                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                     August 29, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0935 (Greenbrier County 12-F-150)                                   OF WEST VIRGINIA



David Clayton White,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner David Clayton White, appearing by counsel Douglas H. Arbuckle, appeals the
August 14, 2013, order of the Circuit Court of Greenbrier County that sentenced him to forty-
five to eighty-nine years in prison with a life recidivist enhancement, all sentences to run
consecutively. The State of West Virginia, by counsel Christopher S. Dodrill, filed its response.

       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 standards 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 West Virginia Rules of Appellate Procedure.

        On December 19, 2011, petitioner was arrested for charges relating to the burning of
eight cars, including two police vehicles, and part of a building located at the West Virginia State
Police detachment in Rainelle, West Virginia, on December 15, 2011. Petitioner remained
incarcerated prior to trial as he could not post bond. On August 28, 2012, the circuit court held a
hearing on petitioner’s motion regarding petitioner’s incarceration absent an indictment in
violation of the two-term rule. The two-term rule is embodied in West Virginia Code § 62-2-12,
which provides in pertinent part: “[a] person in jail, on a criminal charge, shall be discharged
from imprisonment if he be not indicted before the end of the second term of the court, at which
he is held to answer[.]” The circuit court held the matter in abeyance to allow the State more
time to properly address the issue.

        On September 20, 2012, petitioner was indicted by the Greenbrier County Grand Jury on
twenty-one counts—one count of arson in the second degree, one count of conspiracy to commit
arson in the second degree, eight counts of arson in the third degree, one count of conspiracy to
commit arson in the third degree, nine counts of intimidation and retaliation against public
officers or employees, and one count of conspiracy to commit intimidation and retaliation against
public officers or employees—based upon the December 15, 2011, incident. Petitioner was
arraigned on September 28, 2012. At the arraignment, the circuit court set petitioner’s trial for


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January 17, 2013, during the next term of court. The trial was then rescheduled at a pre-trial
hearing for Wednesday, January 30, 2013. On that date, the parties picked a jury, gave opening
statements, and the State presented several witnesses in its case-in-chief. However, due to
inclement weather, the circuit court postponed the second day of trial until Tuesday, February 5,
2013. On the second day of trial, the State concluded its case-in-chief, and petitioner presented
several witnesses and testified on his own behalf. That same day, the jury returned a verdict of
guilty on all twenty-one counts of the indictment.

         On February 22, 2013, the State filed a recidivist information against petitioner seeking
life imprisonment pursuant to the West Virginia habitual offender statutes, West Virginia Code §
61-11-18 and -19. A one-day jury trial commenced on the recidivist information on May 29,
2013, and the jury found petitioner to be the same individual previously convicted of two
felonies. Petitioner was sentenced on July 30, 2013, as follows: life imprisonment as a recidivist
enhancement pursuant to the West Virginia habitual offender statutes for one count of
intimidation and retaliation against a public officer or employee; ten years of incarceration for
one count of second-degree arson, one to five years of incarceration for one count of conspiracy
to commit second-degree arson, three years of incarceration for each of eight counts of third-
degree arson, one to five years of incarceration for each of eight counts of intimidation and
retaliation against a public officer or employee, one to five years of incarceration for one count
of conspiracy to commit intimidation and retaliation against a public officer or employee, and
one to five years of incarceration for conspiracy to commit third-degree arson. This appeal
followed.

        We have stated that “[w]here the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
Further, “‘[t]he Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011).

        Petitioner raises several grounds on appeal. First, petitioner argues that the circuit court
erred in denying his motion for discharge in violation of the two-term rule because he was
incarcerated from December 19, 2011, until September 20, 2012, absent an indictment. West
Virginia Code § 62-2-12. After considering the parties’ arguments, we conclude that petitioner’s
direct appeal of the circuit court’s ruling on the two-term issue is moot. As petitioner admits, he
was indicted by a grand jury on September 20, 2012, and he was subsequently convicted. He has
been sentenced under that conviction, and he is currently incarcerated on that sentence. Petitioner
would avail nothing in our determination of this issue. This Court has long held that “[m]oot
questions or abstract propositions, the decision of which would avail nothing in the
determination of controverted rights of persons or of property, are not properly cognizable by a
court.” Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).

