           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                      January 2016 Term
                                                                      FILED
                                                                 February 11, 2016
                                                                       released at 3:00 p.m.
                                        No. 15-0940                  RORY L. PERRY, II CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA





            STATE OF WEST VIRGINIA EX REL. MARK A. SORSAIA,

              PROSECUTING ATTORNEY FOR PUTNAM COUNTY,

                               Petitioner


                                             v.

                    HONORABLE PHILLIP M. STOWERS,

             JUDGE OF THE CIRCUIT COURT OF PUTNAM COUNTY,

                           AND CALEB TOPARIS,

                               Respondents




                             Petition for Writ of Prohibition


                                      WRIT GRANTED



                              Submitted: January 20, 2016

                               Filed: February 11, 2016


Kristina D. Raynes, Esq.                                  Robert B. Kuenzel, Esq.
Assistant Prosecuting Attorney                            Kuenzel & Associates, PLLC
Winfield, West Virginia                                   Chapmanville, West Virginia
Attorney for State of West Virginia                       Attorney for Caleb Toparis



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




              1.     “The State may seek a writ of prohibition in this Court in a criminal case

where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims

that the trial court abused its legitimate powers, the State must demonstrate that the court’s

action was so flagrant that it was deprived of its right to prosecute the case or deprived of a

valid conviction. In any event, the prohibition proceeding must offend neither the Double

Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the application for

a writ of prohibition must be promptly presented.” Syl. Pt. 5, State v. Lewis, 188 W.Va. 85,

422 S.E.2d 807 (1992).



              2.     “The right to a trial without unreasonable delay is basic in the

administration of criminal justice and is guaranteed by both the State and Federal

constitution. U.S. Const. Amend. VI; W.Va. Const., Art. 3, § 14.” Syl. Pt. 1, State v.

Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).



              3.     “If a conviction is validly obtained within the time set forth in the

three-term rule, W.Va.Code 62-3-21 [1959], then that conviction is presumptively

constitutional under the speedy trial provisions of the Constitution of the United States,




                                               i
Amendment VI, and W.Va. Constitution, Art. III, § 14.” Syl. Pt. 3, State v. Carrico, 189

W.Va. 40, 427 S.E.2d 474 (1993).



              4.     When a magistrate court grants a motion filed by a defendant voluntarily

waiving the right to trial in magistrate court on a misdemeanor charge and requesting the

transfer of that misdemeanor charge to circuit court for resolution, the State is no longer

required to bring the defendant to trial within one year of the execution of the criminal

warrant as would otherwise be required by syllabus point three of State ex. rel. Stiltner v.

Harshberger, 170 W.Va. 739, 296 S.E.2d 816 (1982). Upon the magistrate court’s transfer

of the misdemeanor charge to circuit court, the defendant’s right to a speedy trial is governed

by West Virginia Code § 62-3-21 (2014).



              5.     The three-term rule set forth in West Virginia Code § 62-3-21 (2014)

is triggered by the return of a valid indictment, presentment, or information.




                                              ii
LOUGHRY, Justice:



               The State of West Virginia by petitioner, Mark A. Sorsaia, Prosecuting

Attorney for Putnam County, invokes this Court’s original jurisdiction and seeks a writ of

prohibition to prohibit the respondent, the Honorable Phillip M. Stowers, Judge of the

Circuit Court of Putnam County, from dismissing two misdemeanor charges against the

respondent, Caleb Toparis. The State contends that the circuit court erred in finding that Mr.

Toparis’s right to a speedy trial had been violated. Upon consideration of the parties’ briefs

and arguments, the submitted appendix, and pertinent authorities, we find sufficient grounds

to grant the requested writ.



                          I. Factual and Procedural Background

               On April 24, 2014, a Putnam County Sheriff’s deputy filed a criminal

complaint against Mr. Toparis. A warrant was issued that same day by a Putnam County

magistrate for Mr. Toparis’s arrest for the felony offense of unlawful assault and the

misdemeanor offenses of domestic assault and domestic battery. The alleged victim was Mr.

