IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2008 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
JAMES LEE BROOKS, III,
Defendant Below, Appellant
Appeal from the Circuit Court of Monongalia County
The Honorable Robert B. Stone, Judge
Case No. 05-F-69
Submitted: April 15, 2007
Filed: May 23, 2008
Marcia L. Ashdown
Monongalia County Prosecuting Attorney
Bader C. Giggenbach
Morgantown, West Virginia
Morgantown, West Virginia
Counsel for the Appellee
Counsel for the Appellant
JUSTICE ALBRIGHT delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Where the issue on appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo
standard of review. Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L.
, 194 W.Va. 138, 459 S.E.2d 415 (1995).
2. Where transfer of a juvenile delinquency proceeding from the juvenile
jurisdiction of the court to the adult criminal jurisdiction is mandatory pursuant to West
Virginia Code § 49-5-10(d)(2) (2001) (Repl. Vol. 2004), there is no statutory impediment
that prevents the State from charging the juvenile by indictment with offenses that were not
included in the transfer motion and/or hearing provided those additional offenses flow from
the same factual allegations of criminal activity that were the subject of the transfer
James Lee Brooks, III, appeals his convictions for conspiracy to commit first-
degree robbery, malicious assault, and conspiracy to commit malicious assault. Because he
was transferred from juvenile to adult jurisdiction solely on a charge of first-degree robbery,
Appellant argues that the trial court was required to dismiss counts two, three, and four of
the indictment issued against him by the grand jury sitting for Monongalia County as the
additional charges set forth in those counts were not considered at the transfer hearing.
Upon our review of this matter, we conclude that the trial court did not commit error by
permitting Appellant to be convicted and sentenced on charges that were factually connected
to the first-degree robbery charge. Accordingly, the decision of the Circuit Court of
Monongalia is affirmed.
I. Factual and Procedural Background
On February 12, 2005, Appellant was charged pursuant to a juvenile
delinquency petition with the offense of first-degree robbery by violence. Mr. Brooks was
seventeen years old at the time of the alleged crime. The robbery charge was filed in
connection with an incident occurring on that same date in which Appellant and two other
juveniles severely injured a victim during an attempted robbery by beating, kicking, and
stomping him. (See footnote 1)
The victim remains in a persistent vegetative state and is not expected to
emerge from that condition.
Following a hearing on May 5, 2005, Appellant was transferred from the
juvenile jurisdiction of the circuit court to its adult criminal jurisdiction. See
§ 49-5-10(d)(2) (2001) (Repl. Vol. 2004). On May 13, 2005, the grand jury returned an
indictment against Appellant, charging him with first-degree robbery, conspiracy to commit
first-degree robbery, malicious assault, and conspiracy to commit malicious assault.
On June 17, 2005, Appellant filed a motion to dismiss counts two, three, and
four of the indictment on the grounds that the transfer motion filed by the State was
predicated solely on first-degree robbery charges. When Appellant presented this motion
at a pre-trial hearing on June 27, 2005, the trial court requested that the parties submit briefs
on this issue. After considering the matter in full at a hearing on October 24, 2005, the trial
court denied Appellant's motion to dismiss counts two, three, and four of the indictment (See footnote 2)
and ordered that the matter proceed to trial on all four of the counts contained in the
At the conclusion of the trial held on these charges in November 2005,
Appellant was found guilty on each of the four charges. The trial court sentenced Appellant
to two to ten years confinement for the malicious assault conviction; a concurrent sentence
of one to five years for conspiracy to commit malicious assault; forty-five years for first-
degree robbery; and a concurrent sentence of one to five years for conspiracy to commit
robbery. The trial court ordered that the robbery sentence was to run consecutive to the
malicious assault sentence.
Through this appeal, Appellant seeks a reversal of the trial court's decision not
to dismiss counts two, three, and four of the indictment, the counts containing the charges
for conspiracy to commit first-degree robbery; malicious assault, and conspiracy to commit
malicious assault. Appellant maintains that the trial court did not have jurisdiction to try him
on any charges other than the first-degree robbery charge as that charge was the sole charge
considered at his transfer hearing.
II. Standard of Review
Our standard of review is plenary as we recognized in syllabus point one of Chrystal R.M. v. Charlie A.L.
