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.
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.
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.
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.
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
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.
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,
to this new trial date, petitioner filed an ethics complaint
against the circuit court.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).
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."
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