Toparis’s girlfriend.1


       1
         According to the police report that was made a part of the appendix record submitted
to this Court, the victim provided the following information to law enforcement. On March
19, 2014, the victim and Mr. Toparis began arguing after they left a party. The argument
started in Mr. Toparis’s car while the victim was driving. Mr. Toparis forced the victim to
stop the car, after which he “started striking her in the left side of her face with a closed fist

                                                1

                 On April 25, 2014, Mr. Toparis became aware of the arrest warrant and

voluntarily presented himself to a magistrate in Logan County, who conducted an

arraignment. Thereafter, a preliminary hearing was held on May 9, 2014, in the Magistrate

Court of Putnam County. At that hearing, the magistrate found probable cause to hold the

felony unlawful assault charge for the Putnam County grand jury’s consideration.           Mr.

Toparis then voluntarily filed a motion to transfer the remaining two misdemeanor charges

to the jurisdiction of the circuit court. The magistrate court granted the motion and

transferred the misdemeanor charges to the Circuit Court of Putnam County by order entered

May 9, 2014.



                 Subsequently, on February 27, 2015, the State filed an information in the

Circuit Court of Putnam County charging Mr. Toparis with the misdemeanor offenses of

domestic assault and domestic battery.2 The parties appeared for a status hearing on March

27, 2015, and a pre-trial conference on May 1, 2015. At the pretrial conference, Mr. Toparis


and drug her from the driver’s seat.” The victim exited the car and ran for help, but
eventually Mr. Toparis forced her back into the car on the passenger side. Mr. Toparis began
driving but then stopped the car and started striking the victim again. The victim believed
that she may have been knocked unconscious. Thereafter, the victim pleaded for Mr. Toparis
to take her to her apartment. Mr. Toparis started driving fast and erratically but then stopped
again and got out of the car. Mr. Toparis then began to strangle the victim saying he was
going to kill her but she managed to bite the side of his face and get free. Eventually, Mr.
Toparis took the victim to her apartment. She got out of the car and ran toward her
apartment. Mr. Toparis attempted to follow saying he wanted “to come in and fix this,” but
the victim told him to leave and he did so.
       2
           The State chose not to pursue the felony unlawful assault charge.

                                               2

moved to dismiss the information, arguing that his right to a speedy trial had been violated

because he had not been tried on the misdemeanor charges within one year of the execution

of the warrant. Mr. Toparis based his motion upon this Court’s decision in State ex. rel

Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982). In syllabus point three of

Stiltner, this Court held:

                       Unless one of the reasons specifically set forth in W.Va.
              Code, 62-3-21 [1959] for postponing criminal trials in circuit
              court beyond three terms of the circuit court exists, a criminal
              trial in magistrate court must be commenced within one year of
              the issuance of the criminal warrant and lack of good cause for
              delay beyond one year as defined in Code, 62-3-21 [1959]
              should be presumed from a silent record.

In response, the State asserted Stiltner was not applicable because Mr. Toparis had

voluntarily transferred the misdemeanor charges against him to circuit court. Rejecting the

State’s argument, the circuit court concluded that the State was required to bring Mr. Toparis

to trial within one year of the execution of the warrant because the case originated in the

Magistrate Court of Putnam County. Accordingly, the circuit court granted Mr. Toparis’s

motion to dismiss because the one-year period had expired. The dismissal order was entered

on June 4, 2015, and this petition for a writ of prohibition followed.



                   II. Standard for Issuance of a Writ of Prohibition

              This Court held in syllabus point five of State v. Lewis, 188 W.Va. 85, 422

S.E.2d 807 (1992):


                                              3

                      The State may seek a writ of prohibition in this Court in
              a criminal case where the trial court has exceeded or acted
              outside of its jurisdiction. Where the State claims that the trial
              court abused its legitimate powers, the State must demonstrate
              that the court’s action was so flagrant that it was deprived of its
              right to prosecute the case or deprived of a valid conviction. In
              any event, the prohibition proceeding must offend neither the
              Double Jeopardy Clause nor the defendant’s right to a speedy
              trial. Furthermore, the application for a writ of prohibition must
              be promptly presented.3 (footnote supplied)

In this instance, the State contends that the circuit court abused its legitimate powers when

it ruled that Mr. Toparis had not been afforded a speedy trial. We review de novo a circuit

court’s legal rulings and statutory interpretations. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L.,

194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we consider whether

the requested writ of prohibition should be granted.



