IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term FILED 

April 9, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

No. 14-0981 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STATE OF WEST VIRGINIA EX REL. SCOTT R. SMITH,
 

PROSECUTING ATTORNEY OF OHIO COUNTY, WEST VIRGINIA,
 

Petitioner
 

v. 

HONORABLE DAVID J. SIMS, JUDGE OF THE FIRST JUDICIAL CIRCUIT,
 

AND J.Y.,
 

Respondents
 

PETITION FOR WRIT OF PROHIBITION
 

WRIT GRANTED
 

Submitted: February 10, 2015 

Filed: April 9, 2015 

Patrick Morrisey, Esq. 

Attorney General 

Christopher S. Dodrill, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for Scott R. Smith 

Justin M. Hershberger, Esq. 

Hershberger Law Office 

Wheeling, West Virginia 

Attorney for J.Y. 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “The State may seek a writ of prohibition in this Court in a criminal case 

where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims 

that the trial court abused its legitimate powers, the State must demonstrate that the court’s 

action was so flagrant that it was deprived of its right to prosecute the case or deprived of a 

valid conviction. In any event, the prohibition proceeding must offend neither the Double 

Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the application for 

a writ of prohibition must be promptly presented.” Syl. Pt. 5, State v. Lewis, 188 W.Va. 85, 

422 S.E.2d 807 (1992). 

2. “In determining whether a misdemeanor or felony involves an ‘act of 

violence against a person’ pursuant to W.Va. Code § 27-6A-3 (2007), a court’s analysis is 

not limited by whether an ‘act of violence against a person’ is an element of the offense.” 

Syl. Pt. 1, State v. George K., 233 W.Va. 698, 760 S.E.2d 512 (2014). 

3. “An ‘act of violence against a person’ within the meaning of W.Va. 

Code § 27-6A-3 (2007) encompasses acts that indicate the incompetent defendant poses a 

risk of physical harm, severe emotional harm, or severe psychological harm to children.” 

Syl. Pt. 2, State v. George K., 233 W.Va. 698, 760 S.E.2d 512 (2014). 

i 
 

 

 

4. Possession of a deadlyweapon on the premises of an educational facility 

with the express intent to intimidate another student “involves an act of violence against a 

person” as set forth in West Virginia Code § 27-6A-3 (2013). 

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LOUGHRY, Justice 

The petitioner, Scott R. Smith, Prosecuting Attorney of Ohio County, West 

Virginia, invokes this Court’s original jurisdiction and seeks a writ of prohibition to prevent 

the respondent, the Honorable David J. Sims, Judge of First Judicial Circuit, from dismissing 

a juvenile petition against the respondent juvenile, J.Y.,1 a twelve-year- old boy charged with 

the offense of possession of a deadly weapon on the premises of an educational facility as 

set forth in West Virginia Code § 61-7-11a(b)(1) (2014). By order entered March 6, 2014, 

the circuit court dismissed the petition pursuant to West Virginia Code § 27-6A-3(g) (2013), 

finding that J.Y. was not competent to stand trial and that the charged offense did not 

“involve an act of violence against a person.” The petitioner asserts that the circuit court 

erred in finding that the charged offense did not involve an act of violence against a person 

given the potential for harm to other students that existed as a result of J.Y.’s actions, 

especially in light of his admission that he intended to use the deadly weapon–a semiautomatic pistol–to intimidate another student. Upon consideration of the parties’ briefs and 

arguments, the submitted record, and the pertinent authorities, we find sufficient grounds to 

warrant issuance of the writ. Accordingly, the requested writ is granted. 

1

The juvenile respondent in this case will be identified by his initials pursuant to Rule 

40(e) of the Rules of Appellate Procedure. 

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I. Factual and Procedural Background 

On September 13, 2013, J.Y. took a semi-automatic pistol to his middle school. 

