State of West Virginia v. J.C.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

_______________ FILED

No. 17-0713 May 17, 2019

released at 3:00 p.m.

_______________ EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Respondent

v.

J.C.

Juvenile below, Petitioner

________________________________________________________

Appeal from the Circuit Court of Berkeley County

The Honorable Laura Faircloth, Judge

Case No. 17-JD-30

APPEAL DISMISSED AS MOOT,

REMANDED TO CIRCUIT COURT FOR FURTHER PROCEEDINGS

________________________________________________________

Submitted: January 16, 2019

Filed: May 17, 2019

Matthew Brummond, Esq. Patrick Morrisey, Esq.

Public Defender Services Attorney General

Charleston, West Virginia Lindsay S. See, Esq.

Counsel for the Petitioner Solicitor General

Gordon L. Mowen, II., Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for the State of West Virginia

JUSTICE HUTCHISON delivered the Opinion of the Court.

SYLLABUS

“Moot questions or abstract propositions, the decision of which would avail

nothing in the determination of controverted rights of persons or of property, are not

properly cognizable by a court.” Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60

S.E. 873 (1908).

i

HUTCHISON, Justice:

In the instant case, the circuit court found a juvenile accused of delinquency

not competent to proceed. “It is a fundamental guaranty of due process that a defendant

cannot be tried or convicted for a crime while he or she is mentally incompetent.” Syl. Pt.

5, in part, State v. Hatfield, 186 W.Va. 507, 413 S.E.2d 162 (1991). The Legislature has

adopted various statutes to allow adult criminal defendants to be evaluated and treated for

competency.1 The Legislature has rightly and vigorously protected this fundamental right

for adult criminal defendants. The same cannot be said for a juvenile who faces an

accusation of delinquency. The Legislature has not created any statutory procedure to

protect a juvenile’s due process right to competency. As we discuss below, we call upon

the Legislature to create a process to address the unique competency and mental health

needs of juveniles facing delinquency proceedings, to protect those children who do not

understand the adversarial process being brought against them by the State.

In the vacuum created by the absence of legislation, the circuit court applied

a competency statute designed to address adult defendants and not juveniles. Under that

statute, the court placed the juvenile in a mental health facility for a period of thirty-five

years, as though the juvenile was an adult. The juvenile appeals that ruling. However,

evidence suggests that the juvenile has since been restored to competency. As we discuss

below, this new evidence renders the juvenile’s appellate arguments moot.

1

See generally W.Va. Code §§ 27-6A-1 to -11.

1

I. Factual and Procedural Background

In February 2017, petitioner J.C. was seventeen years old. The State alleged

in a juvenile petition that on February 6, 2017, J.C. “did unlawfully, feloniously and

forcibly engage in sexual contact” with a ten-year-old child. That same day, law

enforcement officers detained J.C. and, at least twice, advised him of his right to remain

silent. J.C. nevertheless admitted to some form of sexual activity with the ten-year old, so

the officers formally took him into custody.

A lawyer was appointed to represent J.C. at his February 6th emergency

detention hearing. Before the hearing, J.C.’s lawyer spoke with the arresting law

enforcement officer, and the officer expressed concerns about J.C.’s mental capacity. The

lawyer also spoke with J.C.’s parents who told the lawyer that J.C. “was extremely slow

and may not understand the nature of the charges” against him. The lawyer then met with

J.C. and likewise became concerned about J.C.’s mental acuity.

The circuit court ordered J.C. detained at a juvenile center. Shortly

thereafter, both a case manager and an education specialist at the juvenile center expressed

concerns that J.C. did not understand the legal proceeding brought against him. They noted

that J.C.’s most recent evaluations showed a low verbal comprehension score and low

perceptual reasoning score, as well as a full scale IQ of 70. Seventeen-year-old J.C.’s

achievement scores were at a third-grade level.

2

Based upon these concerns, J.C.’s lawyer filed a motion for an evaluation of

J.C.’s competency. The State joined in the motion for a competency evaluation, noting,

“[t]he State has been made aware of the same concerns involving the Juvenile.” The circuit

court ordered an examination to determine if J.C. was competent to stand trial.

