State ex rel. State v. Wilson

          Submitted: October 11, 2017

         ORIGINAL PROCEEDING IN PROHIBITION

          Joseph E. Barki, III, Esq. Brooke County Prosecuting Attorney Office of the Brooke County Prosecuting Attorney Wellsburg, West Virginia Counsel for the Petitioner

          Robert G. McCoid, Esq. McCamic, Sacco & McCoid, PLLC Wheeling, West Virginia Counsel for Respondent Floyd Ference

         SYLLABUS BY THE COURT

         "Except for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency." Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).

          OPINION

          KETCHUM, JUSTICE

         In this original proceeding in prohibition, the State of West Virginia, through the Brooke County Prosecuting Attorney, challenges the Circuit Court of Brooke County's sua sponte dismissal, with prejudice, of an indictment. The indictment charged the respondent, Floyd Ference ("defendant"), under W.Va. Code, 61-6-24(b) [2009], with the felony offense of threatening to commit a terrorist act.

         This Court concludes that the circuit court exceeded its jurisdiction in dismissing the indictment and that relief in prohibition is warranted. We, therefore, prohibit enforcement of the April 17, 2017, order which dismissed the indictment. The indictment is reinstated, and this matter is remanded to the circuit court for further proceedings.^[1]

         I. Factual and Procedural Background

         On September 3, 2016, Lieutenant L. G. Skinner, Jr., of the Wellsburg Police Department, filed a criminal complaint against the defendant in the Brooke County Magistrate Court. The complaint stated that on September 1, 2016, the defendant, a custodian at Wellsburg Middle School, was dissatisfied with his list of assigned duties and work schedule and told two other custodians that, if more work were placed on him, he would "get a gun and start taking people out." The complaint further stated that the defendant asked one of the other custodians "what kind of handgun was the best."^[2] The magistrate found probable cause to issue a warrant for the defendant's arrest, charging him with the felony offense of threatening to commit a terrorist act under W.Va. Code, 61-6-24.

         A preliminary hearing was later conducted in magistrate court during which witnesses testified and arguments by the State and the defense were heard. As recounted by the State, both custodians provided substantially similar testimony at the preliminary hearing, maintaining that the defendant stated: "If they give me any more work to do and I can't do it, I am going to get a gun and I'm going to come in here and shoot people and their friends and their family." Probable cause was found, and the defendant was bound over to the circuit court.

         In November 2016, the Brooke County grand jury returned a single Count indictment, no. 16-F-72, charging that on or about September 1, 2016, the defendant

did commit the felony offense of "Threats to Commit a Terrorist Act" when he did unlawfully, knowingly and willfully threaten to commit a terrorist act, with or without the intent to commit the act, to wit: Floyd Ference, an employee of the Brooke County School System, while at Wellsburg Middle School, did threaten to get a gun and start shooting people at the school, in violation of Chapter 61, Article 6, Section 24(b) of the West Virginia Code and against the peace and dignity of the State.

         The charging language of the indictment substantially followed the provisions of W.Va. Code, 61-6-24(b) [2009], which states:

(b) Any person who knowingly and willfully threatens to commit a terrorist act, with or without the intent to commit the act, is guilty of a felony and, upon conviction thereof, shall be fined not less than $5, 000 nor more than $25, 000 or confined in a state correctional facility for not less than one year nor more than three years, or both.^[3]

         Although no motion to dismiss the indictment was filed by defense counsel, the circuit court entered an order, sua sponte, on April 17, 2017, dismissing the indictment with prejudice. The order was entered shortly before the defendant's trial which was scheduled to begin on April 24, 2017. The circuit court concluded:

[T]he alleged terrorist activity stated in the indictment was aimed at shooting individuals at the school instead of conduct aimed at the civilian population as a whole and not conduct that was directed at a branch or level of government as a whole. Therefore the court concludes that [a] threat to individual persons at the school does not constitute a terrorist act within the meaning of West Virginia Code § 61-6-24 because the threatened action was not directed at intimidating or coercing the conduct of a branch or level of government.

         The State filed a petition for a writ of prohibition in this Court seeking to prohibit enforcement of the April 17, 2017, order. The defendant filed a response, and on August 30, 2017, this Court issued a rule to show ...