SER Mark A. Sorsaia, Pros. Attorney v. Hon. Phillip M. Stowers, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
FILED
February 11, 2016
released at 3:00 p.m.
No. 15-0940 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. MARK A. SORSAIA,
PROSECUTING ATTORNEY FOR PUTNAM COUNTY,
Petitioner
v.
HONORABLE PHILLIP M. STOWERS,
JUDGE OF THE CIRCUIT COURT OF PUTNAM COUNTY,
AND CALEB TOPARIS,
Respondents
Petition for Writ of Prohibition
WRIT GRANTED
Submitted: January 20, 2016
Filed: February 11, 2016
Kristina D. Raynes, Esq. Robert B. Kuenzel, Esq.
Assistant Prosecuting Attorney Kuenzel & Associates, PLLC
Winfield, West Virginia Chapmanville, West Virginia
Attorney for State of West Virginia Attorney for Caleb Toparis
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. “The right to a trial without unreasonable delay is basic in the
administration of criminal justice and is guaranteed by both the State and Federal
constitution. U.S. Const. Amend. VI; W.Va. Const., Art. 3, § 14.” Syl. Pt. 1, State v.
Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).
3. “If a conviction is validly obtained within the time set forth in the
three-term rule, W.Va.Code 62-3-21 [1959], then that conviction is presumptively
constitutional under the speedy trial provisions of the Constitution of the United States,
i
Amendment VI, and W.Va. Constitution, Art. III, § 14.” Syl. Pt. 3, State v. Carrico, 189
W.Va. 40, 427 S.E.2d 474 (1993).
4. When a magistrate court grants a motion filed by a defendant voluntarily
waiving the right to trial in magistrate court on a misdemeanor charge and requesting the
transfer of that misdemeanor charge to circuit court for resolution, the State is no longer
required to bring the defendant to trial within one year of the execution of the criminal
warrant as would otherwise be required by syllabus point three of State ex. rel. Stiltner v.
Harshberger, 170 W.Va. 739, 296 S.E.2d 816 (1982). Upon the magistrate court’s transfer
of the misdemeanor charge to circuit court, the defendant’s right to a speedy trial is governed
by West Virginia Code § 62-3-21 (2014).
5. The three-term rule set forth in West Virginia Code § 62-3-21 (2014)
is triggered by the return of a valid indictment, presentment, or information.
ii
LOUGHRY, Justice:
The State of West Virginia by petitioner, Mark A. Sorsaia, Prosecuting
Attorney for Putnam County, invokes this Court’s original jurisdiction and seeks a writ of
prohibition to prohibit the respondent, the Honorable Phillip M. Stowers, Judge of the
Circuit Court of Putnam County, from dismissing two misdemeanor charges against the
respondent, Caleb Toparis. The State contends that the circuit court erred in finding that Mr.
Toparis’s right to a speedy trial had been violated. Upon consideration of the parties’ briefs
and arguments, the submitted appendix, and pertinent authorities, we find sufficient grounds
to grant the requested writ.
I. Factual and Procedural Background
On April 24, 2014, a Putnam County Sheriff’s deputy filed a criminal
complaint against Mr. Toparis. A warrant was issued that same day by a Putnam County
magistrate for Mr. Toparis’s arrest for the felony offense of unlawful assault and the
misdemeanor offenses of domestic assault and domestic battery. The alleged victim was Mr.
Toparis’s girlfriend.1
1
According to the police report that was made a part of the appendix record submitted
to this Court, the victim provided the following information to law enforcement. On March
19, 2014, the victim and Mr. Toparis began arguing after they left a party. The argument
started in Mr. Toparis’s car while the victim was driving. Mr. Toparis forced the victim to
stop the car, after which he “started striking her in the left side of her face with a closed fist
1
On April 25, 2014, Mr. Toparis became aware of the arrest warrant and
voluntarily presented himself to a magistrate in Logan County, who conducted an
arraignment. Thereafter, a preliminary hearing was held on May 9, 2014, in the Magistrate
Court of Putnam County. At that hearing, the magistrate found probable cause to hold the
felony unlawful assault charge for the Putnam County grand jury’s consideration. Mr.
