                         STATE OF WEST VIRGINIA

                       SUPREME COURT OF APPEALS



State of West Virginia ex rel.
Pamela Jean Games-Neely,
Prosecuting Attorney,
Petitioner,
                                                                          FILED
vs) No. 16-0505 (Berkeley County, Case No. 13-JD-92)                 November 10, 2016
                                                                           released at 3:00 p.m.
                                                                         RORY L. PERRY II, CLERK
The Honorable John C. Yoder, Judge of                                  SUPREME COURT OF APPEALS
the Circuit Court of Berkeley County;                                       OF WEST VIRGINIA

and J.W.,
Respondents,

and

State of West Virginia ex rel.
Pamela Jean Games-Neely,
Prosecuting Attorney,
Petitioner,

vs) No. 16-0506 (Berkeley County, Case Nos. 14-JD-119, 14-JD-142 )

The Honorable John C. Yoder, Judge of

the Circuit Court of Berkeley County;

and M.F.,

Respondents.



                          MEMORANDUM DECISION

              Petitioner Pamela Games-Neely, the prosecuting attorney of Berkeley
County (“the State”), seeks two writs of prohibition to be directed against the Circuit
Court of Berkeley County in two cases involving juvenile drug court. In these matters,
two juveniles entered drug court after their cases had been adjudicated—both juveniles
had entered into plea agreements with the State and made certain admissions to the
allegations contained in their respective juvenile petitions. The two referrals to drug
court were made as conditions of the juveniles’ probation. After completing drug court,
the circuit court withdrew the juveniles’ admissions, vacated their pleas, and dismissed
the two juvenile petitions.

                                           1

              The State, by counsel Cheryl K. Saville, requests that this Court reinstate
the juveniles’ adjudications, and direct the circuit court to close the juveniles’ cases by
final order. The two juveniles, M.F., by counsel Jason M. Stedman, and J.W., by counsel
J. Daniel Kirkland, assert that the circuit court did not err in dismissing the juveniles’
petitions and ask this Court to deny the requested writs. After review, we grant the
requested writs. These cases satisfy the “limited circumstances” requirement of Rule
21(d) of the Rules of Appellate Procedure for disposition by memorandum decision.


                                            I.

                  FACTUAL AND PROCEDURAL BACKGROUND

              These writs concern two separate matters in which the juveniles, J.W. and
M.F., were ordered to take part in the juvenile drug court program as conditions of their
probation after their cases had been adjudicated.1 Before reviewing the facts underlying
each of the juvenile petitions, we commend J.W. and M.F. for successfully completing
juvenile drug court and wish them continued success.

                                      A. In re: J.W.
              On April 5, 2013, J.W. was charged by juvenile petition with five counts:
1) grand larceny, 2) possession of stolen property, 3) joyriding, 4) driving without an
operator’s license, and 5) obstructing an officer. On August 27, 2013, J.W. and the State
entered into a plea agreement in which J.W. admitted to joyriding, driving without an
operator’s license, and obstructing an officer. The State agreed to dismiss the remaining
charges in the petition, grand larceny and possession of stolen property. The agreement
also provided that J.W. pay $50.00 in restitution. The Circuit Court of Berkeley County,
sitting as a juvenile court, accepted the plea agreement and adjudged J.W. to be a
delinquent youth. The circuit court placed J.W. on supervised probation for nine months
and ordered him to pay $50.00 in restitution.

              On September 23, 2013, Probation Officer William Brooks filed a petition
to revoke J.W.’s probation because he 1) had positive drug screens, 2) missed
appointments with his probation officer, 3) had unexcused absences from school, 4) had a
0.0 grade point average, 5) failed to obey his parents’ household rules, and 6) failed to
participate with the juvenile day reporting center. The circuit court subsequently revoked
J.W.’s probation and remanded him to the custody of the Department of Health and
Human Resources to complete a program of residential treatment at the Timber Ridge
School. After successfully completing the program at Timber Ridge, J.W. was placed on
aftercare probation for a period of six months.

       1
         We adhere to our usual practice in cases involving sensitive facts and do not
refer to the parties using their full names. See In re Clifford K., 217 W.Va. 625, 619
S.E.2d 138 (2005).
                                            2

               Approximately three months into J.W.’s aftercare probation period,
Probation Officer Brooks filed another petition to revoke J.W.’s probation because he 1)
had positive drug screens, 2) exhibited behavior problems at school, and 3) had
unexcused absences from school. As a result of this petition, the circuit court extended
J.W.’s aftercare probation to a period of one year, and ordered J.W. to complete the
juvenile drug court program as a term and condition of his probation. The order requiring
J.W. to participate in drug court did not state that his juvenile petition would be dismissed
upon successful completion of the program.

