dissenting in part, concurring in part and in the result.
I do not agree with that part of the majority opinion which holds that Cradle was not entitled to the right of assistance of counsel at his hearing in the juvenile court.
The majority opinion holds that Cradle was not entitled to assistance of court-appointed counsel in the juvenile court because he was certified for trial in the Corporation Court of the City of Norfolk as an adult on the robbery charges and is being held pursuant to the sentences imposed in the latter court. In reaching this conclusion, the opinion draws a distinction between a certification order and a commitment order. I do not think the distinction can be relied upon as a basis for holding that Cradle was not entitled to the right of assistance of counsel under the new constitutional rules of criminal procedure handed down by the United States Supreme Court in the recent cases of Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. ed. 2d 527 (1967), and Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. ed. 2d 84 (1966).
Gault held that the due process clause of the Fourteenth Amendment requires that a child and his parents be notified of the child’s right to retained or appointed counsel in a delinquency proceeding in a juvenile court which may result in that court’s commitment of the child to an institution in which his freedom is curtailed.
Kent involved the construction of the District of Columbia Juvenile Court statute in a waiver proceeding which is quite similar to our statute providing for the certification of a child to the proper court of record to be tried as an adult. There the Supreme Court held that Kent was entitled to the assistance of counsel in a hearing before the juvenile court, which waived its jurisdiction and remitted the child for trial by the district court, under the provisions of the Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit. The Court, however, pointed out that “the basic requirements of due process and fairness” must be satisfied in such proceedings. 383 U. S. at 562, 86 S. Ct. at 1057, 16 L. ed. 2d at 98. See also, Gault, supra, 387 U. S. at 12, 87 S. Ct. at 1436, 18 L. ed. 2d at 538.
*260And, again in Gault, 387 U. S. at 36-37, 87 S. Ct. at 1448, 18 L. ed. 2d at 551, the Court said:
“# # * Just as Kent v. United States, supra, 383 U. S. at 561-562, 86 S. Ct. at 1057-1058, we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.”
I interpret what was said in Gault and Kent, when read together, to mean that the basic requirements of due process and fairness under the Fourteenth Amendment dictate that a juvenile is entitled to the assistance of retained or appointed counsel in a juvenile court hearing whether it results in a certification order or a commitment order because it is a “critical stage” of the proceeding against him.
I agree, however, with the majority opinion that the new constitutional rule of criminal procedure requiring assistance of counsel in a juvenile court hearing should not be given retroactive application in the present case.
The federal constitution does not automatically compel the retroactive application of a new constitutional rule of criminal procedure. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 1970, 18 L. ed. 2d 1199 (1967); Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. ed. 2d 601 (1965). See also, Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 363-367, 53 S. Ct. 145, 148-149, 77 L. ed. 360, 85 A. L. R. 254 (1932).
Cradle’s convictions became final several years before the Kent and Gault decisions, and the proceeding before us is on habeas corpus. In Johnson v. State of New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 1777-1778, 16 L. ed. 2d 882 (1966), the Supreme Court recognized the right of the New Jersey Supreme Court in a post-conviction proceeding1 to determine whether a new constitutional rule shall be applied retroactively or prospectively only.
In determining the question of retroactivity or non-retroactivity of the rule,, we must be guided by “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement *261authorities on the old standards, and (c) the. effect on the administration of justice of the retroactive application of the new standards.” Stovall, supra, 388 U.S. at 297, 87 S.Ct. at 1970, 18 L. ed. 2d at 1203.
The Court said in Johnson, supra, 384 U. S. at 728, 86 S. Ct. at 1778, 16 L. ed. 2d at 889:
“* * * Each constitutional rule of criminal procedure has its own distinctive functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.”
The right to assistance of counsel at various stages of a criminal prosecution has been given retroactive application by the Supreme Court where lack of counsel affected “the very integrity of the fact-finding process” and there was present “the clear danger of convicting the innocent.” Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. ed. 2d 799 (1963) (at the time of trial itself); Hamilton v. State of Alabama, 368 U. S. 52, 82 S. Ct. 157, 7 L. ed. 2d 114 (1961) (on arraignment); Douglas v. People of State of California, 372 U. S. 353, 83 S. Ct. 814, 9 L. ed. 2d 811 (1963) (on appeal).
On the other hand, in Johnson, supra, 384 U. S. at 721, 86 S. Ct. at 1775, 16 L. ed. 2d at 885, the Court held that the decisions in Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. ed. 2d 977 (1964), and in Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694, would not be applied retroactively. In those cases the lack of counsel did not directly affect the reliability of the confessions secured during the in-custody interrogations. And in Stovall v. Denno, supra, the Court held that the rules in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. ed. 2d 1149 (1967), and Gilbert v. State of California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. ed. 2d 1178 (1967), requiring the exclusion of identification evidence which is tainted by exhibiting an accused to identifying witnesses before trial in the absence of his counsel, are not to be applied retroactively even though such confrontation is a “critical stage” of the proceedings.
In holding that the rules in Wade and Gilbert, supra, are not to be applied retroactively, the Court said:
“* * * Although the Wade and Gilbert rules also are aimed at avoiding unfairness at the trial by enhancing the reliability of the *262fact-finding process in the area of identification evidence, ‘the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.’ Johnson v. State of New Jersey, supra, 384 U. S. at 728-729, 86 S. Ct. at 1778. The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities.’ Ibid. Such probabilities must in turn be weighed against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice.” Stovall v. Denno, supra, 388 U. S. at 298, 87 S. Ct. at 1970, 18 L. ed. 2d at 1204.
After analyzing the recent cases of the Supreme Court relating to the right of counsel, it is clear that this right has been applied retroactively when there were substantial doubts as to the reliability of a conviction. Thus in deciding whether to apply the new constitutional rule of the right to counsel in juvenile hearings retroactively, a distinction can be drawn between a certification order and a commitment order, because in the former there is no finding of guilt while in the latter there is such a finding.
In the present case, Cradle’s hearing in the juvenile court did not result in a factual finding of guilt of the offenses with which he was charged. The juvenile court judge determined Cradle’s status for jurisdictional purposes and concluded from the evidence that he should be tried in the corporation court as an adult. Under our Virginia practice, the juvenile court hearing did not deprive him of his right to raise questions in defense of the charge in the corporation court. The record does not indicate that the lack of counsel had any effect on Cradle’s trial and conviction in the corporation court, where he was represented by court-appointed counsel. Since there was no finding of guilt in the juvenile court, the lack of counsel did not affect the reliability of the guilt-determining process, as it did in the cases of Gideon, Hamilton and Douglas, supra.
The Gault and Kent decisions materially change the long accepted practice and procedure of dealing with juvenile offenders under the juvenile court system existing in all fifty States. The statutes of only a few States provide that a child is entitled to representation by counsel in the juvenile court because the proceeding is considered to be non-criminal. No longer is a hearing in the juvenile court considered non-criminal, and if the righr to counsel is applied retro*263actively in certification cases in which there is no finding of guilt and the child is not committed to an institution by the juvenile court it will have a tremendous impact on the administration of justice.
When I weigh the little probability that an element of unfairness could have been present in Cradle’s hearing in the juvenile court under the old standards against the impact upon the administration of justice by applying the new rule retroactively, I think there is ample justification for not applying retroactively the right to counsel in the present case.
Hence I agree with the majority opinion that Cradle’s petition for a writ of habeas corpus should be dismissed.
Spratley, J., joins in this opinion.
. 43 N. J. 572, 206 A. 2d 737.