          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2017 Term
                                 _______________

                                    Nos. 16-0677                         FILED
                                  _______________                   February 14, 2017
                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                           STATE OF WEST VIRGINIA,                   SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA
                                  Respondent

                                          v.

                                   J.E.,

                                 Petitioner

       ___________________________________________________________

             Certified Questions from the Circuit Court of Webster County

                           The Honorable Jack Alsop, Judge

                                   Case No. 09-JD-3


                    CERTIFIED QUESTIONS ANSWERED

       ____________________________________________________________

                             Submitted: February 7, 2017

                              Filed: February 14, 2017



Daniel R. Grindo, Esq.                         Dwayne C. Vandevender, Esq.
Law Office of Daniel R. Grindo, PLLC           Webster County Prosecuting Attorney
Gassaway, West Virginia                        Webster Springs, West Virginia
Counsel for the Petitioner                     Counsel for the Respondent

Patrick Morrisey, Esq.
Attorney General
Erica N. Peterson, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Amicus Curiae
Patrick Morrisey, in his official
Capacity as Attorney General of West
Virginia
                                          &
                                   _______________

                                     Nos. 16-0723
                                   _______________

                              STATE OF WEST VIRGINIA,

                                     Respondent


                                           v.

                                   Z.M.,

                                 Petitioner

       ____________________________________________________________

             Certified Questions from the Circuit Court of Webster County

                           The Honorable Jack Alsop, Judge

                                   Case No. 14-JD-1


                    CERTIFIED QUESTIONS ANSWERED

       ____________________________________________________________

                               Submitted: February 7, 2017

                                Filed: February 14, 2017


Timothy V. Gentilozzi, Esq.                     Dwayne C. Vandevender, Esq.
Gentilozzi & Associates                         Webster County Prosecuting Attorney
Clarksburg, West Virginia                       Webster Springs, West Virginia
Counsel for the Petitioner                      Counsel for the Respondent

Patrick Morrisey, Esq.
Attorney General
Erica N. Peterson, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Amicus Curiae
Patrick Morrisey, in his official
Capacity as Attorney General of West Virginia


JUSTICE KETCHUM delivered the Opinion of the Court.

CHIEF JUSTICE LOUGHRY concurs in part and dissents in part and reserves the right

to file a separate opinion

JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

                              SYLLABUS BY THE COURT



             1.     “An adjudication of juvenile delinquency by a juvenile court shall

not be deemed a conviction.” Syllabus Point 3, State ex rel. Slatton v. Boles, 147 W.Va.

674, 130 S.E.2d 192 (1963).



             2.     “Inasmuch as proceedings in a juvenile court cannot result in a

criminal conviction, such proceedings do not, in a legal sense, place the juvenile in

jeopardy and cannot, therefore, constitute a basis for the defense of double jeopardy.”

Syllabus Point 4, Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d 526 (1967).



             3.     Because this Court, in Syllabus Point 3 of State ex rel. Slatton v.

Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963), and the Legislature, in W.Va. Code § 49­

4-103 [2015], have determined that a juvenile adjudication of delinquency shall not be

deemed a conviction, we find the phrase “any person who has been convicted of an

offense” contained in W.Va. Code § 15-12-2(b) [2012], does not include a juvenile who

has been adjudicated delinquent.



             4.     Sexual assault in the first degree in violation of W.Va. Code § 61­

8B-3(a)(2) [2006] and sexual assault in the second degree in violation of W.Va. Code §

61-8B-4(a)(1) [1991] are “violent or felonious” crimes. Thus, under W.Va. Code § 49-5­

101(g) [2016], the name and identity of any juvenile adjudicated or convicted of sexual


                                           i
assault in the first degree in violation of W.Va. Code § 61-8B-3(a)(2), or sexual assault in

the second degree in violation of W.Va. Code § 61-8B-4(a)(1), may be made available to

the public in accordance with the disclosure provisions contained in W.Va. Code § 49-5­

103 [2015].




                                             ii
Justice Ketchum:


              In these consolidated juvenile matters we consider two certified questions

submitted to this Court from the circuit court of Webster County. The certified questions

are as follows:

                     1. Does the phrase “any person” within the meaning
              of W.Va. Code § 15-12-2(b) of the “Sex Offender
              Registration Act,” W.Va. Code § 15-12-1, et seq., include a
              juvenile who has been adjudicated for having committed acts
              of delinquency which would require said person, once having
              reached the age of eighteen, to register as a sexual offender as
              required by law?

