State v. R. H.

Decision Date19 December 1980
Docket NumberNo. 14386,14386
Citation166 W.Va. 280,273 S.E.2d 578
PartiesSTATE of West Virginia v. R. H.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. W. Va. Code § 49-5-10 does not violate the due process provisions of our state and federal constitutions.

2. The 1978 amendments to W. Va. Code § 49-5-1 et seq. respecting juvenile proceedings were not intended to apply retroactively to control proceedings which arose from the alleged commission of a criminal act at a time when the 1977 Act was in effect.

3. Where a juvenile court errs in determining which of two statutory enactments applies to transfer proceedings results in the refusal of the juvenile to testify in his own behalf because the statute erroneously applied deprives him of a substantial statutory protection granted him under the other statute, the error is prejudicial to the juvenile and will be reversed on appeal.

Howard M. Persinger, Jr., Williamson, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice.

In this appeal from an order of the Circuit Court of Mingo County, the appellant, R. H., challenges the transfer of his case from the court's juvenile jurisdiction to its criminal jurisdiction. He contends, among other things, that the lower court erred in holding the 1978 amendments to the juvenile law applicable to the transfer hearing as well as to subsequent proceedings and in admitting prior testimony of several witnesses. The appellant also contends that the 1978 amendments to the juvenile law are unconstitutional in that they violate due process requirements. We find merit in several of the appellant's contentions and we reverse the order of the circuit court.

The appellant, then seventeen years old, was charged by delinquency petition with the murder on August 31, 1977, of Pearlis Daugherty, an act which if committed by an adult would constitute a felony by virtue of W. Va. Code § 61-2-1 (Replacement Vol 1977). On September 17, 1977, the State filed a motion requesting transfer of the juvenile proceeding to the criminal jurisdiction of the circuit court, pursuant to Article 5 of the 1977 juvenile law (hereinafter the 1977 Act) which was then in effect, specifically W. Va. Code § 49-5-10 (Cum.Supp.1977). The transfer hearing was set for September 24, 1977, the same date set for the appellant's preliminary hearing, but upon the motion of the State, the transfer proceeding was continued generally. In the meantime, the grand jury had returned an indictment against the appellant, charging him with the crime of murder.

Before any further proceedings were conducted with respect to the transfer motion, the legislature, on March 11, 1978, amended W. Va. Code §§ 49-5-1 to 17, dealing with juvenile proceedings. On July 17, 1978, on which date the 1978 amendments were in force and effect, the State filed an amended motion for transfer and a hearing was set for July 27, 1978. After taking the testimony of one witness in the form of a deposition at the transfer hearing, the court, uncertain as to whether the 1977 Act or the 1978 amendments should control the proceedings, requested that the parties brief the issue and continued the hearing until August 24, 1978.

At the transfer hearing, the court ruled, over the appellant's objection, that the 1978 amendments were applicable to the transfer hearing and to all subsequent proceedings. The appellant's counsel announced that he could not permit the appellant to testify in his own behalf at the hearing because the 1978 amendments did not preclude the use of such testimony at subsequent proceedings as did the 1977 Act. 1 On November 15, 1978, the court granted the State's motion for transfer. The order for transfer contained findings of fact and the court's conclusion that the State had shown by clear and convincing proof that there was probable cause to believe appellant had committed the offense and that there were no reasonable prospects for the rehabilitation of the child. It is from this order that this appeal is taken.


The appellant first argues that the 1978 amendments to section 10 of the juvenile law, respecting transfer of juvenile proceedings to criminal jurisdiction, are unconstitutional in that they do not afford appellant minimum due process protections. Specifically, the appellant alleges that because W. Va. Code § 49-5-10 (Cum.Supp.1978) does not require the court to find that there are no reasonable prospects for rehabilitation of the child through the resources available to the court, it denies appellant a meaningful hearing as required by Kent v. U. S., 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and by our decision in State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973). We do not agree.

Both Kent and McArdle, supra, recognize that due process requires a juvenile be afforded a meaningful transfer hearing before the court can waive the juvenile jurisdiction. 2 The United States Supreme Court appended to the Kent decision a policy memorandum setting out certain factors to be considered by a judge in reaching a determination as to whether the court should relinquish its juvenile jurisdiction in favor of criminal jurisdiction. We adopted the Kent criteria as providing guidelines to judges attempting to resolve the question of whether to transfer juvenile proceedings under our juvenile law in State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223 (1977). We take this opportunity to reiterate those guidelines The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court's jurisdiction over such offenses will be waived are the following;

1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.

2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

3. Whether the alleged offense was against persons or against property, greater weight being given to the offenses against persons especially if personal injury resulted.

4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment ...

5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in (another court).

6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.

7. The record and previous history of the juvenile including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.

8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available to the Juvenile Court. 383 U.S. at 566-567, 86 S.Ct. at 1060. (emphasis added)

In Smith we noted that while the legislature may statutorily require juvenile courts to consider certain factors in deciding to grant a motion for transfer, such mandate does not preclude consideration of other criteria. Of course, at the time of our decision in Smith, the 1977 Act was in force and effect and a finding by the juvenile court that there were no reasonable prospects for the child's rehabilitation was statutorily mandated under the Act as a prerequisite to transfer of jurisdiction. W. Va. Code § 49-5-10(a) (Cum.Supp.1977). The 1978 amendments to section 10 did not specifically require such a finding. We do not think, that the action of the legislature in omitting from the juvenile transfer statute certain of the Kent standards precludes consideration of those factors. Rather we see the Kent standards as a complement to our juvenile statute and equally applicable under the 1978 amendments as we found them to be under the 1977 Act in Smith.

The Kent criteria "have largely set the standards for other courts and ... have been the model for statutes governing transfer hearings in other jurisdictions. (citations omitted)" State ex rel. Smith v. Scott, supra. They are viable concerns of any juvenile court faced with the decision of whether to relinquish juvenile jurisdiction, especially in view of the rehabilitative purpose of our juvenile law and the intent of the legislature that transfer should be the exception and not the rule. See W. Va. Code § 49-1-1(a) (Cum.Supp.1978); State ex rel. S.J.C. v. Fox, W.Va., 268 S.E.2d 56 (1980); State v. D.W.C., W.Va., 256 S.E.2d 894 (1979); State v. Bannister, W.Va., 250 S.E.2d 53 (1978); State ex rel. Smith v. Scott, supra; State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318 (1977). The legislature has recognized the importance of the Kent criteria by incorporating several of them into the 1978 juvenile law. 3 This Court has expressly recognized other of those factors to be valid considerations in determining whether to waive juvenile jurisdiction. 4 4 There is no indication in the 1978 amendments to the juvenile law that the legislature intended to weaken the importance of these factors in a juvenile court's decision to relinquish jurisdiction. While the 1978 transfer section does not expressly require a finding that no reasonable prospects for the rehabilitation of the child exist before the court may transfer the proceedings to the criminal division, neither does it preclude the juvenile court from considering evidence which shows that the retention of juvenile jurisdiction will accomplish the rehabilitative purpose of the juvenile law. Indeed, W.Va. Code § 49-5-10(d) (Cum.Supp.1978), requiring the court to consider, among other factors, the child's home environment,...

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