A licensed psychologist evaluated J.C. and opined that J.C. “is not

Competent to Stand Trial.” The psychologist concluded in her report, “[t]he conditions

underlying his lack of competency will not change in the foreseeable future, and thus, he

will not regain competency.”2

In an order dated July 13, 2017, the circuit court accepted the competency

evaluation and found that J.C. “is incompetent to stand trial and not likely to regain

competence.” Moreover, the circuit court accepted two stipulations by J.C.’s lawyer: that

J.C. could have been convicted of first degree sexual assault (see W.Va. Code § 61-8B-3

(2006)), and that the charge against J.C. “involved an act of violence against a person[.]”

Because of his low cognitive abilities, the psychologist’s evaluation showed

2

that J.C. “tended to provide conflicting information” and “was highly susceptible to

suggestion[.]” The psychologist found J.C. lacked the ability to provide information about

his case or “to testify relevantly,” because he “could not recall or relate facts, even with

rephrasing and explaining” and because “he was highly susceptible to any suggestion

and/or lead” and “generally was repeating/agreeable to the last option stated to him

(regardless of the context).” The psychologist determined that J.C. failed to understand his

lawyer’s role, and also did not have the mental ability to work with his lawyer to develop

a legal strategy.

3

Even though J.C. was a juvenile subject to the court’s juvenile jurisdiction,

the parties agreed that the circuit court’s disposition of J.C. was controlled by a statute

addressing the pretrial competency of an adult criminal defendant, West Virginia Code §

To simplify our discussion, we refer to this statute as “Section 3.”

3

27-6A-3 (2007).

Section 3 repeatedly uses the word defendant, and often in the context of a defendant who

has been indicted or charged for a crime involving an act of violence against a person.

Paragraph (h) of Section 3 provides that if a court finds a defendant is not competent to

stand trial and not likely to attain competency, then the circuit court shall calculate the

“maximum sentence” the defendant could have received if he or she had been convicted.

See W.Va. Code § 27-6A-3(h). The circuit court must then order the defendant committed

to a mental health facility. Paragraph (h) of Section 3 dictates that the defendant remains

in the facility under the circuit court’s jurisdiction until either (1) the “maximum sentence”

expires, (2) the defendant attains competency to stand trial and the criminal charges are

resolved, or (3) the court dismisses the criminal charges. Id.

Paragraph (h) of Section 3 does not mention juveniles, nor does the statute

mention juvenile proceedings. In fact, juvenile proceedings do not involve charges,

indictments, defendants, or sentences. Despite these problems, the parties agreed that the

statute applied to J.C.’s juvenile proceeding.

3

We discuss and quote this statute in greater detail in our discussion. See

infra, footnote 6.

4

The sticking point for the parties was the phrase “maximum sentence” in

paragraph (h) of Section 3. In other words, having agreed that J.C. was incompetent, the

parties struggled regarding the period of time J.C. would remain in a mental health facility.

J.C.’s lawyer argued that under statutes governing juvenile proceedings, the circuit court’s

jurisdiction over a delinquent juvenile ends when the juvenile reaches the age of twenty-

one. See W.Va. Code § 49-4-701(f)(1) (2016). Because J.C. was a juvenile when the

alleged offense occurred, his counsel argued that any “maximum sentence” J.C. could have

received would have ended when he was twenty-one years old. Hence, counsel argued that

J.C. could only be committed to a mental health facility until he reached the age of twenty-

one.

The State, however, contended that Section 3, paragraph (h), requires a

circuit court to retain jurisdiction over a defendant not competent to stand trial for a period

equivalent to the “maximum sentence he or she could have received.” The maximum

sentence that can be imposed on an adult for first-degree sexual assault is thirty-five years.

