          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2015 Term

                                                                   FILED

                                                               November 5, 2015

                                    No. 14-1162                   released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                                                                SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA




                            STATE OF WEST VIRGINIA,

                            Respondent Below, Petitioner,


                                          v.


                                   MEGAN DAVIS,

                            Petitioner Below, Respondent.




                    Appeal from the Circuit Court of Cabell County

                       The Honorable F. Jane Hustead, Judge

                              Civil Action No. 14-C-579


                                    REVERSED



                           Submitted: September 23, 2015

                              Filed: November 5, 2015



Joe M. Fincham II, Esq.                              A. Courtenay Craig, Esq.
Assistant Prosecuting Attorney                       Huntington, West Virginia
Huntington, West Virginia                            Attorney for Respondent
Attorney for Petitioner




JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1.     “A de novo standard of review applies to a circuit court’s decision to

grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty.

Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).



              2.     “Where 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).



              3.     “Court rules are interpreted using the same principles and canons of

construction that govern the interpretation of statutes.” Syl. Pt. 2, Casaccio v. Curtiss, 228

W.Va. 156, 718 S.E.2d 506 (2011).



              4.     “‘A preliminary examination conducted pursuant to Rule 5.1 of the West

Virginia Rules of Criminal Procedure serves to determine whether there is probable cause

to believe that an offense has been committed and that the defendant committed it; the

purpose of such an examination is not to provide the defendant with discovery of the nature

of the State’s case against the defendant, although discovery may be a by-product of the

preliminary examination.’ Syl. pt. 1, Desper v. State, 173 W.Va. 494, 318 S.E.2d 437

(1984).” Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013).


                                              i
              5.     “Where the State proceeds under W.Va. Code, 62-1-1, et seq., to arrest

the accused for an offense which must be brought before the grand jury, the defendant is

entitled to a preliminary hearing under W.Va. Code, 62-1-8 (1965). If, however, the State

elects to indict him without a preliminary hearing or before one can be held, the preliminary

hearing is not required.” Syl. Pt. 3, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268

S.E.3d 45 (1980).



              6.     “Statutes which relate to the same subject matter should be read and

applied together so that the Legislature’s intention can be gathered from the whole of the

enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219

S.E.2d 361 (1975).



              7.     Where a criminal complaint initiated pursuant to West Virginia Code

§ 62-1-1 (2014) has been dismissed, the right to a preliminary hearing arising under West

Virginia Code § 62-1-8 (2014) no longer exists.



              8.     “Most courts hold that as a general rule, a trial court should not grant

a motion to dismiss criminal charges unless the dismissal is consonant with the public interest

in the fair administration of justice.” Syl. Pt. 12, in part, Myers v. Frazier, 173 W.Va. 658,

319 S.E.2d 782 (1984).


                                              ii
LOUGHRY, Justice:

              The State of West Virginia appeals from the October 23, 2014, order of the

Circuit Court of Cabell County granting a petition for writ of mandamus filed by the

respondent herein, Megan Davis. At issue in this mandamus case is a separate, criminal case

against the respondent that was dismissed by Cabell County Magistrate Ron Baumgardner

upon the State’s motion prior to holding a preliminary hearing.1 Because the State indicated

that it might seek an indictment for the alleged criminal conduct, the circuit court ruled that

the respondent is entitled to a preliminary hearing. After a careful review of this matter, we

conclude that the respondent is not entitled to a preliminary hearing. Accordingly, we

reverse.



                         I. Factual and Procedural Background

              On August 4, 2014, a City of Huntington police officer filed a criminal

complaint in magistrate court charging the respondent with conspiracy to deliver a controlled

substance, which is a felony. The complaint alleged that she arranged for a person who was

cooperating with law enforcement to sell sixteen grams of marijuana to a third party. The

respondent was arrested and arraigned on August 5, 2014. Thereafter, her bail was reduced

and, on August 15, 2014, she was released on a personal recognizance bond. On August 21,


       1
        Although the parties’ briefs denominated the magistrate judge as the petitioner in this
appeal, the State of West Virginia is the real party in interest. The style of this opinion has
been modified accordingly.