               J.W. successfully completed the drug court program. Thereafter, the
juvenile drug court judge entered an order returning J.W.’s case to the circuit court for
entry of an order dismissing J.W.’s juvenile petition. The discharge form order the
juvenile drug court sent to the circuit court states, “it is hereby ORDERED that the
juvenile shall be released from juvenile drug court and the previously accepted admission
and plea entered by the juvenile is withdrawn.”

               The State objected to the portion of the order vacating J.W.’s plea,
withdrawing his admissions, and dismissing his juvenile petition.2 After holding a
hearing, the circuit court found that J.W. had successfully completed the juvenile drug
court program. Because J.W. completed drug court, the circuit court vacated his plea,
withdrew his admissions, and dismissed the juvenile petition filed against him. The
circuit court’s order provides:

              [W]hen the parties in a juvenile proceeding refer an offender
              to the Juvenile Drug Court program it is implicit in that
              agreement that upon successful completion of Juvenile Drug
              Court all previously accepted admissions and pleas entered
              shall be withdrawn. Here, the agreement between the parties
              was silent as to the dismissal of related charges. Without an
              agreement between the parties affirmatively denying [J.W.]
              the dismissal of related charges, the Court finds that dismissal
              of the related charges is solely within the Court’s discretion.

             Following entry of this order, the State filed a petition for a writ of
prohibition with this Court.




       2
         The State did not object to J.W.’s graduation from the drug court program, to the
circuit court discharging J.W. from probation before the expiration of the ordered term
(one year), or from the court entering a final order in the matter.
                                             3

                                      B. In re: M.F.
              On August 14, 2014, M.F. was charged by juvenile petition with three
counts: 1) grand larceny, 2) breaking and entering, and 3) conspiracy to commit breaking
and entering. M.F. and the State entered into a plea agreement in which M.F. admitted to
grand larceny, agreed to testify against a co-defendant, and agreed to a “restitution
hearing.” The State agreed to dismiss the remaining two charges in the juvenile petition,
breaking and entering, and conspiracy to commit breaking and entering. On September
24, 2014, the Circuit Court of Berkeley County, sitting as a juvenile court, accepted the
plea agreement and adjudged M.F. to be a delinquent youth. The circuit court placed
M.F. on supervised probation for one year and, following a separate restitution hearing,
ordered M.F. to pay $4,000.00 to the victims of her crimes.3

               On October 14, 2014, M.F. was charged by juvenile petition with one count
of possession of marijuana, and one count of fleeing an officer on foot arising from an
incident that occurred before she was adjudicated for grand larceny. M.F. admitted to the
possession of marijuana count and was placed on probation to run concurrently with the
prior probation order.

               On May 13, 2015, Probation Officer Sahana Mills filed a petition to revoke
M.F.’s probation because she 1) had positive drug screens, 2) missed appointments with
her probation officer, and 3) had unexcused absences from school. The petition also
alleged that M.F. had not made any restitution payments. Based on this petition, M.F.’s
probation was revoked. Thereafter, the parties agreed to re-admit M.F. to probation with
the condition that she participate in juvenile drug court. The circuit court then entered a
disposition order placing M.F. on probation and ordering that she participate in drug
court as a term and condition of her probation.

              M.F. successfully completed the drug court program. Thereafter, the
juvenile drug court judge entered an order returning M.F.’s case to the circuit court for
entry of an order dismissing M.F.’s juvenile petition. The discharge form order states, “it
is hereby ORDERED that the juvenile shall be released from juvenile drug court and the
previously accepted admission and plea entered by the juvenile is withdrawn.”

              The State objected to the portion of the order vacating M.F.’s plea,
withdrawing her admissions, and dismissing her juvenile petition.4 After holding a
hearing, the circuit court found that M.F. had successfully completed the juvenile drug

       3
        The court ordered that M.F.’s father would be jointly and severally liable for
making full restitution to the victims.
       4
         The State did not object to M.F.’s graduation from the drug court program, to the
circuit court discharging M.F. from probation before the expiration of her ordered term,
or from the court entering a final order in the matter.
                                            4

court program. Because M.F. completed drug court, the circuit court vacated her plea,
withdrew her admissions, and dismissed the juvenile petition filed against her. Following
entry of this order, the State filed a petition for a writ of prohibition with this Court.