                                       III. Discussion

              This Court has long recognized that “[t]he right to a trial without unreasonable

delay is basic in the administration of criminal justice and is guaranteed by both the State and

Federal constitution. U.S. Const. Amend. VI; W.Va. Const., Art. 3, § 14.” Syl. Pt. 1, State


       3
         Mr. Toparis urges this Court to dismiss this petition for a writ of prohibition as
untimely because it was filed more than ninety days after the circuit court’s dismissal order
was entered. We decline to do so because Mr. Toparis was on notice of the State’s pursuit
of relief much earlier. The State had filed a petition appealing the circuit court’s decision
within thirty days of the dismissal order. Thereafter, the State filed its petition for a writ of
prohibition and submitted a motion to withdraw the appeal, acknowledging that the proper
mechanism was a petition for a writ of prohibition. The State’s petition for appeal was
dismissed from this Court’s docket on October 5, 2015.

                                               4

v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).4 In Stiltner, this Court observed that

“[o]ur Legislature has given a statutory definition to the constitutional term ‘without

unreasonable delay’ in circuit courts in W.Va. Code, 62-3-21” which “defines ‘speedy trial’

for circuit court proceedings as requiring that an accused be brought to trial within three

terms of court after indictment.”5 Stiltner, 170 W.Va. at 741, 296 S.E.2d at 863-64. In other

       4
        Amendment VI of the United States Constitution provides, in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”
Similarly, article III, section 14 of the West Virginia Constitution, provides, in pertinent part:
“Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public,
without unreasonable delay[.]”
       5
           West Virginia Code § 62-3-21, which has not been amended since 1959, states:

                        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.

                                                 5

words, “[i]f a conviction is validly obtained within the time set forth in the three-term rule,

W.Va.Code 62-3-21 [1959], then that conviction is presumptively constitutional under the

speedy trial provisions of the Constitution of the United States, Amendment VI, and W.Va.

Constitution, Art. III, § 14.” Syl. Pt. 3, State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474

(1993). This Court found in Stiltner, however, that no “precise definition to W.Va.Const.,

art. III, § 14 in the context of misdemeanor prosecutions upon warrants in magistrate court”

existed. Stiltner, 170 W.Va. at 741, 296 S.E.2d at 863. Recognizing that the right to a

speedy trial is equally applicable to the prosecution of misdemeanors in magistrate court, this

Court proceeded to essentially apply to magistrate court criminal proceedings the three-term

rule applicable in circuit court.    Id. at 743, 296 S.E.2d at 865. Using, by analogy, the

provisions of West Virginia Code § 62-3-21, this Court crafted the rule that a criminal trial

in magistrate court must be commenced within one year of the execution of the criminal

warrant absent good cause for delay beyond one year. Stiltner, 170 W.Va. at 740, 296 S.E.2d

at 862, syl. pt. 3.6


        6
       In syllabus point one of State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d
833 (1972), this Court explained how the three-term rule should be applied:

                       Under the provisions of [W.Va.] Code, 62-3-21, as
                amended, the three unexcused regular terms of court that must
                pass before an accused can be discharged from further
                prosecution are regular terms occurring subsequent to the ending
                of the term at which the indictment was returned. The term at
                which the indictment was returned can not be counted as one of
                the three terms.


                                               6

              In this case, the State argues that by filing the motion to transfer his

misdemeanor charges to circuit court, Mr. Toparis waived his right under Stiltner to be tried

on those charges within one year of the execution of the criminal warrant. The State

maintains that after the motion to transfer the misdemeanor charges was granted, Mr. Toparis

became subject to the speedy trial rules applicable in circuit court. The circuit court rejected

this argument based upon this Court’s decision in State ex rel. Johnson v. Zakaib, 184 W.Va.

346, 400 S.E.2d 590 (1990). In Johnson, the defendant was arrested on a misdemeanor

charge of aiding and abetting credit card fraud and was scheduled for trial in magistrate

court. However, when the State and its witnesses did not appear for trial, the magistrate

court dismissed the charges without prejudice. More than a year later, the defendant was

indicted by a grand jury on the same charge. Thereafter, the defendant sought a writ or

prohibition from this Court to prevent her prosecution. This Court granted the writ, finding

that despite the concurrent jurisdiction afforded by the West Virginia Constitution to circuit

courts over misdemeanor offenses, the State was not permitted to revive the misdemeanor

charge by bringing a new indictment in circuit court more than one year after the execution

of the original warrant. Johnson, 184 W.Va. at 351, 400 S.E.2d at 595. Accordingly, this

Court held:




Rule 2 of the West Virginia Trial Court Rules provides that circuit courts have three terms
of court each year. Because the term in which charges against a defendant are filed does not
count, the State has more than a year to satisfy three-term rule in circuit court.