                                              1

2014, the respondent’s defense counsel suggested to the assistant prosecutor that the

criminal charge was unsupportable because the respondent had been entrapped. Acting on

this information, the assistant prosecutor directed the police to investigate the entrapment

claim.



              The following day, August 22, 2014, the parties appeared in magistrate court

for a preliminary hearing on the criminal charge.         Before the preliminary hearing

commenced, the assistant prosecutor filed a motion with the magistrate court seeking to

dismiss the criminal complaint without prejudice. The prosecutor indicated that the case was

to be dismissed “for direct,” which signaled that the State might, in the future, present the

matter to the grand jury for possible indictment. The prosecutor asked for the dismissal

because he did not believe he was in a position to proceed with the preliminary hearing, in

part because the State had not yet completed its investigation concerning the respondent’s

allegation of entrapment. Opposing the motion, the respondent offered to waive the

preliminary hearing in exchange for an “open file policy,” allowing her access to the State’s

file on the criminal charge. The State declined this offer. Over the respondent’s objection,

the magistrate court granted the motion to dismiss the criminal complaint. As a result, no

preliminary hearing was held.




                                             2

              Later that same day, although the criminal complaint had been dismissed, the

respondent filed a petition for writ of mandamus asking the circuit court to require the

magistrate “to hold a pre-indictment preliminary hearing for the [respondent] so that [s]he

may be able to protect [her] rights[.]” The mandamus petition also sought a standing order

requiring every magistrate in the county to ensure that the right to a preliminary hearing is

observed in every criminal case.



              After briefing and oral argument on the mandamus petition, the circuit court

ruled that the respondent was entitled to a preliminary hearing provided the hearing could be

held prior to the return of an indictment against her. The circuit court reasoned that the State

may move to dismiss a criminal charge “altogether,” but it has no right to seek the dismissal

of a felony charge in order to directly present the matter to a grand jury, gain a tactical

advantage over a defendant, or merely circumvent a defendant’s right to a preliminary

hearing.2 A written Final Order reflecting the circuit court’s mandamus ruling was entered




       2
        During the mandamus hearing, after the circuit court announced its ruling, the court
and the parties discussed how to proceed. In light of the ruling, the State indicated that it
would acquiesce to the respondent’s request for an open file policy, while the respondent
agreed that she would waive the preliminary hearing and the criminal case could remain
dismissed. Although these terms were incorporated into the circuit court’s Final Order, that
order was immediately stayed, and the record is clear that the parties acquiesced only as a
result of the circuit court’s ruling. The State asserts that the mandamus ruling constitutes
error as a matter of law impacting this and other cases.

                                               3

on October 23, 2014. By separate order entered that same day, the circuit court stayed the

execution of its Final Order pending the outcome of this appeal.



                                  II. Standard of Review

              This appeal is from a circuit court’s order in a mandamus case. “A de novo

standard of review applies to a circuit court’s decision to grant or deny a writ of mandamus.”

Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555

(2008); accord Syl. Pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995) (“The

standard of appellate review of a circuit court’s order granting relief through the

extraordinary writ of mandamus is de novo.”). Similarly, our review is plenary on the issues

before us pertaining to the interpretation of state statutes and court rules. “Where 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). “Court rules are interpreted using the same

principles and canons of construction that govern the interpretation of statutes.” Syl. Pt. 2,

Casaccio v. Curtiss, 228 W.Va. 156, 718 S.E.2d 506 (2011). With this in mind, we consider

the parties’ arguments.



                                       III. Discussion




                                              4

               The State argues that the respondent is not entitled to a preliminary hearing

because her criminal complaint was dismissed, and that it was error for the circuit court to

conclude that a magistrate may not dismiss a felony charge before holding a preliminary

hearing. The respondent contends that she is entitled to a pre-indictment preliminary hearing

as a matter of right under the plain language of statutory and judicial rule. This case requires

us to examine two issues of criminal procedure: an accused’s right to a preliminary hearing,

and the State’s authority to seek the dismissal of a criminal complaint. We begin our analysis

with a brief overview of the law of preliminary hearings in West Virginia.