                                             II.

                               STANDARD OF REVIEW

               This Court has previously addressed our standard of review for a writ of
prohibition. “The writ of prohibition will issue only in clear cases, where the inferior
tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, State ex rel.
Vineyard v. O’Brien, 100 W.Va. 163, 130 S.E. 111 (1925). See also Syllabus Point 1,
Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) (“Prohibition lies only to
restrain inferior courts from proceeding in causes over which they have no jurisdiction,
or, in which, having jurisdiction, they are exceeding their legitimate powers and may not
be used as a substitute for writ of error, appeal or certiorari.”); Syllabus Point 2, State ex
rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of
prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will
only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers. W.Va. Code 53-1-1.”).

               In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483
S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition
when it is alleged a lower court is exceeding its authority:

                      In determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of
              jurisdiction but only where it is claimed that the lower
              tribunal exceeded its legitimate powers, this Court will
              examine five factors: (1) whether the party seeking the writ
              has no other adequate means, such as direct appeal, to obtain
              the desired relief; (2) whether the petitioner will be damaged
              or prejudiced in a way that is not correctable on appeal; (3)
              whether the lower tribunal’s order is clearly erroneous as a
              matter of law; (4) whether the lower tribunal’s order is an oft
              repeated error or manifests persistent disregard for either
              procedural or substantive law; and (5) whether the lower
              tribunal’s order raises new and important problems or issues
              of law of first impression. These factors are general
              guidelines that serve as a useful starting point for determining
              whether a discretionary writ of prohibition should issue.
              Although all five factors need not be satisfied, it is clear that
              the third factor, the existence of clear error as a matter of law,
              should be given substantial weight.


                                              5

              With the foregoing in mind, we turn to the parties’ arguments.

                                              III.

                                         ANALYSIS

               The State asserts that it satisfies all five Hoover factors for the granting of
its requested writs of prohibition. The State’s chief argument is that this Court should
grant the present writs pursuant to the third Hoover factor because the circuit court
exceeded its legitimate authority by withdrawing the two juveniles’ admissions, vacating
their pleas, and dismissing their petitions after they completed drug court.5

             This Court has recognized that the purpose of our juvenile law is to
promote the rehabilitation of troubled children, rather than to punish them. State v.
McDonald, 173 W.Va. 263, 267, 314 S.E.2d 854, 858 (1984). To this end, juvenile drug
court was designed to meet the rehabilitative needs of juveniles. West Virginia Code 49­
4-703 [2015] provides:

                     Juvenile drug courts shall be designed and operated
              consistent with the developmental and rehabilitative needs of
              juveniles as defined in this article. The Supreme Court shall
              provide uniform referral, procedure and order forms that shall
              be used in juvenile drug courts. The Supreme Court is further
              authorized to appoint appropriate hearing officers in those
              jurisdictions which choose to operate a juvenile drug court.
              Hearing officers for juvenile drug courts shall be limited to
              current or senior status circuit court judges or family court
              judges.

               Consistent with the goal of meeting the rehabilitative needs of juveniles, the
West Virginia Supreme Court of Appeals Division of Probation Services promulgated the
“Juvenile Drug Court Protocol” (“drug court protocol”). The drug court protocol
contains a detailed description of the five entry levels in which a juvenile may enter the
drug court program. Each entry level sets forth the specific action or actions a court may
take after a juvenile completes the drug court program. The drug court protocol provides
as follows:



       5
         The State argues that it has no right to appeal in this case, thus satisfying the first
two Hoover factors. The State asserts that it satisfies the fourth Hoover factor because
the alleged error “has been repeated and will likely persist if not addressed by this Court.”
Finally, the State asserts that it satisfies the fifth Hoover factor because the juvenile drug
court program is “relatively new to many parts of the State, and the State is not aware of
any precedent existing in this Court concerning these issues.”
                                               6

ENTRY LEVELS INTO THE JUVENILE DRUG
COURT:

1. Pre-petition Diversion. The juvenile drug court
probation officer (JDCPO) receives a referral or complaint
without a juvenile petition. Participation is voluntary by the
youth and parent/guardian following a dual assessment and
determination of eligibility for admission to the Juvenile Drug
Court. If the youth refuses the Juvenile Drug Court or is
terminated from the program, a petition can be initiated. If
the youth successfully completes the program, the
complaint can be destroyed.

