Thomas v. Leverette

• Decision Date: 19 December 1980
• Docket Number: No. 14771,14771
• Citation: 273 S.E.2d 364,166 W.Va. 185
• Court: West Virginia Supreme Court
• Parties: Steven Ray THOMAS v. Bobby J. LEVERETTE, Warden, West Virginia Penitentiary.

Page 364

273 S.E.2d 364

166 W.Va. 185

Steven Ray THOMAS v. Bobby J. LEVERETTE, Warden, West Virginia Penitentiary.

No. 14771.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

The crime of armed robbery was not intended to be included in that class of crimes designated "capital offenses" for the purposes of W.Va.Code § 49-5-3 (1975), excluding from the juvenile jurisdiction of the circuit court juveniles charged with the commission of acts which would be "capital offenses" if committed by an adult.

J. David Cecil, Charleston, for petitioner.

Chauncey H. Browning, Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

Steven Ray Thomas appeals from an order of the Circuit Court of Kanawha County which denied his petition for a writ of habeas corpus, whereby he sought to be released from the custody of the appellee, Bobby J. Leverette, Warden of the West Virginia State Penitentiary. The appellant contends that at the time of his arrest and conviction on a charge of armed robbery he was entitled to a hearing to determine whether he was subject to the juvenile jurisdiction of the circuit court and that the failure to afford him such a hearing rendered his conviction void. We agree and reverse the ruling of the circuit court.

The facts of the case are undisputed. In January 1976, the appellant was indicted along with three others on two counts of armed robbery alleged to have been committed in December of 1975. It has been stipulated that the appellant was sixteen years old at the time of his arrest upon these charges. On July 7, 1976, the appellant entered a plea of guilty to one count of armed robbery in the Circuit Court of Kanawha County, having been informed that upon entering such a plea, he was ineligible to be considered for probation. On July 30, 1976, the appellant was sentenced to confinement in the West Virginia State Penitentiary for a term of fifteen years. Subsequent to his sentencing, the appellant was sent to Huttonsville Correctional Center for diagnostic evaluation and was then transferred to the State Penitentiary. On September 9, 1976, upon motion of the State, an order was entered by the Circuit Court of Kanawha County to nolle prosequi the remaining armed robbery charge against the appellant.

On August 19, 1978, the appellant filed a petition for a writ of habeas corpus with this Court, alleging that the failure of the circuit court to afford him a hearing before it assumed criminal jurisdiction over his case resulted in a void conviction of the crime of armed robbery. This Court issued the writ prayed for, directing the appellant to appear before the Circuit Court of Kanawha County for further proceedings. A hearing was held on September 27, 1978, at which time the appellant presented his arguments. The circuit court found that, in view of certain prior decisions of this Court, the appellant was properly subjected to the criminal jurisdiction of the circuit court and was not entitled to a transfer hearing. It is from this order denying relief and dismissing the petition that the appellant takes this appeal.

The appellant's first contention is that he was entitled to be tried as a juvenile under the statute in effect at the time of his arrest and conviction because he was only sixteen years old at the time the offense was committed. Prior to the 1977 amendments, our juvenile law provided in material part "(e) xcept as to a violation of law which if committed by an adult would be a capital offense, the (circuit) court shall hear and determine criminal charges in the manner provided in (article 5 of the juvenile law) ... against a person who is under eighteen years of age at the time of the alleged offense." W.Va.Code § 49-5-3 (1975). This provision authorized the circuit courts to exercise juvenile jurisdiction over youthful offenders and to take evidence respecting the alleged commission of a criminal act by a juvenile only for the purpose of determining whether the juvenile was a delinquent. Such proceedings related only to delinquency charges and were in no sense criminal trials for which criminal penalties could be imposed. Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d 526, 527 (1967); State ex rel. Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223 (1953). The statute expressly denied to the circuit courts the authority to try juveniles on delinquency charges where the criminal act charged would have constituted a "capital offense" if committed by an adult. The authority to try such offenses remained within the criminal jurisdiction of the circuit courts. State ex rel. Hinkle v. Skeen, supra. The State, while admitting that the appellant was under eighteen years of age at the time the offense for which he was convicted was committed, maintains that the appellant was charged with committing a "capital offense" and was therefore not subject to the juvenile jurisdiction of the circuit court under W.Va.Code § 49-5-3 (1975). Thus, our resolution of this issue must turn on whether armed robbery constitutes a "capital offense", within the meaning of that statute, so as to deprive the circuit court of juvenile jurisdiction over the appellant's case.

