State ex rel. Delligatti v. Cohee

Docket Number22-921
Decision Date26 May 2023
PartiesState of West Virginia ex rel. Catie Wilkes Delligatti, Prosecuting Attorney of Berkeley County, Petitioner, v. The Honorable Bridget Cohee, Judge of the Circuit Court of Berkeley County, and Lateef Jabrall McGann, Respondents.
CourtWest Virginia Supreme Court

(Berkeley County 22-F-8)


Petitioner Catie Wilkes Delligatti, Prosecuting Attorney of Berkeley County ("the State"), by counsel Catie Wilkes Delligatti, Joseph R. Kinser, and Shannon Frederick Kiser filed a petition for a writ of prohibition seeking to prevent the circuit court from enforcing its order entered on November 22, 2022, denying the State's motion to reconsider the court's October 20, 2022, decision granting defendant's motion to dismiss the recidivist information.[1] Respondent Lateef Jabrall McGann ("defendant"), by counsel S. Andrew Arnold, filed a summary response. Petitioner argues that the circuit court committed clear error by exceeding its legitimate powers when it dismissed a recidivist action filed by the State after the State had timely amended its original recidivist information to correct an immaterial clerical error to a citation contained in the original information.

After considering the parties' written and oral arguments, the appendix record, and the applicable law, the Court finds that this case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons set forth below, we grant the State's petition for writ of prohibition.

Defendant was convicted of one felony count of fleeing with reckless indifference in violation of West Virginia Code section 61-5-17(f), and one misdemeanor count of fleeing on foot in violation of West Virginia Code section 61-5-17(d). On February 10, 2022, immediately after defendant's convictions, the State filed a recidivist information against defendant.[2] In addition to the above-referenced felony conviction, the State alleged that defendant was "the same individual convicted" of two prior qualifying offenses (federal felony possession with intent to distribute cocaine base and felon in possession of a firearm; state felony offense of wanton endangerment). Finally, the State alleged that "Lateef MCGANN is a habitual offender and because of LATEEF MCGANN's prior listed convictions, he shall be sentenced to life in prison pursuant to W.Va. Code § 61-11-18(c)."

In the allegation pertaining to sentencing the State subsequently found a clerical error in the information: it identified the statutory authority for recidivist life enhancement as West Virginia Code section 61-11-18(c),[3] which addresses the recidivist penalty for the qualifying offense of murder, rather than West Virginia Code section 61-11-18(d),[4] which correctly addresses defendant's status as a third-time offender.

On February 28, 2022, prior to defendant's arraignment on the original recidivist charge, the State e-filed an amended information correcting the citation error. Although the amended information contained the same criminal action number (22-F-8) as the original recidivist information, it was e-filed in the underlying criminal action (21-F-248) rather than in the recidivist action (22-F-8) where the original information had been filed.[5] Despite this filing error, defendant does not argue that he did not receive the amended information when it was filed.

On March 9, 2022, defendant was arraigned after the amended information was filed.[6]According to the "Arraignment Order" entered on March 11, 2022, the circuit court advised defendant that if he "admitted he was the same" individual as described in the information, "the Court would sentence him pursuant to W.Va. Code § 61-11-18." Defendant exercised his right to remain silent and "waive[d] the reading of the information in open court." Following the arraignment, defendant's counsel withdrew, new counsel was appointed, and the State served defendant's new counsel with the amended information as part of discovery.

On October 17, 2022, the day on which the circuit court had scheduled a pretrial hearing to resolve two previously filed motions to dismiss,[7] defendant filed a third motion to dismiss the recidivist information based upon the State's clerical error in the original information: the citation to West Virginia Code section 61-11-18. Specifically, defendant argued, relying on State ex rel. Ringer v. Boles, 151 W.Va. 864, 157 S.E.2d 554 (1967), and Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013), [8] that

[b]efore this Court now is an information that cites the wrong section of the statute. The information cites to the section regarding murder, 61-11-18(c). As the following term of court expired the third Tuesday of May 2022, the statute cannot be bent by a curative motion to permit the matter to proceed. It appears that the State at some point became aware of the defect in the information and even drafted an amended information which was provided to the defense in discovery. No amended information was filed, and defendant was brought before this Court on 10 March 2022 on the information currently before this Court. Were this matter a common law criminal case a motion to amend might be made and granted. This is entirely a statutory case, however, and no such cure is available to the State. This matter now is beyond statutory reach.

After the hearing, the circuit court granted defendant's motion. In its October 20, 2022, order, the court found that the amended information had been "filed in the defendant's recent felony case styled 21-F-248 rather than in this case 22-F-8." The court determined that the recidivist statutes are to be construed in favor of the defendant, that a harmless error analysis was prohibited, and that the error "[wa]s not curable as the following term of court expired in May of this year."

On October 19, 2022, the State filed a motion for reconsideration, acknowledging the defect in the original recidivist information but arguing that it was merely a scrivener's error which had been corrected less than twenty days later when an amended information was filed. The State argued that it had never alleged that the defendant was previously convicted of murder, but rather sought recidivist enhancement due to the defendant's status as a third-time habitual offender. The State asserted that "[d]efendant, and the [c]ourt were in possession of the Amended Recidivist Information of the 9th day of March 2022, when the Defendant was presented for arraignment on those allegations[]" and were properly on notice of the charge against him. The State argued that defendant "was confronted with the Amended Recidivist Information and, when asked by the Court if he was the same Lateef McGann twice previously convicted as described in the Information, the Defendant chose to remain silent." (Footnote omitted). More precisely, the State argued that the substance of the arraignment - whether in regard to the original information or the amended information - "would have been identical" because the prior qualifying convictions were unchanged. Finally, in regard to defendant's arguments that both the original and the amended informations were defective - the former due to an incorrect statutory citation and the latter due to being filed in defendant's related underlying criminal action - the State argued that West Virginia does not treat these type of immaterial defects in a recidivist information as fatal. See State v. Crabtree, 198 W.Va. 620, 634, 483 S.E.2d 605, 619 (1996). Thus, the State contended that because defendant had notice of the nature of the recidivist action against him, including the qualifying convictions relied upon, the scrivener's error should be found to be harmless as it neither prejudiced nor surprised defendant in any way.

The circuit court held a hearing on the motion on November 17, 2022. By order entered on November 22, 2022, it denied petitioner's motion to reconsider its prior ruling, finding that "the erroneous citation in the State's original information was error. Further, the State's attempt to remedy the error by filing an amended information in 21-F-248 instead of in 22-F-8 was not harmless error."

The State filed a petition for writ of prohibition with this Court on December 21, 2022, seeking to prevent the circuit court from dismissing the recidivist information. We previously held in syllabus point one of State ex rel. Smith v. Olejasz, 245 W.Va. 799, 865 S.E.2d 820 (2021), that

"[t]he 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." Syllabus Point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds as recognized by State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017).

The Court has also established the foregoing framework to be used in determining whether a writ of prohibition should be granted:

"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

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