2. Signed, but non-filed petition. The JDCPO receives a
signed petition that has not been formally filed and is being
held in abeyance pending the youth’s participation in the
Juvenile Drug Court. Participation is voluntary by the youth
and parent/guardian following a dual assessment and
determination of eligibility for admission to the Juvenile Drug
Court. Because the petition was never formally filed, the
petition can be destroyed when the youth successfully
completes the program. If the youth refuses the program or
is terminated from the program, the petition can be formally
filed and proceed through the court system.

3. Filed petition (Pre-Adjudication). A petition is filed,
but it has not proceeded through the court system and/or the
judge makes a referral prior to adjudication. Participation is
voluntary by the youth and parent/guardian. At completion of
JDC, the petition may be dismissed. If the youth refuses the
program or is terminated, the youth would return to the Court
for adjudication.

4. Filed petition (Post-Adjudication). The judge can make
referral to JDC following adjudication, but prior to a
disposition. Participation may be voluntary or non-voluntary
by the youth and parent/guardian. At completion of JDC, the
petition may be dismissed. If the youth refuses the program
or is terminated, the youth would return to Court for
disposition.

5. Disposition. After adjudication, the Circuit Court Judge
may order the youth to participate in the JDC as a part of

                              7

              formal disposition, typically as a condition of probation.
              Participation is non-voluntary by youth and parent/guardian.
              When the youth completes the program, the judge would
              discharge the youth from the JDC program and may or
              may not discharge the youth from regular probation. If
              the judge chooses to continue regular probation, aftercare
              services by the JDCPO could be ordered for a period of up to
              six months. If the youth fails to complete the JDC program,
              the youth would return to Circuit Court for modification of
              the earlier disposition order. In addition, this entry level
              would include post-dispositional referrals from a probation
              officer.

(Emphasis added).

               J.W. and M.F. were ordered to participate in juvenile drug court after their
cases had been adjudicated, and after they had violated the terms and conditions of their
probation. Thus, J.W. and M.F. entered drug court at entry level five, disposition. Entry
level five has two key distinctions that set it apart from the other four entry levels. First,
entry level five is the only entry level in which participation by the juvenile in the drug
court program is always on a non-voluntary basis.6 Second, entry level five does not
permit a circuit court to dismiss the juvenile’s case upon the juvenile’s successful
completion of drug court. In entry level one, the complaint against a juvenile may be
destroyed upon successful completion of drug court. Similarly, entry level two provides
for the juvenile petition to be destroyed upon the juvenile’s successful completion of drug
court. Entry levels three and four establish that “[a]t completion of JDC [juvenile drug
court], the petition may be dismissed.” Unlike the other four entry levels, level five does
not permit a court to destroy the juvenile complaint or dismiss the juvenile petition upon
successful completion of drug court. Instead, level five provides that a court “would
discharge the youth from the JDC program and may or may not discharge the youth from
regular probation” after completing drug court.7

       6
         Participation in entry levels one, two, and three is voluntary. Participation in
entry level four may be voluntary or non-voluntary.
       7
        Entry level five corresponds with a court ordering a juvenile to participate in the
drug court program pursuant to a formal disposition under W.Va. Code 49-4-714(b)(3)
[2015], which states that following the disposition of a juvenile proceeding, the court
may:

               (3) Upon a finding that the juvenile is in need of extra-
              parental supervision: (A) Place the juvenile under the
              supervision of a probation officer of the court . . . ; and (B)
                                              8
               In the instant matters, J.W. and M.F. entered juvenile drug court at entry
level five. Both of their adjudications were complete and both were ordered to
participate in juvenile drug court after they had violated the terms of their probation.
Because J.W. and M.F. entered the juvenile drug court program pursuant to entry level
five, the State argues that the circuit court exceeded its legitimate authority by dismissing
J.W. and M.F.’s juvenile petitions after they completed drug court. The State asserts that
under the plain language of the drug court protocol, the circuit court only had the
authority to discharge J.W. and M.F. from “regular probation.”

