CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
1. “The right of a criminal defendant to assistance of counsel includes the
right to effective assistance of counsel.” Syllabus Point 1, Cole v. White, 180 W.Va. 393,
376 S.E.2d 599 (1988).
2. “Where a constitutional right to counsel exists under W.Va. Const. art.
III, § 14, there is a correlative right to representation that is free from conflicts of interest.”
Syllabus Point 2, Cole v. White, 180 W.Va. 393, 376 S.E.2d 599 (1988).
3. “When constitutional claims of ineffective assistance of counsel, due to a conflict of interest are raised, either on direct appeal of a criminal conviction or in a habeas corpus proceeding founded on similar allegations, we apply the standard of review embodied in Syllabus Point 3 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976):
[. . .] one who claims ineffective assistance of
counsel by reason of conflict of interest in the
joint representation must demonstrate that the
conflict is actual and not merely theoretical or
speculative.”
Syllabus Point 3, Cole v. White, 180 W.Va. 393, 376 S.E.2d 599 (1988).
4. “[. . . O]nce an actual conflict is found which affects the adequacy of
representation, ineffective assistance of counsel is deemed to occur and the defendant need
not demonstrate prejudice.” Syllabus Point 4, in part, Cole v. White, 180 W.Va. 393, 376
S.E.2d 599 (1988).
5. The requirement in W.Va. Code, 49-5-7 (b) [2003] that a juvenile's parents be named as respondents in a juvenile delinquency proceeding does not create an entitlement on the part of the juvenile's parents to participate as full and separate parties in the proceeding.
6. “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.” Syllabus Point 6, State ex rel. D.D.H. v.
Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980).
Starcher, C. J.:
In this case we affirm a juvenile adjudication and disposition by a circuit court.
A juvenile petition, filed on July 13, 2000, alleged that the juvenile committed
acts which, had he been over eighteen, would have been felonies pursuant to W.Va. Code,
61-8B-4(a)(2) [1991] (second degree sexual assault upon a physically helpless victim) and
W.Va. Code, 61-10-31 [1971] (conspiracy to commit a felony). The juvenile was adjudicated
delinquent following an adjudicatory trial before a jury held from November 7 to November
9, 2001.
On appeal, the juvenile (through his original court-appointed trial counsel, who
has represented the juvenile since he was first charged) contends that the circuit court
violated the juvenile's constitutional right to the effective assistance of counsel at trial, and
that the court's dispositional order committing the juvenile to the Industrial Home for Youth,
was an abuse of discretion.
On July 13, 2000, the Fairmont City Police Department filed a juvenile petition
alleging that on the evening of July 8, 2000, the juvenile had sexual intercourse with the
victim (we omit her name) while she was physically helpless, and that the juvenile conspired
with another juvenile to commit this act.
The petition's caption listed the juvenile and his father as “Respondents,” as
required by W.Va. Code, 49-5-7(b) [2003].
(See footnote 2)
The petition stated, inter alia, that “the child and
his parent(s) or custodian(s) have the right to legal counsel at each and every stage of the
proceedings under the petition. Further, if the child cannot afford an attorney, or if the
parents, or custodian of the child cannot afford to retain an attorney to represent the child,
an attorney will be appointed to represent the child.”
The court entered an order filing the juvenile petition on July 14, 2000, which
set a preliminary hearing date of July 31, 2000. The court's order also states: “If the juvenile
and/or his/her parents or custodians do not have an attorney and cannot afford one, they
should appear before the circuit court prior to the preliminary hearing and have counsel
appointed for them.” Pursuant to the order, copies of the petition, the order filing the
petition, and summonses for the preliminary hearing were served upon the juvenile, his/her
parents or custodians, and upon the West Virginia Division of Human Services.
The juvenile was represented at a preliminary hearing (and throughout two
trials) by a publicly-paid, court-appointed lawyer (who is, as noted, the juvenile's present
counsel in this appeal). Following the preliminary hearing, the court found probable cause
to believe that the juvenile had committed an act of juvenile delinquency. The court released
the juvenile into the custody of his parents, set bond at $10,000.00, and set a curfew of 7:00
p.m. The juvenile's parents posted bond; his parents were not represented by counsel at the
preliminary hearing. However, at some point, the juvenile's father hired a private attorney.
