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