Toparis then voluntarily filed a motion to transfer the remaining two misdemeanor charges
to the jurisdiction of the circuit court. The magistrate court granted the motion and
transferred the misdemeanor charges to the Circuit Court of Putnam County by order entered
May 9, 2014.
Subsequently, on February 27, 2015, the State filed an information in the
Circuit Court of Putnam County charging Mr. Toparis with the misdemeanor offenses of
domestic assault and domestic battery.2 The parties appeared for a status hearing on March
27, 2015, and a pre-trial conference on May 1, 2015. At the pretrial conference, Mr. Toparis
and drug her from the driver’s seat.” The victim exited the car and ran for help, but
eventually Mr. Toparis forced her back into the car on the passenger side. Mr. Toparis began
driving but then stopped the car and started striking the victim again. The victim believed
that she may have been knocked unconscious. Thereafter, the victim pleaded for Mr. Toparis
to take her to her apartment. Mr. Toparis started driving fast and erratically but then stopped
again and got out of the car. Mr. Toparis then began to strangle the victim saying he was
going to kill her but she managed to bite the side of his face and get free. Eventually, Mr.
Toparis took the victim to her apartment. She got out of the car and ran toward her
apartment. Mr. Toparis attempted to follow saying he wanted “to come in and fix this,” but
the victim told him to leave and he did so.
2
The State chose not to pursue the felony unlawful assault charge.
2
moved to dismiss the information, arguing that his right to a speedy trial had been violated
because he had not been tried on the misdemeanor charges within one year of the execution
of the warrant. Mr. Toparis based his motion upon this Court’s decision in State ex. rel
Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982). In syllabus point three of
Stiltner, this Court held:
Unless one of the reasons specifically set forth in W.Va.
Code, 62-3-21 [1959] for postponing criminal trials in circuit
court beyond three terms of the circuit court exists, a criminal
trial in magistrate court must be commenced within one year of
the issuance of the criminal warrant and lack of good cause for
delay beyond one year as defined in Code, 62-3-21 [1959]
should be presumed from a silent record.
In response, the State asserted Stiltner was not applicable because Mr. Toparis had
voluntarily transferred the misdemeanor charges against him to circuit court. Rejecting the
State’s argument, the circuit court concluded that the State was required to bring Mr. Toparis
to trial within one year of the execution of the warrant because the case originated in the
Magistrate Court of Putnam County. Accordingly, the circuit court granted Mr. Toparis’s
motion to dismiss because the one-year period had expired. The dismissal order was entered
on June 4, 2015, and this petition for a writ of prohibition followed.
II. Standard for Issuance of a Writ of Prohibition
This Court held in syllabus point five of State v. Lewis, 188 W.Va. 85, 422
S.E.2d 807 (1992):
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 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.3 (footnote supplied)
In this instance, the State contends that the circuit court abused its legitimate powers when
it ruled that Mr. Toparis had not been afforded a speedy trial. 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
This Court has long recognized that “[t]he right to a trial without unreasonable
delay is basic in the administration of criminal justice and is guaranteed by both the State and
Federal constitution. U.S. Const. Amend. VI; W.Va. Const., Art. 3, § 14.” Syl. Pt. 1, State
3
Mr. Toparis urges this Court to dismiss this petition for a writ of prohibition as
untimely because it was filed more than ninety days after the circuit court’s dismissal order
was entered. We decline to do so because Mr. Toparis was on notice of the State’s pursuit
of relief much earlier. The State had filed a petition appealing the circuit court’s decision
within thirty days of the dismissal order. Thereafter, the State filed its petition for a writ of
prohibition and submitted a motion to withdraw the appeal, acknowledging that the proper
mechanism was a petition for a writ of prohibition. The State’s petition for appeal was
dismissed from this Court’s docket on October 5, 2015.
4
v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).4 In Stiltner, this Court observed that
“[o]ur Legislature has given a statutory definition to the constitutional term ‘without
unreasonable delay’ in circuit courts in W.Va. Code, 62-3-21” which “defines ‘speedy trial’
for circuit court proceedings as requiring that an accused be brought to trial within three
terms of court after indictment.”5 Stiltner, 170 W.Va. at 741, 296 S.E.2d at 863-64. In other
4
Amendment VI of the United States Constitution provides, in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”
Similarly, article III, section 14 of the West Virginia Constitution, provides, in pertinent part:
“Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public,
without unreasonable delay[.]”