The adjudicatory phase of the juvenile's case was tried before a jury from May
9 to May 10, 2001. Prior to trial, on May 1, 2001, the court held a hearing on, inter alia, a
motion by the prosecution in limine seeking to prevent the lawyer hired by the father from
participating in the adjudicatory hearing.
At this hearing, the juvenile's court-appointed lawyer and the lawyer hired by the father argued that the lawyer hired by the father should be allowed to participate in the adjudicatory hearing, because the naming of the parents as respondents made them separate “parties” in the proceeding.
The trial court stated that the Legislature probably did not intend that parents
be allowed to participate in an adjudicatory hearing as parties. But, the court reasoned,
because W.Va. Code, 49-5-7(b) [2003] requires the parents to be named as “respondents,”
the parents had the right to participate, as parties, with their own separate counsel, in the
adjudicatory hearing.
However, the court also held that because the court perceived that the legal
interests of the parents and the juvenile were the same, the lawyer hired by the father and the
juvenile's court-appointed lawyer should be required to act as “co-counsel.” More
specifically, the court's ruling permitted both attorneys to submit proposed jury instructions;
to call and subpoena witnesses; to give closing arguments; to submit and argue motions on
the juvenile's behalf; and to object to the State's examination and cross-examination of
witnesses.
However, the court would not permit both attorneys to cross-examine
witnesses, to voir dire the jury, or to deliver opening statements. The lawyers were to agree
between themselves as to which lawyer would conduct each of these activities.
Both lawyers objected to this portion of the ruling, each claiming that both attorneys should be entitled to examine every witness _ because both the parents and the juvenile were parties. In response to the court's ruling, neither lawyer suggested that there was or might be any potential or actual “conflict of interest” or other obstacle to a “co- counsel” arrangement between the juvenile and his parents (or between their counsel). In other words, neither lawyer challenged the court's statement that the juvenile and his parents had identical interests in the proceeding. The juvenile's court-appointed lawyer stated that he was pleased to have the participation of the parents and the lawyer hired by the father. (See footnote 3) A trial ensued, but after the jury deliberated for less than one day they informed the court that they were hopelessly deadlocked. On May 11, the court declared a mistrial. By order dated June 7, 2001, the court released the juvenile upon his previous bond. (See footnote 4)
On May 17, 2001, the lawyer hired by the father filed a “Post-Trial Motion for
Judgment of Acquittal.” On May 24, 2001, the juvenile's court-appointed lawyer also filed
a separate “Post-Trial Motion for Judgement of Acquittal.” Neither motion alleged that there
was any actual or potential conflict of interest between the juvenile and his parent, or that the
“co-counsel” arrangement had in any identified way impaired the defense of the juvenile's
or the parents' interests. Neither attorney sought to withdraw, requested that the court
appoint a guardian ad litem, or suggested that either attorney should be disqualified from
acting on behalf of the juvenile. The court denied both post-trial motions.
The case was retried to a twelve-member jury from November 8 to November
10, 2001. The lawyer hired by the father conducted voir dire;
(See footnote 5)
the juvenile's court-appointed
lawyer presented opening arguments; and either the lawyer hired by the father or the
juvenile's court-appointed lawyer (not both) cross-examined each of the States' witnesses.
(See footnote 6)
The court did not specify which lawyer should examine specific witnesses. The court
permitted the lawyer hired by the father to call several witnesses on behalf of the juvenile.
The juvenile chose not to testify. The juvenile's court-appointed lawyer and
the lawyer hired by the father both gave closing arguments. After deliberating for
approximately six hours, the jury found the charges in Counts I (sexual assault) & II
(conspiracy) of the juvenile petition to be true beyond a reasonable doubt, and thereby
adjudicated the juvenile as delinquent.
On appeal, the juvenile does not challenge the sufficiency of the evidence
supporting the jury's findings. Nor does the juvenile point to any factual element of the
charged offenses that would not have been sufficiently proven absent the alleged ineffective
assistance of counsel that forms one of the bases for his appeal. We set forth in a footnote
a summary statement of facts taken from the evidence at trial, assuming that the jury believed
those pieces of evidence consistent with their verdict. Our independent review of the record
shows that the evidence supporting these factual statements was substantial.
(See footnote 7)
We mention
such other facts as are pertinent in our discussion infra.
By order dated November 29, 2001, the court ordered the juvenile probation
department to prepare a predisposition report, and also ordered the juvenile to undergo a
sexual offender screening in order to determine his eligibility for probation.
