State v. Carter

• Decision Date: 11 December 1998
• Docket Number: No. 25186.,25186.
• Citation: 204 W.Va. 491,513 S.E.2d 718
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Robert Eugene CARTER, Appellant.

513 S.E.2d 718

204 W.Va. 491

STATE of West Virginia, Appellee, v. Robert Eugene CARTER, Appellant.

No. 25186.

Supreme Court of Appeals of West Virginia.

Submitted November 12, 1998.

Decided December 11, 1998.

Pamela Games-Neely, Esq., Prosecuting Attorney, Christopher C. Quasebarth, Esq., Assistant Prosecuting Attorney, Martinsburg, West Virginia, Attorneys for the Appellee.

Thomas H. Sayre, Esq., Law Offices of Thomas H. Sayre, Front Royal, Virginia, Attorney for the Appellant.

MAYNARD, Justice:

The appellant, Robert Eugene Carter, appeals the September 26, 1997 final order of the Circuit Court of Berkeley County, West Virginia, wherein he was sentenced for the conviction of two counts of malicious assault on a correctional officer and one count of battery upon a correctional officer. He contends he should not have been brought to trial because the State violated the three-term rule, W.Va.Code § 62-3-21 (1959). The State argues it complied with the three-term rule because the appellant had not been arraigned, even though he had been indicted, for more than three regular terms of court before he was brought to trial. We agree with the State, and, therefore, affirm the judgment of the circuit court.

The appellant was in federal custody pending federal trial for bank robbery and other charges while being detained at the Eastern Regional Jail in Martinsburg, West Virginia. On August 28, 1994, the appellant and two other inmates instigated an assault on four correctional officers. The incident began when Officer Floyd Ackerman observed two inmates cleaning up what appeared to be blood on the floor of a cell. Officer Ackerman called the shift supervisor, Officer Benjamin Shreve, Jr., who responded with Officer Gerald Rose, Officer Ron Lloyd, and Officer Gary Reed. Officer Shreve instructed the inmates in the day room to lock down in their individual cells. Three inmates, including the appellant, refused to return to their cells.

The appellant struck Officer Shreve in the face, knocking him unconscious. The other three correctional officers were attacked as they tried to assist Officer Shreve and move him from the area. The bones that surround Officer Shreve's eye were broken and his nose was shattered; he suffered a spinal concussion and a brain concussion. Officer Shreve was transported by ambulance to City Hospital in Martinsburg, West Virginia. From there he was flown to Washington Hospital Center in Washington, D.C. Officer Lloyd suffered facial injuries, including a broken nose, rib injuries, and a broken thumb. Officer Reed suffered broken ribs and multiple bruises on his face, arms, and legs. Officer Rose suffered minor injuries.

On October 28, 1994, the appellant was indicted on four counts of malicious assault in violation of W.Va.Code § 61-2-10b (1998),¹ with each count pertaining to a different officer.² His pre-trial motions included a motion to dismiss for violation of the three-term rule pursuant to W.Va.Code § 62-3-21.³ By order entered July 14, 1997, the court denied the motion. A jury trial was held for the appellant on July 16-17, 1997. He was convicted of two counts of malicious assault and one count of battery. On September 26, 1997, the appellant was sentenced to three to fifteen years in prison on each of the assault convictions and to one year in prison for battery, to be served consecutively. The appellant appealed his conviction to this Court. We granted the petition for appeal solely on the issue of the three-term rule.

On appeal, the appellant contends the circuit court erred in holding that the three-term rule, W.Va.Code § 62-3-21, was not violated. He alleges this error because he was not tried within three terms of court after he was indicted. The State argues the three-term rule does not apply to the appellant because he was not arraigned until March 6, 1997. We agree.

