State of West Virginia v. Brandon S. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent March 29, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-0631 (Preston County 12-JD-14) OF WEST VIRGINIA
Brandon S.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Brandon S., by counsel Claire L. Niehaus, appeals the “Transfer Hearing
Order” entered by the Circuit Court of Preston County on May 10, 2012.1 The State, by counsel
Mel Snyder, has filed a summary response.
This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The State alleges that on April 5, 2012, the seventeen-year-old petitioner committed an
act that, if committed by an adult, would constitute first degree robbery in violation of West
Virginia Code § 61-2-12(a).2 A juvenile proceeding was instituted, and the State moved to
transfer the case to the circuit court’s criminal jurisdiction. Pursuant to West Virginia Code § 49­
5-10(d)(1), transfer is mandatory if there is probable cause to believe that a juvenile who is at
least fourteen years old committed the crime of robbery involving the presentment of a firearm.
At a hearing, a convenience store clerk testified that petitioner and a co-defendant pointed a rifle
at her and demanded money. There was also evidence that petitioner confessed to law
enforcement officers. The circuit court found probable cause that petitioner committed first
degree robbery involving presentment of a firearm and, accordingly, the court granted the motion
to transfer.
Petitioner argues that the circuit court erred in finding probable cause and in granting the
motion to transfer because the court relied upon petitioner’s statements to law enforcement.
Petitioner argues that his statements are inadmissible as the officers did not promptly bring him
before a judicial officer.
1
A direct appeal of an order transferring a juvenile to criminal jurisdiction is permitted by West
Virginia Code § 49-5-10(j).
2
Petitioner turned eighteen on July 5, 2012.
1
In this appeal of the transfer order, we need not determine whether petitioner’s statements
to law enforcement are admissible evidence or whether there was a prompt presentment
violation. The victim’s testimony about petitioner’s alleged actions is more than sufficient to
support the circuit court’s probable cause determination. “It is only when ‘there are substantial
defects in the transfer hearing that go to the validity of the probable cause finding . . . [that] we
will reverse and remand the case for a further transfer hearing.’ Syl. Pt. 7, in part, In the Matter
of Mark E.P., 175 W.Va. 83, 331 S.E.2d 813 (1985).” State v. Rush, 219 W.Va. 717, 725, 639
S.E.2d 809, 817 (2006). Upon finding probable cause, the circuit court was required by West
Virginia Code § 49-5-10(d)(1) to order the transfer.
Accordingly, we affirm the transfer order. The case is remanded to circuit court for
proceedings on the pending criminal action.
Affirmed and remanded.
ISSUED: March 29, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
2