State ex rel. Shifflet v. Rudloff, 30968.

• Decision Date: 08 May 2003
• Docket Number: No. 30968.,30968.
• Citation: 213 W.Va. 404,582 S.E.2d 851
• Parties: STATE of West Virginia ex rel. John H. SHIFFLET, Petitioner v. Edward RUDLOFF, Administrator of the Eastern Regional Jail, Respondent.
• Court: West Virginia Supreme Court

582 S.E.2d 851

213 W.Va. 404

STATE of West Virginia ex rel. John H. SHIFFLET, Petitioner v. Edward RUDLOFF, Administrator of the Eastern Regional Jail, Respondent.

No. 30968.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2003.

Decided May 8, 2003.

John P. Adams, Public Defender Corporation, Martinsburg, for Petitioner.

Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, for Respondent.

PER CURIAM:

Petitioner John H. Shifflet requests a Writ of Habeas Corpus permitting his release on bond. Police in Berkeley County arrested Mr. Shifflet for bank robbery on October 3, 2001. He remained in jail or in a mental hospital for over a year without having his case presented to a grand jury. Subsequent to the filing of his petition with this Court, but prior to oral argument in his case, a special grand jury in Berkeley County indicted him for bank robbery. Mr. Shifflet argues that W. Va.Code § 62-2-12 (1923) requires the state to indict an incarcerated person within two terms of court or, in the absence of certain exceptions, release the incarcerated person. For the reasons set forth below, we grant the writ.

I. FACTS

On October 3, 2001, John H. Shifflet was charged by warrant with bank robbery and was incarcerated in the Eastern Regional Jail in lieu of $50,000 bond. The court set a preliminary hearing for October 15, 2001, but counsel for Mr. Shifflet requested a continuance of that hearing so that experts could determine Mr. Shifflet's competency to stand trial. A psychologist conducted an initial examination, and by report dated November 9, 2001, declared Mr. Shifflet to be mentally ill. Because of this initial determination, counsel for Mr. Shifflet requested a more complete competency and criminal responsibility evaluation.

The court ordered this evaluation on December 7, 2001, but according to Mr. Shifflet, the order was not entered until February 8, 2002. It is unclear from the limited record before us precisely when and where this evaluation took place. The circuit court did not hold a status hearing until April 5, 2002, at which time a report from doctors at Sharpe Hospital (the state mental hospital in Weston, West Virginia) suggested that Mr. Shifflet was not competent to stand trial. As a result, the court ordered Mr. Shifflet committed to Sharpe Hospital for six months. By September 26, 2002, doctors believed that Mr. Shifflet's condition had improved, and Mr. Shifflet returned to the Eastern Regional Jail on October 7, 2002. Apparently still unable to post bond, Mr. Shifflet remained incarcerated.

Mr. Shifflet avers that a grand jury met in Berkeley County on October 29, 2001 and February 18, May 20, and October 14, 2002. However, at no point during these proceedings did a grand jury indict Mr. Shifflet for any crime. Believing this lack of an indictment to be a violation of W. Va.Code § 62-2-12 (1923), counsel for Mr. Shifflet filed on October 29, 2002 a Motion for Bond Review requesting that bond be reduced from $50,000 to a personal recognizance bond. At this time, the court had not yet determined Mr. Shifflet's competency to stand trial. The court held two hearings on this motion on November 1 and November 8, 2002. At the first hearing, the court considered the report from Sharpe Hospital and found Mr. Shifflet competent to stand trial. At the November 8th hearing, the court considered Mr. Shifflet's argument that the state's failure to indict him required his release, but ultimately denied his motion by order dated November 13, 2002. The same day, counsel for Mr. Shifflet filed an Emergency Petition for a Writ of Habeas Corpus with this Court.

Before this Court could hear the argument of the parties, a special term of the Berkeley County Grand Jury indicted Mr. Shifflet for bank robbery on January 7, 2003. Although the respondent moved this Court to dismiss Mr. Shifflet's petition as moot, the Court heard the oral argument of the parties on January 15, 2003. Because this Court finds that the state's delay in presenting Mr. Shifflet's case to a grand jury indeed violates W. Va.Code § 62-2-12 (1923), we grant the requested Writ of Habeas Corpus.

