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FILED June 3, 2021 ______Released at 3:00 P.M IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2021 Term FILED June 3, 2021 _______________ released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 21-0090 SUPREME COURT OF APPEALS OF WEST VIRGINIA _______________ STATE OF WEST VIRGINIA EX REL. HAROLD RADFORD PORTER, Petitioner V. HONORABLE PAUL T. FARRELL, JUDGE OF THE CIRCUIT COURT OF CABELL COUNTY; AND THE STATE OF WEST VIRGINIA, Respondents _____________________________________________ PETITION FOR WRIT OF PROHIBITION WRIT DENIED _____________________________________________ Submitted: April 13, 2021 Filed: June 3, 2021 Richard W. Weston Patrick Morrisey Weston Robertson Attorney General Hurricane, West Virginia Scott E. Johnson Attorney for the Petitioner Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent, State of West Virginia CHIEF JUSTICE JENKINS delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “‘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[s]. 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).” Syllabus point 3, State v. Holden, 243 W. Va. 275, 843 S.E.2d 527 (2020). 2. “It is the three-term rule, W. Va. Code, 62-3-21, which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.” Syllabus point 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (1986). 3. “‘“Pursuant to W. Va. Code § 62-3-21 (1959), when an accused is charged with a felony or misdemeanor and arraigned in a court of competent jurisdiction, if three regular terms of court pass without trial after the presentment or indictment, the accused shall be forever discharged from prosecution for the felony or misdemeanor charged unless the failure to try the accused is caused by one of the exceptions enumerated in the statute.” Syllabus, State v. Carter, 204 W. Va. 491, 513 S.E.2d 718 (1998).’ Syl. Pt. 1, State v. Damron, 213 W. Va. 8, 576 S.E.2d 253 (2002).” Syllabus point 4, State v. Paul C., ___ W. Va. ___, 853 S.E.2d 569 (2020). i 4. “‘Under the provisions of 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[.]’ Syl. Pt. 1[, in part], State ex rel. Spadafore v. Fox, 155 W. Va. 674, 186 S.E.2d 833 (1972).” Syllabus point 5, in part, State v. Holden, 243 W. Va. 275, 843 S.E.2d 527 (2020). 5. “A person held under an indictment, without a trial, for three full and complete regular terms of the court in which he is held to answer, after the term thereof at which the indictment was found, under circumstances which do not excuse the failure of the state to bring him to trial, by virtue of the exceptions in section 25 of chapter 159 of the Code (sec. 5601) may obtain his discharge from prosecution on the indictment, on a writ of habeas corpus[.]” Syllabus point 1, in part, Ex parte Anderson, 81 W. Va. 171, 94 S.E. 31 (1917). 6. A term of court during which a judicial emergency has been declared in response to the COVID-19 global pandemic and corresponding limits have been imposed upon the ability of courts to hold jury trials and/or conduct nonessential judicial proceedings is not a “regular” term of court as contemplated by the three-term rule set forth in West Virginia Code section 62-3-21 (eff. 1959). ii Jenkins, Chief Justice: Harold Radford Porter (“Mr. Porter”), the petitioner herein, requests this Court to issue a writ of prohibition to prevent the Honorable Paul T. Farrell, Judge of the Circuit Court of Cabell County and one of the respondents herein, from enforcing the court’s order entered January 26, 2021, in which the circuit court denied Mr. Porter’s motion to dismiss. Before the circuit court and again in his request for prohibitory relief from this Court, Mr. Porter contends that the State of West Virginia (“the State”), the other respondent herein, violated his right to a speedy trial by not trying him within three regular terms of court after the return of his indictment as required by West Virginia Code section 62-3-21 (eff. 1959). The State disagrees with Mr. Porter’s characterization of the underlying proceedings and asserts that the COVID-19 global pandemic presented extenuating circumstances relieving it of its duty to try Mr. Porter within three terms of court after he was indicted. Upon a review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we find that, as of the date of Mr. Porter’s motion to dismiss and the circuit court’s ruling thereon, three regular terms of court had not yet passed since Mr. Porter had been indicted, and, thus, there was no violation of the three- term rule in this case. Accordingly, the writ of prohibition requested by Mr. Porter is denied, and his criminal trial is permitted to proceed provided three regular terms of court have not passed since Mr. Porter was indicted on the charges upon which he is to be tried. 1 I. FACTS AND PROCEDURAL HISTORY To better understand the factual and procedural posture of this case, a brief review of the overarching legal framework is necessary. Mr. Porter seeks a writ of prohibition to prevent the Circuit Court of Cabell County from holding his criminal trial during the January 2021 term of court because he claims that the State has violated the three-term rule set forth in West Virginia Code section 62-3-21 in violation of his constitutional right to a speedy trial. Mr. Porter was indicted on three felony offenses in the Circuit Court of Cabell County; therefore, the pertinent part of West Virginia Code section 62-3-21 pertaining to felony offenses applies to this case and provides as follows: 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[.] We previously have considered the language of this statute, holding: 1. It is the three-term rule, W. Va. Code, 62-3-21, which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution. 3. Under the three-term rule, W. Va. Code, 62-3-21, it is the duty of the State to provide a trial without unreasonable 2 delay[,] and an accused is not required to demand a prompt trial as a prerequisite to invoking the benefit of this rule. 4. The possible reasons justifying good cause for a continuance under W. Va. Code, 62-3-1, are broader than the causes listed in W. Va. Code, 62-3-21, as valid reasons for not counting a particular term. As a consequence, the causes justifying continuances listed in the three-term rule, W. Va. Code, 62-3-21, may be applied in a one-term rule situation, but the general good cause standard in W. Va. Code, 62-3-1, may not be applied in a W. Va. Code, 62-3-21 situation. Syl. pts. 1, 3, & 4, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (1986) (emphasis added). Under these holdings, it is apparent that, to excuse a term of court from counting towards the calculation of the three-term rule, the term of court must not be regular, West Virginia Code section 62-3-21, or the reason that a trial was not held during a particular term cannot be for “good cause” but rather must be as a result of the application of one of the specific exceptions set forth in West Virginia Code section 62-3-21. See Syl. pt. 4, Good, 176 W. Va. 145, 342 S.E.2d 111. In this context, then, the facts giving rise to the instant proceeding are as follows. A. Indictment On October 31, 2019, Mr. Porter was indicted on one count of murder of one gentleman; one count of attempt to commit a felony, i.e. first-degree murder of a different gentleman; and one count of being a felon in possession of a firearm by a Cabell County grand jury. The term of court during which Mr. Porter was indicted does not count towards the calculation of the three-term rule. See W. Va. Code § 62-3-21 (explaining calculation 3 of three-term rule as “three regular terms of such court, after the presentment is made or the indictment is found against him”). B. First Term of Court After Indictment The next term of court for the Cabell County Circuit Court began on the first Monday of January 2020 (January 6, 2020),1 which would have been the first term of court following Mr.
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