5
West Virginia Code § 62-3-21, which has not been amended since 1959, states:
Every person charged by presentment or indictment with
a felony or misdemeanor, and remanded to a court of competent
jurisdiction for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of
such court, after the presentment is made or the indictment is
found against him, without a trial, unless the failure to try him
was caused by his insanity; or by the witnesses for the State
being enticed or kept away, or prevented from attending by
sickness or inevitable accident; or by a continuance granted on
the motion of the accused; or by reason of his escaping from jail,
or failing to appear according to his recognizance, or of the
inability of the jury to agree in their verdict; and every person
charged with a misdemeanor before a justice of the peace
[magistrate], city police judge, or any other inferior tribunal, and
who has therein been found guilty and has appealed his
conviction of guilt and sentence to a court of record, shall be
forever discharged from further prosecution for the offense set
forth in the warrant against him, if after his having appealed
such conviction and sentence, there be three regular terms of
such court without a trial, unless the failure to try him was for
one of the causes hereinabove set forth relating to proceedings
on indictment.
5
words, “[i]f a conviction is validly obtained within the time set forth in the three-term rule,
W.Va.Code 62-3-21 [1959], then that conviction is presumptively constitutional under the
speedy trial provisions of the Constitution of the United States, Amendment VI, and W.Va.
Constitution, Art. III, § 14.” Syl. Pt. 3, State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474(1993). This Court found in Stiltner, however, that no “precise definition to W.Va.Const.,
art. III, § 14 in the context of misdemeanor prosecutions upon warrants in magistrate court”
existed. Stiltner, 170 W.Va. at 741, 296 S.E.2d at 863. Recognizing that the right to a
speedy trial is equally applicable to the prosecution of misdemeanors in magistrate court, this
Court proceeded to essentially apply to magistrate court criminal proceedings the three-term
rule applicable in circuit court. Id. at 743, 296 S.E.2d at 865. Using, by analogy, the
provisions of West Virginia Code § 62-3-21, this Court crafted the rule that a criminal trial
in magistrate court must be commenced within one year of the execution of the criminal
warrant absent good cause for delay beyond one year. Stiltner, 170 W.Va. at 740, 296 S.E.2d
at 862, syl. pt. 3.6
6
In syllabus point one of State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d
833 (1972), this Court explained how the three-term rule should be applied:
Under the provisions of [W.Va.] Code, 62-3-21, as
amended, the three unexcused regular terms of court that must
pass before an accused can be discharged from further
prosecution are regular terms occurring subsequent to the ending
of the term at which the indictment was returned. The term at
which the indictment was returned can not be counted as one of
the three terms.
6
In this case, the State argues that by filing the motion to transfer his
misdemeanor charges to circuit court, Mr. Toparis waived his right under Stiltner to be tried
on those charges within one year of the execution of the criminal warrant. The State
maintains that after the motion to transfer the misdemeanor charges was granted, Mr. Toparis
became subject to the speedy trial rules applicable in circuit court. The circuit court rejected
this argument based upon this Court’s decision in State ex rel. Johnson v. Zakaib, 184 W.Va.
346, 400 S.E.2d 590 (1990). In Johnson, the defendant was arrested on a misdemeanor
charge of aiding and abetting credit card fraud and was scheduled for trial in magistrate
court. However, when the State and its witnesses did not appear for trial, the magistrate
court dismissed the charges without prejudice. More than a year later, the defendant was
indicted by a grand jury on the same charge. Thereafter, the defendant sought a writ or
prohibition from this Court to prevent her prosecution. This Court granted the writ, finding
that despite the concurrent jurisdiction afforded by the West Virginia Constitution to circuit
courts over misdemeanor offenses, the State was not permitted to revive the misdemeanor
charge by bringing a new indictment in circuit court more than one year after the execution
of the original warrant. Johnson, 184 W.Va. at 351, 400 S.E.2d at 595. Accordingly, this
Court held:
Rule 2 of the West Virginia Trial Court Rules provides that circuit courts have three terms
of court each year. Because the term in which charges against a defendant are filed does not
count, the State has more than a year to satisfy three-term rule in circuit court.
