                             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.



       1
         The circuit court denied petitioner’s motion to dismiss based on a three-term rule
violation by order entered December 6, 2012, and later denied petitioner’s motion for
reconsideration of that ruling by order entered March 14, 2013. Thereafter, the circuit court
denied petitioner’s motion to dismiss pursuant to the Sixth Amendment to the United States
Constitution by order entered March 24, 2013.
                                                 1

       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

       2
           West Virginia Code § 62-3-21 provides:

               Every person charged by presentment or indictment with a felony or
       misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be
       forever discharged from prosecution for the offense, if there be three regular
       terms of such court, after the presentment is made or the indictment is found
       against him, without a trial, unless the failure to try him was caused by his
       insanity; or by the witnesses for the state being enticed or kept away, or prevented
       from attending by sickness or inevitable accident; or by a continuance granted on
       the motion of the accused; or by reason of his escaping from jail, or failing to
       appear according to his recognizance, or of the inability of the jury to agree in
       their verdict; and every person charged with a misdemeanor before a justice of the
       peace, [magistrate], city police judge, or any other inferior tribunal, and who has
       therein been found guilty and has appealed his conviction of guilt and sentence to
       a court of record, shall be forever discharged from further prosecution for the
       offense set forth in the warrant against him, if after his having appealed such
       conviction and sentence, there be three regular terms of such court without a trial,
       unless the failure to try him was for one of the causes hereinabove set forth
       relating to proceedings on indictment.
       3
           The Sixth Amendment to the United States Constitution provides:

             In all criminal prosecutions, the accused shall enjoy the right to a speedy
       and public trial, by an impartial jury of the State and district wherein the crime
                                                 2
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.
       4
       In Barker, the United States Supreme Court explained that the circumstances of each
case would dictate the outcome and stated as follows:

       A balancing test necessarily compels courts to approach speedy trial cases on an
       ad hoc basis. We can do little more than identify some of the factors which courts
       should assess in determining whether a particular defendant has been deprived of
       his right. Though some might express them in different ways, we identify four
       such factors: Length of delay, the reason for the delay, the defendant's assertion of
       his right, and prejudice to the defendant.

407 U.S. at 530, 92 S.Ct. at 2192.
       5
         Petitioner’s argument that the circuit court applied the Foddrell factors to the analysis of
West Virginia Code § 62-3-21 appears to be based (1) in his acknowledgment that he initially
urged the court to do so, and (2) on the fact that the circuit court, when denying the motion that
petitioner later filed on the Sixth Amendment ground, stated that its denial was “based upon the
court’s previous consideration of the balancing factors to be taken in consideration to analyze
alleged violations of Sixth Amendment Speedy Trial Rights, along with those additional factors
cited by [petitioner] in his motion filed on March 7, 2013.” However, as discussed in the body of
this decision, the circuit court’s order denying the motion to dismiss on speedy trial grounds does
not reference those factors. See discussion, infra.


                                                 3

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




       6
         For his argument on this point, petitioner indicates in his brief that “he has completely
set forth that argument in his previous pleadings [filed in the circuit court], wherefore he
incorporates by reference specifically” his motion to modify the circuit court’s order. We pause
to caution counsel that a brief filed with this Court must set forth an argument that “contain[s]
appropriate and specific citations to the record on appeal, including citations that pinpoint when
and how the issues in the assignments of error were presented to the lower tribunal.”
W.Va.R.App.P. 10(c)(7). Petitioner’s incorporation by reference does not comport with the spirit
of this rule inasmuch as he has cast a broad net and failed to tailor his argument for this Court’s
consideration.
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