State ex rel. Porter v. Farrell

• Decision Date: 03 June 2021
• Docket Number: No. 21-0090,21-0090
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia EX REL. Harold Radford PORTER, Petitioner v. Honorable Paul T. FARRELL, Judge of the Circuit Court of Cabell County; and the State of West Virginia, Respondents

858 S.E.2d 897

STATE of West Virginia EX REL. Harold Radford PORTER, Petitioner

v.Honorable Paul T. FARRELL, Judge of the Circuit Court of Cabell County; and the State of West Virginia, Respondents

No. 21-0090

Supreme Court of Appeals of West Virginia.

Submitted: April 13, 2021

Filed: June 3, 2021

Richard W. Weston, Weston Robertson, Hurricane, West Virginia, Attorney for the Petitioner.

Patrick Morrisey, Attorney General, Scott E. Johnson, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent, State of West Virginia.

Jenkins, Chief Justice:

Harold Radford Porter ("Mr. Porter"), the petitioner herein, requests this Court to issue a writ of prohibition to prevent the Honorable Paul T. Farrell, Judge of the Circuit Court of Cabell County and one of the respondents herein, from enforcing the court's order entered January 26, 2021, in which the circuit court denied Mr. Porter's motion to dismiss. Before the circuit court and again in his request for prohibitory relief from this Court, Mr. Porter contends that the State of West Virginia ("the State"), the other respondent herein, violated his right to a speedy trial by not trying him within three regular terms of court after the return of his indictment as required by West Virginia Code section 62-3-21 (eff. 1959). The State disagrees with Mr. Porter's characterization of the underlying proceedings and asserts that the COVID-19 global pandemic presented extenuating circumstances relieving it of its duty to try Mr. Porter within three terms of court after he was indicted. Upon a review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we find that, as of the date of Mr. Porter's motion to dismiss and the circuit court's ruling thereon, three regular terms of court had not yet passed since Mr. Porter had been indicted, and, thus, there was no violation of the three-term rule in this case. Accordingly, the writ of prohibition requested by Mr. Porter is denied, and his criminal trial is permitted to proceed provided three regular terms of court have not passed since Mr. Porter was indicted on the charges upon which he is to be tried.

I.FACTS AND PROCEDURAL HISTORY

To better understand the factual and procedural posture of this case, a brief review of the overarching legal framework is necessary. Mr. Porter seeks a writ of prohibition to prevent the Circuit Court of Cabell County from holding his criminal trial during the January 2021 term of court because he claims that the State has violated the three-term rule set forth in West Virginia Code section 62-3-21 in violation of his constitutional right to a speedy trial. Mr. Porter was indicted on three felony offenses in the Circuit Court of Cabell County; therefore, the pertinent part of West Virginia Code section 62-3-21 pertaining to felony offenses applies to this case and provides as follows:

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[.]

We previously have considered the language of this statute, holding:

1. It is the three-term rule, W. Va. Code, 62-3-21, which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.

3. Under the three-term rule, W. Va. Code, 62-3-21, it is the duty of the State to provide a trial without unreasonable delay[,] and an accused is not required to demand a prompt trial as a prerequisite to invoking the benefit of this rule.

4. The possible reasons justifying good cause for a continuance under W. Va. Code, 62-3-1, are broader than the causes listed in W. Va. Code, 62-3-21, as valid reasons for not counting a particular term. As a consequence, the causes justifying continuances listed in the three-term rule, W. Va. Code, 62-3-21, may be applied in a one-term rule situation, but the general good cause standard in W. Va. Code, 62-3-1, may not be applied in a W. Va. Code, 62-3-21 situation.

Syl. pts. 1, 3, & 4, Good v. Handlan , 176 W. Va. 145, 342 S.E.2d 111 (1986) (emphasis added). Under these holdings, it is apparent that, to excuse a term of court from counting towards the calculation of the three-term rule, the term of court must not be regular, West Virginia Code section 62-3-21, or the reason that a trial was not held during a particular term cannot be for "good cause" but rather must be as a result of the application of one of the specific exceptions set forth in West Virginia Code section 62-3-21. See Syl. pt. 4, Good , 176 W. Va. 145, 342 S.E.2d 111. In this context, then, the facts giving rise to the instant proceeding are as follows.