                     2. Do the acts of Sexual Assault in the First Degree in
              violation of W.Va. Code § 61-8B-3(a)(2); and Sexual Assault
              in the Second Degree in violation of W.Va. Code § 61-8B­
              4(a)(1) qualify as “violent or felonious crime[s]” under W.Va.
              Code § 49-5-101(g) which allows for public disclosure of the
              name and identity of any juvenile adjudicated or convicted of
              a violent or felonious crime?

              After thorough review, we answer the first question in the negative and the

second question in the affirmative.

              The sex offender statutes we are asked to consider are clear, expressed in

plain language, and unambiguous.         This Court does not sit as a superlegislature,

commissioned to pass upon the social, political, or scientific merits of statutes pertaining

to proper subjects of legislation. It is the duty of the Legislature to consider facts,

establish policy, and embody that policy in legislation. It is the duty of this Court to

enforce legislation according to the plain language of the statutes enacted by the

Legislature unless it runs afoul of the State or Federal Constitutions. It is not the duty of

                                             1

this Court to interpret a statute contrary to its plain language or to read into it that which

it does not say.

                                              I.


                   FACTUAL AND PROCEDURAL BACKGROUND


              We begin by presenting the facts of the two juvenile matters consolidated

herein.1



                                      A. State v. J.E.

              On April 27, 2009, J.E. was charged by juvenile petition with attempted

sexual assault in the second degree in violation of W.Va. Code § 61-11-8 [2002] and §

61-8B-4 [1991]; and sexual abuse in the first degree in violation of W.Va. Code § 61-8B­

7 [2006]. The petition alleged that J.E. rubbed “his penis against the vagina of [the

victim] who was eighteen months old.” J.E. was thirteen years old when this incident

occurred.

              On December 9, 2009, J.E. entered into an admission agreement wherein he

admitted to the charge of first degree sexual abuse and pled no contest to the charge of

attempted second degree sexual assault. The circuit court held a disposition hearing on




       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). See also Rule 40(e) of the Rules of Appellate Procedure.



                                              2

April 2, 2010, and ruled that J.E. “was adjudicated a juvenile delinquent for the criminal

act of Attempted Sexual Assault in the 2nd Degree and Sexual Abuse in the 1st Degree.”

The circuit court ordered J.E. to be placed within the Department of Juvenile Services

until his twenty-first birthday or until further order of the court. On March 4, 2013, J.E.

was placed on probation until his twenty-first birthday.

              The circuit court held a review hearing on February 1, 2016. Counsel for

J.E. sought dismissal of the case once J.E. reached the age of twenty-one, the maximum

age upon which the court could maintain jurisdiction. The issue was then raised whether

“based on the nature of the offenses for which the juvenile stands adjudicated as a

delinquent child, the juvenile should be required to register as a lifetime sexual offender

upon reaching the age twenty-one.” The circuit court instructed the parties to file briefs

on this issue. By order entered on July 8, 2016, the circuit court certified two questions

to this Court. See page 1, infra. The circuit court explained its reason for certification as

follows:

                     The sexual registration of a juvenile presents an issue
              of law not directly addressed on a prior occasion by the West
              Virginia Supreme Court of Appeals, which this Court finds
              integral to its resolution of the pending issue in the above-
              styled case based on the nature and seriousness of the
              offenses committed herein.

              Thereafter, this Court accepted the two certified questions.




                                             3

                                     B. State v. Z.M.

              On July 30, 2014, Z.M. was charged by juvenile petition with two counts of

sexual assault in the first degree in violation of W.Va. Code § 61-8B-3(a)(2) [2006], and

one count of sexual abuse in the first degree in violation of W.Va. Code § 61-8B-7(a)(3).

The petition alleged that Z.M., who was fifteen-years old, assaulted M.B., a nine-year

old. The juvenile petition was amended on August 22, 2014. In the amended petition,

Z.M. was charged with five additional counts: four counts of sexual abuse in the first

degree in violation of W.Va. Code § 61-8B-7(a)(3), and one count of sexual assault in the

second degree in violation of W.Va. Code § 61-8B-4(a)(1). These additional counts

resulted from an incident that occurred when Z.M. was fifteen and assaulted J.N., a nine-

year old.

