State of West Virginia ex rel., State of West Virginia v. The Honorable Paul W. Gwaltney, Jr., Judge of the Circuit Court of Monongalia County, and William J. McGough ( 2024 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2024 Term
_______________ October 28, 2024
released at 3:00 p.m.
C. CASEY FORBES, CLERK
No. 24-31 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
STATE OF WEST VIRGINIA ex rel.,
STATE OF WEST VIRGINIA,
Petitioner
v.
THE HONORABLE PAUL W. GWALTNEY, JR.
Judge of the Circuit Court of Monongalia County, and
WILLIAM J. MCGOUGH,
Respondents
____________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
____________________________________________________________
Submitted: October 9, 2024
Filed: October 28, 2024
Patrick Morrisey, Esq. Ryan J. Umina, Esq.
Attorney General Beth L. Umina, Esq.
Holly M. Mestemacher, Esq. Seth F. Huy, Esq.
Assistant Attorney General Umina Legal, PLLC
Charleston, West Virginia Morgantown, West Virginia
Counsel for Petitioner Counsel for Respondent,
William McGough
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A circuit court may not grant a defendant’s pretrial motion to
dismiss an indictment on the basis of the sufficiency of the evidence or whether a factual
basis for the indictment exists.” Syl. Pt. 3, State ex rel. State v. Gwaltney, 249 W. Va. 706,
901 S.E.2d 70 (2024).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va.
12, 483 S.E.2d 12 (1996).
3. “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
i
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), superseded on other grounds by statute as
recognized in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 718, 729 n.27 (2017).
ii
ARMSTEAD, Chief Justice:
Petitioner, the State of West Virginia (“the State”), invokes this Court’s
original jurisdiction seeking a writ of prohibition to prevent the Circuit Court of
Monongalia County from enforcing its order dismissing a two-count indictment against
Respondent William J. McGough (“Respondent McGough”).1 The indictment charged
Respondent McGough with two counts of failing to register as a sex offender, second or
subsequent offense, in violation of West Virginia Code § 15-12-8 (2006). The circuit court
granted Respondent McGough’s pretrial motion to dismiss the indictment, concluding that
“the facts of the current case” did not support a finding that Respondent McGough was
required to register as a sex offender in West Virginia. This Court has held that “[a] circuit
court may not grant a defendant’s pretrial motion to dismiss an indictment on the basis of
the sufficiency of the evidence or whether a factual basis for the indictment exists.” Syl.
Pt. 3, State ex rel. State v. Gwaltney, 249 W. Va. 706, 901 S.E.2d 70 (2024). Applying this
holding to the instant case, we find that the circuit court exceeded its legitimate powers and
invaded the province of the grand jury by dismissing the indictment. Therefore, we grant
the writ.
I. FACTUAL AND PROCEDURAL BACKGROUND
1
The Honorable Susan B. Tucker, former Judge of the Circuit Court of the
Seventeenth Judicial Circuit, issued the order that is the subject of the petition for a writ of
prohibition. Judge Tucker subsequently retired and the Honorable Paul W. Gwaltney, Jr.
was appointed to serve the unexpired portion of Judge Tucker’s term.
1
In May 2022, a grand jury returned an indictment against Respondent
McGough charging him with two counts of a second or subsequent failure to register or
provide notice of registration changes, in violation of West Virginia Code § 15-12-8(c).2
According to the indictment, Respondent McGough (1) moved to West Virginia on May
7, 2021; (2) was “required by law to register for life as a sex offender;” (3) “unlawfully,
feloniously and knowingly” failed to register as a sex offender; and (4) had previously been
convicted of “felony Failure to Register or Provide Notice of Registration Change on or
about May 13, 2015, in the . . . District Court of Maryland for Frederick County.”
Respondent McGough moved to dismiss the indictment. He claimed that he
was no longer required to register as a sex offender “in Ohio, the original jurisdiction which
2
West Virginia Code § 15-12-8(c) provides:
(c) Any person required to register for life pursuant to this
article who knowingly provides materially false information or
who refuses to provide accurate information when so required
by the terms of this article, or who knowingly fails to register
or knowingly fails to provide a change in any required
information as required by this article, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than
five years. Any person convicted of a second or subsequent
offense under this subsection is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than ten nor more than twenty-five years.
