Appendix — Jack F. Davis, Director, Department of Corrections (Formerly James F. Howard, Director, Division of Corrections) and K. R. Purvis, Superintendent, Southampton Farm v. Nelson James Lewis 421 U.S. 999 (1975) (No. 74-750)

APPENDIX A

NELSON JAMES LEwIs v. COMMONWEALTH OF VIRGINIA.

August 30, 1973

Record No. 8189

Present, All the Justices.

SNEAD, C.J., delivered the opinion of the court.

On July 13, 1972, Nelson James Lewis was tried and

convicted on pleas of not guilty by the trial court sitting

without a jury on two counts of grand larceny and one count

of statutory burglary. He was sentenced to the State Peni-

tentiary for two years on each count for a total of six years.

The facts were stipulated, and the sufficiency of the evidence

is not contested.

At the time of the commission of the offenses, defendant

was 17 years of age. As a result of petitions filed and after

hearing evidence relating to the offenses and considering

the social study, the Eighth Regional Juvenile and Domestic

Relations Court of the City of Charlottesville, in accord

with Code § 16.1-176.1 (1960 Repl. Vol.),’ found and certi-

fied that it was in the public interest for the “matter” to be

disposed of in that court. The juvenile court also found that

“the welfare and best interests of said child requires that the

State should assume his guardianship” and ordered Lewis

committed to the State Department of Welfare and Insti-

tutions.

Within three days after the order of the juvenile court,

the Commonwealth’s Attorney, pursuant to Code § 16.1-

176(a) (1960 Repl. Vol.),? gave notice to the juvenile court

that he deemed action by a court of record necessary and

1 Repealed by Acts 1973, c. 440.

2 § 16.1-176 was amended and reenacted by Acts 1973, c. 440,

effective July 1, 1973.

Swe we .. 7 «ee ed AEG

PD | RE UL RR ere

App. 2

thereafter presented the cases to the grand jury, which re-

turned indictments against Lewis. Motions were made to

quash the indictments on the grounds that the court lacked

jurisdiction and that a trial would constitute double jeop-

ardy. The motions were denied, and Lewis was tried as an

adult in the Corporation Court of the City of Charlottesville.

We granted him a writ of error to consider whether the trial

court had jurisdiction to try him and whether he was denied

due process of law and placed twice in jeopardy for the same

offenses.

[1] Lewis argues initially that Code §§ 16.1-176(a)

and 176.1 were in conflict and that the trial court had no

jurisdiction to try him after the juvenile court found that

the ‘matter’? should be disposed of there without certifica-

tion to the court of record.

Code § 16.1-176.1 provided:

“Tf a juvenile sixteen years of age or over, who has

been previously committed to any juvenile training

school in this State or any other state, is charged with

an offense which, if committed by an adult, could be

punishable by death or confinement in the penitentiary,

the case shall be certified for proper criminal proceed-

ings, if probable cause be found, to the appropriate

court of record having jurisdiction of such offense if

committed by an adult, unless the juvenile and domes-

tic relations court shall find and shall certify in its

order that it is in the public interest for the matter to

be disposed of therein.”

The record shows that § 16.1-176.1 was applicable to

Lewis since he had been previously committed to a juvenile

training school, but § 16.1-176(a) provided:

aaa)

App. 3

“. . [I]n the event the juvenile court does not so

certify [for proper criminal proceedings] a child four-

teen years of age or over, charged with an offense

which, if committed by an adult, would be punishable

by death or confinement in the penitentiary for life or

a period of twenty years or more, the Commonwealth’s

attorney of the city or county, if he deems it to the pub-

lic interest, may present the case to the grand jury of

the proper court of record. ... It shall be the duty of

the Commonwealth’s attorney to notify the juvenile and

domestic relations court within three days after final

adjudication if he deems action by the court of record

necessary... . If the grand jury returns a true bill

upon such indictment the jurisdiction of the juvenile

court as to such case shall terminate.”

The language of the statutes is plain. They should be

read and considered together. In so doing, we find that

§§ 16.1-176(a) and 176.1 were not mutually exclusive but

were complementary and that the trial court had jurisdic-

tion to try the cases after removal from the juvenile court.