              By contrast, counsel for J.W. and M.F. argue that a form order promulgated
by this Court for entry after a juvenile has completed drug court provides, “In
acknowledgement of this success, it is hereby ORDERED that the juvenile shall be
released from juvenile drug court and the previously accepted admission and plea entered
by the juvenile is withdrawn.” Counsel for J.W. asserts that entry of this form order is
“the standard practice used throughout the State” to discharge a juvenile from drug court,
regardless of the entry level from which the juvenile enters drug court. Counsel also
states that “[t]his Court has not promulgated a variance of [this form] ordering that
differing [entry] levels prohibit a juvenile’s previously accepted admissions and plea
entered by the juvenile [from being] withdrawn.” Because the Court has not promulgated
a different form order for each entry level, counsel for J.W. and M.F. argue that the
circuit court did not exceed its legitimate authority by entering the form order that
dismissed the juveniles’ petitions after they completed drug court.




              prescribe a program of treatment or therapy or limit the
              juvenile’s activities under terms which are reasonable and
              within the child’s ability to perform[.]

(Emphasis added). W.Va. Code 49-4-714(b)(3) does not provide that following the
disposition of a juvenile proceeding, the court may dismiss a juvenile’s petition after the
juvenile completes the “program of treatment or therapy.” Further, in the modification of
a juvenile dispositional order that includes probation, as in the instant matters, a court
must consider the best interests of the child in either terminating probation early upon the
probation officer’s recommendation, or in imposing a more restrictive alternative where a
juvenile has not complied with his/her probation. See W.Va. Code § 49-4-718 [2015].
The dismissal of a juvenile petition following disposition is not provided for under the
juvenile statutes. See also Rule 39(e) of The West Virginia Rules of Juvenile Procedure
(“A dispositional order may be modified by the court in conformance with West Virginia
Code § 49-4-718.”).


                                             9

               After careful consideration, this Court cannot conclude that entry level five
of the drug court protocol means less than what it plainly states. Entry level five does not
permit a circuit court to dismiss a juvenile petition upon a juvenile’s successful
completion of drug court. Instead, entry level five only provides that a court “may or
may not discharge the youth from regular probation” after completing drug court.8 We
recognize that some confusion may have resulted from the drug court protocol not
including separate form orders that correspond with each entry level.9 However, the lack
of specific form orders for each entry level does not permit a circuit court to ignore the
plain language of entry level five and dismiss the juvenile petition of a juvenile who
enters the drug court program at level five. The relief available to a juvenile ordered to
participate in drug court pursuant to entry level five is clearly set forth in the protocol and
is not subject to change based on the language contained in one general form order of
discharge. Finding otherwise could lead to an inequitable result. For example: two
juveniles, A and B, are adjudicated as juvenile delinquents and placed on probation.
Juvenile A violates the terms of his probation and is ordered to attend juvenile drug court.
After successfully completing juvenile drug court, Juvenile A’s juvenile petition is
dismissed in its entirety. By contrast, Juvenile B complies with the terms of his probation
and is not ordered to participate in drug court. Despite complying with his probation
terms and conditions, Juvenile B is not afforded the same benefit as Juvenile A—the
dismissal of his juvenile petition. Under this scenario, Juvenile B has no mechanism to
have his petition dismissed by virtue of his compliance with the terms and conditions of
his probation.

              Because the circuit court granted relief to J.W. and M.F. that is not
permitted under the plain language of entry level five of the drug court protocol, we find
that the circuit court exceeded its legitimate authority. Based on the foregoing, we
conclude that the State is entitled to the requested writs of prohibition pursuant to the
third Hoover factor because the circuit court exceeded its legitimate authority by
withdrawing the two juveniles’ admissions, vacating their pleas, and dismissing their
petitions. We therefore grant the requested writs and hereby reinstate J.W. and M.F.’s

       8
         We reject counsel for J.W.’s argument that because the order requiring J.W. to
participate in juvenile drug court was silent as to whether his petition would be dismissed
upon his successful completion of drug court, this silence should be construed in his
favor. The drug court protocol clearly sets forth the relief available to a juvenile who
enters drug court at entry level five. This clear statement— that a court “may or may not
discharge the youth from regular probation” after completing drug court—was sufficient
to place J.W. on notice that there was no implicit agreement that his completion of drug
court would result in dismissal of his juvenile petition.
       9
        This Court will administratively address and clarify the form orders that a court
should enter upon a juvenile’s completion of juvenile drug court.

                                              10

adjudications. We remand both matters to the circuit court for entry of final orders
closing the juveniles’ cases.



                                                                     Writs Granted.

ISSUED: November 10, 2016




CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




                                        11

