                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                  January 8, 2018
vs) No. 17-0167 (Clay County 16-JD-3)                                             EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
H.B.

Defendant Below, Petitioner



                               MEMORANDUM DECISION
         Petitioner H.B., by counsel Kevin W. Hughart, appeals the Circuit Court of Clay
County’s February 7, 2017, dispositional order placing him in the custody of the Division of
Juvenile Services until he reaches the age of eighteen or graduates from high school, whichever
is last.1 The State, by counsel Robert L. Hogan, filed a response. On appeal, petitioner argues
that the circuit court erred in failing to consider and make a record at disposition of the necessary
factors to impose incarceration and by finding that there was no less-restrictive alternative than
placing him in the custody of the Division of Juvenile Services.

        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, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In May of 2016, a juvenile petition was filed against petitioner after Clay County Middle
School administrators learned of an attack being planned by several students. Petitioner was
implicated during the investigation as one of the students participating in the plan and was
subsequently placed on home incarceration. An amended juvenile petition was filed in July of
2016. In the amended petition, the State alleged that petitioner solicited a student to participate in
the murder of several individuals at the middle school. The State further alleged that petitioner
conspired to commit a terrorist act and committed an overt act in furtherance of the conspiracy
by creating a plan to “shoot up and/or blow up” Clay County Middle School, killing students and
school employees; soliciting or attempting to solicit other students to participate in carrying out
the plan; and gathering pipe and Styrofoam to make bombs and/or incendiary devices. The State

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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also alleged that petitioner committed the acts in violation of West Virginia Code § 61-6-24,
which prohibits threats of terrorist acts, conveying false information concerning terrorist acts,
and committing terrorist hoaxes.

        In July of 2016, the circuit court held an adjudicatory hearing during which petitioner
pled guilty to two counts of crimes set forth under West Virginia Code § 61-6-24. After
accepting petitioner’s plea, the circuit court ordered that petitioner undergo a diagnostic
evaluation. Petitioner was temporarily placed at Robert Shell Juvenile Center to undergo an in-
depth, forty-day diagnostic evaluation. The psychological evaluation report indicated that
petitioner maintained excellent behavior while in the program and was polite with all staff and
peers, exhibited no outbursts, extreme anger, or violent tendencies, despite verbal provocation by
other juveniles in the facility, and indicated that petitioner could be placed in a very strict and
stringent treatment-based probation. The evaluator recommended that petitioner receive
individual counseling regarding both his case and his history of childhood abuse by his mother
and stated that home incarceration may be in order given the severity of the offences and the fact
that petitioner likely would be unable to attend public school. A multidisciplinary team (“MDT”)
also recommended that petitioner be placed in a strict treatment-based probation. Following the
evaluation, petitioner was again placed on home incarceration.

          In February of 2017, the circuit court held a dispositional hearing. During the hearing, the
State noted that petitioner had cooperated in the investigation and appeared remorseful for his
actions. As such, the State recommended probation as an alternative to placing petitioner in a
juvenile detention facility. Counsel for petitioner joined the State’s recommendation, stating that
petitioner had been on home incarceration since May of 2016, without any problems or
violations. Further, petitioner addressed the circuit court and took full responsibility for his
actions, apologizing to the State and the citizens of Clay County. Ultimately, the court found that
it was contrary to the proper administration of justice to follow the recommendation of the State,
noting that prior evidence revealed that petitioner did engage in acts of terror while at Clay
County Middle School, which were to include the death of several individuals. Further, the
circuit court stated that when all factors were considered, including petitioner’s involvement with
the planning of the act, the threat to public safety, and the best interests of petitioner, there was
no less-restrictive alternative than to place him in the custody of the Division of Juvenile
Services until he reached the age of eighteen or graduated from high school, whichever occurred
last. It is from this February 7, 2017, dispositional order that petitioner appeals.

       We have previously established the following standard of review for cases such as this:

       “In reviewing the findings of fact and conclusions of law of a circuit court . . . ,
       we apply a three-pronged standard of review. We review the decision . . . under
       an abuse of discretion standard; the underlying facts are reviewed under a clearly
       erroneous standard; and questions of law and interpretations of statutes and rules
       are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W.Va. 298,
       480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).



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        On appeal, petitioner first argues that the circuit court erred in failing to consider the
necessary factors for imposing disposition. We find petitioner’s argument to be without merit.
West Virginia Code § 49-4-714(b)(5)(A) authorizes a circuit court to commit a juvenile to a
correctional institution for juveniles “upon a finding that the best interests of the juvenile or the
welfare of the public require it, and upon an adjudication of delinquency[.]” Petitioner correctly
points out that when a circuit court contemplates commitment to a correctional facility, it is
required to make a record and set forth its reasons for selecting that dispositional alternative. To
help circuit courts apply West Virginia Code § 49-4-714(b)(5)(A), we have held that, in juvenile
proceedings, the circuit court is

       to make a record at the dispositional stage when commitment to an industrial
       school is contemplated under W.Va. Code, 49-5-13(b)(5) [1978] and where
       incarceration is selected as the disposition, the trial court must set forth his
       reasons for that conclusion. In this regard the court should specifically address the
       following: (1) the danger which the child poses to society; (2) all other less
       restrictive alternatives which have been tried either by the court or by other
       agencies to whom the child was previously directed to avoid formal juvenile
       proceedings; (3) the child’s background with particular regard to whether there
       are pre-determining factors such as acute poverty, parental abuse, learning
       disabilities, physical impairments, or any other discrete, causative factors which
       can be corrected by the State or other social service agencies in an environment
       less restrictive than an industrial school; (4) whether the child is amenable to
       rehabilitation outside an industrial school, and if not, why not; (5) whether the
       dual goals of deterrence and juvenile responsibility can be achieved in some
       setting less restrictive than an industrial school and if not, why not; (6) whether
       the child is suffering from no recognizable, treatable determining force and
       therefore is entitled to punishment; (7) whether the child appears willing to
       cooperate with the suggested program of rehabilitation; and (8) whether the child
       is so uncooperative or so ungovernable that no program of rehabilitation will be
       successful without the coercion inherent in a secure facility.