               “[T]his Court has consistently recognized that a preliminary hearing is not a

federal constitutional mandate, and that there is nothing in our State Constitution which

would give an independent state constitutional right to a preliminary hearing.” Peyatt v.

Kopp, 189 W.Va. 114, 116, 428 S.E.2d 535, 537 (1993) (footnote and citations omitted);

accord Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980) (“A

preliminary hearing in a criminal case is not constitutionally required.”). Accordingly, the

parties focus upon statutory and judicial rules to support their arguments.



               In article one, chapter sixty-two of the West Virginia Code, the Legislature

established a preliminary procedure to “deal with arrest[s] . . . and the attendant steps to bring

the arrested person before a magistrate to be informed of the nature of the charge, his right


                                                5

to counsel and the arrangement for bail.” Rowe, 165 W.Va. at 189, 268 S.E.2d at 48.

Section one of this article provides for the filing of a written complaint stating the essential

facts of the crime charged,3 while sections two4 through five pertain to the issuance and

execution of an arrest warrant based upon the filing of that criminal complaint. Section six

requires that a magistrate court inform the defendant of the nature of the criminal complaint,

his or her rights, and the possibility of bail. This statute provides, inter alia, that “[t]he

[magistrate] shall in plain terms inform the defendant of the nature of the complaint against

him, of his right to counsel and, if the offense is to be presented for indictment, of his right

to have a preliminary examination.” W.Va. Code § 62-1-6 (2014). Section eight pertains to

a preliminary examination, commonly referred to as a preliminary hearing:

                       If the offense is to be presented for indictment, the
                preliminary examination shall be conducted by a [magistrate] of
                the county in which the offense was committed within a
                reasonable time after the defendant is arrested, unless the
                defendant waives examination. The defendant shall not be

       3
        West Virginia Code § 62-1-1 (2014) provides that “[t]he complaint is a written
statement of the essential facts constituting the offense charged. It shall be made upon oath
before a [magistrate].” Although the statute originally used the term “justice of the peace,”
by operation of West Virginia Code § 50-1-17 (2008), all references to that term in this and
other state statutes was replaced with “magistrate.”
       4
           West Virginia Code § 62-1-2 (2014) provides as follows:

                If it appears from the complaint that there is probable cause to
                believe that an offense has been committed and that the
                defendant has committed it, a warrant for the arrest of the
                defendant shall issue to any officer authorized by law to arrest
                persons charged with offenses against the State. More than one
                warrant may issue on the same complaint.

                                               6

              called upon to plead. Witnesses shall be examined and evidence
              introduced for the State under the rules of evidence prevailing
              in criminal trials generally. The defendant or his attorney may
              cross-examine witnesses against him and may introduce
              evidence in his own behalf. On motion of either the State or the
              defendant, witnesses shall be separated and not permitted in the
              hearing room except when called to testify. If the defendant
              waives preliminary examination or if, after hearing, it appears
              from the evidence that there is probable cause to believe that an
              offense has been committed and that the defendant has
              committed it, the [magistrate] shall forthwith hold him to answer
              in the court having jurisdiction to try criminal cases. If the
              evidence does not establish probable cause, the defendant shall
              be discharged. After concluding the proceeding the [magistrate]
              shall transmit forthwith to the clerk of the court to which the
              defendant is held to answer all papers in the proceeding and any
              bail taken by him.

W.Va. Code § 62-1-8 (2014). Similar language is found in procedural rules promulgated by

this Court. Rule 5(c) of the West Virginia Rules of Criminal Procedure provides, in pertinent

part, that “[i]f the offense is to be presented for indictment, a defendant is entitled to a

preliminary examination, unless waived[,]” while Rule 5(e) of the Rules of Criminal

Procedure for Magistrate Courts states, “[i]f the offense is to be presented for indictment, a

defendant is entitled to a preliminary examination unless waived.”