, 194 W.Va. 138, 459 S.E.2d 415 (1995): Where the issue
on appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo
standard of review. We proceed to determine whether the
lower court had jurisdiction to proceed to trial on the charges brought against Appellant that
are set forth in counts two, three, and four of the indictment at issue.
Arguing that this case presents a matter of first impression, Appellant
maintains that the transfer statute under discussion requires that any charges upon which the
State seeks to have a juvenile tried as an adult must be state[d] with particularity upon
written motion. W.Va. Code § 49-5-10(a). Because the charges other than first-degree
robbery were not included as part of the State's motion to transfer, Mr. Brooks argues that
he was denied his due process rights at the transfer hearing in connection with those
Responding to Appellant's argument, the State looks to additional statutory
language in the transfer statute that requires the trial court to examine a variety of factors
including the juvenile's age; physical condition; maturity; emotional attitude; home
environment; school experience; prior history of juvenile delinquency; the nature of the
instant charge; and prior efforts at rehabilitation within the juvenile system. See
Code § 49-5-10(a), (d), (e), (f), (g). In compliance with the provisions of the transfer statute,
the State presented evidence at the transfer hearing regarding all of the above factors as well
as specific details with regard to the assaultive conduct it alleged Mr. Brooks had committed
upon the victim. (See footnote 3)
Because the evidence presented at the transfer hearing encompassed
conduct which pertained to all of the counts of the indictment and not just the robbery
charge, the State contends that the transfer statute should not be interpreted to prohibit the
In deciding how to interpret the juvenile transfer statute, the trial court looked
for guidance to decisions issued by appellate courts in Kansas and Georgia. (See footnote 4)
By relying on
the same decisional authority as the trial court, Rhode Island recently decided that additional
charges can be brought in criminal court provided they are related to the same nucleus of
facts at issue in the transfer hearing. See State v. Day
, 911 A.2d 1042 (R.I. 2006).
the Rhode Island Supreme Court addressed the issue of whether the Attorney General could
charge a juvenile who had been transferred from the jurisdiction of the family court with
offenses different from and/or in addition to those upon which the waiver decision was
effected. 911 A.2d
at 1044. Identifying the matter as one of first impression, the appellate
court closely examined its statutory language to determine whether the legislature intended
for the waiver that occurs following a transfer hearing to be a complete waiver of personal
jurisdiction or merely a waiver of jurisdiction for the particular offense for which waiver
was originally sought. Id
. at 1047.
As an initial matter, the Court in Day
acknowledged that the great majority
of courts faced with this question have held that prosecutors may charge a child who is
waived from juvenile court jurisdiction with any crime that arises from the conduct for
which the waiver was sought. 911 A.2d at 1051. After reviewing the decisions of other
states on this issue as well as the history of its family court system, the Rhode Island
Supreme Court reasoned that once a decision to transfer jurisdiction to the criminal courts
has been reached, there is no limitation to the charges that may be lodged against the child
in the adult court, as long as those charges spring from the nucleus of operative facts upon
which the Family Court waiver of jurisdiction was based. Day, id.
In crafting its ruling, the Court in Day
found the reasoning employed in State
, 876 P.2d 177 (Kan. App. 1994), to be persuasive. Addressing whether a
juvenile could be charged in adult court with charges not raised at the waiver hearing, the
Court articulated in Randolph
[t]he juvenile court is to make the judicial determination of
whether a juvenile should remain within the province of the
juvenile court and not determine what charges the State can file.
Once the juvenile court decides to waive jurisdiction . . . and the
respondent [juvenile] appears in the criminal court as a
defendant, the criminal court acquires personal and subject
matter jurisdiction over the case. The criminal court can try any
additional charges that might arise from the same set of facts
that spawned the juvenile case . . . . The State does not have to
return to juvenile court and again seek its waiver of jurisdiction.
It is sufficient that the procedure starts in juvenile court.
Id. at 180-81.
