West Virginia

Juvenile Indigent Defense Delivery System

WV

West Virginia provides counsel to indigent youth through West Virginia Public Defender Services, a state-funded entity that “administer[s], coordinate[s] and evaluate[s] programs by which the state provides legal representation to indigent persons, monitor[s] the progress of various delivery systems, and recommend[s] improvements.” W. Va. Code Ann. § 29-21-3. Public Defender Services funds a public defender corporation in each judicial circuit to provide representation. W. Va. Code Ann. § 29-21-8. The office may also contract with attorneys or nonprofit groups to provide defense services. W. Va. Code Ann. §29-21-6(a).

Appellate advocacy is provided to certain indigent defendants by the statewide Public Defender Services. W. Va. Code § 29-21-6(e). The office also contains a criminal law research center that provides training and technical assistance related to the delivery of legal representation and researches issues related to the direct representation of eligible clients. W. Va. Code Ann. § 29-21-6(c).

Each circuit court maintains local and regional panels of private attorneys that may be appointed for financially eligible clients in conflict cases. If there is no local or regional panel attorney available and the circuit does not have an operational public defender office, the circuit judge may appoint a private attorney. W. Va. Code Ann. § 29-21-9.

West Virginia has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.

“The juvenile, the juvenile’s counsel, or the juvenile’s parent or guardian may demand, or the judge on his or her own motion may order a jury trial on any question of fact, in which the juvenile is accused of any act or acts of delinquency which, if committed by an adult would expose the adult to incarceration.” W. Va. Code Ann. § 49-4-709(a); W. Va. Code Ann. §49-4-709.

Court Rules

In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. West Virginia’s juvenile court rules are called the Rules of Juvenile Procedure.

Right to Counsel

Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.

In West Virginia, a young person “has the right to be represented by an attorney at all stages of proceedings brought under the delinquency and status offense provisions.” W. Va. R. Juv. P. 5(a). “This right attaches no later than when the juvenile first appears before a magistrate or circuit judge.” W. Va. R. Juv. P. 5(a) However, the court will not appoint counsel at public expense for “juvenile traffic offenses or other offenses heard in Magistrate Court” or to violations of municipal ordinances. W. Va. R. Juv. P. 5(a). The young person or the young person’s legal guardian may retain private counsel for those matters. W. Va. R. Juv. P. 5(a). When a youth appears at a preliminary hearing without counsel, the court is to inform the youth and their parent, guardian, or custodian of the young person’s right to counsel at all stages of the proceedings. W. Va. Code Ann. § 49-4-708(a)(1).

A child is specifically entitled to counsel at the following stages:

Determination of Indigence

West Virginia has no presumption of indigence in juvenile court proceedings. If a child, the child’s parents or legal guardians inform the court that they are unable to obtain counsel without substantial hardship for the child and or the child’s family, the court shall inquire to determine financial eligibility for the appointment of counsel under the guidance of W. Va. Code Ann. §29-21-16, which outlines eligibility requirements for public defender services. W. Va. R. Juv. P. 5(c)(1).

“If the parents or legal guardians of a juvenile can afford to retain counsel and have not retained counsel for the juvenile, and the juvenile cannot afford to retain counsel, the court may order the parents or legal guardians to provide, by paying for, legal representation for the juvenile in the proceedings. Such order may be entered only after giving the parents or legal guardians a reasonable opportunity to be heard.” W. Va. R. Juv. P. 5(c)(2). “The court may disregard the assets of the juvenile’s parents or guardians and appoint counsel for the juvenile… if the court concludes, as a matter of law, that the juvenile and the parents or guardians have a conflict of interest that would adversely affect the juvenile’s right to effective representation of counsel, or concludes, as a matter of law, that requiring the juvenile’s parents or guardians to provide legal representation for the juvenile would otherwise jeopardize the best interests of the juvenile.” W. Va. R. Juv. P. 5(c)(2).

Waiver of Counsel

The Supreme Court of Appeals of West Virginia has held that a young person’s waiver of a constitutional right is valid and knowing only if it is done upon the advice of counsel. State ex rel. J. M. v. Taylor, 276 S.E.2d 199, 205 (W. Va. 1981).

Detention Provisions

When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In West Virginia, a detention hearing must be held “without unnecessary delay and in no event may any delay exceed the next day” after the child was taken into custody. W. Va. Code Ann. § 49-4-705(a). Provisions for the detention of youth are found in W. Va. Code Ann. §§ 49-4-705, 49-4-706, 49-4-712, 49-4-720, and 49-4-721 and W. Va. R. Juv. P. 6, 12, 13, and 16.

The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.

Post-Disposition Advocacy

The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. West Virginia Rules of Juvenile Procedure list two post-disposition proceedings at which youth have a right to counsel.

In West Virginia, youth have a right to counsel in the following post-disposition proceedings:

NJDC’s Post-Disposition Page has more information on this topic from a national perspective.

Ages of Juvenile Court Jurisdiction

The age of a youth who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In West Virginia:

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. West Virginia has two ways that youth can be prosecuted as adults:

Assessments

NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.

The West Virginia Assessment was completed in Spring 2010.

Current through July 2018.