              On April 3, 2015, Z.M. entered into an admissions agreement wherein he

pled no contest to the charge of 1) sexual assault in the first degree of M.B., and 2) sexual

assault in the second degree of J.N. Thereafter, the circuit court entered an admissions

hearing order in which it ruled that Z.M. was “ADJUDICATED a delinquent child under

the meaning of the law.” (Emphasis in original).

              The circuit court held a disposition hearing on September 16, 2015, and

noted that Z.M. “was adjudicated by pleading no contest to sexual assault in the 1st and

2nd degree.” The circuit court’s order following the disposition hearing provides, “[t]he

Court is limited in what it can do because it takes a motion of the State to try the juvenile

as an adult, which the State could have done in this case, but which the State elected not


                                             4

to do.” The circuit court ordered Z.M. to be placed within the Department of Juvenile

Services until his twenty-first birthday.

              The circuit court took the issue of juvenile sexual offender registration

under advisement at the disposition hearing and ordered the parties to file briefs on this

issue. On July 27, 2016, the circuit court certified two questions to this Court. See page

1, infra. Thereafter, this Court accepted the two certified questions.



                                             II.


                               STANDARD OF REVIEW


              When this Court is called upon to resolve a certified question, we employ a

plenary review. “A de novo standard is applied by this Court in addressing the legal

issues presented by a certified question from a federal district or appellate court.”

Syllabus Point 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998); accord

Syllabus Point 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424

(1999) (“This Court undertakes plenary review of legal issues presented by certified

question from a federal district or appellate court.”). With this standard in mind, we

proceed to examine the parties’ arguments.

                                             III.


                                        ANALYSIS


              The circuit court has certified two questions to this Court.         Before

addressing the individual questions, we note that the questions address two separate


                                              5

issues. The first question concerns whether a juvenile adjudicated of certain acts of

delinquency is required to register under our sex offender registration statute, W.Va.

Code § 15-12-2(b) [2012]. The second question asks whether the nature of the crimes

underlying the two juvenile delinquency petitions, first and second degree sexual assault,

allows for the public disclosure of the names of the juveniles pursuant to W.Va. Code §

49-5-101(g). With this background in mind, we proceed to consider the two certified

questions.

                              A. First Certified Question

             The first certified question is as follows:

                    Does the phrase “any person” within the meaning of
             W.Va. Code § 15-12-2(b) of the “Sex Offender Registration
             Act,” W.Va. Code § 15-12-1, et seq., include a juvenile who
             has been adjudicated for having committed acts of
             delinquency which would require said person, once having
             reached the age of eighteen, to register as a sexual offender as
             required by law?

             Answering this question requires us to analyze W.Va. Code § 15-12-2(b)

contained in the Sex Offender Registration Act, W.Va. Code § 15-12-1 [1999], et seq.

W.Va. Code § 15-12-2(b) provides:

             (b) Any person who has been convicted of an offense or an
             attempted offense or has been found not guilty by reason of
             mental illness, mental retardation or addiction of an offense
             under any of the following provisions of chapter sixty-one of
             this code or under a statutory provision of another state, the
             United States Code or the Uniform Code of Military Justice
             which requires proof of the same essential elements shall
             register as set forth in subsection (d) of this section and
             according to the internal management rules promulgated by


                                             6
              the superintendent under authority of section twenty-five,
              article two of this chapter:
              (1) Article eight-a;
              (2) Article eight-b, including the provisions of former section
              six of said article, relating to the offense of sexual assault of a
              spouse, which was repealed by an Act of the Legislature
              during the year 2000 legislative session;
              (3) Article eight-c;
              (4) Sections five and six, article eight-d;
              (5) Section fourteen, article two;
              (6) Sections six, seven, twelve and thirteen, article eight; or
              (7) Section fourteen-b, article three-c, as it relates to
              violations of those provisions of chapter sixty-one listed in
              this subsection.

              West Virginia Code § 15-12-2(b) requires “[a]ny person who has been

convicted of an offense or an attempted offense . . . under any of the following provisions

of chapter sixty-one of this code” to register as a sex offender. (Emphasis added).