2
resulted in his need to register[.]”3 Respondent McGough stated that upon moving to West
Virginia, he “checked the appropriate corresponding statute, and understood it to read as
him not being required to register in West Virginia, as the State where his charge
originated, Ohio, had since lifted this requirement.” According to Respondent McGough,
the “appropriate corresponding statute” is West Virginia Code § 15-12-9(c), which is
contained in the Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to -10.
West Virginia Code § 15-12-9(c) provides: “Any person changing residence to this state
from another state or federal or military jurisdiction who is required to register as a sex
offender under the laws of that state or federal or military jurisdiction shall register as a sex
offender in this state.” Respondent McGough argued that this statute is ambiguous, that
the rule of lenity therefore applies, and that the statute must be construed against “the State
3
The circuit court’s order granting Respondent McGough’s motion to dismiss
described his Ohio convictions as follows:
[Respondent McGough] was convicted on March 28, 2008, in
the State of Ohio, on four felony counts of sexual misconduct
involving a minor. [Respondent McGough] was required to
register as a sex offender in Ohio for twenty-five years.
Subsequently, the Attorney General of the State of Ohio
modified [Respondent McGough’s] registration requirement to
a term of ten years.
We note that the indictment alleged that Respondent McGough had been convicted of
failing to register as a sex offender in Maryland in 2015. Respondent McGough’s motion
to dismiss did not address his 2015 Maryland conviction.
3
. . . and in [his] favor,” resulting in a finding that because he was no longer required to
register as a sex offender in Ohio, he was not required to register in West Virginia.4
The State opposed the motion to dismiss, arguing that West Virginia Code §
15-12-2(b), which is also contained in the Sex Offender Registration Act, applied to the
instant case.5 According to the State,
4
This Court has held that “[i]n construing an ambiguous criminal statute, the rule
of lenity applies which requires that penal statutes must be strictly construed against the
State and in favor of the defendant.” Syl. Pt. 5, State ex rel. Morgan v. Trent, 195 W. Va.
257, 465 S.E.2d 257 (1995). Respondent McGough’s motion to dismiss did not identify
the language in West Virginia Code § 15-12-9(c) that allegedly created ambiguity.
5
West Virginia Code § 15-12-2(b) provides:
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 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 § 15-
12-2(d) of this code and according to the internal management
rules promulgated by the superintendent under authority of §
15-2-25 of this code:
(1) § 61-8A-1 et seq. of this code;
(2) § 61-8B-1 et seq. of this code, including the provisions of
former § 61-8B-6 of this code, relating to the offense of sexual
assault of a spouse, which was repealed by an act of the
Legislature during the 2000 legislative session;
(3) § 61-8C-1 et seq. of this code;
(4) § 61-8D-5 and § 61-8D-6 of this code;
(5) § 61-2-14(a) of this code;
(6) § 61-8-6, § 61-8-7, § 61-8-12, and § 61-8-13 of this code;
(continued . . .)
4
the Legislature [in West Virginia Code § 15-12-2(b)] set out a
uniform registration scheme for eight specific categories of
West Virginia crimes as well as their functional equivalents
under other state or federal laws. If someone is convicted of
one of the enumerated crimes or a crime in a different
jurisdiction that has the “same essential elements,” then [the
statute’s] procedural and timing requirements for registration
apply.
The State argued that because Respondent McGough was residing in West
Virginia and had been convicted of one of the qualifying offenses contained in West
Virginia Code § 15-12-2(b), he was required to register as a sex offender for life in West
Virginia. Finally, the State asserted that the rule of lenity did not apply because the statute
Respondent McGough’s argument relied upon, West Virginia Code § 15-12-9(c), is not
ambiguous.
The circuit court granted Respondent McGough’s motion to dismiss by order
entered on March 24, 2023. It agreed with Respondent McGough’s argument that West
Virginia Code § 15-12-9(c) was the only relevant statute under the facts of this case and
determined that under this statute
[t]he registration of out-of-state sex offenders is applicable to
any person presently required to register as a sex offender in
any other state. Applying this statutory interpretation to the
facts of the current case, it is clear [Respondent McGough]
(7) § 61-3C-14b of this code, as it relates to violations of those
provisions of chapter 61 listed in this subsection; or
(8) § 61-14-2, § 61-14-5, and § 61-14-6 of this code: Provided,
That as to § 61-14-2 of this code only those violations
involving human trafficking for purposes of sexual servitude
require registration pursuant to this subdivision.
5
discharged his duty to register as a sex offender in Ohio prior
to moving to West Virginia.