       In Ex parte Blankenship, 93 W.Va. 408, 116 S.E. 751 (1923), and State ex rel. Shifflet v.
Rudloff, 213 W.Va. 404, 582 S.E.2d 851 (2003), this Court granted writs of habeas corpus for
criminal defendants who had been held in jail and a mental hospital, respectively, unindicted for


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more than two terms of court. In both cases, the Court explained that a violation of the two-term
rule does not prohibit further prosecution or incarceration on a subsequent indictment,
conviction, and sentence. Here, petitioner seeks to address this issue on direct appeal after he has
not only been indicted, but convicted by a jury and sentenced on that conviction. Petitioner is
now incarcerated on that sentence, and any error with regard to this issue is moot.

        Petitioner’s next three assignments of error relate to the circuit court’s denial of
petitioner’s motion to dismiss the indictment for prosecutorial delay, the State’s failure to
provide timely discovery, and a violation of West Virginia Code § 62-3-1 (referred to as the one-
term rule), which provides that a criminal defendant in custody on an indictment shall be tried in
the same term of court in which he is indicted, unless good cause is shown for a continuance. In
reviewing these grounds, we employ the following standard of review: “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.” Syl. Pt. 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).

       As to the one-term rule, petitioner argues that the circuit court erred in denying his
motion to dismiss because he was in custody but not tried in the same term of court in which he
was indicted in violation of West Virginia Code § 62-3-1. Petitioner was indicted on September
20, 2012, during the June term of court in Greenbrier County. Petitioner was arraigned on
Friday, September 28, 2012, and the next term was set to begin on Tuesday, October 2, 2012.
The circuit court set the matter for trial during the October term. Petitioner now claims his trial
should have begun on the one court day—Monday, October 1, 2012—between his arraignment
and the beginning of the October term.

       This Court has held that:

       “The determination of what is good cause, pursuant to W.Va.Code, [§] 62-3-1, for
       a continuance of a trial beyond the term of indictment is in the sound discretion of
       the trial court, and when good cause is determined a trial court may, pursuant to
       W. Va.Code, [§] 62-3-1, grant a continuance of a trial beyond the term of
       indictment at the request of either the prosecutor or defense, or upon the court's
       own motion.” Syllabus Point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294
       S.E.2d 51 (1981).

Syl. Pt. 5, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986). Moreover, we have also
recognized that “a trial judge has broad discretion in managing his or her docket, including trial
procedure and the conduct of trial.” Barlow v. Hester Industries, Inc., 198 W.Va. 118, 127, 479
S.E.2d 628, 637 (1996). Based upon our review of the record, we find that the circuit court did
not abuse its discretion in continuing the instant case when only one day remained between
petitioner’s arraignment and the beginning of the next term of court.

       With regard to prosecutorial delay, petitioner argues that the circuit court erred in
denying his motion to dismiss because the State delayed his prosecution “at every opportunity.”
However, petitioner fails to cite to any authority or instances in the record to support his claim.


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Instead, petitioner makes unsupported claims that the State delayed his proceedings so as to have
more time to prepare for trial. There is nothing in the record before this Court to indicate that the
State intentionally or oppressively sought to delay the prosecution in this matter. See State v.
McCartney, 228 W.Va. 315, 324, 719 S.E.2d 785, 794 (2011) (discussing prosecutorial delay
and the circuit court’s discretion to continue a defendant’s trial beyond one term of court upon a
showing of good cause). As we find no reversible error in the timeframes for prosecution
previously addressed in this decision, and petitioner fails to adequately support his assertions, we
cannot find an abuse of discretion by the circuit court in failing to dismiss petitioner’s case on
this issue.