7
Where a misdemeanor warrant in a magistrate court is
dismissed, further prosecution for the same offense by a new
warrant or by an indictment after one year from execution of the
original warrant is barred unless the record shows that one or
more of the exceptions contained in W.Va. Code, 62-3-21
(1959), applies.
Johnson, 184 W.Va. at 348, 400 S.E.2d at 592, syl. pt.6. In finding Johnson applicable, the
circuit court summarily discounted the fact that Mr. Toparis voluntarily transferred his case
to circuit court. We find, however, that this critical distinction cannot be ignored.
In syllabus point two of State ex rel. Burdette v. Scott, 163 W.Va. 705, 259
S.E.2d 626 (1979), this Court held: “W.Va. Code, 50-5-7 (1976), requires that if a defendant
is charged by warrant in the magistrate court with an offense over which that court has
jurisdiction, he is entitled to a trial on the merits in the magistrate court.” Yet, this Court
recognized that a defendant can expressly waive the right to trial in magistrate court.
Burdette, 163 W.Va. at 710 n.5, 259 S.E.2d at 630 n.5. The motion to transfer executed by
Mr. Toparis stated that he “expressed his . . . desire to waive the right to a magistrate court
trial and instead . . . have his . . . misdemeanor case go directly to the circuit court for hearing
and resolution.” Unlike the defendant in Johnson, whose case was dismissed by the
magistrate court because the State and its witnesses failed to appear for trial, Mr. Toparis
voluntarily took affirmative action to have his misdemeanor charges transferred to the circuit
court by expressly waiving his right to a magistrate court trial. This Court has explained that
8
[t]he essential elements of a waiver . . . are the existence, at
the time of the alleged waiver, of a right, advantage, or benefit,
the knowledge, actual or constructive, of the existence thereof,
and an intention to relinquish such right, advantage, or benefit.
Voluntary choice is of the very essence of waiver. It is a
voluntary act which implies a choice by the party to dispense
with something of value, or to forego some advantage which he
might at his option have demanded and insisted on.
Hoffman v. Wheeling Sav. & Loan Ass’n, 133 W.Va. 694, 712-713, 57 S.E.2d 725, 735
(1950) (quoting 56 Am.Jur. 113); see also Syl. Pt. 6, in part, State v. Crabtree, 198 W.Va.
620, 482 S.E.2d 605 (1996) (“Deviation from a rule of law is error unless it is waived.
Waiver is the intentional relinquishment or abandonment of a known right. When there been
such a knowing waiver, there is no error[.]”). Because the motion to transfer was executed
by Mr. Toparis voluntarily and included an actual acknowledgment that the misdemeanor
charges would be resolved in the circuit court,7 we find that he waived his right to have his
misdemeanor case tried within one year of the issuance of the criminal warrant. Indeed, at
the moment the case was transferred to circuit court, the magistrate court rules were no
longer applicable. As we have noted previously, “there are two distinct . . . bodies of law
governing our magistrate courts and our circuit courts.” West Virginia Dept. of Health and
Human Resources Employees Fed. Credit Union v. Tennant, 215 W.Va. 387, 392, 599 S.E.2d
810, 815 (2004). In fact, it was the recognition that the three-term rule embodied in West
7
During oral argument in this case, counsel for Mr. Toparis stated that the motion to
transfer was made because Mr. Toparis did not want to subject himself to two trials, i.e, a
trial in magistrate court on the misdemeanor charges and a trial in circuit court on the felony
charge.
9
Virginia Code § 62-3-21 applies only to circuit courts that prompted this Court to craft the
one-year magistrate court speedy trial rule that is at issue in this case. Stiltner, 170 W.Va.
at 240, 796 S.E.2d at 862, syl. pt. 3.