                                               7

                      Where a misdemeanor warrant in a magistrate court is
               dismissed, further prosecution for the same offense by a new
               warrant or by an indictment after one year from execution of the
               original warrant is barred unless the record shows that one or
               more of the exceptions contained in W.Va. Code, 62-3-21
               (1959), applies.

Johnson, 184 W.Va. at 348, 400 S.E.2d at 592, syl. pt.6. In finding Johnson applicable, the

circuit court summarily discounted the fact that Mr. Toparis voluntarily transferred his case

to circuit court. We find, however, that this critical distinction cannot be ignored.



               In syllabus point two of State ex rel. Burdette v. Scott, 163 W.Va. 705, 259

S.E.2d 626 (1979), this Court held: “W.Va. Code, 50-5-7 (1976), requires that if a defendant

is charged by warrant in the magistrate court with an offense over which that court has

jurisdiction, he is entitled to a trial on the merits in the magistrate court.” Yet, this Court

recognized that a defendant can expressly waive the right to trial in magistrate court.

Burdette, 163 W.Va. at 710 n.5, 259 S.E.2d at 630 n.5. The motion to transfer executed by

Mr. Toparis stated that he “expressed his . . . desire to waive the right to a magistrate court

trial and instead . . . have his . . . misdemeanor case go directly to the circuit court for hearing

and resolution.” Unlike the defendant in Johnson, whose case was dismissed by the

magistrate court because the State and its witnesses failed to appear for trial, Mr. Toparis

voluntarily took affirmative action to have his misdemeanor charges transferred to the circuit

court by expressly waiving his right to a magistrate court trial. This Court has explained that



                                                 8

              [t]he essential elements of a waiver . . . are the existence, at
              the time of the alleged waiver, of a right, advantage, or benefit,
              the knowledge, actual or constructive, of the existence thereof,
              and an intention to relinquish such right, advantage, or benefit.
              Voluntary choice is of the very essence of waiver. It is a
              voluntary act which implies a choice by the party to dispense
              with something of value, or to forego some advantage which he
              might at his option have demanded and insisted on.

Hoffman v. Wheeling Sav. & Loan Ass’n, 133 W.Va. 694, 712-713, 57 S.E.2d 725, 735

(1950) (quoting 56 Am.Jur. 113); see also Syl. Pt. 6, in part, State v. Crabtree, 198 W.Va.

620, 482 S.E.2d 605 (1996) (“Deviation from a rule of law is error unless it is waived.

Waiver is the intentional relinquishment or abandonment of a known right. When there been

such a knowing waiver, there is no error[.]”). Because the motion to transfer was executed

by Mr. Toparis voluntarily and included an actual acknowledgment that the misdemeanor

charges would be resolved in the circuit court,7 we find that he waived his right to have his

misdemeanor case tried within one year of the issuance of the criminal warrant. Indeed, at

the moment the case was transferred to circuit court, the magistrate court rules were no

longer applicable. As we have noted previously, “there are two distinct . . . bodies of law

governing our magistrate courts and our circuit courts.” West Virginia Dept. of Health and

Human Resources Employees Fed. Credit Union v. Tennant, 215 W.Va. 387, 392, 599 S.E.2d

810, 815 (2004). In fact, it was the recognition that the three-term rule embodied in West


       7
         During oral argument in this case, counsel for Mr. Toparis stated that the motion to
transfer was made because Mr. Toparis did not want to subject himself to two trials, i.e, a
trial in magistrate court on the misdemeanor charges and a trial in circuit court on the felony
charge.

                                              9

Virginia Code § 62-3-21 applies only to circuit courts that prompted this Court to craft the

one-year magistrate court speedy trial rule that is at issue in this case. Stiltner, 170 W.Va.

at 240, 796 S.E.2d at 862, syl. pt. 3.



