The State of West Virginia ex rel. The State of West Virginia

FILED

June 13, 2023

STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

The State of West Virginia ex rel.

The State of West Virginia,

Petitioner

vs.) No. 23-97

The Honorable Ronald E. Wilson,

Judge of the Circuit Court of Brooke

County, and Terry Alan Mason,

Respondents

MEMORANDUM DECISION

Petitioner State of West Virginia petitions this Court to invoke its original jurisdiction

pursuant to Rule 16 of the Rules of Appellate Procedure. The State requests a writ of prohibition

against Respondent Ronald E. Wilson, Judge of the Circuit Court of Brooke County, seeking to

prohibit enforcement of the circuit court’s January 6, 2023, order, which dismissed the criminal

information charging Respondent Terry Alan Mason with failure to properly register as a sex

offender in violation of West Virginia Code § 15-12-8.1 Upon our review, finding no new or

substantial question of law, we determine that oral argument is unnecessary and that a

memorandum decision granting the writ of prohibition is appropriate. See W. Va. R. App. P. 21.

In 1994, Respondent Mason was charged by information with sexual abuse by a parent,

guardian, or custodian in violation of West Virginia Code § 61-8D-5. The information alleged that

the victim was a thirteen-year-old girl. Respondent Mason entered a guilty plea to the charge. In

exchange for his plea, the circuit court suspended his sentence and placed him on probation.

Pursuant to the Sex Offender Registration Act, West Virginia Code §§ 61-8F-1 to -10, Respondent

Mason was required to register as a sex offender for a period of ten years following his conviction.

In 1999, the Legislature repealed West Virginia Code §§ 61-8F-1 to -10, and enacted the

present-day Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to -10. Under West

Virginia Code § 15-12-4, an individual required to register as a sex offender is required to register

for life “if that person: . . . has been convicted . . . of a qualifying offense as referred to in this

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The State appears by counsel Attorney General Patrick Morrisey and Deputy Attorney

General Karen Villaneuva-Matkovich. Respondent Terry Alan Mason appears by counsel Scott C.

Brown.

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article, involving a minor or a person believed or perceived by the registrant to be a minor.” West

Virginia Code § 15-12-2(e)(1) provides that a “qualifying offense” is one of the enumerated crimes

listed in West Virginia Code § 15-12-2(b). One such crime is sexual abuse by a parent, guardian,

or custodian as set forth in West Virginia Code § 61-8D-5. See W. Va. Code § 15-12-2(b)(4).

In Haislop v. Edgell, 215 W. Va. 88, 593 S.E.2d 839 (2003), we discussed the application

of West Virginia Code § 15-12-4 to individuals convicted before the addition of the life registration

requirement. We observed that the “the civil, nonpunitive nature of the [Sex Offender Registration]

Act has been well established,” and we determined that “changes made to the statute that require

life registration . . . do not amount to an additional punishment that would violate the ex post facto

clause” of the West Virginia Constitution. Haislop, 215 W. Va. at 95, 593 S.E.2d at 846.

Accordingly, we held, “The application of W. Va. Code § 15-12-4 (2000), which requires life

registration for certain sexual offenders, . . . to individuals who were convicted before the

Legislature added these requirements to the Sex Offender Registration Act does not violate the ex

post facto clause of the West Virginia Constitution.” Id. at 89-90, 593 S.E.2d at 840-41, Syl. Pt. 5,

in part.

Following his conviction, Respondent Mason registered as a sex offender through 2022. In

2022, Respondent Mason was charged by criminal information with failing to provide notice of

registration changes in violation of West Virginia Code § 15-12-8. The State and Respondent

Mason entered into a plea agreement whereby Respondent Mason would enter a plea of guilty to

the charge in the information if the circuit court would suspend his sentence and impose two years

of probation. Following a hearing on the plea agreement on December 16, 2022, the circuit court

entered an order on January 6, 2023, refusing to accept the plea agreement and dismissing the

information, finding, “as a result of the underlying conviction, [Respondent Mason] was only

required to register as a sex offender for a period of ten years and that period of time had since

passed.” The State filed a motion asking the circuit court to reconsider the dismissal of the

information, arguing that, under the applicable law, respondent was required to register as a sex

offender for life, not ten years. By order entered on January 3, 2023, the court denied the motion,

concluding:

The State has presented this [c]ourt with no new information that would

change the [c]ourt’s decision. The [c]ourt has reviewed the case file and finds that

[respondent] was only required to register as a sexual offender for a ten (10) year

period, and that time has since passed. The State’s legal argument, based upon a

change in the Registration Statute, is without merit based upon the facts in this

case.2

2

Although a transcript of the December 16, 2022, hearing was not made part of the

appendix record, it appears that the circuit court advised the parties of its ruling from the bench,

prompting the State to file the motion to reconsider the dismissal of the information. The appendix

record is clear that the motion was filed before the circuit court had entered the order refusing to

accept the plea agreement and dismissing the information. The circuit court’s order denying the

motion was entered three days before the order refusing to accept the plea agreement and

dismissing the information.