On December 10, 2001, the lawyer hired by the father filed a second motion
for a judgment of acquittal. The same day, the juvenile's court-appointed lawyer filed a
similar motion, alleging that the juvenile was denied his “constitutional and statutory right
to cross-examine witnesses and confront his accusers.”
(See footnote 8)
The motion by the lawyer hired by
the father alleged that the juvenile's parents were denied the same right. Neither motion
mentioned any potential or actual conflicts of interest between the lawyer hired by the father
and the juvenile's court-appointed lawyer, nor between the juvenile and his parents.
The first time the issue of any potential conflict of interest was raised by either
attorney was at a post-adjudication hearing held on January 3, 2002. During this hearing, the
juvenile's court-appointed lawyer claimed that the juvenile's interests had diverged from
those of his parents.
When asked by the court to cite specific instances of such conflict, the
juvenile's court-appointed lawyer pointed only to one instance _ allegedly divergent
positions between the parents and the juvenile during plea negotiations. No affidavit or
testimony was presented regarding this alleged conflict, only a brief statement by the
juvenile's court-appointed lawyer. According to the juvenile's court-appointed lawyer, the
juvenile refused the State's plea offer against his parent's advice. The juvenile's court-appointed lawyer told the court that during these plea discussions he informed the juvenile's
parents that “. . . [his] obligation as a lawyer was to represent [the juvenile] and to honor [the
juvenile's] desires. And at that point they [the parents' and the juvenile's interests] became
opposed, Your Honor.”
When the trial court asked for any instances of actual or potential conflict at
trial involving evidence or witnesses, the lawyer hired by the father said that any details of
any such instances were protected by and would not be disclosed because of the attorney-
client privilege. Neither lawyer offered to inquire as to whether the parents or the juvenile
would agree to waive the privilege with respect to any such details.
By order dated January 29, 2002, the court denied the juvenile's motion for
judgment of acquittal.
The court held a dispositional hearing on April 2, 2002. After review of the
juvenile probation officer's pre-sentence report, a psychological profile and sex offender
evaluation, testimony by several witnesses, (including the investigating officer and several
of the juvenile's teachers) the court denied the juvenile's motion for probation and home
incarceration and committed the juvenile to the Industrial Home for Youth for a period of not
less than one nor more than five years, or until he becomes twenty-one.
1. The right of a criminal defendant to assistance of counsel
includes the right to effective assistance of counsel.
2. Where a constitutional right to counsel exists under W.Va.
Const. art. III § 14, there is a correlative right to representation
that is free from conflicts of interest.
3. When constitutional claims of ineffective assistance of
counsel, due to a conflict of interest are raised, either on direct
appeal of a criminal conviction or in a habeas corpus proceeding
founded on similar allegations, we apply the standard of review
embodied in Syllabus Point 3 of State ex rel. Postelwaite v.
Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied,
424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976):
“[. . .] one who claims ineffective assistance of
counsel by reason of conflict of interest in the
joint representation must demonstrate that the
conflict is actual and not merely theoretical or
speculative.”
4. [. . . O]nce an actual conflict is found which affects the
adequacy of representation, ineffective assistance of counsel is
deemed to occur and the defendant need not demonstrate
prejudice.
Additionally, we have stated that
[a]n ineffective assistance of counsel claim presents a mixed
question of law and fact; we review the circuit court's findings
of historical fact for clear error and its legal conclusions de
novo. This means that we review the ultimate legal claim of
ineffective assistance of counsel de novo and the circuit court's
findings of underlying predicate facts more deferentially.
State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416, 422 (1995).
The principal goal of all legal proceedings involving juveniles is to protect the juveniles' best interests. W.Va. Code, 49-1-1(a) [1999]; Syllabus Point 4, State ex rel. B.S. v. Hill, 170 W. Va. 323, 294 S.E.2d 126 (1982). Individuals under the age of 18 are presumed to be persons under a legal disability. W.Va. Code, 2-2-10(m) [1998]. This Court has ruled that they lack the capacity to make legally binding decisions. State ex rel. J.M. v. Taylor, 166 W. Va. 511, 517, 276 S.E.2d 199, 203 (1981). An infant is not legally competent to sue or be sued in his own name, but must be represented by a legally authorized person such as a guardian. W.Va. Code, 56-4-9 [1923], 56-4-10 [1923].
