### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Magistrate Robert E. Lowe II, January 11, 2016 Berkeley County Magistrate,

RORY L. PERRY II, CLERK Respondent Below, Petitioner
SUPREME COURT OF APPEALS

OF WEST VIRGINIA vs) No. 15-0594 (Berkeley County 15-C-137)

Shannon Smith, Petitioner Below, Respondent



### MEMORANDUM DECISION

Petitioner Magistrate Robert E. Lowe II, by counsel Christopher C. Quasebarth, appeals the Circuit Court of Berkeley County’s May 15, 2015, order granting respondent’s petition for writ of prohibition. Respondent Shannon Smith, by counsel Benjamin M. Hiller, filed a response. On appeal, petitioner alleges that the circuit court erred in granting respondent’s prohibition petition because three delays in the proceedings below are attributable to respondent.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Respondent Shannon Smith was arrested and arraigned in magistrate court for domestic battery on June 19, 2013. The magistrate court held a status hearing in September of 2013. Respondent did not have an attorney at the hearing, so he filled out an affidavit for appointed

counsel. 1 A second status hearing was held in November of 2013. Despite having filled out an affidavit for appointed counsel at the prior hearing, respondent was still unrepresented. Petitioner alleges that this hearing was continued so that respondent could hire an attorney, but respondent disputes this allegation. According to respondent, he qualified for an appointed attorney at both the September and November hearings. In fact, respondent alleges that his financial situation worsened between these hearings, as he was laid off from his job. The following day, respondent, for the second time, completed an affidavit for appointed counsel. The public defender corporation received respondent’s November of 2013 affidavit on November 25, 2013, and an attorney was appointed for him shortly thereafter.

On December 5, 2013, respondent’s counsel filed motions for discovery, a speedy trial,

1 It is unclear from the record on appeal whether the public defender corporation received

this affidavit.

1and a jury trial. The magistrate court held a third status hearing in February of 2014, during which the parties indicated that the State had not yet provided discovery to respondent. The magistrate court held a fourth status hearing on April 14, 2014, during which the victim failed to appear. The State therefore requested a continuance, to which respondent objected. The objection

was overruled.

Thereafter, the magistrate court held a pre-trial hearing in July of 2014, during which the arresting officer failed to appear and the State requested a continuance. Again, respondent objected and moved to have the matter dismissed based upon an alleged violation of his right to a speedy trial, but the magistrate court overruled the objection and denied the motion. During a second pre-trial hearing in September of 2014, respondent renewed his motion to dismiss, and the magistrate court requested that the parties file written briefs on the issue. Ultimately, in December of 2014, the magistrate court held a third pre-trial hearing, during which it denied the

motion to dismiss and scheduled trial for March of 2015.

Prior to trial, respondent filed a petition for writ of prohibition in the circuit court. In April of 2015, the circuit court held a hearing on respondent’s petition and ultimately granted the same, thereby prohibiting the magistrate court from prosecuting respondent on the domestic battery charge. It is from this order that petitioner appeals.

We have previously established the following: “‘The standard of appellate review of a circuit court’s order granting relief through the extraordinary writ of prohibition is de novo .’ Syllabus Point 1, Martin v. West Virginia Div. of Labor Contractor Licensing Bd. , 199 W.Va. 613, 486 S.E.2d 782 (1997).” Syl. Pt. 1, Brooke B. v. Ray , 230 W.Va. 355, 738 S.E.2d 21 (2013). Upon our review of the circuit court’s order, we find no error in the granting of respondent’s petition for writ of prohibition.

In discussing the right to a speedy trial in magistrate court, we have previously held as

follows:

In syllabus point 2 of State ex rel. Stiltner v. Harshbarger , 170 W.Va. 739, 296 S.E.2d 861 (1982), we adopted a 120 day rule for magistrate courts by analogy to

W. Va.Code § 62-3-1 and held that a criminal trial in magistrate court should occur within 120 days of issuance of the warrant unless good cause as defined by

W. Va.Code § 62-3-1 exists. Likewise, in syllabus point 3 of Stiltner , we recognized that unless one of the enumerated exceptions contained in W. Va.Code § 62–3–21 applied, a magistrate court criminal trial ‘must be commenced within one year of the issuance of the criminal warrant[.]’