Therefore, it is hereby ORDERED that the Indictment
as charged in [Respondent McGough’s] criminal case . . . is
hereby DISMISSED.
(Emphasis added).
Following entry of this order, the State filed a petition for a writ of
prohibition, requesting that this Court grant the writ to prevent the circuit court from
enforcing its dismissal order.
II. STANDARD OF REVIEW
This Court has set forth the following standard for issuance of a writ of
prohibition when it is alleged that a lower court is exceeding its authority:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
6
In this case, the State seeks a writ of prohibition to prevent the circuit court
from enforcing its order dismissing the indictment against Respondent McGough. We have
held that the State may seek a writ of prohibition under limited circumstances in criminal
cases:
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), superseded on other
grounds by statute as recognized in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d
718, 729 n.27 (2017).
III. ANALYSIS
The State’s main argument is that the circuit court erred by concluding that
West Virginia Code § 15-12-9(c) is the only relevant statute under the facts of this case
and that pursuant to this statute, Respondent McGough was not required to register as a sex
offender in West Virginia.6 However, the threshold, and indeed dispositive, issue before
6
The State’s argument highlights the following language in West Virginia Code §
15-12-2(b): “[A]ny person who has been convicted of an offense . . . under a statutory
provision of another state . . . which requires proof of the same essential elements shall
(continued . . .)
7
us is whether the circuit court had the authority to dismiss the indictment based on its
conclusion that the “facts of the current case” were insufficient to sustain the charges
against Respondent McGough. As explained below, we find that the circuit court exceeded
its legitimate powers by dismissing the indictment. Our discussion begins with a review
of a circuit court’s role when reviewing an indictment. We then examine the Hoover
factors and explain our conclusion to grant the writ.
register” in West Virginia. Id. (Emphasis added). The State argues that West Virginia Code
§ 15-12-2(b) does not restrict those who must register in West Virginia only to persons
who are currently required to register in the state in which they were convicted. Instead, it
provides that any person who has been convicted of a qualifying offense in another state
shall register in West Virginia if their offense falls within the eight categories of offenses
contained in the statute. Respondent McGough conceded that his Ohio qualifying offense
falls within the eight categories of offenses contained in West Virginia Code § 15-12-2(b).
Thus, pursuant to the statute’s plain language, the State asserts that Respondent McGough
was required to register as a sex offender in West Virginia and that the circuit court erred
by granting the motion to dismiss the indictment. Because we find the circuit court
exceeded its authority by dismissing the indictment, we decline to address the State’s
argument on this issue. However, we note that the circuit court reached its conclusion by
applying a novel interpretation of West Virginia Code § 15-12-9(c) that was unsupported
by any caselaw from this Court. Further, in concluding that West Virginia Code § 15-12-
9(c) was the only relevant statute applicable to this case, the circuit court did not explain
why that statute and the statute relied upon by the State, West Virginia Code § 15-12-2(b),
could not be applied together. Both of these statutes are contained in the Sex Offender
Registration Act, West Virginia Code §§ 15-12-1 to -10. See Syl. Pt. 1, State ex rel. Holbert
v. Robinson, 134 W. Va. 524, 59 S.E.2d 884 (1950) (“A statute is enacted as a whole with
a general purpose and intent, and each part should be considered in connection with every
other part to produce a harmonious whole. Words and clauses should be given a meaning
which harmonizes with the subject matter and the general purpose of the statute. The
general intention is the key to the whole and the interpretation of the whole controls the
interpretation of its parts.”).
8
A circuit court’s limited role when reviewing an indictment is well-
established. “‘Generally speaking, the finding by the grand jury that the evidence is
sufficient is not subject to judicial review.’ Franklin D. Cleckley, Handbook on West
Virginia Criminal Procedure Grand Jury and Indictments I-651 (2d ed. 1993).” State v.
Adams, 193 W. Va. 277, 284, 456 S.E.2d 4, 11 (1995). A court may review an indictment
“only for constitutional error7 and prosecutorial misconduct.” Id. at 284, 456 S.E.2d at 11.
Thus, this Court has held that “[e]xcept for willful, intentional fraud[,] the law of this State
does not permit the court to go behind an indictment to inquire into the evidence considered
by the grand jury, either to determine its legality or its sufficiency.” Syl., Barker v. Fox,
160 W. Va. 749, 238 S.E.2d 235 (1977). This Court thoroughly addressed the role of the
grand jury and a circuit court’s limited role when reviewing an indictment in State ex rel.