              The well-settled purpose of a preliminary hearing is to determine whether there

is probable cause to hold a defendant to answer for the alleged offenses set forth in the

criminal complaint. This purpose is made clear in West Virginia Code § 62-1-8: “[I]f, after

hearing, it appears from the evidence that there is probable cause to believe that an offense


                                              7

has been committed and that the defendant has committed it, the [magistrate] shall forthwith

hold him to answer in the court having jurisdiction to try criminal cases.” However, “[i]f the

evidence does not establish probable cause, the defendant shall be discharged.” Id. This

same principle was incorporated into identically-worded provisions of Rule 5.1(a) of our

Rules of Criminal Procedure and Rule 5.1(a) of our Rules of Criminal Procedure for

Magistrate Courts: “If from the evidence it appears that there is probable cause to believe

that an offense has been committed and that the defendant committed it, the magistrate shall

forthwith hold the defendant to answer in circuit court.” Separate subsections of these same

rules provide that if the evidence at the preliminary hearing does not present probable cause,

then “the magistrate shall dismiss the complaint and discharge the defendant. The discharge

of the defendant shall not preclude the state from instituting a subsequent prosecution for the

same offense.” W.Va. R. Crim. P. 5.1(b), W.Va. R. Crim. P. Mag. Ct. 5.1(b).



              It has long been the law in this state that a preliminary hearing is not conducted

for the purpose of allowing a criminal defendant to perform discovery:

                      “A preliminary examination conducted pursuant to Rule
              5.1 of the West Virginia Rules of Criminal Procedure serves to
              determine whether there is probable cause to believe that an
              offense has been committed and that the defendant committed
              it; the purpose of such an examination is not to provide the
              defendant with discovery of the nature of the State’s case
              against the defendant, although discovery may be a by-product
              of the preliminary examination.” Syl. pt. 1, Desper v. State, 173
              W.Va. 494, 318 S.E.2d 437 (1984).


                                              8

Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013). Moreover, a preliminary

hearing is not required if the state elects to proceed directly to a grand jury without arresting

the accused, or if the accused is arrested but indicted before the date set for the preliminary

examination:

                       Where the State proceeds under W.Va. Code, 62-1-1, et
               seq., to arrest the accused for an offense which must be brought
               before the grand jury, the defendant is entitled to a preliminary
               hearing under W.Va. Code, 62-1-8 (1965). If, however, the
               State elects to indict him without a preliminary hearing or before
               one can be held, the preliminary hearing is not required.

Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl. pt. 3; accord W.Va. R. Crim. P. Rule 5(c),

W.Va. R. Crim. P. Mag. Ct. Rule 5(e). Because the grand jury makes the probable cause

determination necessary for holding the defendant over for trial, the magistrate no longer

needs to address that issue.



               The State contends that pursuant to the aforementioned law, there is no reason

to hold a preliminary hearing because the criminal complaint against the respondent was

dismissed. Conversely, the respondent asserts that because there is a possibility her matter

may be reviewed by a grand jury, a preliminary hearing is mandatory pursuant to the

following language in West Virginia Code § 62-1-8: “If the offense is to be presented for

indictment, the preliminary examination shall be conducted . . . unless the defendant waives

examination.” See also W.Va. R. Crim. P. 5(c), W.Va. R. Crim. P. Mag. Ct. 5(e). The

respondent asserts that she did not waive this right when she was before the magistrate.

                                               9

Although the circuit court agreed with the respondent’s assertion, we do not find it

convincing or persuasive.



              First, the circuit court’s ruling reflects a misapprehension of the reason for

holding a preliminary hearing. A magistrate is tasked with determining whether there is

probable cause that a defendant committed a crime so as to justify continuing to hold the

defendant to answer in court. As indicated above, “if, after hearing, it appears from the

evidence that there is probable cause to believe that an offense has been committed and that

the defendant has committed it, the [magistrate] shall forthwith hold him to answer in the

court having jurisdiction to try criminal cases. If the evidence does not establish probable

cause, the defendant shall be discharged.” W.Va. Code § 62-1-8, in part (emphasis added);

accord W.Va. R. Crim. P. 5.1, W.Va. R. Crim. P. Mag. Ct. 5.1.



