given to any improvement in the child's behavior between the time the offense was committed and the time sentence is passed." Syl. pt. 3, State ex rel. S. J. C. v. Fox, W.Va., 268 S.E.2d 56 (1980).

7. Where a court interferes with energetic advocacy by a child's counsel at the dispositional stage of a juvenile proceeding and abuses his discretion in removing counsel, this Court will award a writ of prohibition.

8. Failure to cooperate with a reasonable plan of rehabilitation proposed by the court, is one factor to be considered at a juvenile disposition hearing and willful, consistent, and contumacious resistance to intelligent programs which are less restrictive than incarceration in a secure facility justify a court in committing a child to a secure facility.

[165 W.Va. 451] J. Wendell Reed, Shepherdstown, Thomas W. Steptoe, Jr., Avey, Steptoe, Perry & Van Metre, Charles Town, for relators and plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Richard L. Withers, Sp. Asst. Atty. Gen., Charleston, for respondents and defendant in error.

NEELY, Chief Justice:

In this case we shall endeavor, with some apprehension, to clarify the proper procedures at the dispositional stage of a juvenile proceeding. The facts of these three consolidated cases 1 provide an excellent opportunity

Page 406

to explore the nature of the juvenile disposition. Indeed this particular child's journey into the juvenile justice system constitutes a veritable primer on how a juvenile should not be handled by the courts under either our prior rulings or the applicable sections of Chapter 49 of the W.Va. Code.

On 25 April 1979, a delinquency petition was filed against petitioner, then a twelve-year-old female, charging her with four crimes that would be felonious had they been committed by an adult. A detention hearing was held on 27 April 1979, after which the court ordered petitioner detained at the Jefferson County Juvenile Detention Center, a section of the county jail that is reserved for juvenile offenders. 2 On that same day, the [165 W.Va. 452] court appointed J. Wendell Reed to represent the petitioner.

While in detention, a preliminary hearing was held 3 May 1979 at which two counts of the petition were dismissed and probable cause was found on the other two, namely, breaking and entering an A & P store on 20 February 1979 and grand larceny of a pickup truck on 14 April 1979. Petitioner was subsequently released into the custody of her mother, but when she missed school she was returned to the detention center without a hearing. Counsel obtained her release two days later. On 12 June 1979 petitioner was again arrested for allegedly stealing an automobile, and she was detained in the Morgan County Jail, forty miles from her home. There is no record or hearing from that detention, save the summary order which included no findings of fact.

While we will focus upon the dispositional phase of the juvenile proceeding sub judice, we must first address the numerous errors committed at the adjudicatory stage. A formal juvenile petition was prepared which charged petitioner with delinquency for having committed grand larceny of a pickup truck and breaking and entering of an A & P store. On 15 June 1979, an adjudicatory hearing was held and petitioner was found delinquent on both counts. We must reverse this case because neither count was supported by sufficient, admissible evidence to sustain the charges.

The evidence in the grand larceny charge indicated that a friend of petitioner had actually taken the truck, but that petitioner had been identified as the driver [165 W.Va. 453] shortly before the truck was recovered less than a block from where it had originally been taken. Such a finding does not support one of the requisite elements of grand larceny required in State v. Bailey, W.Va., 220 S.E.2d 432 (1975), namely, that the taking away was done "with the intent to deprive the owner of his property permanently." A juvenile is entitled to the same standard of proof as an adult: beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, with no direct or circumstantial evidence that she intended permanently to deprive the owner of the property, the conviction for grand larceny cannot stand. While the petitioner could have been convicted of joyriding under the evidence presented at the hearing, the petition did not assign joyriding as one of the grounds for delinquency. Under syl. pt. 6 of State v. Bailey, supra, the Court has held:

The offense of joyriding, as defined by W.Va.Code, 17A-8-4, as amended, is not a lesser included offense of grand larceny.

Page 407

Consequently, as the concurring and dissenting opinion in State v. Bailey pointed out, ". . . the State must elect between the two offenses when seeking an indictment, and evidence of joyriding would be an absolute defense to grand larceny while, ridiculously enough, grand larceny would be an absolute defense to joyriding. . . ." As illogical as the Court now finds the majority opinion in State v. Bailey with regard to its holding in syl. pt. 6, that was the law in West Virginia at the time that the petitioner was prosecuted and she is entitled to its benefit. Accordingly, the adjudication of delinquency for grand larceny must be reversed. However, we take this occasion to overrule syl. pt. 6 of State v. Bailey. Joyriding is obviously a lesser included offense of grand larceny of an automobile.

The delinquency adjudication for the breaking and entering of the A & P store must also be reversed because the evidence...

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48 practice notes
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...in the interstices between the statutory provisions of the respective retirement systems." Similarly, in State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 460, 269 S.E.2d 401, 410 (1980), this Court, observing the interrelationship between procedure and policy, noted that, "As David Dudley Fi......
  • State v. Demastus, No. 13862
    • United States
    • Supreme Court of West Virginia
    • September 23, 1980
    ...not a lesser offense included in grand larceny of an automobile. That point was overruled in State ex rel. D. D. H. v. Dostert, W.Va., 269 S.E.2d 401, ---- 15 Defendant's Instruction No. 10 was: The Court instructs the jury that intent to commit the alleged crime in question is one of the n......
  • State v. Lewis, No. 20930
    • United States
    • Supreme Court of West Virginia
    • July 6, 1992
    ...MacQueen, 182 W.Va. 162, 386 S.E.2d 819 (1986); Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985); State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980); State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978); Hinkle v. Bauer Lumber & Home Bldg. Ctr., In......
  • In re Smith, No. 13493.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1980
    ...of petitioner's license. In general this Court has rejected vengence as a civilized instinct. See State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 The five year rule is consistent with other decisions of this Court regarding restoration of rights after an individual has been c......
  • Request a trial to view additional results
48 cases
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...in the interstices between the statutory provisions of the respective retirement systems." Similarly, in State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 460, 269 S.E.2d 401, 410 (1980), this Court, observing the interrelationship between procedure and policy, noted that, "As David Dudley Fi......
  • State v. Demastus, No. 13862
    • United States
    • Supreme Court of West Virginia
    • September 23, 1980
    ...not a lesser offense included in grand larceny of an automobile. That point was overruled in State ex rel. D. D. H. v. Dostert, W.Va., 269 S.E.2d 401, ---- 15 Defendant's Instruction No. 10 was: The Court instructs the jury that intent to commit the alleged crime in question is one of the n......
  • State v. Lewis, No. 20930
    • United States
    • Supreme Court of West Virginia
    • July 6, 1992
    ...MacQueen, 182 W.Va. 162, 386 S.E.2d 819 (1986); Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985); State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980); State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978); Hinkle v. Bauer Lumber & Home Bldg. Ctr., In......
  • In re Smith, No. 13493.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1980
    ...of petitioner's license. In general this Court has rejected vengence as a civilized instinct. See State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 The five year rule is consistent with other decisions of this Court regarding restoration of rights after an individual has been c......
  • Request a trial to view additional results

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