Defendant J.E. was “adjudicated a juvenile delinquent for the criminal act of Attempted

Sexual Assault in the 2nd Degree and Sexual Abuse in the 1st Degree.” Defendant Z.M.

was adjudicated “a delinquent child under the meaning of the law” for the criminal acts

of sexual assault in the first degree and sexual assault in the second degree. West

Virginia Code § 15-12-2(b) requires “[a]ny person who has been convicted of an offense

or an attempted offense . . . under any of the following provisions of chapter sixty-one of

this code” to register as a sex offender. Thus, the issue we address is whether the phrase

“any person who has been convicted of an offense” contained in W.Va. Code § 15-12­

2(b) includes juveniles who were “adjudicated” delinquent.

              The resolution of this issue begins with a review of our rules of statutory

construction. This Court has held that in deciding the meaning of a statutory provision,

                                              7

“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the

interpretive question, the language must prevail and further inquiry is foreclosed.”

Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 587, 466

S.E.2d 424, 438 (1995); see also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714,

172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.”); and Syllabus

Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision

which is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.”).

              Additionally, this Court has held that “[a] statute is open to construction

only where the language used requires interpretation because of ambiguity which renders

it susceptible of two or more constructions or of such doubtful or obscure meaning that

reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State

Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal

quotations and citation omitted). With these rules of statutory construction in mind, we

turn to the parties’ arguments.

              The present dispute centers around the parties’ conflicting interpretations of

the phrase “[a]ny person who has been convicted of an offense” contained in W.Va. Code

§ 15-12-2(b). The State claims in its brief that

              [t]his Court has long held that many of our statutes and
              constitutional guarantees which are commonly accepted as
              applying to persons “convicted” of a crime also apply to
              juveniles that have been “adjudicated” as delinquent for

                                              8
              offenses which would have been criminal acts had they been
              adults.

Further, the State asserts that the phrase “any person who has been convicted of an

offense” should be read to include a juvenile who is adjudicated delinquent in light of the

Adam Walsh Act, 42 U.S.C. §§ 16901-16991 [2006]. The Adam Walsh Act is a piece of

federal legislation that “increased the severity of sex offender registration and

classification, requiring more strict and stringent supervision of people convicted or

adjudicated of sex offenses.” Daniel Schubert, Challenging Ohio’s Adam Walsh Act:

Senate Bill 10 Blurs the Line Between Punishment and Remedial Treatment of Sex

Offenders, 35 Univ. of Dayton L. Rev. 277 (2010).

              By contrast, J.E. argues that the terms “convicted” and “adjudicated” are

not the same and should not be interpreted by this Court to be interchangeable.

Additionally, J.E. asserts that certain conditions must be met before a juvenile

delinquency petition may be transferred to the criminal jurisdiction of the court.

According to J.E., these conditions and the process which must be followed before

transferring a juvenile to the criminal jurisdiction of the court, set forth in Rule 20 of the

West Virginia Rules of Juvenile Procedure, demonstrate that there is a substantial

difference between juvenile court and the criminal jurisdiction of the court. In the




                                              9

present case, the State did not transfer the juvenile matters to the criminal jurisdiction of

the court.2

              After review, we find that the Legislature and this Court have determined

that a juvenile adjudication is not a conviction. In Syllabus Point 3 of State ex rel.

Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963), this Court held: “An

adjudication of juvenile delinquency by a juvenile court shall not be deemed a

conviction.” Further, in Syllabus Point 4 of Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d

526 (1967), the Court noted that a proceeding in a juvenile court cannot result in a

criminal conviction. The Court held: “Inasmuch as proceedings in a juvenile court

cannot result in a criminal conviction, such proceedings do not, in a legal sense, place the

juvenile in jeopardy and cannot, therefore, constitute a basis for the defense of double

jeopardy.” (Emphasis added).




       2
          The first certified question before this Court asks whether “a juvenile who has
been adjudicated for having committed acts of delinquency . . .” may be required to
register as a sexual offender pursuant to W.Va. Code § 15-12-2(b). This question does
not address whether a juvenile who has been transferred to the criminal jurisdiction of the
court pursuant to Rule 20 of the West Virginia Rules of Juvenile Procedure or W.Va.
Code § 49-4-710 [2015], and is subsequently convicted of a criminal offense must
register as a sexual offender pursuant to W.Va. Code § 15-12-2(b). That issue is not
before the Court in these matters because neither juvenile was transferred to the criminal
jurisdiction of the court. The circuit court’s disposition order in Z.M.’s case included a
comment on this fact: “The Court is limited in what it can do because it takes a motion of
the State to try the juvenile as an adult, which the State could have done in this case, but
which the State elected not to do.”