See W.Va. Code 61-8B-3(b) (2006). Further, the State argued that if the circuit court had

merely delayed ruling on J.C.’s competency, then the court could have transferred J.C. to

adult status. See W.Va. Code § 49-4-710 (2015) (requiring a circuit court to transfer a

juvenile to adult criminal jurisdiction if there is probable cause to believe the juvenile

5

4

committed first-degree sexual assault). Once J.C. was transferred to adult status, the court

could have found J.C. incompetent as an adult and its application of paragraph (h) to J.C.

would have been proper. The State therefore asked the circuit court to commit J.C. to a

mental health facility under the court’s jurisdiction for thirty-five years.

The circuit court adopted the State’s position. The circuit court found that

the “maximum time the Juvenile could have received after conviction is 35 years.” It

therefore ordered that J.C. “be committed to a mental health facility . . . for a maximum

period of 35 years.”

With new counsel, J.C. appealed the circuit court’s July 13, 2017,

commitment order to this Court.

While J.C.’s appeal was pending, the record indicates that J.C. was initially

placed in an out-of-state facility for juvenile-oriented mental health treatment. When J.C.

turned eighteen, he was returned to West Virginia and placed in Sharpe Hospital. Sharpe

4

Transfer from juvenile to adult jurisdiction is a “critical phase” of a case

that constitutionally requires competence and participation by the juvenile.

Since waiver of juvenile jurisdiction is a critical stage in

criminal proceedings against a juvenile, constitutional due

process demands that the child, his parents and his counsel be

afforded reasonable notice of the waiver hearing, the charge to

be considered, a reasonable opportunity to prepare a defense to

such waiver and a meaningful hearing at which evidence on

behalf of the juvenile should be permitted.

Syl. Pt. 1, State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973) (modified on other

grounds by State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982)).

6

Hospital evaluators diagnosed J.C. with “borderline intellectual functioning.” However,

according to his evaluators, J.C. “received education about the legal system” at Sharpe

Hospital “for approximately three months.” Sharpe Hospital evaluators decided that,

because of that education, J.C. now “has an adequate factual and rational understanding of

the proceedings against him” and has the “knowledge and ability to work with his

attorney.” Accordingly, on June 11, 2018, the acting director at Sharpe Hospital reported

to the circuit court that J.C. “is now competent to stand trial.”

The State thereafter filed a motion with this Court to dismiss J.C.’s appeal as

moot, based upon the Sharpe Hospital report that J.C. has achieved competency. This

Court denied the State’s motion and allowed J.C.’s arguments challenging the circuit

court’s order committing him to a mental health facility for thirty-five years to proceed to

oral argument.

II. Discussion

J.C.’s appellate counsel argues that the circuit court never should have

applied West Virginia Code § 27-6A-3(h) (again, “Section 3”) to his case.5 J.C.’s appellate

counsel contends that Section 3 does not apply to children under a court’s juvenile

jurisdiction (even though J.C.’s prior lawyer agreed to the use of the statute by the circuit

5

Because he was a juvenile, J.C. also argues that under West Virginia Code

§ 27-6A-3(h) the circuit court only had authority to hospitalize him until he reached the

age of twenty-one – the same time that the circuit court’s juvenile jurisdiction would have

ended. We decline to reach this argument.

7

court below). J.C. points out that juvenile proceedings charge delinquency, not crimes,

and courts treat juveniles as wards of the court. See W.Va. Code § 49-4-701 (2015).

Juveniles are “adjudicated.” When children face juvenile adjudication, they are never

referred to as defendants and they are never convicted. By its terms, Section 3 applies

when the State has charged a defendant with a crime, usually by indictment – something

6

that cannot occur in a juvenile proceeding. J.C. contends it was plain error for the circuit

court to have applied paragraph (h) of Section 3 to his case.