The facts in the record regarding the appellant's history while in federal custody are sketchy at best. The appellant had one prior offense. On October 13, 1989, he committed the offense of aggravated robbery of a bank. He pleaded guilty in U.S. District Court to one count of bank robbery and was sentenced to forty-eight months of incarceration with five years of supervised release. In April of 1993, the appellant was released from custody on probation. Then in 1994, he was charged with bank robbery, conspiracy, and use of a firearm in a crime of violence, all federal charges. He was incarcerated in the Eastern Regional Jail pending trial on these charges when the altercation with the correctional officers occurred. In December 1994, he was tried and acquitted of the federal charges. Meanwhile, during the time the appellant was on probation, he tested positive on two occasions for drug use. He also failed to report to his supervising probation officer. As a result, at the completion of the federal criminal trial, the appellant, while still in federal custody, was removed from West Virginia to face federal parole revocation. His probation was revoked, and he was sent back to the penitentiary for an additional thirty-six months of incarceration, which began on January 31, 1995. It seems West Virginia lost track of the appellant at this point but diligently attempted to have him returned.

The appellant was in continuous federal custody from the time of the altercation with the correctional officers until he was secured by the State of West Virginia and brought before the circuit court for arraignment on March 6, 1997. Between indictment and actually securing custody of the appellant, West Virginia attempted to have the appellant returned to face the state charges. The State requested a capias and the court entered an order on November 17, 1994 which states, "It appearing to the Court that the Defendant failed to appear for arraignment herein, the Court hereby ORDERS, a Capias to issue for Defendant's failure to appear in this matter[.]" A continuing capias was ordered by the court on January 3, 1995. That order states, "[T]he Court was advised that this defendant is still within federal custody. The federal authorities had notified the State in error that he was being released to our detainer. Accordingly, it is ORDERED that the Capias against this defendant shall continue." In its brief to this Court, the State says a detainer was lodged with the United States Department of Justice on May 15, 1995. Once again the State moved for a capias on May 19, 1995. On June 9, 1995, the court ordered that the capias continue and that the matter be retired to the active capias docket. The State moved for a capias on November 3, 1995, which request was granted and order was entered by the court on November 15, 1995.

The State thereafter learned the appellant had been transferred to a federal facility in Colorado. The State requested a warrant seeking the extradition of the appellant from the State of Colorado. The Governor issued the warrant on December 18, 1996. The appellant was then brought to the jurisdiction and custody of the State of West Virginia, where he was arraigned on March 6, 1997. As we stated previously, his trial was held on July 16 and 17, 1997, and he was sentenced on September 26, 1997.

The issue that we must resolve in this case is whether the three-term rule began to run when the appellant was indicted or when he was arraigned. Our case law on this issue is somewhat confusing. In State v. Kellison, 56 W.Va. 690, 47 S.E. 166 (1904), overruled on other grounds by State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964), the accused claimed he should be discharged from prosecution for violation of the three-term rule. He was indicted by order entered October 4, 1899. No other order was entered in the case until October 2, 1901, when the accused was arraigned and offered his plea to the court. This Court held that the accused was not within the provisions of the statute because the record did not show that more than three terms of court had passed without a trial after he was taken into custody, in other words, he had not been arraigned. In Syllabus Point 1 of Kellison, id., this Court held,

The fact that the record in a felony case shows that more than three terms of the court have passed without a trial, after the finding of the indictments, affords no ground for the discharge of the accused, under section 25 of chapter 159 of the Code of 1899, from prosecution for the offense with which he is charged. It must further appear that he has been held for trial, as well as charged with the crime, for such period, without a trial.⁴

However, in Syllabus Point 1 of Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593 (1918), this Court held,

One charged with crime is entitled to be forever discharged from prosecution upon such charge, if there be three regular terms of the court in which the indictment is pending after an indictment is found against him without a trial thereof, unless the failure to try him is because of some of the reasons contained in section 25 of chapter 159 of Code 1913 (sec. 5601) excusing such delay.

The facts in Bracey show the Court was considering a different issue from that presented in the case at bar.

In Bracey, the accused filed a demurrer to the indictments. The demurrer was to be submitted to the circuit court on briefs instead of oral argument. The briefs were not all timely filed and the case was continued from the March term of court to the May term. The court then took the demurrer under advisement and continued the case to the next term of court. The demurrer was finally overruled, the accused pleaded not guilty, and the case was set for trial in the succeeding November term of court. The accused had insisted upon a trial in the September term of court. The trial still did not take place in the November term of court. The prosecutor became ill and the trial was continued to the January term. The issue presented to the Court was whether the burden was on the accused...