State v. Paul C.

• Decision Date: 05 November 2020
• Docket Number: No. 19-0776,19-0776
• Citation: 853 S.E.2d 569
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. PAUL C., Petitioner

853 S.E.2d 569

STATE of West Virginia, Respondent

v.PAUL C., Petitioner

No. 19-0776

Supreme Court of Appeals of West Virginia.

Submitted: October 14, 2020

Filed: November 5, 2020

Lisa Hyre, Esq., Public Defender Corporation for the 18th Judicial Circuit, Kingwood, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., West Virginia Attorney General, Holly M. Flanigan, Esq., Assistant Attorney General, Counsel for Respondent.

HUTCHISON, Justice:

Petitioner Paul C.¹ appeals from an order of the Circuit Court of Preston County that denied his motion to dismiss an indictment that alleged eighteen felony sexual offenses against him involving two minors. Petitioner asserts that three unexcused terms of court have passed without a trial and that, pursuant to West Virginia Code § 62-3-21 (1959), he must be forever discharged from prosecution for the crimes charged. Upon careful consideration of the parties’ briefs and oral arguments, the appendix record, and the pertinent legal authority, we find that the three-term rule was not violated and affirm the circuit court's order.

I. Factual and Procedural Background

Petitioner was originally indicted on fourteen felony sexual offenses including six counts of third-degree sexual assault, see W. Va. Code § 61-8B-5(a)(2), and eight counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust, see W. Va. Code § 61-8D-5(a), for crimes allegedly occurring between March and August of 2016. Petitioner was then twenty-three or twenty-four years old, while the two female victims, R.T. and H.A., were between the ages of thirteen and fourteen years old.

An investigation report prepared by the Preston County Sheriff's Department indicated that R.T. was taken for a medical examination after disclosing to her mother that she had been sexually assaulted by petitioner, who is married to the mother's niece. R.T. reported that the alleged abuse occurred during a period in which petitioner and his wife were staying at R.T.’s residence. According to R.T., petitioner repeatedly asked and pressured R.T. for sex and that she eventually gave into his requests, the revelation of which was precipitated by R.T.’s fear of pregnancy. R.T.’s friend, H.A., made similar allegations against petitioner. Further, the State alleged that petitioner was grooming H.A. by buying her food. Petitioner was arrested on October 7, 2016.

The terms of the Circuit Court of Preston County commence on the first Tuesday in March, the first Tuesday in June, and the third Tuesday in October. See W. Va. Trial Ct. R. 2.18. Petitioner claims that because three regular terms of court passed without a trial – specifically, the June and October 2017 terms and the March 2018 term – he is entitled to be forever discharged from prosecution for the offenses charged in the indictment, pursuant to West Virginia Code § 62-3-21. Though this case involves a protracted procedural history, we recount only that which is relevant (and gives context) to the resolution of the narrow issue on appeal.

The March 2017 term of court began on March 7, 2017. Petitioner was indicted on March 7, 2017, and trial was scheduled for May 2, 2017. On April 25, 2017, petitioner filed an omnibus discovery motion that included at least thirty-four discovery requests. On April 28, 2017, petitioner filed a motion for the medical and mental health records of the alleged victims. Petitioner filed a motion to postpone the trial on the scheduled trial date of May 2, 2017. By order entered on May 8, 2017, the circuit court granted petitioner's motion and noted that it would reset the trial date at a June 9, 2017, hearing, during the next term of court, at which it would also consider pre-trial motions.

The June 2017 term of court began on June 6, 2017. At the scheduled June 9, 2017, hearing, the circuit court, based upon the proffer of counsel regarding the alleged victims’ medical and mental health records, determined that a guardian ad litem ("guardian") should be appointed and, by subsequent order, appointed Natalie J. Sal. In an order entered on July 13, 2017, the circuit court rescheduled the trial for August 29, 2017, and made rulings on petitioner's pretrial motions.

On August 24, 2017, the State filed a motion to continue the trial that was scheduled for August 29, 2017, on the ground that "in preparing for trial ... and after discussion with the [guardian] ... [the State] has been informed that the two alleged child victims are undergoing counseling but are not yet ready to testify and need more counseling before they would be able to testify." By order entered on August 28, 2017, the circuit court granted the State's motion to postpone the trial, "noting counsel for the Defendant does not object." The court rescheduled the trial for January 2, 2018, continuing it to the next term of court.