                                             10

             The Legislature has also made it clear that a juvenile adjudication is not a

criminal conviction. West Virginia Code § 49-4-103 [2015] provides:

                    Any evidence given in any cause or proceeding under
             this chapter, or any order, judgment or finding therein, or any
             adjudication upon the status of juvenile delinquent heretofore
             made or rendered, may not in any civil, criminal or other
             cause or proceeding whatever in any court, be lawful or
             proper evidence against the child for any purpose whatsoever
             except in subsequent cases under this chapter involving the
             same child; nor may the name of any child, in connection
             with any proceedings under this chapter, be published in any
             newspaper without a written order of the court; nor may any
             adjudication upon the status of any child by a juvenile court
             operate to impose any of the civil disabilities ordinarily
             imposed by conviction, nor may any child be deemed a
             criminal by reason of the adjudication, nor may the
             adjudication be deemed a conviction, nor may any
             adjudication operate to disqualify a child in any future civil
             service examination, appointment, or application.

(Emphasis added).

             The two juveniles in the present matters were adjudicated delinquent in

juvenile court. As W.Va. Code § 49-4-103 makes clear, these juvenile adjudications may

not be used under another chapter of the code, such as our sex offender registration

statute, W.Va. Code 15-12-2(b), for any purpose whatsoever:

             [A]ny adjudication upon the status of juvenile delinquent
             heretofore made or rendered, may not in any civil, criminal or
             other cause or proceeding whatever in any court, be lawful or
             proper evidence against the child for any purpose whatsoever
             except in subsequent cases under this chapter involving the
             same child[.]

             Notwithstanding the foregoing, the State urges this Court to conclude that

the phrase “any person who has been convicted of an offense” contained in W.Va. Code §

                                           11

15-12-2(b) should be read to encompass a juvenile who is adjudicated delinquent. In

addition to the clear statements from this Court and the Legislature that a juvenile

adjudication is not a conviction, we note that when the Legislature intends to include

convicted persons and adjudicated juveniles in the same statute, it does so explicitly. For

instance, W.Va. Code § 62-11B-2 [1994], contained in the “Home Incarceration Act,”

provides, “[t]his article applies to adult offenders and to juveniles who have committed a

delinquent act that would be a crime if committed by an adult.” (Emphasis added).

              Similarly, in analyzing the meaning of the phrase “[a]ny person who has

been convicted of an offense” contained in W.Va. Code § 15-12-2(b), we are guided by

the precept that “courts must presume that a legislature says in a statute what it means

and means in a statute what it says there.” Appalachian Power Co. v. State Tax Dept.,

195 W.Va. 573, 586, 466 S.E.2d 424, 437 (1995). Had the Legislature intended to

include adult offenders convicted of a criminal offense and adjudicated juvenile

delinquents in W.Va. Code § 15-12-2(b), we presume it would have done so explicitly.

See Stinson v. Com., 396 S.W.3d 900, 903 (Ky. 2013) (internal citations omitted) (“The

plain meaning of the statutory language is presumed to be what the legislature

intended.”); Fox v. Fox, 61 Va.App. 185, 196, 734 S.E.2d 662, 667 (2012) (“We look to

the plain meaning of the statutory language, and presume that the legislature chose, with

care, the words it used when it enacted the relevant statute.”); State v. Rama, 689 A.2d

776, 777 (N.J.Super.Ct.App.Div.1997) (“[W]e are not to presume that the Legislature

intended something other than what it expressed by its plain language.”).


                                            12

              A number of cases outside of our jurisdiction have addressed whether a

juvenile adjudicated for certain sex offenses must register as a sex offender. In reviewing

these cases, we note that statutes outside of our jurisdiction addressing this issue contain

clear, explicit language requiring adjudicated juvenile sex offenders to register.

