State ex rel. S. J. C. v. Fox, 14767

• Decision Date: 10 July 1980
• Docket Number: No. 14767,14767
• Citation: 268 S.E.2d 56,165 W.Va. 314
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. S. J. C. v. The Honorable Fred L. FOX, II, Judge.

Page 56

268 S.E.2d 56

165 W.Va. 314

STATE ex rel. S. J. C. v. The Honorable Fred L. FOX, II, Judge.

No. 14767.

Supreme Court of Appeals of West Virginia.

July 10, 1980.

Syllabus by the Court

1. In order for a juvenile to be properly committed to a juvenile correctional facility, W.Va.Code § 49-5-13(b)(5) (1978) requires a "finding" that "no less restrictive alternative would accomplish the requisite rehabilitation of the child." The failure to set forth such a finding on the record deprives the Court of authority to order such a commitment.

2. The sentence imposed on a juvenile's codefendants is not a material or permissible factor for the juvenile court to consider in determining the final disposition of a juvenile case and does not justify the commitment of the child to a juvenile correctional institution.

3. 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.

Jay Montgomery Brown, Fairmont, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.

McGRAW, Justice.

This original proceeding in prohibition was brought by the relator, a juvenile, to prevent the respondent, the Honorable Fred L. Fox, II, Judge of the Circuit Court of Marion County, from executing an order sentencing relator to the Department of Corrections to be placed in a juvenile correctional facility. Specifically, relator contends that respondent did not give precedence to the least restrictive alternative for disposition of the juvenile prior to sentencing in violation of W.Va.Code § 49-5-13 and that respondent thereby exceeded the legitimate powers of the Circuit Court. We find merit in relator's contentions and we award the writ.

On May 17, 1979, a juvenile petition was filed in the Circuit Court of Marion County against relator, accusing him of attempting to commit armed robbery, an act which if committed by an adult would constitute a crime under W.Va.Code §§ 61-2-12 and 61-11-8. Three other individuals were also charged in connection with the attempted armed robbery. On June 25, 1979, pursuant to plea bargaining negotiations agreeable to both parties, ¹ relator entered a nolo contendere admission to the allegations in the petition. The plea bargain was accepted by the juvenile court and the dispositional hearing was continued until October 19, 1979. On that date counsel for relator moved that the dispositional hearing be continued for three months to provide additional time for observation of relator's behavior before making a final determination as to the disposition. The motion was supported by the recommendation of the juvenile probation officer that the court grant additional time for observation. There being no objection by the State, respondent continued the hearing until January 15, 1980.

Due to scheduling problems the dispositional hearing was informally continued until January 23, 1980. After the presentation of evidence, respondent sentenced the relator to the custody of the Department of Corrections, recommending that he be placed either in the West Virginia Industrial Home for Boys at Pruntytown or the West Virginia Forestry Camp for Boys at Davis, for a period of not less than one nor more than two years, with credit being given for the period from October 19, 1979 to January 23, 1980. The effective date of the sentence was January 30, 1980. The motion of relator's counsel for a stay of execution until a transcript of the dispositional hearing could be prepared was denied. Relator then filed this proceeding seeking a writ of prohibition to restrain imposition of the sentence.

At the outset we note that prohibition lies to restrain enforcement of orders of a juvenile court which exceed the court's legitimate authority. See, State ex rel. C.A.H. v. Strickler, W.Va., 251 S.E.2d 222 (1979); State ex rel. E.D. v. Aldredge, W.Va., 245 S.E.2d 849 (1978); State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223 (1977). Having determined the propriety of this proceeding, we turn to the issues for our determination.

First, we note that in the case of a dispositional hearing, the juvenile court must set forth on the record its findings of fact and conclusions of law. W.Va.Code § 49-5-1(d) (1978). Those findings of fact and conclusions of law should justify the final disposition arrived at by the court. In order to justify incarceration of a juvenile, W.Va.Code § 49-5-13(b)(5) (1978) requires that the juvenile court make a determination that "no less restrictive alternative would accomplish the requisite rehabilitation of the child." ² We do not think that respondent complied with these statutory requirements in reaching its disposition and we are of the opinion that the dispositional order is void for that reason.