              Given the magistrate court’s dismissal of the criminal complaint, there are no

pending criminal charges against the respondent. She is neither incarcerated nor released on

any type of bond. The magistrate court did not simply cancel the preliminary hearing; rather,

it dismissed the criminal complaint. Because the respondent is not being “held” to answer

for a criminal charge, there is no reason for the magistrate to make a probable cause

determination and no basis to conduct a preliminary hearing. Although the respondent may

wish to obtain information from the State for purposes of defending against a possible future


                                             10

indictment, pre-trial discovery is not the purpose of a preliminary hearing. See e.g., Desper,

173 W.Va. at 495, 318 S.E.2d at 438-39, syl. pt. 1.



              Second, the manner in which the respondent and the circuit court interpret the

phrase “[i]f the offense is to be presented for indictment, the preliminary examination shall

be conducted[,]” is incongruous with the remainder of West Virginia Code § 62-1-8 and

other statutes in article one, chapter sixty-two. West Virginia Code § 62-1-8 is “part of a

larger criminal procedure article [that] deals with the initiation of a criminal case beginning

with the filing of a complaint for an arrest warrant.” Rowe, 165 W.Va. at 189, 268 S.E.2d

at 48. As such, it must be read in pari materia with its related statutes. Id. “Statutes which

relate to the same subject matter should be read and applied together so that the Legislature’s

intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State

Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975); see also Syl. Pt. 5, in

part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907

(1975) (“Statutes which relate to the same persons or things, or to the same class of persons

or things, or statutes which have a common purpose will be regarded in pari materia to

assure recognition and implementation of the legislative intent.”).



              Reading West Virginia Code § 62-1-8 in context with the rest of article one

makes clear that there must be a pending criminal complaint before an accused is entitled to


                                              11

a preliminary hearing. West Virginia Code § 62-1-1 explains that “[t]he complaint is a

written statement of the essential facts constituting the offense charged.” Id. (emphasis

added.) West Virginia Code § 62-1-2 provides for the issuance of an arrest warrant if it

appears from the complaint that there is probable cause to believe that an offense has been

committed and that the defendant has committed it. West Virginia Code § 62-1-6 directs the

magistrate to inform the defendant “of the nature of the complaint against him, of his right

to counsel and, if the offense is to be presented for indictment, of his right to have a

preliminary examination.” Id. (emphasis added). West Virginia Code § 62-1-8 requires the

magistrate to make a probable cause determination in order to “hold” the accused for the

court having criminal jurisdiction over the matter. All of these provisions presuppose there

is a pending criminal complaint for which the defendant is subject to arrest; was arrested and

incarcerated; or was arrested and released on bail or personal recognizance–in other words,

the defendant is in some manner being held to answer for a particular charge. In short, these

statutes and the corresponding court rules clearly demonstrate that a preliminary hearing is

only required when there is a pending criminal complaint. Because the criminal complaint

against the respondent was dismissed in its entirety, the preliminary procedures specified in

West Virginia Code §§ 62-1-1 through 62-1-12 for the handling of that criminal complaint

are wholly inapplicable.




                                             12

                As this Court has previously recognized, West Virginia Code § 62-1-8 provides

only a conditional right to a preliminary hearing. In Rowe, the relators argued they were

entitled to a preliminary hearing after they were indicted by a grand jury. 165 W.Va. 183,

268 S.E.2d 45. The magistrate had scheduled a preliminary hearing on the criminal

complaint, but the hearing was cancelled upon the issuance of the indictment. We

determined that if the Legislature had intended an absolute right to a preliminary hearing

following indictment, it would have expressly provided for such hearing. Id. at 191-92, 268

S.E.2d at 49. Instead, if “the State elects to indict [an accused] without a preliminary hearing

or before one can be held, the preliminary hearing is not required.” Id. at 183, 268 S.E.2d

at 45, syl. pt. 3, in part.



                Examining the meaning of the phrase, “[i]f the offense is to be presented for

indictment, the preliminary examination shall be conducted[,]” that appears in West Virginia

Code § 62-1-8, the Rowe Court recognized “two basic principles. First, [the phrase]

demonstrates a recognition that all offenses need not be presented for indictment. Second,

the wording [of the phrase] conditions the right to a preliminary hearing on a future event .