The gun was discovered after J.Y. was questioned by the principal who had learned from 

another student that J.Y. had shown .25-caliber ammunition to other children outside of a 

local volunteer fire department the previous evening. The principal asked J.Y. about the 

ammunition, and he admitted to having individual rounds in his pockets as well as loaded 

magazines in his school locker. The principal then went to J.Y.’s locker and found the 

magazines and the semi-automatic pistol in J.Y.’s backpack. The pistol was loaded with 

three rounds in the magazine and one in the chamber ready to be fired. Another magazine 

was loaded with seven rounds. Thereafter, J.Y. was questioned by the police. 

J.Y. told a police officer that he had taken the pistol from his grandparents’ 

house and brought it to school to scare a girl who had been bullying him. J.Y. was 

immediately suspended from school and taken to a juvenile detention center where he was 

placed on suicide watch because he also told the officer that he had the gun “to scare 

himself” and “he was being extremely emotional.” The following day, J.Y. was charged by 

a juvenile petition with the offense of possession of a deadly weapon on the premises of an 

educational facility. Following the filing of the petition, J.Y. waived his right to a 

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preliminary hearing. Subsequently, by agreed order, J.Y. underwent a complete 

psychological and psychiatric evaluation.2 

A forensic psychologist evaluated J.Y. on December 4, 2013. The psychologist 

reported that J.Y. had a Full Scale IQ of seventy, which is equivalent to a nine-year-old child, 

and was functioning at about the third grade level. He further stated that J.Y. did not have 

“a rational, as well as factual, understanding of proceedings against him” and concluded that 

J.Y. was not competent to stand trial “due to his limited intellectual abilities and high 

distractability.” The psychologist also determined that J.Y.’s competency “is not easily 

restored or improved” and that “one or two years of education” would be required for him 

to understand the proceedings. Thereafter, J.Y. filed a “Motion to Dismiss” and a “Motion 

for Finding of Incompetent to Stand Trial and Not Likely to Regain Competency” pursuant 

to West Virginia Code § 27-6A-3. 

The matter came before the circuit court on March 6, 2014. It was undisputed 

that a qualified forensic evaluator had determined, pursuant to West Virginia Code § 27-6A2(c) (2013),3 that J.Y. was not competent to stand trial and was not “substantially likely to 

2

See W.Va.R.Juv.Proc. 26 (providing for pre-adjudicatory competency evaluations of 

juveniles subject to pending petition in accordance with procedures set forth in W.Va. Code 

§§ 27-6A-2 and 27-6A-4 (2013)). See also W.Va. Code § 27-6A-9 (2013). 

3

West Virginia Code § 27-6A-2(c) states in relevant part: “If it is the qualified 

forensic evaluator’s opinion that the defendant is not competent to stand trial, the report shall 

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attain competency within the next three months.” Id. Because J.Y. was deemed incompetent 

to stand trial, the only issue for the circuit court to determine was how to proceed with 

respect to the pending criminal charge. Such determination depends on whether the charged 

offense “involve[d] an act of violence against a person.” In that regard, West Virginia Code 

§ 27-6A-3(g) provides: 

If at any point in the proceedings the defendant is found 

not competent to stand trial and is found not substantially likely 

to attain competency and if the defendant has been indicted or 

charged with a misdemeanor or felony which does not involve 

an act of violence against a person, the criminal charges shall 

be dismissed. The dismissal order may, however, be stayed for 

twenty days to allow civil commitment proceedings to be 

instituted by the prosecutor pursuant to article five [§§ 27-5-1 et 

seq.] of this chapter. The defendant shall be immediately 

released from any inpatient facility unless civilly committed. 

Id. (emphasis added). In contrast, West Virginia Code § 27-6A-3(h) states: 

If at any point in the proceedings the defendant is found 

not competent to stand trial and is found not substantially likely 

to attain competency, and if the defendant has been indicted or 

charged with a misdemeanor or felony in which the 

misdemeanor or felony does involve an act of violence against 

a person, then the court shall determine on the record the 

offense or offenses of which the person otherwise would have 

been convicted, and the maximum sentence he or she could have 

received.4 A defendant shall remain under the court’s 

jurisdiction until the expiration of the maximum sentence unless 

state whether the defendant is substantially likely to attain competency within the next three 

months[.]” 

