State of West Virginia v. Stewart Jordan III

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

State of West Virginia, FILED Plaintiff Below, Respondent April 25, 2014

RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS

vs) No. 13-0616 (Cabell County 11-F-33) OF WEST VIRGINIA Stewart Jordan III, Defendant Below, Petitioner

MEMORANDUM DECISION Petitioner Stewart Jordan III, by counsel R. Lee Booten II, appeals the sentencing order entered by the Circuit Court of Cabell County on April 29, 2013, pursuant to a conditional plea of guilty. Respondent State of West Virginia appears by counsel Laura Young.

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.

Petitioner was indicted in the Circuit Court of Cabell County on February 17, 2011, on one count of murder in the commission of a robbery that occurred nearly seven months earlier, when he was seventeen years old. He entered a conditional plea of guilty to one count of first- degree robbery on April 23, 2013, and was sentenced to serve thirty-two years in the West Virginia State Penitentiary. Petitioner’s reservation of right to appeal, filed May 1, 2013, indicates that he reserved “the right to appeal the court’s previous orders denying [his] motions to dismiss upon speedy trial rights.”1 On appeal, petitioner asserts that the circuit court improperly employed a balancing test to evaluate his motion to dismiss rather than “the traditional three-term analysis.” He also argues that the circuit court improperly excluded the September 2011 Term of Court from three-term rule consideration because there is no evidence that he waived his right to a trial in that term. Finally, he asserts that his Sixth Amendment right to a speedy trial was violated.

The ultimate issue in this case is whether the trial court should have dismissed the indictment for any of the reasons asserted by petitioner. The specific standard of review was explained in syllabus point one of State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009), as follows:

This Court’s standard of review concerning a motion to dismiss an indictment is, generally, de novo. However, in addition to the de novo standard, where the circuit court conducts an evidentiary hearing upon the motion, this Court’s “clearly erroneous” standard of review is invoked concerning the circuit court’s findings of fact.

Our inquiry into alleged speedy trial violations is guided by syllabus point two of State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474 (1993), which explains that once the indictment has been returned, “‘[i]t is the three-term rule, W.Va. Code, 62–3–21 [1959], which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.’ Syl. Pt. 1, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986).” West Virginia Code § 62–3–21 essentially provides that an individual indicted for a crime must be tried within three terms of the indictment.2

Furthermore, in State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009), this Court reiterated that the methodology for assessing Sixth Amendment3 allegations was clearly established by this Court in State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982), utilizing the guidance of the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).4 See also State v. Cox, 162 W.Va. 915, 253 S.E.2d 517 (1979) (identifying the Barker factors). In syllabus point two of Foddrell, this Court explained the applicable standard as follows:

A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial.

We find that the circuit court engaged in a thorough review of petitioner’s motions to dismiss on both State and federal constitutional grounds.5 Our review of the circuit court’s order entered December 6, 2012, that denied the motion to dismiss pursuant to West Virginia Code § shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

62-3-21, makes no reference to a “balancing test.”6 The circuit court simply noted, as we do now, that of the five terms of court that passed after petitioner’s indictment and before the entry of his guilty plea, the first two were marked by agreed continuances by the parties. Thus, only the January 2012 and May 2012 Terms of Court were chargeable against the State for purposes of the three-term rule. Furthermore, given that petitioner specifically requested that the circuit court consider his motions to dismiss in the September of 2012 Term of Court, and the court confirmed with petitioner that he waived his right to be tried in that term of court, that term also is excluded. Moreover, we do not agree with petitioner that the circuit court was wrong to excuse the September 2011 Term of Court, where petitioner’s counsel agreed to a continuance to the next term of court. Though petitioner argues that counsel could not waive his right to a trial in that term on his behalf, he has not asserted that his counsel acted contrary to his instructions or without his consent, nor has he presented any evidence in that regard.

Finally, we find that the circuit court properly determined that petitioner was not denied a speedy trial by Sixth Amendment standards. Petitioner never asserted his right to a speedy trial until the September 2012 Term of Court, when he filed motions to dismiss based solely on the lapse of time and, in fact, had agreed to prior continuances while his counsel engaged in plea negotiations that ultimately were successful. Petitioner has presented no evidence of prejudice and no evidence that the State gained any tactical advantage by delay. In consideration of the Foddrell factors and under the circumstances of this case, we find no error.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: April 25, 2014 CONCURRED IN BY:

Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II