In the case before us, the trial court found wisdom in the reasoning employed
by the appellate court in Rocha v. State, 506 S.E.2d 192 (Ga. App. 1998). Like the
Appellant in this case, the defendant in Rocha contended that the State wrongfully charged
him with crimes that were not the subject of the transfer hearing. In rejecting this ground,
the Court expounded on the futility of requiring pointless procedural steps:
Our Supreme Court has previously held: '[T]he
concurrent jurisdiction of the superior court over capital
felonies committed by juveniles must necessarily extend to
related lesser crimes which are part of the same criminal
transaction. To rule otherwise would be to bisect criminal
conduct artificially and require the state to follow two
procedures with no substantive meaning other than to satisfy
procedural requirements, with the end result that the case
involving the lesser crime would be instituted in juvenile court
and transferred to the superior court . . . . There is no loss of
substantive protection of the juvenile, and the public's rights
should not be impeded by meaningless procedural steps which
delay the judicial process and conceivably could lead to the
frustration of justice under the rigorous requirements of the
double jeopardy clause.'
Rocha, 506 S.E.2d at 195 (quoting Reynolds v. State, 466 S.E.2d 218 (Ga. 1996)).
Advocating that we adopt the clear minority position, Appellant maintains that
if the State wishes to charge a transferred juvenile with offenses that were not the subject
of the transfer motion or hearing, it should be required to return to the court of original
jurisdiction for an additional transfer hearing on those charges. While acknowledging the
judicial inefficiency of such a requirement, Appellant nonetheless maintains that its position
is compelled by rules of statutory interpretation. In contrast to some statutes that include
language providing for the filing of new charges after the transfer has been effected,
Appellant contends that our Legislature has not authorized the State to bring additional
charges without first holding a transfer hearings on those charges. See, e.g., R.I. Gen. Law
§ 14-1-7.1(c) (2002 ) (providing that waiver of juvenile jurisdiction is for the offense upon
which the motion is based as well as for all pending and subsequent offenses of whatever
nature); Tenn. Code Ann. § 37-1-134(c) (2005) (providing that transfer terminates
jurisdiction of the juvenile court with respect to any and all delinquent acts with which the
child may then or thereafter be charged). Given the absence of similar express
authorization for the filing of additional charges following a transfer in our statute,
Appellant argues that the statute should be construed against the government and in favor
of the individual, with transfer being the exception and not the rule. See Syl. Pt. 1, State v.
D.D., 172 W.Va. 791, 310 S.E.2d 858 (1983) (holding that ambiguous statutory language
should be construed against transfer under well-established principle that transfer should be
exception and not the rule).
Whereas an actual statutory ambiguity was presented in D.D. _ whether the
commission of two simultaneous crimes could invoke the mandatory transfer provision (See footnote 5) _
there is no comparable issue of ambiguous language in this case. See 172 W.Va. at 796, 310
S.E.2d at 862-63. Instead, the question presented here is whether the Legislature intended
to transfer both personal and subject matter jurisdiction to the criminal courts as the result
of the waiver of juvenile jurisdiction that is effected at the conclusion of a successful
transfer hearing. See W.Va. Code § 49-5-10.
In this case, transfer from the juvenile court to the adult criminal court was
mandatory based upon the provisions of West Virginia Code § 49-5-10(d)(2). That
provision compels transfer where the charged offense is one of violence to the person which
would be a felony if the juvenile were an adult and the charged juvenile has been
previously adjudged delinquent for an offense that is a felony but for the child's age. Id. Appellant does not take issue with the mandatory nature of the transfer required in this case.
He does take issue with the State's position that it has the authority to charge a juvenile upon
a transfer with additional offenses that were not raised at the transfer hearing but which arise
from the same factual core of alleged criminal activity.
Attempting to vitiate the reasoning employed in Day, Appellant cites language
in the Rhode Island statute that expressly extends the waiver of juvenile jurisdiction to all
pending and subsequent offenses. R.I. Gen. Law § 14-1-7.1(c). Critically, however, the
appellate court's analysis was not impelled by that statutory language. Rather than focusing
on that language, the court was interpreting separate statutory language that referred to
waiver based on the offense charged and referral to adult court for the offense.
Consequently, the Rhode Island Court was faced with the exact issue we are: whether the
adult charges must be precisely aligned with those brought pursuant to the transfer hearing. See Day, 911 A.2d at 1046-47. In reasoning through this issue, the Rhode Island Supreme
Court found both the non-adjudicatory nature of the waiver hearing and the potential
infringement on the charging powers of the state to be persuasive arguments in favor of
allowing the state to charge a transferred juvenile with additional charges arising from the
nucleus of operative facts that served as the basis for the waiver motion. Id. at 1053. In the case before us, the trial court observed that the language of the transfer
statute refers to the transfer of a juvenile proceeding rather than the transfer of a particular
charge. W.Va. Code § 49-5-10(d). As the trial court implicitly recognized, the objectives
that are to be accomplished at the transfer hearing are limited to determining whether there
are statutory grounds for a transfer. And, as the court in Randolph aptly reasoned,[t]he
juvenile court is to make the judicial determination of whether a juvenile should remain
within the province of the juvenile court and not determine what charges the State can file.