[2] Next, Lewis argues that § 16.1-176(a) was uncon-

stitutional on its face as a denial of due process and that the

whole proceeding is a nullity. He says that the statute en-

abled the Commonwealth’s Attorney to make an arbitrary,

judicial determination to present the case to the grand jury

after the juvenile court had decided to treat Lewis as a

juvenile. I.ewis points out that the 1973 General Assembly

recognized the inequity in the statute when it amended

§ 16.1-176 to require the court of record to make the final

determination whether the Commonweaith’s Attorney may

seek an indictment against the juvenile. His argument seeks

to extend to juvenile proceedings the same due process re-

wceeiyie —_

Pa ag le RATES es HN Gene Rae

App. 4

quirements guaranteed in criminal proceedings by virtue of

a trend in recent Supreme Court decisions.

Many of the requirements of procedural due process in

criminal trials have been declared applicable to juvenile pro-

ceedings since Jn re Gault, 387 U.S. 1 (1967). There the

Supreme Court held the “essentials of due process and fair

treatment” must be followed in juvenile hearings to adjudi-

cate delinquency. Specifically, a juvenile is entitled to ade-

quate notice of the charge, the right to counsel, the right to

confrontation and cross-examination of witnesses and the

privilege against self-incrimination. Jn re Winship, 397 U.S.

358 (1970), held that proof beyond a reasonable doubt was

an essential of due process and fair treatment where a ju-

venile is charged with act which would be criminal if com-

mitted by an adult. McKeiver v. Pennsylvania, 403 U.S. 528

(1971), subsequently reaffirmed the applicable due process

standard of fundamental fairness in juvenile proceedings

but refused to extend the right to trial by jury to state

juvenile delinquency proceedings.

We hold that the statutory procedure in § 16.1-176(a)

did not violate the due process standard of fundamental

fairness and was not unconstitutional on its face. After the

Commonwealth’s Attorney presented the cases to the grand

jury, it was within the discretion of the grand jury to return

true bills or not. When the grand jury returned its true bills,

the trial court had the discretion to treat the juvenile of-

fender as an adult or as a juvenile (§ 16.1-177), or to

transfer the cases back to the juvenile court for disposition

(§ 16.1-175).

{3] Finally, Lewis contends that he was placed twice in

jeopardy for the same offenses in violation of the Fifth and

Fourteenth Amendments to the Constitution of the United

States and Article I, Section 8 of the Constitution of Vir-

App. 5

ginia. The determinative question presented is whether he

was placed in jeopardy in the juvenile proceeding.

As has been noted, recent Supreme Court decisions have

changed the approach the States must take to some aspects

of juvenile proceedings. Virginia had adhered to the parens

patriae concept of juvenile justice, in which juvenile proceed-

ings were for the protection of the child and society. Such

proceedings were considered of a civil nature and were not

criminal. Cradle v. Peyton, 208 Va. 243, 251, 156 S.E.2d

874, 878 (1967) cert. denied, 392 U.S. 945 (1968) ; Jones

v. Commonwealth, 185 Va. 335, 342, 38 S.E.2d 444, 447

(1946).

In Cradle we said, “[t}he Gault decision requires a change

in this concept of juvenile proceedings as non-criminal, a

change from procedures . . . that were founded on honest

concern for the welfare of the child.” 208 Va. at 249; 156

S.E.2d at 878. Cradle was decided prior to Winship and

McKeiver. In light of these subsequent decisions, together

with Gault, we do not think a complete reappraisal of Vir-

ginia’s juvenile court concept is required.

Gault regarded proceedings to determine delinquency

which might lead to commitment as “criminal” for the pur-

poses of the privilege against self-incrimination and cast

doubt on the distinction between civil delinquency hearings

and criminal trials in other areas. 387 U.S. at 49-50.