II. STANDARD OF REVIEW

Petitions requesting writs of habeas corpus fall within the original jurisdiction of this Court:

The Supreme Court of Appeals has original jurisdiction in cases of habeas corpus, mandamus and prohibition and appellate jurisdiction in all other cases mentioned in Article VIII, Section 3, of the Constitution of this State and in such additional cases as may be prescribed by law ....

Syl. pt. 10, in part, Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). The respondent filed a motion prior to argument requesting that this Court dismiss the case as moot because a grand jury finally indicted Mr. Shifflet for bank robbery. In reply, counsel for Mr. Shifflet argues that this case is not moot because others could easily find themselves in a similar situation in the future and that some clarification on this point of law is necessary. We have often stated that:

A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.

Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984). This is clearly an issue that is capable of repetition. We have also explained the way in which this Court will review a technically moot issue.:

Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

Syl. pt. 1, Israel by Israel v. W. Va. Secondary Schools Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480 (1989)

. We feel that this issue of great public interest should be examined, in spite of the fact that a grand jury has now indicted Mr. Shifflet. Because we find this is not a moot question, we proceed with an analysis of Mr. Shifflet's request.

III. DISCUSSION

Mr. Shifflet makes a very straightforward argument. He claims that the state may not deprive him of his liberty for more than two terms of court without presenting his case to the grand jury. The respondent argues that any delay in Mr. Shifflet's criminal proceeding was due to defense counsel's request for a mental competency evaluation, that the steps taken by the court adequately protected Mr. Shifflet's liberty, and that the time Mr. Shifflet spent in the mental hospital should toll the running of the two term limit contained in the applicable statute. The statute in question, also sometimes called the "two term rule" reads:

Discharge of imprisoned person upon failure to indict within certain time; person not indicted by reason of insanity.

A person in jail, on a criminal charge, shall be discharged from imprisonment if he be not indicted before the end of the second term of the court, at which he is held to answer, unless it appear to the court that material witnesses for the State have been enticed or kept away, or are prevented from attendance by sickness or inevitable accident, and except also that, when a person in jail, on a charge of having committed an indictable offense, is not indicted by reason of his insanity at the time of committing the act, the grand jury shall certify that fact to the court; whereupon the court may order him to be sent to a state hospital for the insane, or to be discharged.

W. Va.Code § 62-2-12 (1923) (emphasis added). Mr. Shifflet points out that he was incarcerated October 3, 2001 and, at the time he filed his petition with this Court on November 13, 2002, more than two terms of court had passed without his indictment. He also notes that the portion of the statute regarding material witnesses is not applicable, and that, at the time he filed his petition, no grand jury had considered his mental condition. Because none of the exceptions apply, he argues, the statute commands his discharge from imprisonment.

In reply, respondent first argues that any delay in Mr. Shifflet's indictment is attributable to defense counsel's request for a competency evaluation. Respondent correctly points out that the prosecution of the mentally incompetent violates due process, and suggests that it acted in good faith by awaiting a resolution on the competency issue before proceeding with Mr. Shifflet's prosecution. This Court has stated that: "No principle is more firmly enshrined in Anglo-American criminal jurisprudence than the prohibition against subjecting a mentally incompetent defendant to trial." State v. Sanders, 209 W.Va. 367, 376, 549 S.E.2d 40, 49 (2001). We agree with respondent that it could not take Mr. Shifflet to trial without determining his competency, but that is not the precise issue before the Court today.

It is easy to confuse the issue of Mr. Shifflet's sanity at the time of the commission of the alleged crime and his competency to stand trial at some later time, but these issues are, and must remain, distinct. The statute gives the grand jury three choices when asked to indict a suspect: find the evidence sufficient and indict the accused, refuse to indict on the basis of insufficient evidence, or in appropriate cases, make a third choice and choose not to indict because the accused was not sane at the time of committing the act alleged:

[W]hen a person

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