State v. J.S.

• Citation: 757 S.E.2d 622,233 W.Va. 198
• Decision Date: 27 March 2014
• Docket Number: No. 13–0890.,13–0890.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. J.S., Defendant Below, Petitioner.

233 W.Va. 198

757 S.E.2d 622

STATE of West Virginia, Plaintiff Below, Respondent

v.J.S., Defendant Below, Petitioner.

No. 13–0890.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 19, 2014.

Decided March 27, 2014.

Syllabus by the Court

1. When a juvenile is taken into custody for violating the terms of a post-adjudicatory home confinement order, he or she must be promptly brought before a circuit court for a summary hearing as required by W. Va.Code § 62–11B–9 (2013) (Supp.2013) and W. Va.Code § 62–12–10 (2013) (Supp.2013).

2. “There is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law[.]” Syllabus, in part, State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585 (1965).

3. “To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.” Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

4. At a juvenile disposition hearing, a circuit court may consider all information contained in a diagnostic evaluation that was performed pursuant to Rule 40 of the West Virginia Rules of Juvenile Procedure.

5. “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) [2012] 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 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.” Syllabus point 4, State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980).

6. A circuit court's failure to advise a juvenile delinquent of his or her right to appeal after a disposition proceeding is sufficient grounds for relief only when the juvenile is prejudiced by the court's error.

Phillip S. Isner, Curnutte Law Offices, Elkins, West Virginia, and Angieszka Collins, Keyser, WV, for Petitioner.

Patrick Morrisey, Attorney General, Julie A. Warren, Assistant Attorney General, Charleston, WV, for Respondent.

DAVIS, Chief Justice:

This is an appeal by J.S., a juvenile,¹ from an order of the Circuit Court of Barbour County adjudicating him as a delinquent for burglary and battery under two separate juvenile petitions and placing him in a level four juvenile detention facility until he reaches the age of twenty-one. In this appeal, J.S. contends that the circuit court erred because it (1) failed to hold a detention hearing on the burglary petition and a preliminary hearing on the battery petition; (2) overlooked the requirement to enter a timely adjudicatory order on the burglary petition; (3) considered improper hearsay evidence at the disposition hearing; (4) neglected to commit him to the least restrictive placement; (5) failed to advise him of his right to appeal; and (6) declined to schedule a review hearing. After a careful review of the briefs, the record submitted on appeal, and listening to the argument of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

Around 3:30 p.m., on December 14, 2012, J.S. unlawfully entered a side door to the garage of Michael and Cindy Chevechko's home in Belington, West Virginia. ² After J.S. entered the garage, he spent several minutes trying to break open a door that led to the inside of the home. Mrs. Chevechko was at home alone and heard the noise in her garage.³ Mrs. Chevechko locked herself in her bathroom and, at some point, telephoned her mother for help. Mrs. Chevechko's mother drove to the home and confronted J.S.⁴ After being confronted by Mrs. Chevechko's mother, J.S. left the home without further incident.

A juvenile petition charging J.S. with burglary was filed on January 18, 2013. The circuit court entered an order on the same day appointing counsel for J.S. and setting a preliminary hearing for February 11, 2013. The preliminary hearing was convened as scheduled. However, at the hearing, J.S.'s attorney informed the circuit court that J.S. was “prepared to waive the preliminary hearing ... and proceed to adjudication and admit the allegations contained in the petition.” The circuit court thereafter extensively questioned J.S. as to the voluntariness of his decision to admit to the allegations in the petition and informed him of his right to trial by jury and other rights.⁵ J.S. stated that his admission to the allegations in the petition was voluntary and that he understood his rights and the consequences of giving up those rights. J.S. described to the circuit court his conduct in breaking into the garage and his attempt to enter the home. ⁶ J.S. stated that he was trying to get into the home to steal alcohol to take to a party. J.S. admitted to being on a prescription pain pill called hydrocodone at the time of the burglary.⁷ The circuit court then asked J.S.'s parents about his behavior.⁸ The circuit court was informed that J.S. (1) smoked marijuana; ⁹ (2) was truant from school for a month and a half when he was in the eighth grade; (3) got into trouble for fighting another student in his freshman year at high school; (4) was expelled from school in his sophomore year for exposing himself; and (5) lost his drivers' license allegedly because of a speeding ticket and driving without a seatbelt.

At the conclusion of the hearing, the circuit court indicated that it was concerned about whether J.S. should be in a detention facility pending the dispositional hearing. The circuit court ultimately decided to allow J.S. to be placed on home confinement with his parents. J.S. was told that he could go to school but that he was not allowed to go anywhere else without his parents. J.S. was placed under the supervision of the circuit court's probation department. The circuit court informed J.S. that if he violated the conditions for home confinement, he would be placed in a detention facility pending the final disposition hearing. The circuit court ordered a psychological, drug, and family assessment be performed while the case was pending. Thereafter, the circuit court entered a Preliminary/Adjudicatory Hearing order on February 27, 2013.

Also on February 27, 2013, the prosecutor filed a second juvenile petition against J.S. The second petition charged J.S. with committing a battery against a high school student on February 21, 2013, only ten days after the adjudicatory hearing on the burglary charge. After the petition was filed, the circuit court entered an order on the same day setting a preliminary hearing for March 22, 2013. The order also appointed J.S. the same counsel that represented him in the burglary case. In a separate order entered under the burglary case, the circuit court ordered J.S. be removed from his parents' home and placed in detention pending the disposition hearing in the burglary case.

On June 7, 2013, the circuit court held a joint adjudicatory hearing in the battery case and a disposition hearing in the burglary case.¹⁰ The victim in the battery case, C.B., testified at the hearing. The victim stated that J.S. locked him in a closet at school by tying a rope around the door. The victim was able to cut through the rope. After the victim got out of the closet, J.S. hit him in the knee with a shovel and punched him in the groin. The victim also indicated that “earlier in the year [J.S.] poured brake cleaner on me and poured kitty litter in my hair, coat and pants pockets.” In response to questioning by the circuit court, the victim stated that, during his freshman and sophomore years, J.S. would “usually come up to me every day and hit me or something.” The victim stated that he did not report the bullying incidents to anyone. J.S. also testified during the battery proceeding. J.S. stated that he and another unnamed student lured C.B. into the closet as a prank. According to J.S., several students, including J.S., had been locked in the closet as a prank on the day that C.B. was locked in the closet. J.S. also testified that C.B. walked up to him after getting out of the closet and that he extended his hand in friendship to C.B., but C.B. grabbed his hand and twisted his thumb. J.S. stated that he struck C.B. in an effort to get him to release his thumb. J.S. denied bullying C.B. At the conclusion of J.S.'s testimony, counsel for both parties presented closing arguments. After listening to the same, the circuit court s...