A "capital crime" is one which may be, but not necessarily must be, punished by death. Black's Law Dictionary, p. 184 (5th ed. 1979). See also 6 Words and Phrases, "Capital Crime", "Capital Offense" (1966). Thus, a capital offense is one for which death is the maximum possible penalty, even though lesser alternative penalties are prescribed and may actually be imposed in a particular case. Some jurisdictions have held that the term "capital offense" also denotes a category of particularly serious or heinous offenses which were classified as "capital" by the legislature because of their gravity. See U. S. v. Watson, 496 F.2d 1125 (4th Cir. 1975); Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975); People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972); People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (1975); Hudson v. McAdory, 268 So.2d 916, 923 (Miss.1972); Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824 (1973); State v. James, 30 Utah 2d 32, 512 P.2d 1031 (1973); State v. Haga, 81 Wash.2d 704, 504 P.2d 787 (1972). In these cases it was held that the judicial invalidation of the death penalty pursuant to the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), did not destroy the "capital" character of offenses previously punishable by death for purposes of statutory distinctions between capital and non-capital offenses with respect to bail, severance of trial, removal, number of jurors, number of preemptory challenges, number of appointed counsel, retention of jurisdiction, and other procedural matters.

West Virginia appears to have adopted this "classification" theory, at least with respect to the jurisdiction of the circuit court over juvenile proceedings. Our legislature abolished the death sentence as punishment for crimes in 1965. 1965 W.Va.Acts, ch. 40. In State ex rel. Campbell v. Wood, 151 W.Va. 807, 155 S.E.2d 893 (1967), the Court read § 49-5-3 in pari materia with W.Va.Code § 49-1-4(2), which defined "delinquent child" as "... a person under the age of eighteen years who * * * (c)ommits an act which if committed by an adult would be a crime not punishable by death or life imprisonment ..." (emphasis of the Court), and concluded that for purposes of determining juvenile jurisdiction, the legislature intended to embrace within the class of "capital offenses" those crimes carrying a statutory penalty of life imprisonment as well as those punishable by death. Thus, the Court held that even though the death penalty had been statutorily abolished in West Virginia at the time of the offense, the crime of murder, which thereafter carried a mandatory penalty of life imprisonment, retained its "capital" character for the purpose of excluding from the juvenile jurisdiction of the circuit court a juvenile charged with murder.

In Lycans v. Bordenkircher, W.Va., 222 S.E.2d 14 (1975), the Court extended the reasoning of Campbell to exclude from juvenile jurisdiction persons under the age of eighteen who were charged with the offense of armed robbery. The statutory penalty for armed robbery was and is confinement in the penitentiary for "not less than ten years". W.Va.Code § 61-2-12. No maximum penalty is prescribed by statute, but it has been held that a sentence of life imprisonment may be legally imposed upon a person convicted of armed robbery. State ex rel. Faircloth v. Catlett, W.Va., 267 S.E.2d 736 (1980); State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283 (1953); State v. Newman, 108 W.Va. 642, 152 S.E. 195 (1930); Franklin and Ponto v. Brown, 73 W.Va. 727, 81 S.E. 405 (1914). The Lycans court concluded that since one convicted of armed robbery could possibly be sentenced to life imprisonment, that crime was within the class of "capital offenses" for purposes of the statutory exception to juvenile court jurisdiction.

We think, however, that the Court in Lycans failed to see an important distinction between that case and Campbell, supra. In Campbell, the Court was dealing with a criminal statute which specifically provides for the imposition of a sentence of life imprisonment upon conviction. W.Va.Code § 61-2-2. Thus, if we accept the classification theory first adopted in Campbell, it is clear that the legislature intended the crime of murder of the first degree to be included within the category of "capital offenses" for the purpose of excluding juveniles from the juvenile jurisdiction of the circuit court. Other crimes which require determinate life sentences and are thus included in the class of "capital offenses" include treason, W.Va.Code § 61-1-2; kidnapping, W.Va.Code § 61-2-14a; and certain offenses by...