6

West Virginia Code § 27-6A-3(h) provides:

If at any point in the proceedings the defendant is found

not competent to stand trial and is found not substantially likely

to attain competency, and if the defendant has been indicted or

charged with a misdemeanor or felony in which the

misdemeanor or felony does involve an act of violence against

a person, then the court shall determine on the record the

offense or offenses of which the person otherwise would have

been convicted, and the maximum sentence he or she could

have received. A defendant shall remain under the court’s

jurisdiction until the expiration of the maximum sentence

unless the defendant attains competency to stand trial and the

criminal charges reach resolution or the court dismisses the

indictment or charge. The court shall order the defendant be

committed to a mental health facility designated by the

department that is the least restrictive environment to manage

the defendant and that will allow for the protection of the

public. Notice of the maximum sentence period with an end

date shall be provided to the mental health facility. The court

shall order a qualified forensic evaluator to conduct a

dangerousness evaluation to include dangerousness risk factors

to be completed within thirty days of admission to the mental

health facility and a report rendered to the court within ten

business days of the completion of the evaluation. The medical

director of the mental health facility shall provide the court a

8

In response, the State asserts that the circuit court’s application and

interpretation of Section 3 was correct, and argues the court properly ordered J.C. be placed

in a mental health facility for thirty-five years once he was found not competent to stand

trial. In support, the State points to the one and only time this Court applied Section 3 to a

7

juvenile. Moreover, now that J.C. has been found competent, the State asserts this Court

should return J.C. to the circuit court for further proceedings.

In seeking to resolve the parties’ arguments, this Court has examined the

statutes and rules regarding the pre-adjudication mental health of delinquent juveniles.

What we have found is a substantial and troubling gap in the law regarding the handling

and treatment of juveniles entangled in legal proceedings they are not competent to

understand. The mental health statute relied upon by the parties and the circuit court,

Section 3, is the statute that establishes what a court is to do if an adult criminal defendant

written clinical summary report of the defendant’s condition at

least annually during the time of the court’s jurisdiction. The

court’s jurisdiction shall continue an additional ten days

beyond any expiration to allow civil commitment proceedings

to be instituted by the prosecutor pursuant to article five of this

chapter. The defendant shall then be immediately released

from the facility unless civilly committed.

7

In State ex rel. Smith v. Sims, 235 W.Va. 124, 772 S.E.2d 309 (2015), this

Court interpreted the application of West Virginia Code § 27-6A-3 to a twelve-year-old

juvenile. We found, in Syllabus Point 4, that: “Possession of a deadly weapon on the

premises of an educational facility with the express intent to intimidate another student

‘involves an act of violence against a person[.]’” The question that was never raised in that

case was whether the statute should even have been applied to a juvenile.

9

is found incompetent. However, Section 3 seemingly has no application to juvenile

proceedings.

We have found only one mental health statute that clearly addresses

juveniles: West Virginia Code § 27-6A-9 (2007) (Section 9). Section 9 allows a court to

order a mental health “evaluation of a juvenile to aid the court in its disposition” of the

8

juvenile in any proceeding under Chapter 49. That chapter of the West Virginia Code

pertains to the welfare of children, and encompasses topics such as child abuse or neglect,

and the powers of the Department of Health and Human Services or the Division of

Juvenile Services to provide care, support and protective services for children. Important

to this case, Chapter 49 also establishes the juvenile jurisdiction of courts over offenses

committed when a child is under the age of eighteen.

8

West Virginia Code § 27-6A-9 (2007) provides:

In a similar manner and in accordance with procedures

set forth in subsection (a), section two of this article [W.Va.

Code § 27-6A-2(a)] or subsection (a), section four of this

article [W.Va. Code § 27-6A-4(a)], a juvenile court may order

a qualified forensic evaluator to conduct an evaluation of a

juvenile to aid the court in its disposition under chapter forty-

nine of this code. In a similar manner and in accordance with

procedures set forth in subsection (d), section two of this article

[W.Va. Code § 27-6A-2(a)] or subsection (d), section four of

this article [W.Va. Code § 27-6A-4(a)], a juvenile court may

order a period of observation for an alleged delinquent or

neglected juvenile at a mental health facility designated by the

department to aid the court in its disposition. The period of

observation may not exceed fifteen days.

10

Section 9 provides that a juvenile may be sent to a forensic evaluator, or to a

mental health facility for evaluation for up to fifteen days. Section 9 also provides that the

evaluation must be conducted using procedures contained in two statutes: West Virginia

Code §§ 27-6A-2(a) (2007) (regarding defendants “incompetent to stand trial”) and -4(a)

(2007) (regarding a defendant’s diminished capacity or lack of criminal responsibility).

