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State v. Ballenger

Supreme Court of West Virginia

November 22, 2017

State of West Virginia, Plaintiff Below, Respondent
William Julius Ballenger, Defendant Below, Petitioner

         (Cabell County 15-F-1)


         Petitioner William Julius Ballenger, by counsel Todd Meadows, appeals the Circuit Court of Cabell County's September 20, 2016, order sentencing him as a recidivist following his second-degree robbery, malicious wounding, and obstruction of a police officer convictions. The State of West Virginia, by counsel Gordon L. Mowen II, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his motion to dismiss the indictment for failure to provide him with a speedy trial.

         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 and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On July 2, 2014, petitioner was indicted in case number 14-F-262 on one count of first-degree robbery and one count of obstructing an officer. A pretrial hearing was held on August 14, 2014, and the order memorializing this hearing indicated that "after hearing representations of counsel and upon the defendant freely and voluntarily waiving his right to trial in this term of court, the [c]ourt was of the opinion to reset this matter." Trial was accordingly scheduled for October 15, 2014.

         On the day before 14-F-262 was to proceed to trial, petitioner's counsel moved to withdraw. Petitioner was asked whether he agreed "that there has been a problem to where you don't want [your counsel] to represent you?" Petitioner agreed that he no longer wanted counsel to represent him and stated that he had "no faith in [counsel]." Consequently, new counsel was appointed and petitioner's trial was continued.

         On January 9, 2015, a superseding indictment, number 15-F-1, was returned indicting petitioner on one count each of first-degree robbery, obstructing an officer, second-degree robbery, and malicious wounding. Indictment number 14-F-262 was dismissed, and the record of proceedings from 14-F-262 was transferred to the superseding indictment. Trial was scheduled for February 10, 2015. On February 4, 2015, however, the State moved to continue the trial due to the victim's hospitalization and need for a medical procedure, which would preclude his attendance at trial. The State's motion was granted, and trial was rescheduled for April 28, 2015. On April 7, 2015, petitioner's trial was continued again until July 27, 2015, due to the victim's health issues.

         On July 9, 2015, petitioner moved to disqualify the circuit court judge on the basis of judicial bias. That motion was denied by this Court on July 21, 2015. The parties appeared in court on the date trial was scheduled to begin, but, due to the filing of the motion to disqualify, trial did not commence. Instead, the hearing time was used as a status conference, and trial was continued to September 14, 2015.

         On September 4, 2015, petitioner filed a motion to dismiss the indictment on the ground that three terms of court had passed since the indictment had issued without trial. This motion was denied. Shortly thereafter, petitioner's counsel moved to withdraw, and this motion was granted. On September 22, 2015, the circuit court held a status conference with new trial counsel present. Trial was scheduled for November 17, 2015.

         Prior to this new trial date, petitioner filed an ethics complaint against the circuit court.[1]Accordingly, trial was again continued. Petitioner's trial ultimately commenced on April 25, 2016. On May 2, 2016, petitioner was found guilty of second-degree robbery; battery, a lesser-included offense of malicious wounding; and obstruction of a police officer. A recidivist trial was held on August 16, 2016, at which petitioner was found to be a recidivist. On September 20, 2016, petitioner's sentencing order was entered. It is from this order that petitioner appeals.

This Court's standard of review concerning a motion to dismiss an indictment is, generally, de novo. However, in addition to the de novo standard, where the circuit court conducts an evidentiary hearing upon the motion, this Court's "clearly erroneous" standard of review is invoked concerning the circuit court's findings of fact.

Syl. Pt. 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).

         Petitioner asserts on appeal that he was denied his constitutional right to a trial without unreasonable delay because he was tried and convicted in the fifth term of court following his indictment. Petitioner argues that the only just cause for continuance occurred during the January 2015 term of court when the victim was hospitalized and could not attend trial. Because the other continuances were for reasons not enumerated in West Virginia Code § 62-3-21, petitioner asserts that the indictment must be dismissed and he be "forever discharged from further prosecution."

         West Virginia Code § 62-3-21, the "three-term rule, " provides that

[e]very 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 ...

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