              We also note that applying the magistrate court speedy trial rule to the circuit

court proceeding under these circumstances would be untenable. Requiring the State to

comply with the magistrate court one-year speedy trial rule when an accused voluntarily

transfers a misdemeanor charge to circuit court for resolution would give an unfair tactical

advantage to criminal defendants. In that regard, a defendant could transfer his or her

misdemeanor case to the circuit court close to the expiration of the one-year time period and

cause the State to scramble to obtain a trial date on a crowded court docket to avoid dismissal

of the charges. While the right to a speedy trial is fundamental to the fair administration of

justice, it is not intended to be used as a strategic tool for defendants to gain an unfair

advantage over the prosecution. Accordingly, for the reasons set forth above, we now hold

that when a magistrate court grants a motion filed by a defendant voluntarily waiving the

right to trial in magistrate court on a misdemeanor charge and requesting the transfer of that

misdemeanor charge to circuit court for resolution, the State is no longer required to bring

the defendant to trial within one year of the execution of the criminal warrant as would

otherwise be required by syllabus point three of Stiltner. Upon the magistrate court’s transfer




                                              10

of the misdemeanor charge to circuit court, the defendant’s right to a speedy trial is governed

by West Virginia Code § 62-3-21.



                 At this juncture, there is no basis to conclude that Mr. Toparis has been denied

a speedy trial. In that regard, the record reflects that after the case was transferred to the

circuit court, the State formally charged Mr. Toparis with the misdemeanor offenses of

domestic battery and domestic assault through an information filed on February 27, 2015.

Rule 7 of the West Virginia Rules of Criminal Procedure affords the State the discretion to

charge misdemeanors by indictment or information.8 Although West Virginia Code § 62-3­

21 states that it applies to “[e]very person charged by presentment or indictment with a felony

or misdemeanor,” obviously, “the ‘three-term rule’ is triggered by the return of a valid

indictment, presentment or information.” Franklin D. Cleckley, Handbook on West Virginia

Criminal Procedure II-102 (2d ed. 1993). Indeed, given that Rule 7 permits misdemeanors

to be charged by information, it would be absurd to conclude that the three-term rule is not

triggered upon the filing of an information. “[I]t is this Court’s duty ‘to avoid whenever



       8
           Rule 7 of the West Virginia Rules of Criminal Procedure, provides, in pertinent part:

                        (a) Use of indictment or information. An offense which
                 may be punished by life imprisonment shall be prosecuted by
                 indictment. Any other felony offense may be prosecuted by
                 information if the indictment is waived. Any misdemeanor may
                 be prosecuted by indictment or information. An information
                 may be filed without leave of court.

                                                11

possible a construction of a statute which leads to absurd, inconsistent, unjust or

unreasonable results.’” Taylor-Hurley v. Mingo County Bd. of Educ., 209 W.Va. 780, 787,

551 S.E.2d 702, 709 (2001) (quoting State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532,

537 (1990)). Accordingly, we further hold that the three-term rule set forth in West Virginia

Code § 62-3-21 is triggered by the return of a valid indictment, presentment, or information.



              The record in this case shows that Mr. Toparis was scheduled to be tried in

circuit court upon the misdemeanor charges on June 8, 2015. Pursuant to Rule 2.29 of the

West Virginia Trial Court Rules, the terms of court for Putnam County begin “on the first

Monday in March and on the second Monday in July and November.” Therefore, absent the

dismissal of charges, Mr. Toparis would have been tried during the first full term of court

following the filing of the information. Accordingly, Mr. Toparis’s right to a speedy trial

was not violated.9




       9
         We are mindful of the fact that more than ten months lapsed between the transfer of
Mr. Toparis’s misdemeanor case and the State’s filing of the information in circuit court. An
inordinate delay between the transfer of a misdemeanor case to circuit court and the formal
institution of charges would be subject to a due process analysis under the Due Process
Clause of the Fifth Amendment to the United States Constitution and article III, section 10
of the West Virginia Constitution. See State v. Cook, 228 W.Va. 563, 723 S.E.2d 388 (2010)
(setting forth framework to determine whether preindictment delay violated due process
clause of United States and West Virginia Constitutions). In this case, Mr. Toparis has only
asserted that he has been denied a speedy trial. Because Mr. Toparis did not assert a
violation of his due process rights, such an analysis is not required.

                                             12

                                      IV. Conclusion

              For the reasons set forth above, the circuit court exceeded its legitimate powers

in dismissing the misdemeanor charges against Mr. Toparis. Therefore, the State is entitled

to relief in prohibition. Accordingly, the June 4, 2015, dismissal order entered by the circuit

court is vacated, and this case is remanded for further proceedings consistent with this

opinion.

                                                                                Writ granted.




                                              13

