State ex rel. State v. Wilson

• Decision Date: 19 October 2017
• Docket Number: No. 17-0449,17-0449
• Citation: 806 S.E.2d 458
• Court: West Virginia Supreme Court
• Parties: STATE EX REL. STATE of West Virginia, Petitioner v. The Honorable Ronald E. WILSON, Judge of the Circuit Court of Brooke County; and Floyd Ference, Respondents

806 S.E.2d 458

STATE EX REL. STATE of West Virginia, Petitioner

v.The Honorable Ronald E. WILSON, Judge of the Circuit Court of Brooke County; and Floyd Ference, Respondents

No. 17-0449

Supreme Court of Appeals of West Virginia.

Submitted: October 11, 2017

Filed: October 19, 2017

Joseph E. Barki, III, Esq., Brooke County Prosecuting Attorney, Office of the Brooke

County Prosecuting Attorney, Wellsburg, West Virginia, Counsel for the Petitioner

Robert G. McCoid, Esq., McCamic, Sacco & McCoid, PLLC, Wheeling, West Virginia, Counsel for Respondent Floyd Ference

Justice Ketchum :

In this original proceeding in prohibition, the State of West Virginia, through the Brooke County Prosecuting Attorney, challenges the Circuit Court of Brooke County's sua sponte dismissal, with prejudice, of an indictment. The indictment charged the respondent, Floyd Ference ("defendant"), under W.Va. Code , 61-6-24(b) [2009], with the felony offense of threatening to commit a terrorist act.

This Court concludes that the circuit court exceeded its jurisdiction in dismissing the indictment and that relief in prohibition is warranted. We, therefore, prohibit enforcement of the April 17, 2017, order which dismissed the indictment. The indictment is reinstated, and this matter is remanded to the circuit court for further proceedings.¹

I. Factual and Procedural Background

On September 3, 2016, Lieutenant L. G. Skinner, Jr., of the Wellsburg Police Department, filed a criminal complaint against the defendant in the Brooke County Magistrate Court. The complaint stated that on September 1, 2016, the defendant, a custodian at Wellsburg Middle School, was dissatisfied with his list of assigned duties and work schedule and told two other custodians that, if more work were placed on him, he would "get a gun and start taking people out." The complaint further stated that the defendant asked one of the other custodians "what kind of handgun was the best."² The magistrate found probable cause to issue a warrant for the defendant's arrest, charging him with the felony offense of threatening to commit a terrorist act under W.Va. Code , 61-6-24.

A preliminary hearing was later conducted in magistrate court during which witnesses testified and arguments by the State and the defense were heard. As recounted by the State, both custodians provided substantially similar testimony at the preliminary hearing, maintaining that the defendant stated: "If they give me any more work to do and I can't do it, I am going to get a gun and I'm going to come in here and shoot people and their friends and their family." Probable cause was found, and the defendant was bound over to the circuit court.

In November 2016, the Brooke County grand jury returned a single Count indictment, no. 16-F-72, charging that on or about September 1, 2016, the defendant

did commit the felony offense of "Threats to Commit a Terrorist Act" when he did unlawfully, knowingly and willfully threaten to commit a terrorist act, with or without the intent to commit the act, to wit: Floyd Ference, an employee of the Brooke County School System, while at Wellsburg Middle School, did threaten to get a gun and start shooting people at the school, in violation of Chapter 61, Article 6, Section 24(b) of the West Virginia Code and against the peace and dignity of the State.

The charging language of the indictment substantially followed the provisions of W.Va. Code , 61-6-24(b) [2009], which states:

(b) Any person who knowingly and willfully threatens to commit a terrorist act, with or without the intent to commit the act, is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both.³

Although no motion to dismiss the indictment was filed by defense counsel, the circuit court entered an order, sua sponte , on April 17, 2017, dismissing the indictment with prejudice. The order was entered shortly before the defendant's trial which was scheduled to begin on April 24, 2017. The circuit court concluded:

[T]he alleged terrorist activity stated in the indictment was aimed at shooting individuals at the school instead of conduct aimed at the civilian population as a whole and not conduct that was directed at a branch or level of government as a whole. Therefore the court concludes that [a] threat to individual persons at the school does not constitute a terrorist act within the meaning of West Virginia Code § 61-6-24 because the threatened action was not directed at intimidating or coercing the conduct of a branch or level of government.