Meanwhile, on September 19, 2017, the State filed a motion to allow the alleged child victims to testify at trial by live, two-way closed-circuit video, pursuant to West Virginia Code § 62-6B-4,² "to avoid psychological trauma from having to confront the Defendant in person at a trial." The circuit court ordered that a hearing on the State's motion be conducted on November 9, 2017.

The October 2017 term of court began on October 17, 2017. By order entered on November 9, 2017, the circuit court ordered that the confidential medical and psychological and/or psychiatric records of R.T. and H.A. from February of 2016 to the present, and on a continuing basis through the six months following the date of entry of the court's order, be provided to the court and guardian for in-camera review. The circuit court found that, pursuant to State v. Roy , 194 W. Va. 276, 460 S.E.2d 277 (1995),³ it should review such records to determine if they "are sufficiently relevant to the determination of the issues before the [c]ourt to outweigh the confidentiality requirements of W. Va. Code § 49-7-1."⁴

On November 27, 2017, the circuit court appointed a psychologist to interview R.T. and H.A. for the purpose of determining whether they should be permitted to testify via closed-circuit video and ordered that a report thereon be provided to the court as soon as possible, as required by West Virginia Code § 62-6B-3(d).⁵ See State v. David K. , 238 W. Va. 33, 41, 792 S.E.2d 44, 52 (2016) (discussing the constitutional underpinnings and legislative purpose of West Virginia Code § 62-6B-1, et seq. , entitled "Protection and Preservation of Statements and Testimony of Child Witnesses," and the procedural safeguards therein so as to "accomplish the twin goals of protecting child victims when justice so requires and ensuring the constitutional right of a defendant to confront his/her accuser[.]") An order substituting the evaluating psychologist was entered on December 18, 2017.

On December 29, 2017, the State and the guardian moved to continue the January 2, 2018, trial on the ground that the psychological evaluations that were previously ordered for the purpose of determining whether the alleged child victims should be permitted to testify by closed-circuit video had not yet been conducted. Noting that "the process for this evaluation would likely take longer than the date for [i.e., would not be concluded by] the scheduled jury trial[,]" the circuit court found that a continuance was warranted. See W. Va. Code § 62-6B-3(d) (providing that the evaluator's opinion must be filed at least thirty days before the final hearing on the use of closed-circuit video and that "the defendant shall be allowed to review the opinion and present evidence on the issue by the use of an expert or experts or otherwise"). By order entered on December 29, 2017, the circuit court continued petitioner's trial to April 3, 2018, into the next term of court, with no objection by petitioner noted.

On February 22, 2018, the circuit court received the forensic evaluations of R.T. and H.A. by the court-appointed psychologist, Dr. Edward Baker, and ordered that they be filed under seal. By order entered February 23, 2018, the court ordered that a hearing on the State's motion to allow R.T. and H.A. to testify at petitioner's trial by closed-circuit video be held on March 29, 2018.

The March 2018 term of court began on March 6, 2018. A motions hearing was conducted on March 29, 2018, at which the circuit court considered petitioner's motion regarding the disclosure of "any and all evidence pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure" and renewed motion for the alleged victims’ medical and mental health records. With regard to the motion to allow R.T. and H.A. to testify at trial by closed-circuit video, petitioner moved to postpone the court's consideration of that motion in order to allow counsel for petitioner sufficient time to review the alleged victims’ psychological records, which the circuit court had only just released to the parties following the court's in-camera review of the same. The circuit court scheduled a new trial date for May 15, 2018 (within the March 2018 term), with the understanding that "intervening circumstances" involving the court's busy docket – including the fact that the court had two other trials set for that date – might warrant another postponement.⁶

By order entered on April 6, 2018, the circuit court ordered that a hearing be conducted on April 23, 2018, regarding petitioner's request to review the alleged victims’ psychological records and their possible use at trial and on the State's motion to allow the alleged victims to testify by closed-circuit video. The court also set a pretrial conference for May 10, 2018.

The hearing scheduled for April 23, 2018, was held on May 10, 2018.⁷ During the course of that hearing, it became clear that the case would not be ready for trial on May 15. Among other things, petitioner's counsel advised the court that she had "several more motions now, based on some of this stuff [i.e., issues discussed during the hearing]...