State ex rel. Keenan v. Hatcher

• Decision Date: 30 November 2001
• Docket Number: No. 29837.,29837.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Charles Garland KEENAN, Petitioner v. Honorable John W. HATCHER, Jr., Judge of the Circuit Court of Fayette County, and the State of West Virginia, Respondents.

557 S.E.2d 361

210 W.Va. 307

STATE of West Virginia ex rel. Charles Garland KEENAN, Petitioner v. Honorable John W. HATCHER, Jr., Judge of the Circuit Court of Fayette County, and the State of West Virginia, Respondents.

No. 29837.

Supreme Court of Appeals of West Virginia.

Submitted September 5, 2001.

Decided November 30, 2001.

Concurring and Dissenting Opinion of Justice Davis December 10, 2001.

John R. Mitchell, Sr., Michael T. Blevins, Dixon Ericson, Charleston, for Petitioner.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Respondent State of West Virginia. McGRAW, Chief Justice:

In this original jurisdiction proceeding, the petitioner, Charles Garland Keenan, seeks a writ of prohibition and/or mandamus requiring the dismissal of a criminal recidivist information presently pending against him pursuant to W. Va.Code §§ 61-11-18 & -19 in the Circuit Court of Fayette County, arguing that such instrument is invalid based on the fact that the county prosecutor, under whose authority it was filed, had previously acted as defense counsel in connection with at least one of the predicate offenses cited in the information. We agree with Keenan that the prosecutor and his staff are disqualified from prosecuting the recidivist charge, and find that dismissal of the information, rather than appointment of a special prosecutor as was done in this case, is the proper means of curing the potential prejudice resulting from such disqualification. Consequently, we grant a writ of prohibition to prevent further proceedings on the pending recidivist information.

I. BACKGROUND

There is no dispute concerning the salient facts bearing upon the present proceeding. Keenan was indicted for murder by a Fayette County grand jury during the September 2000 Term. The indictment was prepared and signed by Prosecuting Attorney Paul M. Blake, Jr., although during subsequent proceedings the State was represented by two of Prosecutor Blake's assistants, Hamilton D. Skeens and Thomas J. Steele, Jr. In early December 2000, approximately one week before trial, the State forwarded information to the defense, consisting of criminal history and certified court records, evidencing the fact that Keenan had three prior felony convictions.¹ Shortly thereafter, on December 12, 2000, the defense moved to disqualify the Fayette County Prosecutor's office from undertaking prosecution of the murder charge, arguing that a conflict existed as a result of the fact that both Prosecutor Blake, and one of his assistants, Carl Harris, had previously represented Keenan in connection with the two prior 1986 felony convictions. This disqualification motion was subsequently denied by the circuit court prior to trial.² In the interim, the prosecution extended a plea offer permitting Keenan to plead guilty to second-degree murder, in exchange for the State agreeing not to pursue recidivist sentencing. The plea offer was rejected, and a jury trial commenced on December 15, 2000. Keenan was subsequently convicted of the lesser-offense of voluntary manslaughter on December 21, 2000.

On December 27, 2000, the State filed an information pursuant to W. Va.Code § 61-11-19 (1943), indicating Keenan's three prior felony convictions. In accord with the statute's time frame, which requires that a defendant who is subject to a recidivist information be made to appear and answer on the issue of identity prior to the expiration of the current term of court, a hearing was conducted on January 3, 2001, at which time Keenan chose to remain silent. A jury trial on the issue of whether Keenan was the same individual that had previously been convicted was accordingly set for March 19, 2001.

Defense counsel again raised the matter of disqualification in a January 4, 2001 motion to dismiss the recidivist information. This motion was denied by an order entered on January 25, 2001, which set forth the following explanation for the ruling:

The present recidivist proceeding primarily involves the issues of whether the prior convictions exist and the identity of the defendant, as contained in those prior convictions. The Court finds that the prior representations of Mr. Blake and Mr. Harris are not substantially related nor have any related nexus with the recidivist proceedings. Further, the convictions alleged in the information are easily accessible to anyone who can search the Clerk's office and the State has not gained any unfair advantage because of the prior representations.

The defense renewed its dismissal motion on March 16, 2001, citing an "informal opinion" rendered by Chief Lawyer Disciplinary Counsel Lawrence J. Lewis, to the effect that the previous representations amounted to a conflict sufficient to disqualify the Fayette County Prosecutor's office from representing the State in the recidivist proceeding. Attached to the motion was a copy of a request for a formal ethics opinion that was simultaneously being delivered to the Lawyer Disciplinary Board. The circuit court subsequently denied the motion to dismiss, but nevertheless granted an unopposed motion for a continuance pending the issuance of a formal opinion by the Board.

The Lawyer Disciplinary Board rendered an opinion, which was related to the parties by a April 6, 2001 letter from Chief Lawyer Disciplinary Counsel Lewis, that succinctly stated as follows:

On March 29, 2001, the Lawyer Disciplinary Board considered your request concerning whether a prosecutor has a conflict of interest in representing the State in a recidivist action, when he was the defense attorney on one of the convictions relied upon to enhance the sentence. The Board considered Rule 1.9 of the Rules of Professional Conduct, as well as [State ex rel.] McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993)

.

It is the opinion of the Board that under these circumstances and in light of Rule 1.9, as well as McClanahan, a conflict of interest does exist on the part of the prosecutor and, if the State desires to pursue the action, a special prosecutor should be appointed....

Upon receipt of the Board's opinion, and in reliance thereon, the Fayette County Prosecutor's office moved to disqualify itself from further participation in the case, and requested the appointment of a special prosecutor. The circuit court granted the motion, stating that "though disagreeing with the opinion of the Lawyer Disciplinary Board, [the court] is of the opinion that, to avoid any further delay, the State's Motion for Recusal and for the appointment of a Special Prosecutor should be granted." Keenan petitioned this Court for prohibition and/or mandamus relief on May 10, 2001, seeking to prevent any further action on the previously-filed recidivist information, and we issued a show cause order on June 21, 2001.

II. STANDARD FOR ISSUANCE OF WRIT

Prohibition relief may be invoked pursuant to W. Va.Code § 53-1-1 (1923), "`only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.' Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953)." Syl. pt. 2, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).

This Court has adopted a five-factor test to determine whether prohibition relief is appropriate under a given set of circumstances:

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). Under this and similar standards applied in the past, the Court has consistently found that a party aggrieved by a trial court's decision on a motion to disqualify may properly challenge such ruling by way of a petition for a writ of prohibition. See State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 296, 430 S.E.2d 569, 575 (1993)

(recognizing that a challenge to a circuit court's ruling on a motion to disqualify is appropriately brought through a petition for prohibition); see also State ex rel. DeFrances v. Bedell, 191 W.Va. 513, 516, 446 S.E.2d 906, 909 (1994) (per curiam); Farber v. Douglas, 178 W.Va. 491, 493, 361 S.E.2d 456, 458 (1985); State ex rel. Taylor Assoc. v. Nuzum, 175 W.Va. 19, 23, 330 S.E.2d 677, 682 (1985); State ex rel. Moran v. Ziegler, 161 W.Va. 609, 244 S.E.2d 550 (1978).

As we explained in State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 482 S.E.2d 204 (1996) (per curiam), there are sound reasons for permitting the examination of disqualification matters through original proceedings before this Court:

The reason that a writ of prohibition is available in this Court to review a motion to disqualify a lawyer is manifest. If a party whose lawyer has been disqualified is forced to wait until after the final order to appeal, and then is successful on

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