# State of West Virginia v. Jay Folse

> West Virginia Supreme Court · November 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9895591

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** November 7, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Misdemeanor
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9895591

## Opinion text

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2023 Term
_______________ FILED
No. 21-0972 November 7, 2023
_______________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below/Respondent,

v.

JAY FOLSE,
Defendant Below/Petitioner.

Appeal from the Circuit Court of Monongalia County
The Honorable Phillip Gaujot, Judge
Case No. 21-MAP-12

REVERSED AND REMANDED WITH DIRECTIONS

Submitted: October 11, 2023
Filed: November 7, 2023

Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.
Blackwater Law PLLC Attorney General
Aspinwall, Pennsylvania Michael R. Williams, Esq.
Counsel for Petitioner Principal Deputy Solicitor General
Mary Beth Niday, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent

CHIEF JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “‘In reviewing challenges to the findings and conclusions of the

circuit court, we apply a two-prong deferential standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard, and we review the

circuit court’s underlying factual findings under a clearly erroneous standard. Questions of

law are subject to a de novo review.’ Syl. Pt. 2, Walker v. West Virginia Ethics Commission,

201 W.Va. 108, 492 S.E.2d 167 (1997).” Syllabus Point 1, State v. Meadows, 231 W. Va.

10, 743 S.E.2d 318 (2013).

2. “A statute that is ambiguous must be construed before it can be

applied.” Syllabus Point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

3. “The primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s

Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

i
WALKER, Chief Justice:

Petitioner Jay Folse pled no contest to obstructing an officer in 2019, without

counsel, in magistrate court. Later, Mr. Folse attempted to appeal the conviction to the

Circuit Court of Monongalia County under West Virginia Code § 50-5-13 (1994). But the

circuit court dismissed Mr. Folse’s appeal, reasoning that Mr. Folse’s no-contest plea in

magistrate court resolved the case and barred him from pursuing appellate review in circuit

court. On appeal, Mr. Folse contends that the circuit court erroneously dismissed his appeal

on the basis that he pled no contest in magistrate court. We agree. Under § 50-5-13(a),

“any defendant” may timely appeal a conviction in magistrate court to circuit court, save a

class of defendants specified in § 50-5-13(e)—a class to which Mr. Folse does not belong.

And § 50-5-13(a) and (b) afford a defendant such as Mr. Folse a trial de novo, to the circuit

court, without a jury. For those reasons, we reverse the circuit court’s order and remand

this case for further proceedings in accord with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2019, a criminal complaint was filed with the Magistrate Court

of Monongalia County alleging that Mr. Folse had violated West Virginia Code §§ 61-6-

1B (disorderly conduct), 61-5-17(a) (obstruction of an officer), and 61-3B-4 (trespassing)

in the course of attending a meeting of the Board of Governors of West Virginia University.

On December 17, 2019, Mr. Folse—then self-represented—entered into a plea agreement

in which he agreed to plead no contest to obstructing an officer in exchange for dismissal
1
of the two remaining charges and the State’s recommendation of a ninety-day jail sentence

(suspended) and two years’ unsupervised probation. Mr. Folse entered a no-contest plea

that same day. The magistrate accepted the no-contest plea, imposed the State’s

recommended sentence, and dismissed the disorderly conduct and trespassing charges.

Judgement orders reflecting Mr. Folse’s no-contest plea and dismissal of the disorderly

conduct and trespassing charges were also entered on December 17, 2019.

On January 12, 2021, Mr. Folse (again, self-represented) filed a “Motion for

Dismissal Due to Failure to Provide Speedy Trial [Three Term Rule].” According to Mr.

Folse, he had filed an appeal of his December 2019 conviction, but had not been tried in

the three, ensuing court terms. So, according to Mr. Folse, the magistrate was bound to

dismiss the case, with prejudice, under West Virginia Code § 62-3-21 (1959). 1 The State

responded that the magistrate court docket did not reflect that Mr. Folse had appealed from

1
West Virginia Code § 62-3-21 (1959) provides, in pertinent part, that,

every person charged with a misdemeanor before a justice of
the peace . . . and who has therein been found guilty and has
appealed his conviction of guilt and sentence to a court of
record, shall be forever discharged from further prosecution for
the offense set forth in the warrant against him, if after his
having appealed such conviction and sentence, if after his
having appealed such conviction and sentence, there be three
regular terms of such court without a trial . . . .