Winship also cast doubt on that distinction. 397 U.S. at

365-66. McK eiver added that “the juvenile court proceeding

has not yet been held to be a ‘criminal prosecution’ . . . and

also has not yet been regarded as devoid of criminal aspects

merely because it usually has been given the civil label.” 403

U.S. at 541. However, in McKeiver, the court concluded:

“If the formalities of the criminal adjudicative proc-

ess are to be superimposed upon the juvenile court

acts’ Swed

App. 6

system, there is little need for its separate existence.

Perhaps that ultimate disillusionment will come one

day, but for the moment we are disinclined to give im-

petus to it.”” 403 U.S. at 551.

We adhere to our earlier view that juvenile proceedings

are civil and that jeopardy does not attach in such proceed-

ings to bar subsequent prosecution on a grand jury indict-

ment. Accord, State v. R.E.F., 251 So.2d 672 (Fla. App.

1971), aff’d, 265 So.2d 701 (Fla. 1972). In so holding, we

are not unmindful of the distinction made between a juvenile

commitment order and a juvenile certification order in Cra-

dle v. Peyton, supra, and Brown v. Cox, ...... eee (4th

Cir. 1973). We find, however, that Lewis was not denied

the “essentials of due process and fair treatment” when his

cases were removed to the court of record for a criminal

trial after commitment by the juvenile court.

The convictions appealed from will be.

Affirmed.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN District OF VIRGINIA

Charlottesville Division

Civil Action Number 73-C-25-C

Nelson James Lewis,

Petitioner

vs.

James F. Howard, Director, Division of Corrections and

K. R. Purvis, Superintendent,

Respondents

OPINION AND JUDGMENT

By: Ted Dalton, United States District Judge

On May 30, 1972, proceedings were initiated against the

petitioner, then seventeen years old, in the Eighth Regional

Juvenile and Domestic Relations Court of the City of

Charlottesville, Virginia, on two charges of grand larceny

and on another charge of feloniously breaking and entering

a dwelling in the nighttime with the intent to commit lar-

ceny therein. At a hearing held on June 9th the petitions

were determined to be true and on June 16th, pursuant to

§ 16.1-176.1' of the Virginia Code, the Juvenile Court cer-

tified that it was in the public interest for the matter to be

disposed of in a juvenile proceeding. Consequently, the

Juvenile Judge determined that the welfare and best in-

App. 7

PE ORDIG Sica, 0

App. 8

terests of the petitioner required that the State should as-

sume his guardianship and ordered that petitioner be com-

mitted to the State Department of Welfare and Institutions

for an indeterminate period not to exceed his 21st birthday.

The Assistant Commonwealth’s Attorney for the City of

Charlottesville, pursuant to § 16.1-176(a)* of the Virginia

Code, notified the Juvenile Judge that he deemed action

by the court of record necessary, and therefore intended

to seek a grand jury indictment. Upon submission to a

grand jury, the petitioner was indicted for offenses identical

to those considered in the juvenile proceeding and was

convicted in an adult criminal proceeding on July 13, 1972,

and sentenced to six years imprisonment in the state peni-

tentiary.

Herein, the petitioner seeks a writ of habeas corpus pur-

suant to 28 U.S.C. § 2254, attacking his conviction on two

grounds. Initially, he asserts that § 16.1-176(a) of the Vir-

ginia Code, which permits the Commonwealth’s Attorney to

certify a juvenile over the age of fourteen years to a grand

jury in the event the juvenile court does not certify, where

the juvenile is charged with an offense which, if committed

by an adult would be punishable by death or confinement

in the penitentiary for life or for a period of twenty years,

is violative of the due process provisions of the Fifth

Amendment and the due process and fundamental fairness

provisions of the Fourteenth Amendment. In response, the

State argues petitioner has failed to exhaust his available

state court remedies with regard to this contention. Since

petitioner’s second contention is determinative of this con-

troversy, the court does not reach the exhaustion question,

nor the issue proffered by petitioner’s allegation.

In his second allegation, petitioner contends that his trial

and conviction as an adult in the Corporation Court of the

City of Charlottesville after the Juvenile Court’s commit-

App. 9

ment order was in violation of the Fifth Amendment pro-

hibition against double jeopardy. The State, in its motion to

dismiss, admits that petitioner has presented this claim to

the Supreme Court of Virginia, consequently, petitioner

~ has exhausted his state remedies and this issue is ready

for disposition.