              In one case, In re Richard A., 946 A.2d 204 (R.I. 2008), the Supreme Court

of Rhode Island rejected a juvenile’s constitutional objection to the requirement that he

register as a sex offender after he was adjudicated delinquent on the charge of second-

degree child molestation. The court discussed the specific Rhode Island statutes requiring

adjudicated juveniles to register as follows:

                      Pursuant to § 11-37.1-3(a), a juvenile who has been
              found delinquent based on conduct that would constitute
              second-degree child molestation sexual assault if committed
              by an adult “shall be required to register his or her current
              address with the local law enforcement agency having
              jurisdiction over the city or town in which the person having
              the duty to register resides for the time period specified in §
              11-37.1-4.” Section 11-37.1-4(j) pertains specifically to
              juveniles and provides: “Any juvenile having the duty to
              register under subsections (b) and (c) of this section shall
              be required to annually register in person with the local
              law enforcement agency having jurisdiction over the city or
              town in which the juvenile having the duty to register resides
              for fifteen (15) years subsequent to the date of release from
              confinement or placement in the community or probation for
              such offense or offenses and to verify his or her address on a
              quarterly basis for said fifteen (15) years.”

Id., 946 A.2d at 211 (emphasis added).

              In another case, In re A.C., 54 N.E.3d 952 (Ill.App.Ct. 2016), an Illinois

appellate court rejected numerous objections raised by a juvenile to the requirement that


                                                13

he register as a sex offender after he was adjudicated delinquent of aggravated criminal

sexual abuse. The Illinois statute relied upon by the court, 730 ILCS 150/3-5 [2014],

entitled, “Application of Act to adjudicated juvenile delinquents,” is contained in the

state’s sex offender registration act. The statute provides, “[i]n all cases involving an

adjudicated juvenile delinquent who meets the definition of sex offender . . . the court

shall order the minor to register as a sex offender.” 730 ILCS 150/3-5(a) (emphasis

added).

              The Supreme Court of Nevada upheld a statute requiring a juvenile

adjudicated for certain sex offenses to register as a sex offender in State v. Eighth Jud.

Dist. Ct. (Logan D.), 306 P.3d 369 (Nev. 2013). The court described Nevada’s sex

offender registration statute as follows: “Under Nevada’s . . . law, a ‘sex offender’ is

defined to include any person who, after July 1, 1956, has been adjudicated delinquent

for sexual assault, battery with the intent to commit sexual assault, lewdness with a child,

or an attempt or conspiracy to commit any of these offenses, so long as the offender was

14 years or older at the time of the offense.” 306 P.3d at 374 (emphasis added).

              In sum, a review of cases from outside of our jurisdiction reveals that courts

upholding laws requiring an adjudicated juvenile to register as a sex offender have done

so pursuant to clear, explicit statutory direction, i.e. “[i]n all cases involving an

adjudicated juvenile delinquent who meets the definition of sex offender . . .” 730 ILCS

150/3-5(a).   By contrast, W.Va. Code § 15-12-2(b) does not include any mention of




                                            14

juvenile offenders, nor does it make any reference to individuals adjudicated delinquent

for committing certain sex offenses.

              While the State concedes that W.Va. Code § 15-12-2(b) does not

“specifically address registration of juveniles that are adjudicated delinquent based upon

qualifying offenses,” it asks this Court to look to the Adam Walsh Act, 42 U.S.C. §§

16901-16991, for guidance on this issue. By way of background, this Act, also referred

to as the Sex Offender Registration and Notification Act of 2006 (SORNA),

              provides a comprehensive set of minimum standards for sex
              offender registration and notification in the United States,
              aiming to close potential gaps and loopholes that existed
              under prior federal law, as well as strengthen[ing] the
              nationwide network of sex offender registration and
              notification programs. The underlying goals of SORNA are
              to curb recidivism once an initial penalty has been served and
              to make it easier for law enforcement authorities to track
              post-conviction offenders.

Jennifer N. Wang, Paying the Piper: The Cost of Compliance with the Federal Sex

Offender Registration and Notification Act, 59 N.Y.L.Sch.L.Rev. 681, 688 (2014)

(internal citation and quotation omitted).

