                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS 



State of West Virginia,
Petitioner Below, Respondent                                                      FILED
                                                                               June 15, 2018
vs) No. 17-0365 (Raleigh County 15-CAP-3-K)                                  EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Brenda Jeffrey, 

Respondent Below, Petitioner 



                              MEMORANDUM DECISION
        Petitioner Brenda Jeffrey, by counsel Roger G. Hanshaw and Cindy J. Fernald, appeals
the March 17, 2017, order of the Circuit Court of Raleigh County denying her motion for
injunction and prohibition to set aside a ruling or, in the alternative, to remand to magistrate
court for fact finding. Respondent, the State of West Virginia (“the State”), by counsel Gordon
L. Mowen, II, filed its response, to which petitioner submitted a reply.

       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. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On May 23, 2014, August 15, 2014, and August 17, 2014, petitioner’s dog, Jasper,
attacked and bit two children in Prosperity, Raleigh County, West Virginia, reportedly without
provocation. After an investigation, petitioner and Jasper’s other owner, Randall Jerome Smith,
were criminally charged with harboring a vicious dog. The State filed its “Petition to Destroy
Caninus Familiaris” on or about January 16, 2015, in the Circuit Court of Raleigh County.
Shortly thereafter, the circuit court held an evidentiary hearing on that motion. During the
hearing, the court determined that petitioner and Mr. Smith had surrendered Jasper to the
Humane Society of Raleigh County (“HSRC”) and did not have standing to contest the State’s
petition to euthanize the dog.1 The court found Jasper to be vicious, as defined by West Virginia
Code § 19-20-20, and directed that the dog be euthanized. An order to that effect was entered on

       1
         The “Statement of Voluntary Surrender” petitioner signed specifically provides as
follows: “I hereby surrender all of my interest in said animal to the Humane Society of Raleigh
County,” It appears that petitioner initialed the portion of the form that provides “IT HAS BEEN
EXPLAINED TO ME BY THE HSRC THAT AFTER I RELINQUISH THE ANIMAL, IT
CANNOT BE RETURNED TO ME.” Petitioner’s magistrate case number is also included on
that form, which was signed on August 20, 2014.


                                                1

February 11, 2015. On March 3, 2015, petitioner and Mr. Smith entered pleas of guilty to
harboring a vicious dog before the Magistrate Court of Raleigh County. Both were represented
by counsel at that time.

        On May 13, 2015, the magistrate who conducted the criminal proceeding held a hearing
pertaining to the second element of West Virginia Code § 19-20-20, that is, to determine whether
Jasper was dangerous such that he should be euthanized. Petitioner was present during that
hearing. The magistrate found that Jasper attacked two children, ages four and eight, unprovoked
on three separate occasions. He also found that the injuries they suffered as a result of these
attacks required that the children be taken to a hospital on two of those occasions and that the
eight-year-old suffered such severe injuries to her arm that she was still seeking medical
treatment months after the attack. Based on those findings, he also concluded that Jasper is a
vicious dog within the meaning of West Virginia Code § 19-20-20, posed a threat to society, and
must be euthanized. The HSRC appealed the magistrate court’s May 13, 2015, order, but neither
petitioner nor Mr. Smith filed an appeal of their convictions in magistrate court or appealed the
magistrate court’s decision to euthanize the dog.

        On February 23, 2016, the circuit court conducted a hearing pertaining to the HSRC’s
petition for appeal and writ of prohibition, and determined by order entered on March 1, 2016,
that the HSRC did not have standing to bring such appeal or assert other pertinent rights
regarding the magistrate court proceedings. The HSRC appealed that order to this Court, and by
memorandum decision entered on January 6, 2017, this Court declined to address the HSRC’s
sole assignment of error due to its inadequate brief before this Court. State v. Humane Society of
Raleigh County, Inc., Appeal No. 16-0414, 2017 WL 65476 (W.Va. Jan. 6, 2017)(memorandum
decision).

        On or about January 31, 2017, the circuit court conducted a hearing “to determine the
mechanics of the euthanization of the dog and the effect of [this Court’s] [m]emorandum
[d]ecision.” The circuit court set out a schedule for the destruction of the dog and determined
how the euthanization should be carried out. Prior to the expiration of that schedule, petitioner
filed in the circuit court a “Motion for Injunction and Prohibition and Motion to Set Aside a
Ruling Based on W.Va. Rule 60(B), or in the Alternative, To Remand to Magistrate Court for
Fact Finding.” The circuit court then heard oral argument on those motions. On March 17, 2017,
the circuit court entered its order denying petitioner’s motions. At the conclusion of that order,
the circuit court denied and refused petitioner’s motion for injunction and writ of prohibition;
denied petitioner’s motion to set aside the magistrate court’s ruling pursuant to Rule 60(b), or in
the alternative, remand to the magistrate court for fact finding; affirmed the May 13, 2015, order
of the Magistrate Court of Raleigh County finding that Jasper is vicious and ordering his
euthanization; denied petitioner’s request to obtain and review the victim’s reconstructive
medical records; and stayed Jasper’s euthanization for thirty days from the date of the order to
provide petitioner the opportunity to appeal its decision if desired. Petitioner appeals from that