Although a court may appoint a guardian ad litem in a case where there may be conflicting interests of a parent, parents are their child's natural guardians, and are presumed to act in their child's best interests. State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969) (preference in the law that juvenile's natural parents serve as guardians in legal proceedings); accord, 9A Michie's Jurisprudence, Guardian and Ward § 2.
Both the Legislature and this Court have recognized that a child's parents may
play an important role in protecting the juvenile's substantive and procedural rights in
delinquency adjudications. See W.Va. Code, 49-5-2(l) [2001] (juvenile between the ages of
14 and 16 may waive Miranda rights upon the informed advice of the juvenile's parents or
custodian); W.Va. Code, 49-5-6 [1998] (parent may request jury trial on behalf of juvenile);
W.Va. Code, 49-5-9(a)(1) [1998] (court must inform juvenile and his parents of the juvenile's
right to be represented by counsel at all stages of the proceedings).
We stated in State ex rel. J.M. v. Taylor, 166 W. Va. 511, 517, 276 S.E.2d 199,
202 (1981):
An interested, friendly adult is supposed to protect an infant
from governmental coercion or pressure and to allow someone
capable of understanding the nature and consequences of the
waiver to help in decisions and protect the child from inaccurate
accounts of his statements at proceedings in which waiver is
made.
However, it does not follow that the Legislature, by requiring that parents be
named as respondents in a juvenile delinquency proceeding, intended for the parents in
juvenile delinquency adjudications to have carte blanche to participate as full and
independent parties in the proceedings.
A juvenile delinquency proceeding is not an abuse and neglect action, nor is
it a custody proceeding, nor is it a trial on a charge of “contributing to the delinquency of a
minor.” In such proceedings, parents are more clearly real parties in interest. In juvenile
delinquency proceedings, our law does not so clearly distinguish a separate parental interest,
although of course the interest of a parent in his child's custody is always present.
W.Va. Code, 49-5-7(b) [2003] requires that “parents, guardians, or custodians
shall be named in the petition as respondents, and shall be served with notice of the
proceedings . . . .” (Emphasis added.) The term “respondent” is not defined in the Juvenile
Proceedings Article of the Code. See W.Va. Code, 49-5-1, et seq.
This Court has ruled that separate statutes addressing juvenile justice “must be
read and applied in pari materia in order to give effect to the Legislative intent gathered from
the whole of the enactments.” State ex rel. M.L.N. v. Greiner, 178 W. Va. 479, 483, 360
S.E.2d 554, 558 (1987). The focus of W.Va. Code, 49-5-1 et seq. is upon the juvenile's
substantive and procedural rights, without separate or distinctive provisions regarding the
rights of parents.
(See footnote 9) See W.Va. Code, 49-5-2(e)(1)-(2) [2001] (upon the filing of a petition the
circuit court shall have jurisdiction over the juvenile); W.Va. Code, 49-5-2(h) [2001] (a
juvenile has the right to be effectively represented by counsel at all stages of the proceeding);
W.Va. Code, 49-5-2(i) [2001] (in all proceedings under this article, the juvenile shall be
afforded a meaningful opportunity to be heard, to testify, and cross examine witnesses);
W.Va. Code, 49-5-2(j) [2001] (at all adjudicatory hearings under this article, all procedural
rights afforded to adults in criminal proceedings shall be afforded the juvenile); W.Va. Code,
49-5-9(a)(1) [1998] (if the juvenile is not represented by counsel, the court must inform the
juvenile and his parents, guardian or custodian of the juvenile's right to be represented by
counsel).
When read in pari materia with the rest of the Juvenile Proceedings chapter, and in light of a parent's traditional role as the child's guardian, it is clear that the Legislature enacted W.Va. Code, 49-5-7(b) [2003], naming the juvenile's parents or respondents, in order to ensure that there is an adult present who will presumably act in the juvenile's best interests. In recognition of the important decisions a juvenile defendant may be called upon to make during a delinquency proceeding, and the ordinary desirability of parental input in these decisions, the Legislature mandated parental participation.
Even in those cases where the State provides counsel, a parent's role in a
juvenile adjudication may often be pivotal. There is ordinarily a bond of trust between a
loving parent and his child that counsel may never attain. Oftentimes parents are valuable
resources for defense counsel, providing necessary background information that the juvenile
may not know or remember. Additionally, by requiring the State to serve the parents with
a copy of the petition, the statute ensures that parents are provided with adequate notice of
the pending proceedings. In re C.R.H., 163 Ill.2d 263, 206 Ill. Dec. 100, 644 N.E.2d 1153,
(1994) (adequate notice to minor and minor's parents is mandated by the due process clause
of the Federal Constitution).
