State v. C. J. S.

¶1concurring in part and dissenting in part:

¶2While I concur in the majority opinion with regard to its holding that a juvenile who aids and abets an armed robbery involving the use of firearms is subject to the transfer provisions of W. Va. Code, 49-5-10(d)(l), I do not believe that its holding on the rehabilitative issue is correct.

¶3*484I am likewise unable to concur in the dissent by my Brother Neely, since I believe he misinterprets Lycans v. Bordenkircher, _ W.Va. _, 222 S.E.2d 14 (1975), and his dissent seems to suggest that W. Va. Code, 49-5-10(d)(1), requires a transfer of the juvenile to the adult court in all instances.

¶4Lycansdid not involve any radical construction of our Juvenile Act. It dealt with the question of whether an armed robbery committed by a juvenile was a capital offense under the former provisions of W. Va. Code, 49-5-3. This Code section exempted capital offenses from the jurisdiction of the juvenile court.1Lycansheld that armed robbery was a capital offense and that the juvenile court lacked jurisdiction. A similar decision had been made with regard to a juvenile charged with murder in State ex rel. Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223 (1953), cert. denied, 345 U.S. 967, 97 L. Ed. 1385, 73 S.Ct. 954. Thus, I do not believe that Lycanscan be said to have triggered the 1977 amendments to our Juvenile Act.

¶5Since we are possessed of no certain legislative history of either the 1977 or the 1978 amendments to the Juvenile Act, we can only interpret the Act by examining its provisions. As between the 1977 and the 1978 amendments in the area of transfer of juveniles, it is clear that *485W. Va. Code, 49-5-10 [1977], has undergone significant changes.2 First, in 1977, transfer was limited to children 16 years or older who had committed an offense which, if committed by an adult, would constitute a felony which was “one of violence or evidences conduct which constitutes a substantial danger to the public.” Second, it was necessary on any transfer that the court find that “there are no reasonable prospects for rehabilitating the child through resources available to the court under this article.” Furthermore, in considering the rehabilitative prospects, it was required that the court “shall consider the child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and the like.” W. Va. Code, 49-5-10 [1977].

¶6Except for this latter phrase dealing with the factors that the court should consider in regard to rehabilitative prospects, the 1978 amendments completely alter the 1977 transfer standards. The key transfer standards are set out in W. Va. Code, 49-5-10(d) [1978],3 and contain *486five categories of crimes coupled with conditions relating to age and past juvenile record.

¶7It is important to note that W. Va. Code, 49-5-10(d) [1978], does not mandate that transfer is automatic, for subsection (d) begins with the phrase, “The court may... transfer a juvenile proceeding to criminal jurisdiction. ...” [Emphasis supplied]. It is also significant that subsection (d) generally utilizes the same rehabilitative factors of the 1977 Act,4 but it no longer contains the language that the court must find that “there are no reasonable prospects for rehabilitating the child,” as did the 1977 Act.

¶8In looking at the entire pattern of W. Va. Code, 49-5-10(d) [1978], it is significant to me that subsection (1), after identifying specific serious crimes, concludes with the phrase, “the existence of such probable cause shall be sufficient grounds for transfer without further inquiry.” This is the only instance in W. Va. Code, 49-5-10(d), *487where this phrase is used. Moreover, the beginning paragraph of W. Va. Code, 49-5-10(d), requires two inquiries by the juvenile court. First, the rehabilitative potential of the juvenile, and second, the probable cause to believe he has committed a particular type of crime.5 By providing in W. Va. Code, 49-5-10(d)(l), that a finding of probable cause “shall be sufficient grounds for transfer without further inquiry,” it seems clear that as to those serious crimes in subdivision (1), the Legislature intended to relieve the court from making any further inquiry. The only other inquiry mandated in the first paragraph of W. Va. Code, 49-5-10(d), is rehabilitative potential.

¶9Thus, I believe that where, as here, a juvenile is charged with armed robbery involving the use of a firearm, an offense under W. Va. Code, 49-5-10(d)(l), the juvenile court is not required to consider rehabilitative prospects. In all other juvenile crimes, it would be required to do so, since W. Va. Code, 49-5-10(d)(2) - (5), does not contain the quoted exception found in subsection (1).

¶10I freely acknowledge that W. Va. Code, 49-5-10(d)(l) [1978], could lead to draconian results, as theoretically it is possible for a ten-year-old who accompanies an adult or older juvenile on an armed robbery to fall under this Code provision. Yet, the legislative language is too plain for me to ignore.

¶11In the final analysis, the matter is within the discretion of the juvenile court, since the transfer provision is not mandatory.