4

West Virginia Code § 61-7-11a(b)(3) provides for a maximum sentence of ten years 

in prison for the offense of possession of a deadly weapon on the premises of an educational 

facility. 

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the defendant attains competency to stand trial and the criminal 

charges reach resolution or the court dismisses the indictment 

or charge. The court shall order the defendant be committed to 

a mental health facility designated by the department that is the 

least restrictive environment to manage the defendant and that 

will allow for the protection of the public. Notice of the 

maximum sentence period with an end date shall be provided to 

the mental health facility. The court shall order a qualified 

forensic evaluator to conduct a dangerousness evaluation to 

include dangerousness risk factors to be completed within thirty 

days of admission to the mental health facility and a report 

rendered to the court within ten business days of the completion 

of the evaluation. The medical director of the mental health 

facility shall provide the court a written clinical summary report 

of the defendant’s condition at least annually during the time of 

the court’s jurisdiction. The court’s jurisdiction shall continue 

an additional ten days beyond any expiration to allow civil 

commitment proceedings to be instituted by the prosecutor 

pursuant to article five [§§ 27-5-1 et seq.] of this chapter. The 

defendant shall then be immediately released from the facility 

unless civilly committed. 

Id. (emphasis and footnote added). 

Upon consideration, the circuit court found that the offense with which J.Y. 

was charged did not involve an act of violence against a person because the weapon was not 

seen by anyone prior to its discovery, and J.Y. never brandished the gun nor “made any 

specific threats to, or against, anyone.” The circuit court concluded “that absent any use or 

threatened use of physical force against a person by [J.Y.], the alleged offense . . . is not an 

offense [that] constitutes “an act of violence against a person.” Accordingly, the circuit court 

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granted J.Y.’s requested relief and dismissed the juvenile petition against him. On 

September 30, 2014, the petitioner filed this petition for a writ of prohibition. 

II. Standard for Issuance of a Writ of Prohibition 

The State has a limited right to seek a writ of prohibition in a criminal case. 

As this Court explained in syllabus point five of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 

807 (1992), 

The State may seek a writ of prohibition in this Court in 

a criminal case where the trial court has exceeded or acted 

outside of its jurisdiction. Where the State claims that the trial 

court abused its legitimate powers, the State must demonstrate 

that the court’s action was so flagrant that it was deprived of its 

right to prosecute the case or deprived of a valid conviction. In 

any event, the prohibition proceeding must offend neither the 

Double Jeopardy Clause nor the defendant’s right to a speedy 

trial. Furthermore, the application for a writ of prohibition must 

be promptly presented.5 (footnote supplied) 

5

J.Y. urges this Court to dismiss this petition seeking a writ of prohibition as untimely. 

We decline to do so because the petitioner did in fact immediately file an appeal of the March 

6, 2014, dismissal order with this Court on March 19, 2014. However, by order dated 

September 17, 2014, this Court dismissed the appeal stating, 

Rule 1(d) of the West Virginia Rules of Juvenile Procedure 

provides: “Juveniles charged with delinquency or status 

offenses are given the same rights as adults charged with 

criminal offenses, and in some instances they are afforded more 

protection.” W.Va. Code § 58-5-30 grants the State the right to 

appeal a criminal case only when the indictment is held bad or 

insufficient. Since W.Va. Code § 58-5-30 does not provide that 

the State has the right to appeal the dismissal of a juvenile 

delinquency petition, this Court finds that there is no 

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In this instance, the petitioner contends that the circuit court abused its legitimate powers 

when it ruled that the charged offense did not “ involve an act of violence against a person” 

as set forth in West Virginia Code § 27-6A-3. We review de novo a circuit court’s legal 

rulings and statutory interpretations. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 

138. 459 S.E.2d 415 (1995). With these standards in mind, we consider whether the 

requested writ of prohibition should be granted. 