State ex rel. Brum v. Bradley , 214 W.Va. 493, 496, 590 S.E.2d 686, 689 (2003). One such exception to this rule is for instances in which the matter is continued on motion of the

defendant.

On appeal to this Court, petitioner argues, as he did below, that three separate continuances were attributable to respondent and, therefore, respondent’s right to a speedy trial was not violated. The Court, however, does not agree. Simply put, respondent’s requests for

2appointed counsel at the first two hearings below do not constitute requests for a continuance. Likewise, respondent’s filing of a motion to dismiss does not constitute a request for a continuance. These are simply normal matters addressed in the course of criminal proceedings, not requests that are tantamount to moving to continue the proceedings such that respondent forfeited his right to a speedy trial.

Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error by the circuit court. Our review of the record supports the circuit court’s decision to grant respondent’s petition for writ of prohibition on the grounds addressed above, which were also argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignment of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s May 15, 2015, “Order Granting Writ Of Prohibition” to this memorandum decision. 2

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 11, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman

CONCURRING AND WRITING SEPARATELY: Justice Allen H. Loughry II

Loughry, Justice:

2 In its order, the circuit court discusses a practice related to computation of time for purposes of speedy trial analysis in magistrate court that appears to be common in Berkeley County. Specifically, the circuit court explains (referencing a prior order of a circuit court judge from the Twenty-Third Judicial Circuit of West Virginia), that the common practice is that a defense continuance in magistrate court adds an additional 120 days to the one-year timeframe for purposes of protecting a defendant’s right to a speedy trial. The rationale, as explained by the circuit court, is that a defendant has waived a term of court when granted a continuance in circuit court, and that a term of court in magistrate court has been held to equal 120 days. Because the circuit court specifically found that no continuance in this matter was attributable to respondent, its ruling did not turn on an evaluation of this practice. As such, it is unnecessary for us to consider the appropriateness of this practice in adopting the order at issue.

3I agree that the respondent was denied a speedy trial. I write separately to explain why I believe the two continuances necessitated by the respondent’s failure to secure legal counsel are attributable to the respondent in the speedy trial analysis and to emphasize the importance of diligent prosecutions.

Upon the respondent’s initial arrest and arraignment on domestic battery charges on June 19, 2013, he signed a rights form on which he indicated that he wanted to hire an attorney to represent him. When the respondent returned to magistrate court for a status hearing on September 12, 2013, the matter was continued because he had failed to retain counsel. Although the respondent completed an application for a public defender that same day, the record does not reflect whether his application was considered by the local Public Defender Services and denied, or whether he made any further effort to either secure public defender services or privately retain counsel. Nonetheless, when he returned to the magistrate court for a status hearing on November 21, 2013, he again appeared without counsel; consequently, the matter was once again continued. The magistrate’s handwritten notes from this November hearing indicate that the respondent is hiring counsel. 3 Accordingly, I would attribute these two continuances to the respondent. Three other continuances, however, are clearly attributable to the State. 4

All crimes, including domestic batteries, are serious matters that must be diligently prosecuted by the State. When the State fails to do so, an individual who has engaged in criminal conduct may be able to evade trial, conviction, and punishment, which is devastating to the

victim and a disservice to the citizens of this state.

Because the State failed to bring the respondent to trial within one year of his arrest and arraignment, 5 he was denied his right to a speedy trial. Consequently, I must concur in affirming the circuit court’s order that prohibits his further prosecution on the instant domestic battery charge.

3 The respondent completed another application for public defender services on November 22, 2013. Having been “laid off” from the employment he held at the time of his initial application, he indicated on the second application that he had no income. Soon thereafter, a public defender was appointed to represent him.

4 Attributing these two continuances to the respondent does not alter the outcome of this appeal.

5 One hearing was continued because the State had not produced discovery. Another hearing was continued on the State’s motion because the victim did not appear. A third hearing was continued on the State’s motion because the arresting officer did not appear.

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