              The Adam Walsh Act defines a “sex offender” as “an individual who was

convicted of a sex offense.” Under the Act’s definitions, the term “convicted” includes a

juvenile adjudicated delinquent of a sex offense if the juvenile is fourteen years of age or

older at the time the offense. 42 U.S.C. § 16911(8). The State does not argue that West

Virginia has specifically adopted the Adam Walsh Act. Rather, the State argues that this




                                             15

Court should look to the Act for guidance in determining the meaning of the phrase “any

person who has been convicted of an offense” contained in W.Va. Code § 15-12-2(b).

              Our review of the West Virginia sex offender registration statute, in

particular W.Va. Code § 15-12-2(b), reveals that our Legislature has not amended our sex

offender registration law to conform to the Adam Walsh Act. The Adam Walsh Act

groups sex offenders into three tiers:

              A Tier I sex offender is a sex offender other than a Tier II or
              Tier III sex offender. A Tier II sex offender is a sex offender
              that has committed an offense that is punishable by more than
              one year in prison and fits within a list of offenses (which are
              less severe than Tier III offenses) or committed an offense
              after becoming a Tier I offender. A Tier III sex offender is a
              sex offender that has committed an offense that is punishable
              by more than one year in prison and is a serious offense, such
              as aggravated sexual abuse, or committed a sex offense while
              becoming a Tier II sex offender.

Schubert, Challenging Ohio’s Adam Walsh Act: Senate Bill 10 Blurs the Line Between

Punishment and Remedial Treatment of Sex Offenders, 35 Univ. of Dayton L. Rev., at

283.

              Our Legislature has not adopted the three-tier sex offender system

contained in the Adam Walsh Act. Similarly, our sex offender registration statute does

not include any mention of a juvenile who is fourteen years of age or older being required

to register as a sex offender after being adjudicated delinquent in juvenile court. Our

Legislature may amend our sex offender registration statute and adopt the Adam Walsh

Act in its discretion. However, our function as a reviewing Court is to interpret W.Va.



                                            16

Code § 15-12-2(b) as written. Our job is not to contort W.Va. Code § 15-12-2(b) to make

it conform to the Adam Walsh Act.3

                 In conclusion, we hold that because this Court, in Syllabus Point 3 of State

ex rel. Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963), and the Legislature, in

W.Va. Code § 49-4-103, have determined that a juvenile adjudication of delinquency

shall not be deemed a conviction, we find the phrase “any person who has been convicted

of an offense” contained in W.Va. Code § 15-12-2(b) [2012], does not include a juvenile

who has been adjudicated delinquent. We therefore answer the first certified question in

the negative.4




       3
        While the Adam Walsh Act includes financial incentives for state compliance,
we note that as of 2014 “only seventeen states . . . were found to have substantially
implemented SORNA’s requirements” according to an assessment performed by the
agency responsible for determining whether a jurisdiction has implemented the Act’s
baseline requirements. Wang, Paying the Piper: The Cost of Compliance with the
Federal Sex Offender Registration and Notification Act, 59 N.Y.L.Sch.L.Rev. at 695.
West Virginia was not one of the seventeen states found to have substantially
implemented the Act’s requirements. Id. Additionally, the cost of implementing all of
the Act’s requirements may not be cost effective for every state: “[S]ome states have
debated whether the costs of complying with the law outweigh its financial benefits.” Id.
at 697.
       4
         Z.M. argued that requiring a juvenile to register as a sex offender would violate
his Eighth (cruel and unusual punishment) and Fourteenth (due process) Amendment
rights. Because we find that W.Va. Code § 15-12-2(b) does not include a juvenile
adjudicated delinquent for committing certain sexual offenses, we decline to consider
these two arguments.



                                              17

                             B. Second Certified Question

              The second certified question is as follows:

                     Do the acts of Sexual Assault in the First Degree in
              violation of W.Va. Code § 61-8B-3(a)(2); and Sexual Assault
              in the Second Degree in violation of W.Va. Code § 61-8B­
              4(a)(1) qualify as “violent or felonious crime[s]” under W.Va.
              Code § 49-5-101(g) which allows for public disclosure of the
              name and identity of any juvenile adjudicated or convicted of
              a violent or felonious crime?