Hisorically, a juvenile court proceeding succeeded by

an adult conviction for the same offense has not been

constitutionally defective. Juvenile proceedings have been

viewed as civil, rather than criminal in nature, and thus,

no jeopardy attached to any proceeding in the juvenile

court. Numerous courts, however, have realized that this

distinction is often artificial, and have increasingly recog-

nized the need to insure that the fundamental elementals of

due process are accorded juveniles.

Three recent Supreme Court decisions have greatly ex-

panded the rights of juveniles in juvenile court proceedings,

(Keut yv. U.S., 383 U.S. 541 (1966) ) (procedural due proc-

esss required in waiver proceedings ) ; Ji Re Gault, 387 U.S.

1 (1967) (juvenile has the right to notice of the charge,

right_to counsel, right to confront witnesses and right

against self-incrimination) ; Jn Re Winship, 397 U.S. 358

(1970) (requirement of proof beyond a reasonable doubt

during the adjudicatory stage of juvenile proceedings),

nonetheless, not all rights constitutionally assured to an

adult accused of crime also are to be enforced in a delin-

quency proceeding. E.g., McKeiver v. Pennsylvania, 403

U.S. 528 (1971) (guarantee of a jury trial is not ap-

plicable in juvenile proceedings ).

The prohibition against double jeopardy is a constitu-

tional provision which the Supreme Court has not yet held

applicable to juvenile proceedings. Several courts, neverthe-

less, have invalidated subsequent adult convictions finding

violation of the fundamental fairness and due process re-

ea tend A nae AN eal nate teed Sala seer:

App. 10

quirements of the Fourteenth Amendment. These cases,

however, involved extraordinary circumstances not pres-

ent in this controversy. E.g., Heltin v. Beto, 396 F.2d 216

(5th Cir. 1968) ; Sawyer v. Hauck, 245 F.Supp. 55 (W.D.

Tex. 1965); Garza v. State, 369 S.W.2d 36 (Crim. App.

Tex. 1963).

Furthermore, several state courts have ruled that a

juvenile adjudicatory proceeding exposes the juvenile to

jeopardy so that a subsequent adult proceeding for the

same offense constitutes double jeopardy in violation of

the Fifth Amendment. M. v. Superior Ct., 93 Cal. Rptr. 752,

482 P.2d 664 (1971): State v. Gibbs, 94 Idaho 908, 500

P.2d 209 (1972); Collins v. Texas, 429 S.W.2d 650 (Tex.

Ct. Civ. App. 1968). Additionally, the U.S. District Court

for the District of Columbia has held the 5th Amendment

prohibition against double jeopardy applicable to juvenile

proceedings. U.S. v. Dickenson, 168 F.Supp. 899 (D. D.C.

1959). Although the Court of Appeals for the District of

Columbia reversed because only a preliminary hearing had

been conducted in order to set a date for trial if the allega-

tions of the petition were denied or to continue the case

pending completion of a full social study and recommenda-

tions, the opinion implied that had the juvenile proceeding

reached the stage at which the juvenile’s liberty had been

placed in jeopardy the lower court opinion would have been

upheld. 271 F.2d 487, 490 (D.C. Cir.1959). Several months

ago, the Fifth Circuit Court of Appeals ruled, in a situa-

tion analogous to petitioner’s, that criminal prosecution of

a juvenile after an adjudication and commitment in a

juvenile proceeding violates the former ‘copardy clause of

the fifth Amendment. Fain v. Duff, No. 73-1933 (5th Cir.,

Dec. 7, 1973).

Our Court of Appeals appears ready to adopt a similar

position. In an opinion rendered on June 28, 1973, the

App. 11

Fourth Circuit considered the applicability of the double

jeopardy clause to juvenile court proceedings. Brown v.