Section 62-3-21 provides for exceptions to the effect of that rule. Mr. Folse represents that
none of those exceptions apply to the present circumstances.

2
the December 2019 conviction, so he had not complied with Rule 20.1 of the West Virginia

Rules of Criminal Procedure for Magistrate Courts 2 and his three-term-rule argument was

meritless. 3 The magistrate court conducted a hearing on Mr. Folse’s motion on or about

March 2, 2021, but it is unclear whether the motion was ever ruled on. 4

On April 6, 2021, Mr. Folse filed a petition for a writ of mandamus in the

Circuit Court of Monongalia County. Mr. Folse sought “a writ to compel [the magistrate

court] to transfer a criminal appeal to [c]ircuit [c]ourt.” In the petition, Mr. Folse

represented that “[a]fter the hearing and plea agreement, [he had] filed an appeal with in

[sic] twenty days. . . . The appeal was filed with Magistrate Saundra Holepit as she was

2
Rule 20.1 of the Rules of Criminal Procedure for Magistrate Courts specifies,
among other things, that an appeal from a criminal conviction in magistrate court to circuit
court must be filed within twenty days after sentencing.
3
Mr. Folse did not include the State’s response to his motion to dismiss in the
appendix record. Although the State noted that omission, it did not supplement the
appendix to include the brief. Instead, the State elected to rely on the description of its
arguments in opposition to the motion to dismiss contained in its response to Mr. Folse’s
petition for mandamus relief to the Circuit Court of Monongalia County.
4
According to Mr. Folse, “no order apparently resulted from the hearing” on his
motion to dismiss. The State contends that the magistrate court denied Mr. Folse’s motion
and cites to two pages in the appendix record for support. The first citation leads to the
magistrate court case docket, which reflects a hearing on or about March 2, 2021, but does
not reflect entry of an order on Mr. Folse’s motion following that hearing. The second
citation leads to page 7 of the State’s brief in response to Mr. Folse’s petition to the Circuit
Court of Monongalia County for mandamus relief. On that page, the State simply
represents that the magistrate court denied Mr. Folse’s motion and that he failed to appeal
that ruling.

3
assigned to the case and a copy was mailed to the prosecutor’s office.” Mr. Folse also

represented that when he later telephoned the magistrate’s office and asked why he had not

received notice that his appeal had been docketed, he was told variably that he did not have

a right to an appeal because he had signed a plea agreement, a certain staff member would

return his call, or to seek legal counsel. The State responded that Mr. Folse had no clear

legal right to the relief he sought because the magistrate court’s docket did not reflect that

Mr. Folse had filed an appeal with that court within twenty days of sentencing for his

conviction. Despite that, the State also acknowledged receiving service of a copy of a

“Petition for Appeal of Bench Trial” from Mr. Folse, dated January 6, 2020. The court

conducted a hearing on Mr. Folse’s petition on July 22, 2021. On July 28, 2021, the court

granted Mr. Folse’s petition and entered an order giving him twenty days from the hearing

date to perfect his appeal in magistrate court.

Mr. Folse filed a “Petition for Appeal of Criminal Case” on July 28, 2021, in

magistrate court, in which he requested “that there be a trial de novo and reserve[d] the

right to a trial by jury.” 5 There, Mr. Folse argued that he was entitled to appeal his

magistrate court conviction to circuit court despite his no-contest plea and that once in

5
Emphasis in original.

4
circuit court, he was owed a jury trial under West Virginia Code § 50-5-13(b), discussed

in detail, infra. 6

The case was then sent to circuit court, where, on August 4, 2021, Mr. Folse

filed a “motion to dismiss a criminal charge of obstructing an officer.” Mr. Folse argued

that his 2019 arrest was not supported by probable cause, the obstruction charge violated

various constitutional protections, and the case was subject to dismissal under West

Virginia Code § 62-3-21. The circuit court docket does not reflect that the State filed a

response to Mr. Folse’s motion.

Two weeks later, Mr. Folse moved the circuit court to modify the conditions

of his bond. The circuit court conducted a hearing on that motion on September 3, 2021.