State v. Gwaltney, 249 W. Va. 706, 901 S.E.2d 70. In Gwaltney, the Court noted that
the grand jury behaves as “a sword” that investigates cases to
bring accused individuals to trial on “just grounds” and as “a
shield” to protect people against baseless prosecutions. State
ex rel. Miller v. Smith, 168 W. Va. 745, 751, 285 S.E.2d 500,
504 (1981). Ultimately, the grand jury decides whether
probable cause exists to charge a person with committing a
crime, not whether the evidence proves beyond a reasonable
doubt that a defendant must be convicted of that crime; the
grand jury’s role “is not to determine the truth of the charges
7
See Syl. Pt. 6, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999) (“An
indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.
Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a
defendant on fair notice of the charge against which he or she must defend; and (3) enables
a defendant to assert an acquittal or conviction in order to prevent being placed twice in
jeopardy.”).
9
against the defendant, but to determine whether there is
sufficient probable cause to require the defendant to stand
trial.” State ex rel. Pinson v. Maynard, 181 W. Va. 662, 665,
383 S.E.2d 844, 847 (1989).
Id. at 713, 901 S.E.2d at 77.
Additionally, the Court in Gwaltney explained that “[c]ircuit courts have no
authority to examine an indictment to determine whether sufficient evidence exists to
support it, much less whether evidence exists to support a guilty verdict, at the pretrial
motions stage.” Id. at 715, 901 S.E.2d at 79 (Emphasis in original). Based on the foregoing,
the Court in Gwaltney held that “[a] circuit court may not grant a defendant’s pretrial
motion to dismiss an indictment on the basis of the sufficiency of the evidence or whether
a factual basis for the indictment exists.” Id. at Syl. Pt. 3.
In the instant case, the circuit court did not dismiss the indictment based on
prosecutorial misconduct or constitutional sufficiency, and Respondent McGough did not
raise either of those issues. Instead, the circuit court’s ruling was based on its conclusion
that a factual basis for the indictment did not exist. That is, the circuit court found that
because Respondent McGough was no longer required to register as a sex offender in Ohio,
he was not required to register as a sex offender in West Virginia pursuant to the circuit
court’s interpretation of West Virginia Code § 15-12-9(c). This ruling clearly violated our
prior caselaw, including syllabus point three of Gwaltney, and impermissibly invaded the
grand jury’s province. The grand jury found probable cause for Respondent McGough to
stand trial on two counts of a second or subsequent failure to register or provide notice of
registration changes, in violation of West Virginia Code § 15-12-8(c). The circuit court
10
erroneously second guessed this finding based on its conclusion that the facts of this case
did not support the two counts contained in the indictment.
In sum, the circuit court lacked the authority to dismiss based on its
conclusion that the indictment lacked a sufficient factual basis. We therefore find that the
dismissal exceeded the court’s legitimate powers.
Applying this ruling to the factors set forth in Hoover, we find that the State
is entitled to relief in prohibition. See Syl. Pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12.
Our examination focuses mainly on the first three Hoover factors.8 Having concluded that
the circuit court exceeded its legitimate powers by dismissing the indictment on
impermissible grounds, it is clear that the third Hoover factor, “whether the lower tribunal’s
order is clearly erroneous as a matter of law,” has been satisfied. Id. This factor is entitled
to “substantial weight.” Id. Next, we find that the State easily satisfies the first two Hoover
factors because it has “no other adequate means, such as direct appeal, to obtain the desired
relief,” and it will be “damaged in a way that is not correctable on appeal.” Id.9 Therefore,
8
While mainly focusing on the first three Hoover factors, we note that our previous
Gwaltney case, decided last term, concerned a circuit court exceeding its legitimate powers
by granting a defendant’s pretrial motion to dismiss. 249 W. Va. 706, 901 S.E.2d 70. Thus,
we find that the fourth Hoover factor, “whether the lower tribunal’s order is an oft repeated
error or manifests persistent disregard for either procedural or substantive law,” also
weighs in the State’s favor.
9
The State has only limited rights to appeal in criminal cases under circumstances
that are not present in the instant case. See Syl. Pt. 1, State v. Jones, 178 W. Va. 627, 363
S.E.2d 513 (1987).
11
we conclude that the Hoover factors weigh in the State’s favor and that the State is entitled
to relief in prohibition.
IV. CONCLUSION
The petition for a writ of prohibition is granted.
Writ Granted.
12