Cox, 481 F.2d 622 (4th Cir. 1973). In denying the Vir-

ginia prisoner’s habeas petition, the Court stressed the dis-

tinction between a “transfer or certification proceeding and

an adjudicatory or dispositional proceeding” in juvenile

court. The Court declared:

It should be emphasized that in the case under appeal

there was no adjudication in the Juvenile Court im-

posing rT or restraint on the petitioner. Of

course, had that \court taken jurisdiction of the peti-

tioner’s offense for final disposition and m an

adjudication of commitment or confinement, it might

be said that, under the test established in McKeiver,

jeopardy would ate and a later prosecution of the

juvenile as an adult in criminal court would violate

“fundamental fairness.” A number of cases have so

held. But that was not the course of proceedings in the

Juvenile Court in this case. The petitioner, after a

hearing, was transferred to the Corporation Court and

it was that latter Court which alone made an adjudica-

tion of petitioner’s euilt and imposed punishment on

him.

481 F.2d at 630. (emphasis supplied).

The juvenile proceeding involving petitioner was quite

different from that in Brown. In Brown, the juvenile court

waived its jurisdiction pursuant to § 16.1-176, certifying

the juvenile for adult criminal proceedings without reach-

ing the adjudicatory or commitment stage. Conversely,

the petitions against petitioner, were adjudicated to be true

and he was committed to the State Department of Welfare

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App. 12

and Institutions. This determination authorized the imposi-

tion of significant restrictions on petitioner’s liberty, as

would any commitment order in a juvenile proceeding. Al-

though a decree finding a child within che purview of the

juvenile law may result in the juvenile being allowed to

return to his home, it may also result in incarceration until

age 21. § 16.1-178. A commitment order, therefore, ex-

poses the juvenile to jeopardy. To permit the State, as it

did in petitioner’s case, to subject the juvenile to a plenary

juvenile procedure resulting in his commitment to a juve-

nile agency, and then indict and prosecute him as an adult

would be fundamentally unfair. See 403 U.S. at 547,

550-51.

Additionally, the imposition of this constitutional re-

quirement will not disrupt the juvenile court system. Sce Id.

In 1973 the State legislature rewrote § 16.1-176, signifi-

cantly altering Virginia juvenile court procedure. In peti-

tioner’s proceeding, the Charlottesville Juvenile Court did

not rule on whether to retain jurisdiction or certify peti-

tioner for criminal proceedings until the hearing on June

16, 1972, during which it also issued its commitment order.

Today this could not occur, for prior to hearing evidence on

the merits, the juvenile court is required to conduct a hear-

ing on whether the juvenile should be transferred to a court

of record or retained within the jurisdiction of the juvenile

court. § 16.1-176(a)(2). If the juvenile court decides to

retain jurisdiction, the Commonwealth’s Attorney may,

within three days of this determination, notify the court

of his intention to seek removal to the proper court of

record, which shall, within ten days of receipt of the records,

enter an order either remanding the case to the juvenile

court or advising the Commonwealth’s Attorney that he

may seek an indictment. If the grand jury returns a true

bill the jurisdiction of the juvenile court is terminated.

ee]

App. 13

§ 16.1-176(e). Consequently, the problem of double jeop-

ardy has been eliminated. Once the Commonwealth’s At-

torney indicates his intention to seek an indictment the

juvenile proceeding is halted before reaching the commit-

ment stage. If the Commonwealth's Attorney is success-

ful, the juvenile is exposed initially to jeopardy in an

adult proceeding. If not, the juvenile proceeding continues

with the juvenile confident that the discipline imposed will

result only from the juvenile proceeding.

For the aforementioned reasons the court finds that peti-

tioner’s constitutional rights were violated since he was

twice placed in jeopardy. Petitioner’s application for a writ

of habeas corpus is therefore granted and his conviction

in the Corporation Court of the City of Charlottesville,

Virginia on July 13, 1972 nullified. However, since peti-

tioner’s juvenile proceeding was proper and as he is not

yet 21 years old, the commitment order of the Eighth

Regional Juvenile and Domestic Relations Court of the

City of Charlottesville remains effective. Petitioner, there-

fore, is within the care and custody of the State Board of

Welfare and Institutions.

The clerk is directed to send a certified copy of this

opinion and judgment to the petitioner and to counsel for

respondent.