A. Indictment

On October 31, 2019, Mr. Porter was indicted on one count of murder of one gentleman; one count of attempt to commit a felony, i.e. first-degree murder of a different gentleman; and one count of being a felon in possession of a firearm by a Cabell County grand jury. The term of court during which Mr. Porter was indicted does not count towards the calculation of the three-term rule. See W. Va. Code § 62-3-21 (explaining calculation of three-term rule as "three regular terms of such court, after the presentment is made or the indictment is found against him").

B. First Term of Court After Indictment

The next term of court for the Cabell County Circuit Court began on the first Monday of January 2020 (January 6, 2020),¹ which would have been the first term of court following Mr. Porter's indictment for purposes of calculating the three-term rule; Mr. Porter was not tried during this term of court, and no trial was scheduled. During this term of court, the Supreme Court of Appeals issued several administrative orders in response to the COVID-19 global pandemic. First, by administrative order entered March 16, 2020,² this Court continued generally all criminal trials until April 10, 2020, except "where a criminal defendant's speedy trial rights may preclude continuation of such trial." This order was followed by another administrative order, entered March 22, 2020,³ wherein we declared a judicial emergency during which jury trials were stayed until April 10, 2020. On April 3, 2020,⁴ the judicial emergency declaration was extended through May 1, 2020, and "[a]ll jury trials [were] stayed during this period of judicial emergency."

C. Second Term of Court After Indictment

The Circuit Court of Cabell County's next term of court that Mr. Porter claims counts towards the calculation of the three-term rule began on the first Monday of May 2020 (May 4, 2020).⁵ Mr. Porter also was not tried during this term of court, nor was a trial scheduled. However, this Court, by order entered April 22, 2020,⁶ again extended the declaration of judicial emergency, this time through May 15, 2020, during which time all jury trials were still stayed. By administrative order entered May 6, 2020,⁷ court operations were permitted to resume, but jury trials could not "commence [until] on or after June 29, 2020," and were subject to specified pandemic protocols, which varied depending upon the severity of the virus presence in each county.

D. Third Term of Court After Indictment

The third term of the Circuit Court of Cabell County upon which Mr. Porter relies for calculation of the three-term rule began on the second Tuesday of September 2020 (September 8, 2020).⁸ During this term of court, a video status conference hearing was held in the petitioner's case, and his jury trial was scheduled to begin on March 1, 2021; this ruling was memorialized by the circuit court's order entered November 23, 2020. Thereafter, the Circuit Court of Cabell County, as well as the Family Court and the Magistrate Court, was closed from December 21, 2020, through January 3, 2021, due to a resurgence of COVID-19 in Cabell County,⁹ which closure¹⁰ was authorized by this Court's May 6, 2020, Resumption of Operations administrative order,¹¹ as amended by administrative order entered October 6, 2020.¹²

E. Fourth Term of Court After Indictment

The next, or fourth as counted by Mr. Porter, term of court began on the first Monday of January 2021 (January 4, 2021). On January 6, 2021, Mr. Porter filed his motion to dismiss based upon the State's alleged failure to provide him a speedy trial. The circuit court denied Mr. Porter's motion by order entered January 26, 2021, succinctly ruling that it was denying his motion to dismiss "due to extraordinary COVID-19 conditions." From this ruling, Mr. Porter files the instant petition for writ of prohibition.

II.STANDARD FOR ISSUANCE OF WRIT

The instant matter is before the Court as an original jurisdiction proceeding upon Mr. Porter's assertion of his right to a speedy trial by way of a petition for writ of prohibition. We previously have recognized that prohibition is a proper method by which an accused individual may challenge a State's alleged failure to try him/her within three terms after he/she has been indicted. See State ex rel. Farley v. Kramer , 153 W. Va. 159, 168, 169 S.E.2d 106, 112 (1969). However, whether a writ of prohibition should issue in a particular case, is guided by the following standard:

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) wh

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