We also note that applying the magistrate court speedy trial rule to the circuit
court proceeding under these circumstances would be untenable. Requiring the State to
comply with the magistrate court one-year speedy trial rule when an accused voluntarily
transfers a misdemeanor charge to circuit court for resolution would give an unfair tactical
advantage to criminal defendants. In that regard, a defendant could transfer his or her
misdemeanor case to the circuit court close to the expiration of the one-year time period and
cause the State to scramble to obtain a trial date on a crowded court docket to avoid dismissal
of the charges. While the right to a speedy trial is fundamental to the fair administration of
justice, it is not intended to be used as a strategic tool for defendants to gain an unfair
advantage over the prosecution. Accordingly, for the reasons set forth above, we now hold
that when a magistrate court grants a motion filed by a defendant voluntarily waiving the
right to trial in magistrate court on a misdemeanor charge and requesting the transfer of that
misdemeanor charge to circuit court for resolution, the State is no longer required to bring
the defendant to trial within one year of the execution of the criminal warrant as would
otherwise be required by syllabus point three of Stiltner. Upon the magistrate court’s transfer
10
of the misdemeanor charge to circuit court, the defendant’s right to a speedy trial is governed
by West Virginia Code § 62-3-21.
At this juncture, there is no basis to conclude that Mr. Toparis has been denied
a speedy trial. In that regard, the record reflects that after the case was transferred to the
circuit court, the State formally charged Mr. Toparis with the misdemeanor offenses of
domestic battery and domestic assault through an information filed on February 27, 2015.
Rule 7 of the West Virginia Rules of Criminal Procedure affords the State the discretion to
charge misdemeanors by indictment or information.8 Although West Virginia Code § 62-3­
21 states that it applies to “[e]very person charged by presentment or indictment with a felony
or misdemeanor,” obviously, “the ‘three-term rule’ is triggered by the return of a valid
indictment, presentment or information.” Franklin D. Cleckley, Handbook on West Virginia
Criminal Procedure II-102 (2d ed. 1993). Indeed, given that Rule 7 permits misdemeanors
to be charged by information, it would be absurd to conclude that the three-term rule is not
triggered upon the filing of an information. “[I]t is this Court’s duty ‘to avoid whenever
8
Rule 7 of the West Virginia Rules of Criminal Procedure, provides, in pertinent part:
(a) Use of indictment or information. An offense which
may be punished by life imprisonment shall be prosecuted by
indictment. Any other felony offense may be prosecuted by
information if the indictment is waived. Any misdemeanor may
be prosecuted by indictment or information. An information
may be filed without leave of court.
11
possible a construction of a statute which leads to absurd, inconsistent, unjust or
unreasonable results.’” Taylor-Hurley v. Mingo County Bd. of Educ., 209 W.Va. 780, 787,
551 S.E.2d 702, 709 (2001) (quoting State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532,
537 (1990)). Accordingly, we further hold that the three-term rule set forth in West Virginia
Code § 62-3-21 is triggered by the return of a valid indictment, presentment, or information.
The record in this case shows that Mr. Toparis was scheduled to be tried in
circuit court upon the misdemeanor charges on June 8, 2015. Pursuant to Rule 2.29 of the
West Virginia Trial Court Rules, the terms of court for Putnam County begin “on the first
Monday in March and on the second Monday in July and November.” Therefore, absent the
dismissal of charges, Mr. Toparis would have been tried during the first full term of court
following the filing of the information. Accordingly, Mr. Toparis’s right to a speedy trial
was not violated.9
9
We are mindful of the fact that more than ten months lapsed between the transfer of
Mr. Toparis’s misdemeanor case and the State’s filing of the information in circuit court. An
inordinate delay between the transfer of a misdemeanor case to circuit court and the formal
institution of charges would be subject to a due process analysis under the Due Process
Clause of the Fifth Amendment to the United States Constitution and article III, section 10
of the West Virginia Constitution. See State v. Cook, 228 W.Va. 563, 723 S.E.2d 388 (2010)
(setting forth framework to determine whether preindictment delay violated due process
clause of United States and West Virginia Constitutions). In this case, Mr. Toparis has only
asserted that he has been denied a speedy trial. Because Mr. Toparis did not assert a
violation of his due process rights, such an analysis is not required.
12
IV. Conclusion
For the reasons set forth above, the circuit court exceeded its legitimate powers
in dismissing the misdemeanor charges against Mr. Toparis. Therefore, the State is entitled
to relief in prohibition. Accordingly, the June 4, 2015, dismissal order entered by the circuit
court is vacated, and this case is remanded for further proceedings consistent with this
opinion.
Writ granted.
13