State of WV v. James W. Young, Jr., The Honorable Debra Ditto, Magistrate
State of WV v. James W. Young, Jr., The Honorable Debra Ditto, Magistrate
Opinion
This appeal was brought by the Petitioner, James W. Young, Jr., from the October 10, 2017, order of the Circuit Court of Morgan County that granted relief to the State in a writ of prohibition proceeding. The circuit court's order prohibited enforcement of an order by a Morgan County magistrate that granted deferred adjudication to the Petitioner, in a criminal prosecution for driving under the influence (DUI) second offense. 1 In this appeal, the Petitioner alleges the circuit court applied the wrong statute in order to grant relief to the State. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
In the afternoon of April 27, 2017, the Petitioner was involved in a single-vehicle accident in Morgan County, West Virginia. A deputy sheriff responded to the scene of the accident. The deputy found the Petitioner's vehicle off the road and stuck in vegetation. After speaking with the Petitioner, the deputy had reason to believe the Petitioner drove the vehicle while impaired. The deputy attempted to administer three field sobriety tests to the Petitioner. However, the Petitioner refused to take two of the tests, walk and turn and one-legged stand, because of an alleged physical disability. 2 The deputy determined, based upon the totality of the circumstances, to arrest the Petitioner for second offense DUI. 3
*348
After the Petitioner's arrest, a criminal complaint was filed against him in the Magistrate Court of Morgan County. The Petitioner was provided with court-appointed counsel. At a pretrial hearing on June 22, 2017, the Petitioner made an oral motion for deferred adjudication under
On July 20, 2017, the State filed a petition for a writ of prohibition with the circuit court. The State asked the circuit court to prohibit enforcement of the magistrate's order granting the Petitioner deferred adjudication. The circuit court found that the State was entitled to the writ after concluding "that W. Va. Code §§ 17C-5-2(r) and 17C-5-2b do not permit suspension of a sentence for the offense of DUI or participation in the Deferral program by defendants charged with second offense DUI." The Petitioner filed this appeal challenging the circuit court's decision.
II.
STANDARD OF REVIEW
In this case the Petitioner challenges the circuit court's order granting extraordinary relief by way of a writ of prohibition. We have held that the "[t]he standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibition is
de novo
." Syl. pt. 1,
Martin v. West Virginia Division of Labor Contractor Licensing Board
,
III.
DISCUSSION
The Petitioner contends that the circuit court misconstrued the law when it held that deferred adjudication under
The issues raised by the parties require a review of statutes. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syl. pt. 8,
Vest v. Cobb
,
In the instant case, the relevant text of W.Va. Code § 17C-5-2b provides the following:
(a) Except as provided in subsection (g) of this section, whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to driving under the influence of alcohol, any controlled substance or any other drug:
(1) Notifies the court within thirty days of his or her arrest of his or her intention to participate in a deferral pursuant to this section; and
(2) Pleads guilty to or is found guilty of driving under the influence of alcohol under subsection (e), section two of this article, the court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the contrary, place him or her on probation. ...
....
(g) No person shall be eligible for dismissal and discharge under this section: (1) In any prosecution in which any violation of any other provision of this article has been charged; (2) if the person holds a commercial driver's license or operates commercial motor vehicle(s); (3) if the person has previously had his or her driver's license revoked under section two-a of this article or under any statute of the United States or of any state relating to driving under the influence of alcohol, any controlled substance or any other drug; or (4) if the person refused the secondary chemical test pursuant to section seven of this article.
The relevant text of
(a) Upon the entry of a guilty plea to a felony or misdemeanor before a circuit or magistrate court of this state entered in compliance with the provisions of West Virginia Rule of Criminal Procedure 11 or Rule 10 of the West Virginia Rules of Criminal Procedure for Magistrate Courts and applicable judicial decisions, the court may, upon motion, defer acceptance of the guilty plea and defer further adjudication thereon and release the defendant upon such terms and conditions as the court deems just and necessary. Terms and conditions *350 may include, but are not limited to, periods of incarceration, drug and alcohol treatment, counseling and participation in programs offered under articles eleven-a, eleven-b and eleven-c, chapter sixty-two of this code.
It is clear that the text of W. Va. Code § 17C-5-2b specifically addresses the subject matter at issue in this case-deferred adjudication for a DUI offense. Pursuant to W. Va. Code § 17C-5-2b(a) a person charged with first offense DUI may be considered for deferred adjudication. However, W. Va. Code § 17C-5-2b(g) provides four alternative reasons that prevent a person from participating in a deferred adjudication program. One of those grounds includes being charged with a second or subsequent DUI offense. In contrast,
In view of the foregoing, we hold that a person charged with the crime of driving under the influence (DUI), pursuant to Chapter 17C, Article 5 of the West Virginia Code, may only seek deferred adjudication as permitted by W. Va. Code § 17C-5-2b (2016). The deferred adjudication allowed under
The Petitioner contends that we should not find
IV.
CONCLUSION
In view of the foregoing, the circuit court's final order of October 10, 2017 is affirmed.
Affirmed.
The magistrate was nominally named as a Respondent in this matter along with the State.
The deputy was able to administer the horizontal gaze nystagmus test to the Petitioner. The record does not indicate whether the Petitioner failed or passed this test.
The Petitioner was also charged with possession of a controlled substance. This charge was later dropped when the Petitioner produced a valid prescription for the drugs he possessed.
Other conditions were imposed.
The circuit court also relied upon W. Va. Code § 17C-5-2(r). This statute provides that DUI sentences are mandatory except for certain circumstances outlined in that section. We need not rely on this provision in resolving the conflict between W. Va. Code § 17C-5-2b and
This statute uses the phrase "pretrial diversion" instead of deferred adjudication. The phrases are interchangeable.
See
State v. Williams
,
(a) A prosecuting attorney of any county of this state or a person acting as a special prosecutor may enter into a pretrial diversion agreement with a person under investigation or charged with an offense against the state of West Virginia, when he or she considers it to be in the interests of justice. The agreement is to be in writing and is to be executed in the presence of the person's attorney, unless the person has executed a waiver of counsel.
We have not been called upon in this case to determine the difference between deferred adjudication under
The Petitioner also argued that the circuit court's alternative ruling was in error. The circuit court found, as an alternative ground for granting relief, that W. Va. Code § 17C-5-2b was reenacted after
The last argument made by the Petitioner is that prohibition should have been denied because the State had another adequate remedy. According to the Petitioner, the State could have filed a motion to correct the sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure. The State points out that Rule 35(a) was not applicable to the magistrate's ruling, and that Rule 27(b) of the West Virginia Rules of Criminal Procedure for Magistrate Courts permits a sentence to be corrected. The State asserts further that neither rule was applicable because the Petitioner did not receive a sentence, he received deferred adjudication. Finally, the State notes that this issue was not raised below. Insofar as the Petitioner did not raise this issue below, we decline to address the matter.
See
Syl. pt. 1,
State v. Berry
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.