Based on all of the foregoing, we hold that the requirement in W.Va. Code, 49-
5-7 (b) [2003] that a juvenile's parents be named as respondents in a juvenile proceeding
does not create an entitlement on the part of the juvenile's parents to participate as full and
separate parties in a juvenile delinquency proceeding. Thus, the trial court's decision to
denominate and treat the parents as full “parties” during the adjudication proceeding, while
entirely understandable in light of the statutory language, was nevertheless erroneous.
(See footnote 10)
But this “party” treatment was requested by the juvenile's court-appointed
lawyer, who continues to defend the ruling in his brief to this Court. Moreover, as we
discuss infra, there is no evidence that the juvenile's defense was adversely impacted by the
trial court's ruling. The practical effect of the trial court's ruling was to allow the juvenile
to be defended both by his publicly-paid, court-appointed lawyer _ and by an additional
lawyer whose services were procured by his parents by other means. The record supports the
conclusion that the purpose and result of the lawyer hired by the father's putative
representation of the parents was merely to add another lawyer to the juvenile's defense
team. (See footnote 11)
The juvenile claims that both counsel should have been allowed to cross- examine the State's witnesses. However, the juvenile has never alleged that the juvenile's court-appointed lawyer was precluded from cross-examining any witness. Had the juvenile's lawyer and the lawyer hired by the father had any disagreement as to who should cross- examine a witness, the juvenile's court-appointed lawyer could have stood up and asked the court to resolve the issue, before the witness testified. He never did so, and there is no evidence suggesting that the juvenile's court-appointed lawyer ever relinquished control of his right to function as he pleased.
As to the question of conflicts of interest: nothing has prevented the juvenile's
lawyer from by affidavit or otherwise making a record in which he could detail any problems
he had in the juvenile's representation due to the restraints placed on counsel at trial _ or
due to the participation of the lawyer hired by the parents. There is no such record. The
juvenile seems to fault the trial court for not inquiring regarding possible conflicts. But the
court was under no obligation to investigate conflicts unless they were brought to its attention
or _ at the least _ readily assumable from the situation. Neither was the case.
Neither the juvenile or the lawyer hired by the father raised any sort of conflict during the first hearing, nor did they raise any in their post-trial motions for judgment of acquittal, after the first hearing resulted in a mistrial.
In addition to offering no factual support for the contention that any actual
conflicts existed, the juvenile's appeal offers no evidence or instance where any conflict
adversely affected his attorney's performance. Instead, the appeal speculates that the court's
“co-counsel” ruling may have required the juvenile's court-appointed lawyer to share
confidential attorney-client communications with the lawyer hired by the father; and that the
juvenile may have, because of his possible perception of the court-appointed attorney's
possible “duty” to share communications with “co-counsel,” not have told the juvenile's
court-appointed lawyer everything he needed to know in order to present an effective
defense. However, there is nothing in the record to support this sort of speculation upon
speculation.
The juvenile's only other example of an allegedly conflict-based adverse effect
of the trial court's “co-counsel” ruling is the claim that because the lawyer hired by the father
discussed a defense theory in closing argument that the juvenile's court-appointed lawyer did
not mention, the jury may have therefore perceived the juvenile's defense as “disjointed.”
The specifics of this claim are as follows: in his closing argument, the juvenile's court-
appointed lawyer argued (1) that there was insufficient evidence that actual sexual
intercourse took place; (2) that even if sexual intercourse did take place, the victim was not
“physically helpless;” and (3) that even if the victim was physically helpless, the juvenile was
nevertheless not aware of this and the State was unable to prove criminal intent.
In his closing argument, the lawyer hired by the father adopted the defense
theories that were argued by the juvenile's court-appointed lawyer. Additionally, the lawyer
hired by the father suggested to the jury another reason for finding reasonable doubt _ the
possibility that the victim was not sexually assaulted at the party, but that she instead was
assaulted on the following evening while she was staying at a friend's.
(See footnote 12)
It is not uncommon for a criminal defendant to advance two or more somewhat
contradictory theories as possible explanations of the evidence that may raise a reasonable
doubt _ hoping that one theory may connect with a juror. (When the defendant chooses to
not take the stand and tell a particular version of events, as in the instant case, presenting
multiple alternative exculpatory theories is more feasible.)