For simplicity, we refer to these statutes as Section 2 and Section 4, respectively. Both of

these statutes authorize the circuit court to conduct a forensic evaluation of an adult

criminal defendant. However, neither Section 2 nor Section 4 outlines what the court

should do if an evaluation finds the defendant to be incompetent. Moreover, neither

Section 2, Section 4, nor Section 9 establish what a court is to do when an evaluation

reveals a juvenile is incompetent.

Likewise, by rule, this Court has created a process that follows Section 9 for

courts to address mental health concerns near the outset of juvenile proceedings. Rule

24(c) of the West Virginia Rules of Juvenile Procedure (2010) allows a circuit court, “sua

sponte or upon motion of counsel,” to order the psychological examination of a juvenile

prior to adjudication. Rule 26 of the Rules of Juvenile Procedure provides that when a

circuit court has “reasonable cause to believe” that a juvenile is “incompetent to stand

trial,” the court must order an examination.9 As with Section 9, both rules provide for

9

Rule 26 orders the court to seek competency evaluations pursuant to West

Virginia Code §§ 27-6A-2 and -4. Neither of these statutes applies to juveniles, and both

use terminology applicable to “a defendant in which an indictment has been returned” or

similar language.

11

competency evaluations of juveniles using the procedures outlined in Section 2 and Section

4. However, neither rule dictates what a court should do once a juvenile is found

incompetent to proceed.

In the instant case, once the circuit court found J.C. was incompetent, the

court committed J.C. to a mental health facility for thirty-five years in accordance with the

procedures outlined in Section 3. Neither the one juvenile mental health statute (Section

9) nor the two Court rules (R.Juv.Pro. 24 and R.Juv.Pro. 26) discussed above permit the

application of Section 3 to an incompetent juvenile. Counsel for J.C. therefore makes a

persuasive argument that Section 3 has no application to juvenile delinquency proceedings.

The question that arises then is this: when a court is acting within its juvenile

jurisdiction, what should the court do when the court finds a juvenile is not mentally

competent to participate? Constitutional due process prohibits the court from subjecting

the incompetent juvenile to legal proceedings, but no statute identifies what actions a court

should take next to protect the juvenile and the public. Under any circumstances, placing

a juvenile into a mental health treatment setting imposes long-lasting physical and

emotional burdens on juveniles and their families. It is also a course of action that places

great burdens upon the public fisc. Although ensuring a juvenile’s due process rights in

the courtroom is required by the state and federal constitutions, this Court is hesitant to

create a mental health treatment process to protect juveniles through court rules. Such a

course necessitates input from the Legislature. Moreover, while the Legislature has

designed detailed procedures for adults facing criminal charges who are not competent to

12

stand trial (or who require a criminal responsibility or diminished capacity evaluation for

10

trial) no such statutory procedures exist for juveniles. It is therefore incumbent upon the

Legislature to create such a process for juveniles, and we call upon that body to study and

10

In the context of competency and due process, the United States Supreme

Court has emphasized that juveniles must be treated differently from adults. First, juveniles

are inclined to be less mature and to lack a sense of responsibility, qualities that “often

result in impetuous and ill-considered actions and decisions.” Roper v. Simmons, 543 U.S.

551, 569 (2005) (citations omitted). Second, juveniles are more susceptible to peer and

other negative pressures. Id. Finally, the personality traits and character of juveniles are

not as well formed as that of an adult. Id. at 570. “[B]asic research on cognitive and

psychosocial development suggests that some youths will manifest deficits in legally-

relevant abilities similar to deficits seen in adults with mental disabilities, but for reasons

of immaturity rather than mental disorder.” Thomas Grisso, et al., “Juveniles’ Competence

to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants,”

27 Law and Hum. Behav. 333, 335 (2003). See also, Mary Sue Backus, “Achieving

Fundamental Fairness for Oklahoma’s Juveniles: The Role for Competency in Juvenile

Proceedings,” 65 Okla. L. Rev. 41, 44 (2012) (“In order to be competent, defendants must

be able to: (1) consult with defense counsel; (2) otherwise assist with their defense; and,

(3) have a rational and factual understanding of the proceedings.”); David R. Katner,

“Eliminating the Competency Presumption in Juvenile Delinquency Cases,” 24 Cornell J.