. . that is, the offense will be presented to the grand jury.” Rowe, 165 W.Va. at 191, 268

S.E.2d at 49. Notably, our analysis in Rowe did not address or even contemplate the prior




                                              13

dismissal of the criminal complaint about which the preliminary hearing would pertain.5

When viewed in this context, it is clear West Virginia Code § 62-1-8 sets forth an additional

principle underlying the conditional right to a preliminary hearing: The subject “offense”

must be charged in a pending criminal complaint.

                 The respondent relies upon Peyatt v. Kopp, wherein this Court stated that “Rule

5 of the West Virginia Rules of Criminal Procedure provides . . . that a defendant is entitled

to a preliminary hearing unless it is waived.” Peyatt, 189 W.Va. at 116, 428 S.E.2d at 537.

However, we did not consider in Peyatt whether a person is entitled to a preliminary hearing

after the criminal complaint is dismissed. Moreover, in Peyatt this Court recognized

limitations on the right to a preliminary hearing, including that no such hearing is required

after an indictment has issued,6 that a preliminary hearing is not for the purpose of providing

the defendant with discovery of the nature of the State’s case,7 and that evidence introduced

at a preliminary hearing may be limited to the question of probable cause.8 Thus, Peyatt does

not support the respondent’s position.




       5
       One possible reason why Rowe did not contemplate the prior dismissal of the criminal
complaint is that most defendants are not likely to object to the dismissal of their criminal
charges.
       6
           189 W.Va. at 116, 428 S.E.2d at 537.

       7
           189 W.Va. at 117, 428 S.E.2d at 538.

       8
           189 W.Va. at 117, 428 S.E.2d at 538.


                                                14

              Based on the above, we conclude, and now hold, that where a criminal

complaint initiated pursuant to West Virginia Code § 62-1-1 has been dismissed, the right

to a preliminary hearing arising under West Virginia Code § 62-1-8 no longer exists.



              We also reject the circuit court’s conclusion that if the state might seek an

indictment in the future, a magistrate court cannot dismiss a criminal complaint without

holding a preliminary hearing.9 As discussed above, a preliminary hearing is not a

prerequisite for a grand jury indictment. See Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl.

pt. 3, in part (“If, however, the State elects to indict him without a preliminary hearing . . .

the preliminary hearing is not required.”); accord Syl. Pt. 6, in part, State v. Hutcheson, 177

W.Va. 391, 352 S.E.2d 143 (1986); (“The . . . failure to hold a preliminary hearing will not

vitiate an indictment.”); W.Va. R. Crim. P. Rule 5(c) (“[T]he preliminary examination shall

not be held if the defendant is indicted[.]”); W.Va. R. Crim. P. Mag. Ct. Rule 5(e) (same).

The Legislature has directed that,

              [p]rosecutions for offenses against the State, unless otherwise
              provided, shall be by presentment or indictment. The trial of a
              person on a charge of felony shall always be by indictment; and
              indictment may be found in the first instance, whether the
              accused has been examined or committed by a [magistrate] or
              not.

W.Va. Code § 62-2-1 (2014) (emphasis added).


       9
       The circuit court even indicated during the mandamus hearing that the criminal
charges should be re-filed just to afford the respondent a preliminary hearing.

                                              15

              In the instant matter, the State moved to dismiss the criminal complaint

pursuant to Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts, which

provides that “[t]he attorney for the state may move to dismiss a complaint, and if the

magistrate grants the motion the prosecution shall thereupon terminate. Such a dismissal

shall not be granted during the trial without the consent of the defendant.” Nearly identical

language is found in Rule 48(a) of the Rules of Criminal Procedure: “The attorney for the

state may by leave of court file a dismissal of an indictment, information or complaint, and

the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial

without the consent of the defendant.” These procedural rules restrict a prosecutor by

requiring leave of court for a dismissal. State v. McWilliams, 177 W.Va. 369, 373, 352

S.E.2d 120, 125 (1986) (“A prosecutor cannot dismiss criminal charges without the prior

approval of the court.”) Furthermore, when making a motion to dismiss, the prosecutor must

provide the court with reasons for the dismissal. State v. Robert Scott R., Jr., 233 W.Va. 12,

27, 754 S.E.2d 588, 603 (2014); Syl. Pt. 11, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d

782 (1984); State ex rel. Skinner v. Dostert, 166 W.Va. 743, 753, 278 S.E.2d 624, 632

(1981). Importantly, the court should not grant the motion “unless the dismissal is consonant

with the public interest in the fair administration of justice.” Myers, 173 W.Va. at 662, 319

S.E.2d at 786, syl. pt. 12, in part. Finally, the rules dictate that the defendant’s consent to

dismissal is only required if the motion is made during trial. W.Va. R. Crim. P. 48(a); W.Va.