Enter:

/s/ Ted Dalton

United States District Judge

April 3rd, 1974

FooTNOTES

1. This section, which was repealed in 1973, provided:

If a juvenile sixteen years of age or over, who has been previously

committed to any juvenile training school in t! State or any other

state, is charged with an offense which if comm: i by an adult, could

net iol at AOR ALN Oe . ~ at

ais & ERR

App. 14

be punishable by death or confinement in the penitentiary, the case

shall be certified for proper criminal proceedings, if probable cause be

found, to the appropriate court of record having jurisdiction of such

offense if committed by an adult, unless the juvenile and domestic

relations court shall find and shall certify in its order that it is in

the public interest for the matter to be disposed of herein.

2. At the time of petitioner’s hearing this section provided :

(a) If a child fourteen years of age or over is charged with an

offense which, if committed by an adult would be punishable by con-

finement in the penitentiary the court after an investigation as pre-

scribed in paragraph (b) of this section, and hearing thereon may, in

its discretion, retain jurisdiction or certify such child for proper

criminal proceedings to the appropriate court of record having crim-

inal jurisdiction of such offenses if committed by an adult; provided,

however, that in the event the juvenile court does not so certify a

child fourteen years of age or over, charged with an offense which,

if committed by an adult, would be punishable by death or confine-

ment in the penitentiary for life or a period of twenty years or more,

the Commonwealth's attorney of the city or county, if he deems it to

the public interest, may present the case to the grand jury of the

proper court of record, and provided further that if a child fourteen

years of age or older who has previously been adjudged to come

within the purview of the juvenile and domestic relations court law

for committing an offense indicating a viciousness of character, or an

offense which, if committed by an adult would be punishable by

confinement in the penitentiary and is subsequently charged with

committing a felony, the Commonwealth’s attorney of the city or

county, if he deems it to be in the public interest, may, after a pre-

liminary hearing in the juvenile and domestic relations court, present

the case to the grand jury of the proper court of record. It shall be

the duty of the Commonwealth’s attorney to notify the juvenile and

domestic relations court within three days after final adjudication

if he deems action by the court of record necessary. Thereafter, the

decision as to whether or not to present the case to the grand jury

shall be in the sole discretion of the juvenile and domestic relations

court. If the grand jury returns a true bill upon such indictment the

jurisdiction of the juvenile court as to such case shall terminate.

The section was rewritten in 1973, One of the changes requires the

Commonwealth’s attorney to obtain the approval of the proper court

of record prior to seeking a grand jury indictment.

wenn eee

eRe

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1568

Nelson James Lewis,

Appellee,

versus

James F. Howard, Director, and K. R. Purvis,

Supt., Southampton Farm,

Appellants.

Appeal from the United States District Court for the

Western District of Virginia, at Charlottesville.

Ted Dalton, District Judge.

Argued October 4, 1974. Decided November 4, 1974.

Before Boreman, Senior Circuit Judge, and Winter and

Widener, Circuit Judges

Robert E. Shepherd, Jr., Assistant Attorney General of

Virginia, (Andrew P. Miller, Attorney General of Vir-

ginia, on brief) for Appellants; L. B. Chandler, Jr.,

(Chandler and Huff on brief) for Appellee.

App. 15

~~?

a

PNG aA RRA Ce Oe

App. 16

Per Curiam:

Nelson James Lewis, then seventeen years old, was

tried and convicted as an adult in the Corporation Court

of the City of Charlottesville, Virginia, after he had been

committed to the Department of Welfare and Institutions

by the Juvenile and Domestic Relations Court of the City

of Charlottesville. Lewis filed his petition in the district

court for a writ of habeas corpus and the court granted

the writ, holding that the trial and conviction of Lewis as

an adult in the Corporation Court was in violation of the

Fifth Amendment prohibition against double jeopardy.’

Upon consideration of the record, briefs and arguments

of counsel we affirm on the opinion of the district court.

Affirmed.

1 Lewis v. Howard, 374 F.Supp. 446 (D.C. W.D. Va. 1974).