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On February 22, 2023, the State filed the instant petition for a writ of prohibition seeking to

prohibit enforcement of the circuit court’s January 6, 2023, order. The State contends that the

circuit court exceeded its legitimate powers by dismissing the information.

We have held that “[p]rohibition lies only to restrain inferior courts from proceedings in

causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding

their legitimate powers, and may not be used as a substitute for [a petition for appeal] or certiorari.”

Syl. Pt. 3, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (quoting Syl. Pt.

1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953)).

In determining whether to entertain and issue the writ of prohibition for

cases not involving an absence of jurisdiction but only where it is claimed that the

lower tribunal exceeded its legitimate powers, this Court will examine five factors:

(1) whether the party seeking the writ has no other adequate means, such as direct

appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or

prejudiced in a way that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower

tribunal’s order is an oft repeated error or manifests persistent disregard for either

procedural or substantive law; and (5) whether the lower tribunal’s order raises new

and important problems or issues of law of first impression. These factors are

general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of

law, should be given substantial weight.

Id. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4. Where the State seeks relief in a criminal case by writ

of prohibition alleging that the circuit court has abused its legitimate powers,

the State must demonstrate that the court’s action was so flagrant that it was

deprived of its right to prosecute the case or deprived of a valid conviction. In any

event, the prohibition proceeding must offend neither the Double Jeopardy Clause

nor the defendant’s right to a speedy trial. Furthermore, the application for a writ

of prohibition must be promptly presented.

Syl. Pt. 1, in part, State ex rel. Games-Neely v. Yoder, 237 W. Va. 301, 787 S.E.2d 572 (2016)

(quoting Syl. Pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on

other grounds as stated in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 718, 729 n.27

(2017)). We have further held, “[T]his Court will use prohibition . . . to correct only substantial,

clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law

mandate . . . .” Syl. Pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979),

superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233

W. Va. 564, 759 S.E.2d 795 (2014).

The State contends that the first three Hoover factors are satisfied. Respondent Mason does

not dispute this, asserting that he “has no legally nonfrivolous argument to raise in objection to the

relief sought by the State.”

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First, the State argues, and we agree, that it does not have any other adequate means of

relief, such as a direct appeal, to obtain reinstatement of the information. While the State may

appeal the dismissal of “an indictment [that] is held to be ‘bad or insufficient’ by the order of a

circuit court,” State v. Walters, 186 W. Va. 169, 171, 411 S.E.2d 688, 690 (1991), the circuit court

made no findings that would suggest the information was “bad or insufficient.” See Syl. Pt. 1, State

v. Zain, 207 W. Va. 54, 528 S.E.2d 748 (1999) (“An indictment is considered bad or insufficient

pursuant to West Virginia Code § 58-5-30 (1998) (Supp.1999) when within the four corners of the

indictment it: (1) fails to contain the elements of the offense to be charged and sufficiently apprise

the defendant of what he or she must be prepared to meet; and (2) fails to contain sufficient accurate

information to permit a plea of former acquittal or conviction.”). Thus, we find that the first Hoover

factor is met.

Second, the State argues that, without the requested relief, it will be damaged or prejudiced

in a way that is not correctable on appeal, having been deprived of a valid conviction. Indeed,

Respondent Mason had agreed to enter a guilty plea to the charge in the information. In that an

appeal is unavailable in this instance, as discussed above, and that Respondent Mason intended to

plead guilty to the charge in the information, we agree with the State’s contention that the second

Hoover factor is met.

Third, the State avers that the circuit court’s dismissal of the information was clearly

erroneous as a matter of law. The State asserts that under West Virginia Code § 15-12-4,

respondent is required to register as a sex offender for life because his qualifying offense—

violation of West Virginia Code § 61-8D-5—involved a minor. We agree. In finding otherwise,

the circuit court committed clear legal error that is plainly in contravention of the Sex Offender

Registration Act.

Although we do not find that the final two Hoover factors are satisfied in this instance, the

satisfaction of the first three, with substantial weight given to the third factor, supports granting

the requested relief. Further, we determine that the circuit court’s action was so flagrant that the

State was deprived of its right to prosecute the case. Finally, under the specific facts of this case,

we find that a writ of prohibition would not offend either the Double Jeopardy Clause or

Respondent Mason’s right to a speedy trial, and we find that the petition was promptly presented

to this Court for consideration. Accordingly, we determine that the State is entitled to the relief it

seeks.

For the foregoing reasons, the Circuit Court of Brooke County is prohibited from enforcing

its January 6, 2023, order.

Writ granted.

ISSUED: June 13, 2023

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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice C. Haley Bunn

DISSENTING:

Justice John A. Hutchison

Justice William R. Wooton

Hutchison, Justice and Wooton, Justice, dissenting:

We dissent to the majority’s resolution of this case. We would have set this case for oral

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs

and the issues raised therein, we believe a formal opinion of this Court was warranted, not a

memorandum decision. Accordingly, we respectfully dissent.

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