III. Discussion 

The sole issue before this Court is whether J.Y. was charged with an offense 

that “involve[d] an act of violence against a person” within the meaning of West Virginia 

Code § 27-6A-3. At the time the matter came before the circuit court, the phrase “act of 

violence against a person” was not defined by any statute or case law. Looking for guidance 

on this issue, the circuit court ultimately relied upon West Virginia Code § 49-5-10(h) 

(2014),6 a statute defining the phrase “offense of violence” as “an offense which involves the 

constitutional or statutory appeal allowed, and that this Court 

does not have jurisdiction to consider this matter on appeal. The 

appeal is dismissed without prejudice in order to enable the 

petitioner to re-file this matter as a petition for a writ of 

prohibition. 

(emphasis added). Following entry of our order, the petitioner promptly filed this petition 

for a writ of prohibition. 

6

This statute concerns the waiver and transfer of juvenile defendants to adult criminal 

jurisdiction. 

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use or threatened use of physical force against a person.” Based upon this statutory 

definition, the court concluded that J.Y. did not commit “an act of violence against a person” 

because he did not use physical force against anyone or threaten the use of physical force. 

Subsequent to the circuit court’s dismissal of the juvenile petition at issue, this 

Court had occasion in State v. George K., 233 W.Va. 698, 760 S.E.2d 512 (2014), to interpret 

the phrase “involve[d] an act of violence against a person” within the meaning of West 

Virginia Code § 27-6A-3. In that case, George K., who was thirty-nine years old, was 

charged with the offenses of third degree sexual assault7 and sexual abuse by a custodian8 

based on allegations that he had sexual intercourse on two separate occasions with the 

fifteen-year-old daughter of his live-in girlfriend. The victim was within six weeks of the 

age of consent, and George K. maintained that she willingly engaged in sexual intercourse 

with him. Like J.Y., George K. was deemed incompetent to stand trial.9 Accordingly, the 

disposition of the charges against George K. hinged on the determination of whether the 

offenses “involve[d] an act of violence against a person.” Even though there was no 

7

See W.Va. Code § 61-8B-5(a)(2) (2000). 

8

See W.Va. Code § 61-8D-5 (2005). 

9

A psychiatric evaluation revealed that George K. had an IQ of sixty and that he did 

not have the ability to understand the court proceedings and charges against him because of 

retention-related problems. In addition, he was deemed unable to participate in his defense 

because of cognitive limitations. It was concluded that George K. was not likely to attain 

competency in the foreseeable future. George K., 233 W.Va. at 702, 760 S.E.2d at 516. 

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evidence of physical violence or forcible compulsion, the circuit court found that the offenses 

did involve an act of violence against a person and committed George K. to a mental health 

facility pursuant to West Virginia Code § 27-6A-3(h). 

On appeal, George K. argued that because the sexual conduct he engaged in 

with the victim was consensual and did not involve the application of force, threats or 

physical violence and because force, threats, compulsion or physical violence were not 

elements of the charged offenses, his actions were not violent within the meaning of West 

Virginia Code § 27-6A-3. The State disagreed, maintaining that the charged offenses did 

“involve an act violence against a person” as set forth in the statute because of the great 

potential for physical harm and long-term psychological damage to the child victim. 

Our analysis in George K. began with the recognition that the meaning of 

“violence,” as set forth in West Virginia Code § 27-6A-3, is ambiguous due to the absence 

of an explicit statutory definition. In accordance with our rules of statutory construction, we 

proceeded to ascertain the legislative intent behind the enactment of the statute. Determining 

that the statute has a dual purpose of treating individuals suffering from mental illnesses and 

protecting the public,10 we concluded that “the reason for determining whether an act of 

10See Syl. Pt. 4, in part, State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (1996) (“The 

purpose of West Virginia Code § 27-6A-3 (Supp.1996) is not to punish someone suffering 

a mental illness; rather, it is to treat the illness and protect society.”). 