              As a general matter, records of juvenile proceedings are not open for public

inspection. Rule 49 of the West Virginia Rules of Juvenile Procedure provides:

                      Juvenile proceedings conducted under Chapter 49 of
              the West Virginia Code are not public proceedings.
              Additionally, the records of these proceedings are not open
              for public inspection. Disclosure of juvenile records is not
              permitted, unless specifically authorized pursuant to West
              Virginia Code §§ 49-5-101 or 49-5-103. Provided, however,
              in the interest of assuring that any determination made in
              proceedings before a family court arising under West Virginia
              Code, Chapter 48, or West Virginia Code § 44-10-3, does not
              contravene any determination made by a circuit court in a
              prior or pending juvenile proceeding, family courts and staff
              shall have access to all circuit court orders and case indexes
              in this State in all juvenile proceedings.

(Emphasis added).

              West Virginia Code § 49-5-101(g) [2016] provides an exception to this

general non-disclosure rule. It states: “Notwithstanding the provisions of this section, or

any other provision of this code to the contrary, the name and identity of any juvenile

adjudicated or convicted of a violent or felonious crime shall be made available to the

public.” The issue presented in the second certified question is whether sexual assault in


                                            18

the first degree as set forth in W.Va. Code § 61-8B-3(a)(2),5 and sexual assault in the

second degree as set forth in W.Va. Code § 61-8B-4(a)(1),6 are “violent or felonious”

crimes that would permit disclosure to the public under W.Va. Code § 49-5-101(g).

                This Court has held that first degree sexual assault as set forth in W.Va.

Code § 61-8B-3(a)(2) is a crime involving violence to a person. In Syllabus Point 1 of

State ex rel. Spaulding v. Watt, 188 W.Va. 124, 423 S.E.2d 217 (1992), the Court held, in

relevant part, “The offense of first degree sexual assault under W.Va. Code, 61-8B­

3(a)(2) (1984), involves violence to a person[.]”




       5
           W.Va. Code § 61-8B-3(a)(2), provides:

                      (a) A person is guilty of sexual assault in the first
                degree when: . . .
                      (2) The person, being fourteen years old or more,
                engages in sexual intercourse or sexual intrusion with another
                person who is younger than twelve years old and is not
                married to that person.


       6
           W.Va. Code § 61-8B-4(a)(1), provides:

                      (a) A person is guilty of sexual assault in the second
                degree when:
                      (1) Such person engages in sexual intercourse or
                sexual intrusion with another person without the person’s
                consent, and the lack of consent results from forcible
                compulsion.




                                             19

             Similarly, the Legislature has addressed “violence” in the context of both

first and second degree sexual assault, and has determined them to be sexually violent

offenses. West Virginia Code § 15-12-2(i) states that “sexually violent offense” means:

             (1) Sexual assault in the first degree as set forth in section
             three, article eight-b, chapter sixty-one of this code or of a
             similar provision in another state, federal or military
             jurisdiction;

             (2) Sexual assault in the second degree as set forth in section
             four, article eight-b, chapter sixty-one of this code or of a
             similar provision in another state, federal or military
             jurisdiction.

             Based on the this Court’s ruling in Spaulding, and on W.Va. Code § 15-12­

2(i), we hold that sexual assault in the first degree in violation of W.Va. Code § 61-8B­

3(a)(2) and sexual assault in the second degree in violation of W.Va. Code § 61-8B­

4(a)(1) are “violent or felonious” crimes. Thus, under W.Va. Code § 49-5-101(g), the

name and identity of any juvenile adjudicated or convicted of sexual assault in the first

degree in violation of W.Va. Code § 61-8B-3(a)(2), or sexual assault in the second degree

in violation of W.Va. Code § 61-8B-4(a)(1), may be made available to the public in

accordance with the disclosure provisions contained in W.Va. Code § 49-5-103 [2015].

             Finally, as noted above, the process for disclosing juvenile records that may

be made available to the public is set forth in W.Va. Code § 49-5-103. The second

certified question does not ask this Court to discuss how the two juvenile adjudication

records in the present matters should be disclosed to the public. We note generally that

under W.Va. Code § 49-5-103(e), “[a]ny records open to public inspection pursuant to


                                           20

this section are subject to the same requirements governing the disclosure of adult

criminal records.”7



                                            IV.


                                     CONCLUSION


              Based on the foregoing, we answer the first certified question in the

negative, and the second certified question in the affirmative.



                                                            Certified Questions Answered.




       7
         See W.Va. Code § 49-5-103 setting forth, in detail, the process for disclosing
juvenile records that may be made available to the public.



                                             21