R. Crim. P. Mag. Ct. 16(a).


                                              16

              In the case at bar, the State did seek leave of court to dismiss the criminal

complaint, and the magistrate court granted the motion. Moreover, in the mandamus case

the circuit court recognized that the State’s motion to dismiss was made, at least in part,

because the police had not completed the investigation of the respondent’s entrapment claim.

The suggestion of entrapment had been raised just one day earlier. In light of this, there was

no basis upon which the circuit court could conclude that the dismissal of the respondent’s

criminal complaint was contrary to the fair administration of justice.



              Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts and Rule

48(a) of the Rules of Criminal Procedure do not state that the dismissal of a pre-indictment

felony criminal complaint must be with prejudice or, as the circuit court coined it, be

“dismissed altogether.” Indeed, given the procedural circumstances of the respondent’s case,

such a conclusion would be illogical in view of additional court rules. Even if the State had

gone forward with the preliminary hearing and the magistrate court had dismissed the

complaint against the respondent for a lack of probable cause, the State still could have

sought an indictment against her. When discussing preliminary hearings, both Rule 5.1(b)

of the Rules of Criminal Procedure and Rule 5.1(b) of the Rules of Criminal Procedure for

Magistrate Courts provide as follows:

                     Discharge of defendant. – If from the evidence it appears
              that there is no probable cause to believe that an offense has
              been committed or that the defendant committed it, the
              magistrate shall dismiss the complaint and discharge the

                                             17

              defendant. The discharge of the defendant shall not preclude
              the state from instituting a subsequent prosecution for the same
              offense.

Id. (emphasis added). If an offense alleged in a pre-indictment complaint that is dismissed

for a lack of probable cause may thereafter be presented to a grand jury, it would be illogical

to conclude that an offense alleged in a pre-indictment complaint dismissed in the interest

of the “fair administration of justice” could not also be considered by a grand jury. See

Myers, 173 W.Va. at 662, 319 S.E.2d at 786, syl. pt. 12, in part. Under our state constitution,

the decision on whether to indict a person rests with the grand jury. W.Va. Const. art. III,

§ 4; see Syl. Pt. 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).



              The circuit court’s mandamus order expresses the concern that a prosecutor

might seek the dismissal of a criminal complaint in order to gain an improper tactical

advantage over a defendant. While this is a legitimate consideration, the solution is not to

provide a preliminary hearing to a person who is no longer facing a pending criminal charge,

or delay the dismissal of a complaint simply to hold a preliminary hearing. Instead, the

remedy lies with the magistrate court’s responsibility to ensure that the dismissal is consonant

with the public interest in the fair administration of justice. If a magistrate finds that an




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improper motive lies behind a prosecutor’s motion to dismiss, the magistrate should deny the

motion.10



              The legal standard for granting mandamus relief is well-settled:

                     A writ of mandamus will not issue unless three elements
              coexist–(1) a clear legal right in the petitioner to the relief
              sought; (2) a legal duty on the part of respondent to do the thing
              which the petitioner seeks to compel; and (3) the absence of
              another adequate remedy.

Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

For the reasons set forth above, and under the facts presented herein, the respondent does not

have a clear legal right to a preliminary hearing and the magistrate has no legal duty to

provide such a hearing. As such, mandamus does not lie.



                                      IV. Conclusion

              The October 23, 2014, Final Order of the Circuit Court of Cabell County is

reversed.

                                                                                   Reversed.




       10
       In addition, if there is cause to believe a person was subjected to false arrest or
wrongful prosecution, that individual may pursue remedies in tort.

                                             19