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violence against a person has occurred is prospective due to the risk of recurrence.” George 

K., 233 W.Va. at 708, 760 S.E.2d at 522. In other words, “examination of crimes that have 

allegedly been committed indicates whether the incompetent defendant poses a future risk 

of harm.” Id. We further explained: 

Logic dictates that if the Legislature intended these subsections 

to provide for the protection of the public, then a crime that does 

not involve an act of violence against a person that therefore 

allows for the release from supervision of a person deemed 

incompetent to stand trial pursuant to W.Va. Code § 27-6A-3(g) 

must necessarily be a crime that does not indicate that the 

incompetent defendant poses a future risk of harm to the public. 

Similarly, if the crime warrants commitment pursuant to W.Va. 

Code § 27-6A-3(h), then the incompetent defendant poses a 

future risk of harm to the public. Therefore, an “act of violence 

against a person” within the meaning of W.Va. Code § 27-6A-3 

is an act that indicates an incompetent defendant poses a future 

risk of harm to the public. 

233 W.Va. at 708, 760 S.E.2d at 522. 

We also determined in George K. that it would be contrary to the clear purpose 

of West Virginia Code § 27-6A-3 to find that only those crimes that list “an act of violence” 

as an element satisfy the “act of violence against a person” requirement of the statute. 

Observing that such a strict construction would exclude many crimes, like battery, which 

involve violence but do not explicitly list the same as an element of the offense, we held that 

“in determining whether a misdemeanor or felony involves an ‘act of violence against a 

person’ pursuant to W.Va.Code § 27-6A-3 (2007), a court’s analysis is not limited by 

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whether an ‘act of violence against a person’ is an element of the offense.” George K., 233 

W.Va. at 701, 760 S.E.2d at 515, syl. pt. 1. 

Addressing the heart of the parties’ arguments in George K., we held in syllabus 

point two that “an ‘act of violence against a person’ within the meaning of W.Va. Code § 

27-6A-3 (2007) encompasses acts that indicate the incompetent defendant poses a risk of 

physical harm, severe emotional harm, or severe psychological harm to children.” 233 W.Va. 

at 701, 760 S.E.2d at 515. Although there was no evidence that George K.’s victim suffered 

physical, psychological or emotional harm, we were nonetheless compelled to conclude that 

the charged offenses involved “an act of violence against a person” given the legislative 

purpose of protecting the public which underlies the enactment of West Virginia Code § 27­

6A-3. As we explained, “[e]ven if it was established that the child in this case did not and 

will not suffer any harm as a result of George K.’s acts, it does not follow that another child 

subject to a similar encounter in the future would also not suffer severe harm.” George K., 

233 W.Va. at 711, 760 S.E.2d at 525. 

In this original proceeding in prohibition, the petitioner argues that the circuit 

court’s decision to dismiss the juvenile petition was fundamentally flawed because of its 

failure to focus on the potential for harm inherent in J.Y.’s actions. The petitioner contends 

that under the analysis employed in George K., J.Y. clearly committed an offense involving 

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an act of violence against a person. Rather than focusing on the things that J.Y. did not do 

with the gun, the petitioner asserts that the circuit court should have recognized the risk of 

harm to other students that existed, especially given J.Y.’s admission that he was planning 

to use the gun to scare the girl who had been bullying him. 

J.Y. maintains, however, that the circuit court did not abuse its legitimate 

powers when it dismissed the juvenile petition against him pursuant to West Virginia Code 

§ 27-6A-3(g). J.Y. asserts that the petitioner’s reliance upon George K. is misplaced. He 

argues that the case is easily distinguishable because it dealt exclusively with sexual offenses 

against children.11 Noting that sexual offenses by their nature involve interaction with an 

identifiable victim, J.Y. acknowledges that the risk of severe emotional or psychological 

harm is great in those instances due to the victim’s memory of what happened. He reasons 

that the same is not true in his case because no other student actually saw the gun before it 

was discovered. Accordingly, J.Y. concludes that there is no basis to classify the charge 

against him as an offense involving an act of violence against a person. We disagree. 