There was no determination on the record by respondent that there was no less restrictive dispositional alternative than incarceration which would accomplish rehabilitation of the relator as required by statute. This Court has previously held that with respect to proceedings to transfer a juvenile to the criminal jurisdiction of the circuit court, the failure of the juvenile court to make express findings as required by statute renders the transfer order void. State ex rel. E.D. v. Aldredge, W.Va., 245 S.E.2d 849 (1978). We find this principle to be equally applicable to dispositional orders. In order for a juvenile to be properly committed to a juvenile correctional facility, W.Va.Code § 49-5-13(b)(5) (1978) requires a "finding" that "no less restrictive alternative would accomplish the requisite rehabilitation of the child." The failure to set forth such a finding on the record deprives the court of authority to order such a commitment.

This is not to say that the mere recitation of the language of the statute will save an otherwise invalid dispositional order. See State v. M.M., W.Va., 256 S.E.2d 549 (1979). As we noted above, the court must set forth on the record findings of fact which support the conclusions required by the statute. These findings should be based on evidence in the record which relates directly to the factors required by the statute to be considered and which sufficiently supports the conclusions of law which must be set forth. Id. We think respondent's findings in this case would not justify the determination that relator's rehabilitation could not be accomplished by any less restrictive disposition than incarceration, even had respondent set forth such a conclusion on the record.

Respondent's findings of fact, although not specifically designated as such, are threefold: (1) that relator's three codefendants were incarcerated for their part in the attempted robbery; (2) that relator had previously been on "unofficial" probation in an adjoining county for another offense; (3) that the offense with which relator was charged was of a serious nature. Based on these findings of fact, respondent refused even to consider a less restrictive alternative to incarceration in relator's case.

First, we think the fact that relator's three codefendants were incarcerated was not material to the determination that relator's rehabilitation could not be accomplished by a less restrictive means than incarceration. Whether the rehabilitation of a child adjudged delinquent can be accomplished by any less restrictive means than incarceration is a determination which requires an inquiry into the individual needs and circumstances of the child and is not dependent on an automatic standard of comparative justice. This is only in keeping with the purpose of our juvenile law which is to promote the rehabilitation of troubled children rather than to punish them. W.Va.Code § 49-1-1(a) (1978); State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318 (1977). This purpose is expressed with regard to dispositions in the requirement that the juvenile court arrive at a disposition which will effect the rehabilitation of the child in the least restrictive manner concomitant with the best interests of the child and of the public. W.Va.Code § 49-5-13(b) (1978). In view of the rehabilitative purpose of our juvenile law and its emphasis on individualized assessment and treatment, we must conclude that the sentence imposed on a juvenile's codefendants is neither a material nor permissible factor for the juvenile court to consider in determining the final disposition of a juvenile case and does not justify the commitment of a child to a juvenile correctional facility. ³ We think this is particularly true where, as here, both counsel for the State and the juvenile probation officer indicated on the record that there were distinguishing factors which justified a different disposition in relator's case than that reached in the instance of his codefendants.

Respondent also found that relator had previously been on "unofficial" probation in another county prior to the commission of the offense and that that attempt at rehabilitation had proved "singularly unsuccessful." Respondent maintains that this fact, coupled with the serious nature of the offense of armed robbery, justified the incarceration of the child in a correctional facility. We disagree.

This Court has already stated that the gravity of the offense and previous acts of delinquency, their frequency, seriousness and relationship to the present charge are relevant considerations in determining the rehabilitative prospects of the juvenile. State ex rel. Smith v. Scott, 238 S.E.2d 223 (1978). We have also held that the nature of the offense is not alone sufficient to warrant transfer of juvenile proceedings to the criminal jurisdiction of the circuit court. State v. M.M., supra. As we...