STATE EX REL. STATE OF WEST VIRGINIA, Petitioner
v.
THE HONORABLE RONALD E. WILSON, JUDGE OF THE CIRCUIT COURT OF BROOKE COUNTY; AND FLOYD FERENCE, Respondents
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 ...