11Although J.Y. does not contend that George K. is inapplicable because the opinion 

was issued subsequent to the circuit court’s dismissal of the juvenile petition against him, we 

nonetheless note that “[t]he Supreme Court of Appeals of West Virginia, like all courts in 

the country, adheres to the common law principle that, ‘[a]s a general rule, judicial decisions 

are retroactive in the sense that they apply both to the parties in the case before the court and 

to all other parties in pending cases.’ Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir.2004).” 

Caperton v. A.T. Massey Coal Co., Inc., 225 W.Va. 128, 156, 690 S.E.2d 322, 350 (2009). 

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By focusing on the fact that no student saw him with the gun and concluding 

that there was no “identifiable victim,” J.Y. misinterprets our decision in George K. As set 

forth above, we made clear that the statutory purpose of West Virginia Code § 23-6A-3– 

protecting the public– requires consideration of whether the incompetent defendant poses a 

future risk of harm. As such, the fact that J.Y. never brandished the weapon nor made any 

specific threats to or against anyone is of no consequence. As we explained in George K., 

it matters not whether someone suffered actual harm as a result of the events that led to the 

charged offense; rather, the question is whether the actions of the incompetent defendant 

pose a risk of physical, emotional or psychological harm to children. 233 W.Va. at 711, 760 

S.E.2d at 525. In this case, it is clear the actions of J.Y. posed a significant risk of harm to 

the other students as well as school personnel. It was only because of timely intervention by 

the principal that a potential tragedy was avoided. 

As the record indicates, on September 13, 2013, J.Y. entered his middle school 

with a loaded gun ready to be immediately fired. He also possessed a significant amount of 

additional ammunition. By his own admission, he had an intended target and a clear purpose 

for bringing the gun to school. He readily admitted to the police that he was going to use 

the gun to scare the girl who had been bullying him. By luck or happenstance, school 

personnel were alerted at eight o’clock that morning of J.Y.’s possession and display of 

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ammunition to other children the previous evening. This information caused the principal 

to take immediate action that led to the gun being discovered very early in the school day. 

School personnel were aware of the bullying incidents between J.Y. and his 

intended target, who is described in the record as being physically larger than J.Y. According 

to the police report, a police officer on duty at the school had intervened in one of the 

bullying incidents and had been “making checks” on J.Y. since that time. J.Y. revealed to 

the forensic psychologist who examined him that he believed that “all the school did was 

make the bullying worse.” J.Y.’s clearly expressed intention to use the deadly weapon to 

scare the girl who had been bullying him, coupled with his belief that the bullying incidents 

were escalating as a result of the intervention by school personnel, makes it more likely than 

not that he would have brandished and possibly fired the gun, if more time had elapsed 

before it was discovered by the principal. 

In addition, it is noted that the police report indicates that the principal had to 

stop J.Y. from trying to reach for his backpack as his locker was being searched. This fact 

is very telling of the risk posed by J.Y.’s possession of the deadly weapon. Whether J.Y. was 

going to pull the gun out of his backpack to use it or simply give it to the principal, or 

whether he was merely trying to further conceal it, the potential for harm is obvious. 