The State filed a petition for a writ of prohibition in this Court seeking to prohibit enforcement of the April 17, 2017, order. The defendant filed a response, and on August 30, 2017, this Court issued a rule to show cause why the relief requested by the State should not be granted.

II. Standard for Relief in Prohibition

This Court has original jurisdiction in prohibition proceedings pursuant to art. VIII, § 3, of The Constitution of West Virginia. In considering whether to grant relief in prohibition, this Court stated in the syllabus point of State ex rel. Vineyard v. O'Brien , 100 W.Va. 163, 130 S.E. 111 (1925) : "The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction." Accord State ex rel. Rubenstein v. Bloom , 235 W.Va. 70, 72, 771 S.E.2d 717, 719 (2015).

Here, the State contends that the circuit court exceeded its jurisdiction in dismissing the indictment. We therefore look to the following guidelines set forth in syllabus point 4 of State ex rel. Hoover v. Berger , 199 W.Va. 12, 483 S.E.2d 12 (1996) :

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 (6) 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.

Accord State ex rel. U.S. Bank Nat'l Ass'n v. McGraw , 234 W.Va. 687, 691-92, 769 S.E.2d 476, 480-81 (2015) ; State ex rel. Fillinger v. Rhodes , 230 W.Va. 560, 564, 741 S.E.2d 118, 122 (2013).

III. Discussion

Pursuant to W.Va. Code , 58-5-30 [1998], the State, on the application of the Attorney General or the prosecuting attorney, is afforded a direct appeal to this Court from an order dismissing an indictment. A direct appeal, however, pertains to instances where the indictment was dismissed for specific deficiencies, such as the failure to put the defendant on fair notice of the offense charged and the elements thereof, or the failure to enable the defendant to later assert a plea of acquittal or conviction. See State ex rel. Lorenzetti v.Sanders , 235 W.Va. 353, 367, 774 S.E.2d 19, 33 (2015). Here, the indictment charging the defendant with threatening to commit a terrorist act complied with those requirements.⁴ Nevertheless, the circuit court dismissed the indictment, with prejudice, for other reasons, i.e. , the nature of the defendant's alleged threat as described to the grand jury. Consequently, the State's petition for a writ of prohibition is the appropriate method to challenge the circuit court's ruling. See State ex rel. State of W.Va. v. Gustke , 205 W.Va. 72, 76, 516 S.E.2d 283, 287 (1999) (The writ of prohibition "is an appropriate method for the State to challenge the dismissal of an indictment.").

During a pretrial hearing conducted in January 2017, the circuit court noted that the defendant's statement apparently fit the elements of W.Va. Code , 61-6-24(b) [2009], which the circuit court stated are straightforward. Those elements are set forth in subsection (a)(3) of the statute as follows:

(a)(3) "Terrorist act" means an act that is:

(A) Likely to result in serious bodily injury or damage to property or the environment; and

(B) Intended to:

(i) Intimidate or coerce the civilian population;

(ii) Influence the policy of a branch or level of government by intimidation or coercion;

(iii) Affect the conduct of a branch or level of government by intimidation or coercion; or

(iv) Retaliate against a branch or level of government for a policy or conduct of the government.

The defendant raised no constitutional issue before the circuit court or any alleged impropriety in the grand jury proceedings. There was no motion to dismiss the indictment. The circuit court dismissed the indictment, sua sponte , solely on the basis of the indictment in relation to the grand jury transcript. The transcript reveals that only one witness testified, Lieutenant L. G. Skinner, Jr., who filed the criminal complaint which set forth the alleged threat made by the defendant. The circuit court concluded, without taking evidence, that the offense could not have occurred because the alleged terrorist activity stated in the indictment "was aimed at shooting individuals at the school instead of conduct aimed at the civilian population as a whole and not conduct that was directed at a branch or level of government as a whole."

Manifestly, the State did not present its entire case...