Quite obviously, there was a strategic “downside” in presenting the theory that the victim was not telling the truth in claiming that it was the juvenile who performed a sex act on her. But the juvenile's court-appointed lawyer made the same sort of suggestion about the victim's credibility, when he argued to the jury that the victim's claim of “helplessness” was false; and when he suggested that the victim willingly participated in sexual contact with the juvenile _ the court-appointed lawyer suggested that the jury could believe that the victim was “laughing and helping out” the juvenile in removing the victim's clothes.
Nothing in the record supports the conclusion that the fact that the lawyer hired
by the father made a particular argument was the result of any conflict of interest; that the
juvenile or his court-appointed lawyer questioned or opposed the advancing of any theory
by the lawyer hired by the father; or that the juvenile's defense was prejudiced by the fact
that both lawyers made closing arguments.
(See footnote 13)
As previously noted, the test in ineffective assistance of counsel cases based upon asserted conflicts of interest is actual, not theoretical or speculative, conflict, leading to an adverse effect upon counsel's performance. Syllabus Point 3, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975). Cole v. White, 180 W.Va. 393, 376 S.E.2d 599 (1988). Applying this test, we conclude that there has been no showing of any actual conflict, and we will not presume one simply by the presence of a juvenile's parents in a case in a technically erroneous posture. Additionally, there has been no showing of any adverse effect on counsel's effectiveness.
Although the first jury could not reach a unanimous result, the record in the
second trial, where the jury found against the juvenile beyond a reasonable doubt, is heavily
weighted with evidence showing that the juvenile and his friend carried a severely
intoxicated and at times unconscious young woman into a bedroom, stripped her clothes from
her, and sexually assaulted her.
The victim has now testified and been subjected to cross-examination at least three times as she told her version of the events at the party. The juvenile has refused to admit any culpable conduct; and has never, it appears, told his version of the events at the party. This, of course, was his right. But the State also had a right _ to a trial and to a jury's verdict on the issue of the juvenile's factual guilt. In the trial process, the juvenile was entitled to, and received, a zealous defense, by two experienced lawyers; and they put the prosecution and its witnesses to the test.
Clearly, a juvenile in a delinquency proceeding has the right to his or her own
counsel, and the rights and role of a juvenile's parents are just as clearly subsidiary to those
of the juvenile. The rights of the juvenile include ultimately the right to control the case _
although the special status of juveniles before the law and the law's strong interests in
protecting juveniles (even from themselves in some circumstances), and in supporting family
relationships, requires courts to see that a juvenile has the benefit of adult (and where
reasonable, parental) advice and counsel in the exercise of the juvenile's rights. In the instant
case, there is no basis for concluding that the juvenile's right to “control his case” was
impaired by the court's erroneous allowance of “party” status to the parents.
We conclude that the juvenile received a fair trial with respect to his legal guilt
or innocence; a trial in which he did not receive the ineffective assistance of counsel. We
therefore decline the juvenile's suggestion that we should reverse his adjudication and
remand this case for a third trial.
In the case of State ex rel. D.D.H. v. Dostert, 165 W. Va. 448, 471, 269 S.E.2d
401, 416 (1980), this Court stated that when the trial court has properly considered all
relevant factors, the “discretionary dispositional decisions of the trial courts should only be
reversed where they are not supported by the evidence or are wrong as a matter of law.”
Where the record discloses that such full consideration has not taken place, a dispositional
order cannot be sustained. See Larry L. v. State, 191 W. Va. 165, 444 S.E.2d 43 (1994)(per
curiam); State ex rel. S.J.C. v. Fox, 165 W. Va. 314, 268 S.E.2d 56 (1980).
In looking at the disposition in the instant case, the following facts, well shown
in the record below, are pertinent. The juvenile was adjudicated delinquent for acts which
had he been an adult would have resulted in sentences of ten to twenty-five years on the
sexual assault count and one to five years on the conspiracy count. The lower court rightly
found that the nature of the juvenile's offense was violent and horrific. As a result of the
juvenile's conduct an innocent young woman may well suffer for the rest of her life.