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In making it a crime to possess a deadly weapon on the premises of an 

educational facility, the Legislature recognized the potential for harm that exists when 

firearms are merely accessible to children. When a student brings a gun to school with the 

express intention of using it to intimidate another child, the likelihood that other students will 

suffer some type of physical or psychological harm becomes a virtual certainty unless 

someone happens to intervene. Accordingly, based on all the above, we find that J.Y.’s 

actions on September 13, 2013, indicate that he poses a risk of physical harm and severe 

emotional and psychological harm to children and, therefore, he committed an offense 

involving an act of violence against a person within the meaning of West Virginia Code § 

23-6A-3. To find otherwise, given these particular circumstances, would defy logic and 

common sense.12 Consequently, we now hold that possession of a deadly weapon on the 

12Other jurisdictions have also recognized the risks posed by the possession of 

firearms or other deadly weapons on school property. See In re Latasha W., 70 Cal.Rptr.2d 

886, 887 (Cal.Ct.App. 1998) (holding random metal detector weapon searches of high school 

students constitutional, finding “need of schools to keep weapons off campuses is 

substantial” because “[g]uns and knives pose a threat of death or serious injury to students 

and staff”); State v. J.A., 679 So.2d 316, 320 (Fla. Dist. Ct. App. 1996) (concluding 

administrative search leading to discovery of gun in student’s jacket constitutional as 

“incidences of violence in our schools have reached alarming proportions”); People v. Pruitt, 

662 N.E.2d 540, 546 (Ill.App.Ct. 1996) (finding reasonable search and seizure of firearms 

possessed by two students, stating, “Judges cannot ignore what everybody else knows: 

violence and the threat of violence are present in the public schools. . . . School children are 

harming each other with regularity.”); Moore v. Appleton City R-II School, 232 S.W.3d 642, 

647 (Mo.Ct.App. 2007) (affirming suspension of student for violating school’s weapons 

policy, noting trial court’s observation that “[i]n today’s climate of students being taken 

hostage, shot at and killed, possessing any item on school property that resembles a firearm 

. . . creates an extremely dangerous situation”); In the Matter of A.J.C., 326 P.3d 1195, 1202 

(Or. 2014) (upholding search of youth’s backpack as reasonable, observing “[n]o matter 

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premises of an educational facility with the express intent to intimidate another student 

“involves an act of violence against a person” as set forth in West Virginia Code § 27-6A-3. 

Because J.Y. has been deemed incompetent to stand trial and we have now 

determined that he was charged with an offense involving an act of violence against a person, 

the requirements of West Virginia Code § 27-6A-3(h) are satisfied thereby entitling the 

petitioner to the issuance of the requested writ in this matter. However, once again, 

we reiterate that the determination of whether a charged crime 

involves an act of violence under W.Va. Code § 27-6A-3 is only 

a threshold inquiry. With regard to incompetent defendants who 

are charged with a crime involving an act of violence pursuant 

to W.Va. Code § 27-6A-3(h), the duty of the court is not to 

“lock them up and throw away the key.” Instead, under W.Va. 

Code § 27-6A-3(h) the condition of those defendants must at a 

minimum be reviewed annually, and reports regarding their 

conditions must be submitted to and considered by the court.13 

W.Va. Code § 27-6A-3(h). Additionally, W.Va. Code § 

27-6A-3(h)-(i) require that an incompetent defendant be 

committed to the least restrictive environment necessary to treat 

the defendant while simultaneously providing for the protection 

of the public. (footnote supplied) 

George K., 233 W.Va. at 712, 760 S.E.2d at 526. See also W.Va. Code § 27-6A-5 (2013) 

(providing procedure for release of incompetent defendant who is no longer mentally ill or 

where the gun was located, whether it was in youth’s immediate possession or not, it 

presented a danger to students”). 

13By maintaining jurisdiction over J.Y., the circuit court will be able to ensure that he 

receives whatever treatment is necessary. 

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does not have significant dangerousness risk factors associated with mental illness to less 

restrictive environment). 

IV. Conclusion 

For the reasons set forth above, the circuit court exceeded its legitimate powers 

in dismissing the juvenile petition against J.Y. Therefore, the petitioner is entitled to relief 

in prohibition. Accordingly, the March 6, 2014, dismissal order entered by the circuit court 

is vacated, and this case is remanded for further proceedings consistent with this opinion. 

Writ granted. 

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