                                                2

order.2

        While petitioner’s motion below was submitted pursuant to Rule 60(b) of the West
Virginia Rules of Civil Procedure, the proceeding at issue is a criminal proceeding so Rule 60(b)
is inapplicable.3 We have, however, found that

          “[w]here prohibition is sought to restrain a trial court from the abuse of its
          legitimate powers, rather than to challenge its jurisdiction, the appellate court will
          review each case on its own particular facts to determine whether a remedy by
          appeal is both available and adequate, and only if the appellate court determines
          that the abuse of powers is so flagrant and violative of petitioner’s rights as to
          make a remedy by appeal inadequate, will a writ of prohibition issue.” Syllabus
          Point 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973).

Syl. Pt. 4, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).

        On appeal, petitioner asserts four assignments of error, all of which stem from
petitioner’s right to appear before the magistrate and/or circuit court to oppose the State’s
petition to destroy Jasper.4 This Court has long held that it “‘may, on appeal, affirm the judgment
of the lower court when it appears that such judgment is correct on any legal ground disclosed by
the record, regardless of the ground, reason or theory assigned by the lower court as the basis for
its judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).” Syl.
Pt. 3, in part, Bowyer v. Wyckoff, 238 W. Va. 446, 796 S.E.2d 233 (2017). Based upon our
review of the record before this Court, we affirm the circuit court’s denial of petitioner’s motions
based upon grounds not set forth by the parties on appeal.




          2
         On April 18, 2017, the circuit court entered an “Order Extending Stay of Execution of
Jasper Pending Appeal” ordering that Jasper remain at the HSRC pending resolution of the
appeal before this Court.
          3
         See Durham v. Jenkins, 229 W. Va. 669, 673, 735 S.E.2d 266, 270 (2012) (“Section 19-
20-20, which is entirely criminal in nature . . . . During that criminal proceeding, upon finding
that the dog is dangerous, which is an element of the crime to be proved, the judge may then
order the dog killed.”).
          4
         On appeal, petitioner asserts four assignments of error: (1) The circuit court committed
plain error by denying its lawful ability to exercise jurisdiction over petitioner’s motion for a
new hearing for additional findings of fact; (2) by refusing to order a new hearing the circuit
court denied petitioner’s right to due process under the United States Constitution; (3) by
refusing to order a new hearing the circuit court denied petitioner’s right to due process under the
West Virginia Constitution; and (4) by refusing to order a new hearing the circuit court denied
petitioner’s right to be assisted by counsel during a critical stage of her criminal case in violation
of the United States Constitution.


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         Because petitioner relinquished Jasper to the HSRC in 2014, we find that she lacks
  standing to assert an appeal related to the destruction of the dog. As we previously set forth,

         [s]tanding is comprised of three elements: First, the party attempting to
         establish standing must have suffered an “injury-in-fact” – an invasion of a legally
         protected interest which is (a) concrete and particularized and (b) actual        or
                                                                                       FILED
         imminent and not conjectural or hypothetical. Second, there must be a causal
         connection between the injury and the conduct forming the basis ofEDYTHE
                                                                                the lawsuit.
                                                                                      NASH GAISER, CLERK
         Third, it must be likely that the injury will be redressed throughSUPREME
                                                                                a favorable
                                                                                        COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
         decision of the court.

  Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002). In
  Findley, we stated that “when standing is placed in issue in a case, the question is whether the
  person whose standing is challenged is a proper party to request an adjudication on a particular
  issue[.]” Id. at 95, 576 S.E.2d at 822 (quoting Flast v. Cohen, 392 U.S. 83, 99-100 (1968)
  (footnote omitted)). While petitioner is the proper party to appeal or attempt to withdraw her plea
  and resulting sentence, because she has not owned or been the caretaker for Jasper in over three
  years, she lacks standing to pursue this appeal.

         For the foregoing reasons, we affirm.

                                                                                            Affirmed.

  ISSUED: June 15, 2018

  CONCURRED IN BY:

  Chief Justice Margaret L. Workman
  Justice Robin Jean Davis
  Justice Menis E. Ketchum
  Justice Elizabeth D. Walker

  Justice Loughry, Allen H., II suspended and therefore not participating.




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