Despite the serious nature of the charges facing him, the juvenile showed a lack
of full appreciation of the court's authority. The State brought him to court twice for
violating the conditions of his bond. After his first violation, the juvenile was committed to
the Northern Regional Detention Center for less than a month. Although the juvenile
characterizes this treatment as “heavy-handed,” the State did not object to a subsequent
motion requesting that the juvenile be placed on home confinement. While on home
confinement, he was allowed to attend wrestling matches and baseball games. Despite the
court's admonitions, the juvenile again violated the terms of his bail. In light of the serious
nature of the charges facing him, the juvenile's conduct prior to his conviction supported the
circuit court's conclusion that the juvenile did not appreciate the seriousness of his conduct,
and in fact considered himself as the “victim” in the trial situation.
Additionally, the juvenile's parents failed to adequately supervise him, and
themselves did not appreciate or acknowledge the nature of their son's misconduct. The
sexual assault occurred at a party attended by the juvenile with no adult supervision, where
alcohol was served. The juvenile's father tried to minimize his son's bond conditions
violation. Notwithstanding the previous violations, the juvenile's father requested that the
court grant the juvenile more home confinement “windows,” stating that, “even defendants
in jail get some sort of outside recreational time,” thus reinforcing his son's belief that the
system was victimizing him. The juvenile admitted to a post-trial interviewer that he had
been using alcohol and drugs since he was twelve, and had been intoxicated a number of
times prior to the incident. But the juvenile's father stated that he was only aware of one
other occasion when his son had used alcohol. The father expressed his belief that his son's
troubles were not his own fault, but stemmed from the company he kept.
The juvenile's probation officer testified that he considered commitment to the
Industrial Home for Youth the most appropriate placement. The probation officer based his
recommendation upon the juvenile's failure to express responsibility or remorse for his
conduct, a doubt that the juvenile would respond to treatment outside of a secure facility, and
the availability of appropriate treatment at the Industrial Home.
(See footnote 15)
According to his sex offender evaluation, the juvenile's treatment index indicated that he might not be motivated for treatment, due to his unwillingness to accept his conviction. The sex offender evaluator told the court that she believed the juvenile to be amenable to outpatient treatment; but, according to her report, the juvenile, on advice of counsel, refused to discuss the facts of his case. Therefore, she had no knowledge regarding the juvenile's perception of his conduct on the evening of the incident. (See footnote 16)
From all of the interactions of the juvenile with the court, it is clear that the
court had a basis for concluding that neither the juvenile nor his parents at the time of his
disposition acknowledged or appreciated the serious wrongfulness of his misconduct, the
conditions and problems that apparently led to that misconduct or the need to take serious
steps that could lead to such an acknowledgment, appreciation, change of conditions, and
addressing of problems.
The fact that the juvenile had and has been advised by counsel not to discuss
the events leading to the charges against him and his conduct in connection with those events
_ presumably at least in part because of the possibility of a reversal of his adjudication on
appeal _ obviously impaired (and may still impair) the trial court's ability to assess the
juvenile's ability and willingness to accept responsibility for wrongdoing, to express remorse,
and to engage in rehabilitative programs, in any dispositional setting. In such circumstances,
the court must simply make do with what it has. As we stated in Syllabus Point 6 of State
ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980):
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.
Syllabus Point 3, State ex rel. S.J.C. v. Fox, W.Va., 268 S.E.2d 56 (1980) (emphasis added).
In the instant case, the court at the time of the dispositional hearing was not
only entitled but required to assume that the jury's findings were correct factually and legally;
and that the juvenile's continued unwillingness to discuss what he had done was consistent
with a demonstrated attitude of denial that, while constitutionally absolutely permissible, was
also contrary to the juvenile's best interests and his progress in rehabilitation.
Under these circumstances, we do not believe that the trial court abused its
discretion in placing the juvenile in circumstances that the court believed would be more
conducive to the juvenile's moving in the direction of appreciating the wrongfulness of his
conduct and in removing the juvenile from the circumstances that had led to his misconduct,
and placing him where he could receive assistance in developing skills to help him move
forward in a positive direction.
Having said this, we hold based on the record before us that the circuit court,
in its regular reviews of the juvenile's case, should be particularly attuned to evaluating the
juvenile's acceptance of responsibility and rehabilitative progress following this Court's
affirmance of his adjudication. The record before us suggests that the juvenile has been
making very good progress, academically and otherwise. If the appellate affirmance of the
juvenile's adjudication and disposition results in the sort of acceptance of responsibility and
acknowledgment of wrongdoing that can enhance rehabilitative progress, the circuit court
should have additional strong grounds to consider early release from confinement.