No. 12-0396 – Holcomb v. Ballard
                                                                            FILED
                                                                        October 17, 2013
                                                                           released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring:
                                                                             OF WEST VIRGINIA




               Given the mandatory procedural requirement that a defendant be arraigned on a

recidivist information during the same term of court in which he or she was convicted on the

triggering offense, I concur in the Court’s judgment. I write separately, however, to express my

view that this rigid and arbitrary statutory requirement, as demonstrated by the facts of this case, is

contrary to the spirit and intent of our recidivist laws and should be amended.



               The petitioner was convicted of child neglect creating a substantial risk of injury or

death on January 4, 2007, a Thursday. The prosecuting attorney filed the recidivist information the

next day, Friday, and it was served on the petitioner on the last day of the court term, Monday,

January 8, 2007. Given the inflexible and arbitrary language of West Virginia Code § 61-11-19

(1943) (Repl. Vol. 2010), and the timing of the petitioner’s trial on the underlying offense, the

arraignment on the information was required to occur almost instantaneously with his triggering

conviction. The statute’s unyielding mandate fails to account for instances such as the present

one–where the timing of the defendant’s conviction on the triggering offense occurs just as the clock

on the court term strikes twelve–and thus, fails to afford the prosecutor any leeway as to when to

proceed with the recidivist information. Likewise, the trial court, which has the inherent authority

to manage its trial docket in the manner in which it sees fit, becomes hostage to the statute’s

arbitrary time constraint. Indeed, one can easily envision instances in which, as the days and hours

of a court term quickly wind down, other urgent matters necessitating a trial court’s immediate
attention arise and the arraignment of a recidivist must be delayed to the next term of court.

                Our recidivist statute serves the obvious and important purpose of protecting and

improving public safety by putting the most dangerous criminals in prison. A recidivist statute also

deters and reduces the number of serious repeat offenders. See Syl. Pt. 3, in part, State v. Jones, 187

W.Va. 600, 420 S.E.2d 736 (1992) (stating that primary purpose of recidivist statutes is to “deter

felony offenders . . . from committing subsequent felony offenses.”). The inflexibility of the time

constraints contained in West Virginia Code § 61-11-19 clearly frustrates this purpose.



                Nonetheless, the statute at issue has remained unaltered since 1943 and our case law

construing its requirements as mandatory and jurisdictional has been in existence since 1958.

Prosecutors are undoubtedly aware of the statute’s requirements and may well have devised practical

solutions to this issue in the event of the “perfect storm,” i.e. a potential recidivist being tried at or

near the end of the term of court. Nevertheless, there may well be circumstances which frustrate

even the most diligent prosecutor’s attempt to anticipate and plan for such occurrences.

Accordingly, it does not seem to be in the interest of justice to place a prosecutor “on the clock” as

it pertains to a potential recidivist in a situation where the timing of the return of the triggering

conviction is in the control of the jury and not the prosecutor or even the court.



                To that end, it is imperative that prosecutors be vigilant in ensuring that the recidivist

statute is strictly followed. As we made clear in State ex rel. Young v. Morgan, 173 W.Va. 452, 317

S.E.2d 812 (1984), the recidivist penalty does not survive the reversal of the underlying felony

offense. The petitioner herein had already been tried and convicted on both the underlying offense


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and the recidivist information. Thus, in light of Young, when he was retried near the very end of the

term of court, the prosecutor should have been prepared to immediately proceed with arraignment

on the recidivist information or else be barred from ever doing so. See State ex rel. Games-Neely

v. Sanders, 220 W.Va. 230, 239, 641 S.E.2d 153, 162 (2006) (“‘The prosecuting attorney is the

constitutional officer charged with the responsibility of instituting prosecutions and securing

convictions on behalf of the State of those who violate the criminal law . . . .’” (quoting State ex rel.

Skinner v. Dostert, 166 W.Va. 743, 750, 278 S.E.2d 624, 630 (1981)); see also State v. Swafford,

206 W.Va. 390, 397, 524 S.E.2d 906, 913 (1999) (Starcher, C.J., concurring) (“A prosecutor, acting

on behalf of the people, must diligently . . . enforce the rights of the public.”). Thus, unless the

Legislature amends the uncompromising time limitations of the recidivist statute, or provides a

manner in which a prosecutor may seek a brief extension for good cause shown, prosecutors must

remain extremely vigilant in the management of those cases in which recidivist charges will be

pursued.



                For the reasons stated herein, I respectfully concur in the majority’s holding and

decision to grant the petitioner the relief requested. I am authorized to state that Justice Workman

joins in this concurrence.




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