876 P.2d at 180 (emphasis supplied). Given the restricted purpose of the transfer hearing,
the Court in Day allowed that it would be illogical to conclude that the Legislature intended
to give the Family Court the power to dictate what charges an Attorney General may bring
in the adult court. 911 A.2d at 1053.
By demanding that the prosecuting attorney be required to petition for the
transfer of a juvenile to adult criminal jurisdiction on all the charges for which the state
ultimately will be indicting, Appellant claims that he is not seeking to frustrate the judicial
process but merely attempting to require procedural compliance. (See footnote 6) More persuasive to this
Court, however, is the reasoning applied in Rocha that by requiring multiple transfer
hearings where the offenses at issue derive from the same pattern of facts the result is a
meaningless elevation of form over substance. 506 S.E.2d at 195. Additionally, as the
State observes, Appellant's due process violation is essentially a hollow claim in a case such
as this where no additional protections will be afforded a juvenile defendant at a second
transfer hearing. Because the evidence that would be offered by the State at a subsequent
transfer hearing on offenses arising from the conduct that was initially charged in the
juvenile petition essentially would mirror the evidence presented at the first transfer hearing,
it stands to reason that Appellant was not effectively denied the opportunity to cross examine
witnesses or to present witnesses pertaining to the alleged offenses. We observe that the
juvenile court retains no discretion for entertaining additional matters that arise following
a mandatory transfer. (See footnote 7) Accordingly, there is no procedural basis for holding a secondary
transfer hearing before the juvenile court subsequent to a mandatory transfer.
Based on the foregoing, we hold that where transfer of a juvenile delinquency
proceeding from the juvenile jurisdiction of the court to the adult criminal jurisdiction is
mandatory pursuant to West Virginia Code § 49-5-10(d)(2), as in this case, there is no
statutory impediment that prevents the State from charging the juvenile by indictment with
offenses that were not included in the transfer motion and/or hearing provided those
additional offenses flow from the same factual allegations of criminal activity that were the
subject of the transfer hearing.
Having determined that the trial court did not commit error in refusing to
dismiss counts two, three, and four of the indictment, the decision of the Circuit Court of
Monongalia is hereby affirmed.
Appellant claims that he did not participate in the attack on the victim and
only touched the victim's body while attempting to prevent the attack from continuing.
In its order entered on November 18, 2005, the trial court ruled that the
correct interpretation of the juvenile transfer code [sic] in West Virginia is that personal and
subject matter jurisdiction is conferred upon the criminal court once transfer of the juvenile
has been effected.
The State notes that the details of the assault were presented at each of the
Appellant's hearings as a juvenile: the detention hearing; the preliminary hearing; and the
juvenile transfer hearing.
See State v. Randolph
, 876 P.2d 177 (Kan. App. 1994), Rocha v. State
S.E.2d 192 (Ga. App. 1998).
This Court held that the mandatory transfer provision of West Virginia Code
§ 49-5-10(d) required a temporally previous adjudication of delinquency and not just the
contemporaneous commission of more than one crime that would be a felony if committed
by an adult. See D.D.
, 172 W.Va. at 792, 310 S.E.2d at 858-59, syl. pt. 2.
Notwithstanding our ruling in this case, we express a clear preference for the
state to include all offenses in the transfer motion and hearing on which it will seek to obtain
an indictment against a juvenile defendant where the evidence supports the filing of such
charges. Although we recognize the inapplicability of the criminal rules of procedure at the
nonadjudicatory phase of a transfer hearing, we encourage the state to identify all the
offenses upon which it will seek to charge the juvenile with upon transfer in the interest of
promoting both full disclosure and to avoid piecemeal litigation. Cf.
(requiring mandatory joinder of two or more offenses that are known or should have been
known by the exercise of due diligence to the attorney for the state at the time of the
commencement of the prosecution).
In contrast, the juvenile court clearly does retain jurisdiction to hear additional
matters in those cases where transfer is discretionary.