Syl. Pt. 4, in part, State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980). See
also Syl. Pt. 1, State v. M.E., 170 W.Va. 367, 294 S.E.2d 171 (1982); State ex rel. R.S. v. Trent,
169 W.Va. 493, 498, 289 S.E.2d 166, 170 (1982).

       We have previously stressed the importance of the development by the circuit court of a
record which “discloses conclusively that the trial court has considered all relevant factual
material and dispositional theories[.]” D.D.H., 165 W.Va. at 471, 269 S.E.2d at 416. We have
also held that “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.” Id.

        Contrary to petitioner’s argument, the circuit court considered the factors set forth above.
The court took judicial notice of all prior evidence submitted and incorporated it into its findings
at the dispositional stage and also considered other matters of record, including the evaluation
performed at Robert Shell Juvenile Center. The transcript of the dispositional hearing reveals a
discussion by the circuit court of the circumstances surrounding its conclusion that committing


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petitioner to the Division of Juvenile Services was the least-restrictive alternative. In particular,
the circuit court stated that it was

       of the opinion that it is contrary to the proper administration of justice for the
       [circuit c]ourt to follow the recommendation of the [D]ivision of [J]uvenile
       [S]ervices over the recommendation and request [of] the parties for placement
       upon probation . . . . There’s no question as to [petitioner’s] actions to engage in
       the acts of terror at Clay County School, which the acts of terror include the death
       of several individuals in that facility. The [circuit c]ourt is of the opinion that
       when [it] considers all factors, including [petitioner’s] involvement in these acts
       of terrors and the planning of the acts of terror and to take acts of violence
       towards school personnel, and consider the threat to public safety, as well as
       consider the best interests of the juvenile, the [circuit c]ourt is of the opinion, that
       there is no less restrictive alternative to address all of these concerns, than the
       placement of the juvenile in the custody of the [D]ivision of [J]uvenile [S]ervices.

The dispositional hearing transcript also indicates that the circuit court considered petitioner’s
mental health issues and the seriousness of the crime and that its overarching concern was the
safety of the public due to the seriousness of petitioner’s actions. As previously mentioned,
circuit courts may contemplate placement with the Division of Juvenile Services upon findings
that the juvenile’s best interests and the public welfare require it. As such, the circuit court, upon
considering the evidence and testimony, made sufficient findings regarding its decision to place
petitioner in the custody of the Division of Juvenile Services.

       Petitioner next argues that the circuit court erred by placing petitioner in the custody of
the Division of Juvenile Services as it was not the least-restrictive alternative available. We
disagree. Rule 34(a) of the West Virginia Rules of Juvenile Procedure sets forth that

       “[j]uveniles adjudicated as delinquent or status offenders are entitled to be
       sentenced in the least restrictive manner possible that will meet their needs and
       protect the welfare of the public. The goal in disposition should be the
       rehabilitation of the juvenile to enable and promote becoming a productive
       member of society. In disposition, the court has discretion when determining
       terms and conditions, and is not limited to the relief sought in the petition. The
       court shall consider the best interests of the juvenile and the welfare of the public
       when rendering its decision.”

        Petitioner argues that the circuit court erred in not placing him on probation, against the
recommendations of the evaluation and the State. While we are not unmindful of petitioner’s
good behavior and academic performance while on home incarceration and while at Robert Shell
Juvenile Center, the circuit court did not abuse its discretion in finding that that he remains a risk
to the community. In fact, the evaluator stated that, regarding the alleged terrorist acts, petitioner
“does [play down] and minimize the actual intent to carry out such plans and says he generally
feels he never would have gone through with carrying out any of the assaults or rampage.” Also,
despite his attempts to downplay his participation in or willingness to go along with the plot, the
psychological evaluation report indicates that petitioner admitted to the evaluator that his role


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was to “shoot the 8th graders on the second floor” and that they had chosen April 20th as the date
of the assault because it was the anniversary of the infamous shooting at Columbine High School
in Columbine, Colorado. Further, the results of a particular test that assessed personality
characteristics and clinical pathology indicated a marginally valid profile because petitioner may
have attempted to present an “unrealistically favorable picture of his personal virtue and moral
values.” Having considered the psychological evaluation, testimony, and other evidence
submitted, the circuit court found that placement of petitioner in the custody of the Division of
Juvenile Services was in the best interests of the juvenile and the public welfare and that no less-
restrictive alternatives were available. Accordingly, we find that the circuit court’s decision to
commit petitioner to the Division of Juvenile Services’ custody was within its discretion.

       For the foregoing reasons, the circuit court’s February 7, 2017, dispositional order is
hereby affirmed.


                                                                                         Affirmed.

ISSUED: January 8, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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