L. & Pub. Pol’y 403, 406 (2015) (“Surely any parent knows better and well understands

the myriad differences between adult decision-making and adolescent decision-making.

Yet, in the evolution of the juvenile court system, many of the same legal presumptions

that govern adult matters have been matter-of-factly applied to juvenile matters.”); Richard

E. Redding, Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9

Va. J. Soc. Pol’y & L. 353, 355 (2001) (“As juvenile justice systems across the country

become more punitive and courts hold that juveniles are entitled to adult-like levels of due

process protection, the adjudicative competence of juveniles has increasingly come into

question[.]”); Elizabeth Scott, “Developmental Incompetence, Due Process, and Juvenile

Justice Policy,” 83 N.C. L. Rev. 793 (2005); Jeffrey W. Stowers, Jr., “Misunderstood: A

Juvenile’s Ability to Be Competent Enough to Understand the Consequences of a Guilty

Plea,” 19 New Crim. L. Rev. 1, 3 (2016) (age, brain development, psychological

developments, intelligence, and peer pressure are factors impairing a young offender’s

ability to comprehend that his or her actions have crossed into adult criminality); Christine

A. Sullivan, “Statutory Reform in the Georgia Juvenile Court System: Juvenile

Competency Issues Finally Addressed,” 15 Ga.St.U. L. Rev. 879 (1999).

13

clearly define the method by which a juvenile’s competency to understand the legal process

may be examined, considered and protected.

In the instant case, however, we believe that while J.C.’s arguments are

compelling, they have been rendered moot by the report from Sharpe Hospital opining that

he has attained competency. J.C. argues that the circuit court should not have applied

Section 3 to his juvenile case. On the one hand, if we reject J.C.’s argument and find

Section 3 does apply, Section 3 says the circuit court retains jurisdiction until the

“defendant attains competency to stand trial and the criminal charges reach resolution[.]”

W.Va. Code 27-6A-3(h). If the report from Sharpe Hospital suggesting J.C. has attained

competency is correct, strict application of Section 3 requires J.C. to face resolution of the

State’s juvenile petition. On the other hand, if Section 3 does not apply, as J.C. argues,

then we must return the case to the circuit court for further proceedings to again assess

J.C.’s competency and to resolve the allegations contained in the juvenile petition.11 The

legal questions raised by J.C.’s petition for appeal have been rendered moot because, in

either instance, J.C. must be returned to the circuit court to resolve the allegations raised

by the State’s juvenile petition.

11

This Court makes no judgment as to whether the report from Sharpe

Hospital regarding J.C.’s competency is correct or is binding upon the circuit court. We

also make no judgment regarding the future course of conduct that the circuit court should

take in resolving the juvenile petition against J.C.

14

Whether a case has been rendered moot depends upon an examination of the

particular facts of a case. “Simply stated, a case is moot when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v.

McCormack, 395 U.S. 486, 496 (1969) (citation omitted). “[M]ootness may occur when

the circumstances of the case change during the course of its pendency.” State ex rel.

Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 155, 697 S.E.2d 740, 747 (2010).

A moot case generally cannot properly be considered on its merits. “Moot

questions or abstract propositions, the decision of which would avail nothing in the

determination of controverted rights of persons or of property, are not properly cognizable

by a court.” Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).

Accord Syl. Pt. 1, Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845 (1936) (“Courts will not

ordinarily decide a moot question.”).

The issues raised on appeal by J.C. have been rendered moot. The host of

questions remaining in this case are all better suited for the circuit court, within its juvenile

jurisdiction, and not this Court.

III. Conclusion

Accordingly, we dismiss J.C.’s appeal and remand the case to the circuit

court for further proceedings.

Appeal dismissed as moot;

Case remanded for further proceedings.

15