        As to the timeliness of discovery, petitioner argues for the first time on appeal that the
circuit court erred in failing to dismiss the indictment, or at a minimum to suppress the testimony
of two witnesses at trial, because the State failed to timely disclose certain discovery.1 However,
petitioner fails to identify any instance in the record where he raised this issue before the circuit
court and received a ruling on any motion or objection. We have held that “[a]s a general rule,
proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears
upon the record, and errors assigned for the first time in an appellate court will not be regarded in
any matter of which the trial court had jurisdiction or which might have been remedied in the
trial court if objected to there.” Syl. Pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445
(1974). A circuit court has discretion to fashion a remedy for noncompliance with pre-trial
discovery. State ex rel. Rusen v. Hill, 193 W.Va. 133, 140, 454 S.E.2d 427, 434 (1994). Upon
review of the record, we find no instance where petitioner presented this issue to the circuit court
and received a ruling. Petitioner did not present this issue at trial in the form of an objection, and
he did not include this issue in his motions after the State’s case-in-chief or post-trial. Therefore,
without having properly preserved the issue, we will not address it on appeal.

       Petitioner’s next assignment of error is that the circuit court erred in denying petitioner’s
motion for a new trial where petitioner’s trial was postponed for several days due to inclement
weather. Petitioner claims he was prejudiced by the delay in that the first day of trial consisted
mainly of the State’s case-in-chief, and therefore, the jurors were left to ruminate on the State’s
evidence for five days. With regard to a circuit court’s ruling on a motion for a new trial, we
observe the following standard of review:

       In reviewing challenges to findings and rulings made by a circuit court, we apply
       a two-pronged deferential standard of review. We review the rulings of the circuit
       court concerning a new trial and its conclusion as to the existence of reversible
       error under an abuse of discretion standard, and we review the circuit court's
       underlying factual findings under a clearly erroneous standard. Questions of law
       are subject to a de novo review.
1
 The only discovery material petitioner identifies as untimely are reports from a companion case
in Fayette County and statements of State witnesses taken, apparently, throughout the
proceedings and shortly before trial. It is unclear from the record when the reports identified
were disclosed, but petitioner claims to have received the witness statements on the date of trial.
Petitioner also mentions the untimely disclosure of discovery material including “possible”
exculpatory evidence, but he fails to explain what evidence was possibly exculpatory and in what
way he was prejudiced by its alleged late disclosure.

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Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Moreover, as stated above,
circuit courts have broad discretion over the management of their trial dockets. Syl. Pt. 9, State
ex rel. Atkins v. Burnside, 212 W.Va. 74, 569 S.E.2d 150 (2002) (“Trial courts have the inherent
power to manage their judicial affairs that arise during proceedings in their courts, which
includes the right to manage their trial docket.”). We find no abuse of discretion in the circuit
court’s decision to postpone the trial for three judicial days, thus saving the jurors and other
participants from the dangers of traveling in inclement weather.

        Finally, petitioner argues that the circuit court erred in denying his motion to dismiss the
recidivist proceeding as untimely filed. This Court has explained the procedure of the West
Virginia habitual offender statutes, West Virginia Code § 61-11-18 and -19, is as follows: first, a
prosecutor must present a recidivist information to the court after a defendant is convicted, but
before the defendant is sentenced. Second, the court must arraign the criminal defendant on the
recidivist information filed by the State before expiration of the term of court at which the
defendant was convicted. Holcomb v. Ballard, 232 W.Va. 253, ___, 752 S.E.2d 284, 287 (2013)
(“[U]nder W. Va. Code § 61-11-19, a trial court is obligated to arraign a defendant on a recidivist
information during the term of court in which the defendant is convicted.”). In this case,
petitioner was convicted by a jury on all counts on February 5, 2013,2 in the February of 2013
term of court, and the State filed a recidivist information seventeen days later on February 22,
2013, alleging that petitioner had two previous felonies. Petitioner was then arraigned and tried
by a jury on the recidivist information in the same February of 2013 term of court in which he
was convicted. We find no error in the recidivist procedure in this matter.

       For the foregoing reasons, we affirm.
                                                                                         Affirmed.

ISSUED: August 29, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




2
  Petitioner’s trial began in the October of 2012 term of court. However, as explained elsewhere
in this decision, the trial was not completed until February 5, 2013, which was the first day of the
February of 2013 term of court.

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