The court went further, though, and denied Mr. Folse’s appeal, entirely. The court stated:

I find that this matter came on for hearing on a plea agreement,
that the plea agreement was signed by Mr. Folse. Pursuant to
that plea agreement, he pled guilty – a no contest plea to
obstruction. The other two charges were dismissed. An appeal
has – was not timely filed. Therefore, a motion for change of
bond conditions and your motion to dismiss is [sic] untimely.
This matter has been dismissed based upon a satisfactory plea

6
On appeal, Mr. Folse does not argue for a jury trial de novo in circuit court.
Instead, he seeks a trial de novo to the circuit court, without a jury.

5
of no contest. This matter, Case Number 19-M-3409 is hereby
dismissed.

On November 1, 2021, the court entered an order memorializing its rulings

made during the September 2021 hearing. In that order, the court explained the denial of

Mr. Folse’s appeal as follows:

Based on its review of the record, and the proffers of the
parties at hearing, this [c]ourt finds that the satisfactory entry
of [Mr. Folse’s] no contest plea resolved [his] underlying
criminal case in [magistrate court], and consequently, this
matter as well. Accordingly, in light of [Mr. Folse’s] entry of
his no contest plea [in magistrate court], this [c]ourt ORDERS
that the instant [circuit court] matter . . . is hereby
DISMISSED.

Notwithstanding the entry of his no contest plea in
[m]agistrate [c]ourt, [Mr. Folse] has filed motions in this case,
including a Motion to Dismiss, and the Motion to Modify Bond
Conditions presently before the [c]ourt. This [c]ourt finds that
this matter has been previously adjudicated by [Mr. Folse’s]
entry of his no contest plea in [magistrate court], and
consequently, these motions are untimely and therefore
DENIED.

Mr. Folse appeals that order.

II. STANDARD OF REVIEW

We review the circuit court’s order denying Mr. Folse’s appeal from his

conviction in magistrate court for an abuse of discretion, a standard we have detailed

numerous times:

6
“In reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.” Syl. Pt. 2, Walker v. West Virginia
Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).[7]

III. ANALYSIS

Mr. Folse contends that the circuit court failed to comply with West Virginia

Code § 50-5-13 when it denied his appeal from magistrate court and request for a trial de

novo in circuit court. 8 He asks this Court to vacate the circuit court’s order of November

7
Syl. Pt. 1, State v. Meadows, 231 W. Va. 10, 743 S.E.2d 318 (2013); see State v.
Garman, No. 13-0433, 2014 WL 1673031, at *2 (W. Va. Apr. 25, 2014) (memorandum
decision) (reviewing circuit court’s order denying appeal from a conviction in magistrate
court for abuse of discretion).
8
Mr. Folse also asserts that the circuit court erred by failing to address the collateral
issues raised in his motion to dismiss. He provides some discussion of the merits of those
theories, but his true goal is clear: a “remand . . . for a de novo trial and further
consideration of [his] collateral claims . . . .” The State does not respond to the substance
of Mr. Folse’s arguments because it, too, asks the “Court to remand this matter to the
[c]ircuit [c]ourt,” albeit for a more fulsome order, rather than further proceedings. As
stated below, we are reversing the circuit court’s order dismissing Mr. Folse’s appeal and
remanding this case for further proceedings, during which the circuit court may address the
collateral arguments presented in Mr. Folse’s motion to dismiss in due course. We are in
no way commenting on the quality of Mr. Folse’s arguments or the veracity of the factual
representations made in the motion to dismiss.

7
2021, to remand the case for a trial de novo to the circuit court, and to require consideration

of his collateral claims on remand.

The State concedes that Mr. Folse is entitled to appeal his magistrate court

conviction to circuit court. But that is the end of the parties’ accord because the State

contends that under § 50-5-13, Mr. Folse is “entitled to a de novo hearing in the [c]ircuit

[c]ourt of the record from the [m]agistrate [c]ourt,” only, as opposed to a trial de novo to

the circuit court, as Mr. Folse contends. The State does not address the substance of Mr.

Folse’s second assignment of error. Instead, it deems the findings and conclusions in the

circuit court’s order “minimal” and asks that this matter be remanded for an order sufficient

to permit this Court’s review.

Mr. Folse’s first assignment of error requires this Court to consider § 50-5-

13. 9 “In determining how a specific statute should be applied, ‘[w]e look first to the

statute’s language. If the text, given its plain meaning, answers the interpretive question,

9
Article VIII, § 10 of the Constitution of West Virginia requires that “[t]he
Legislature shall establish in each county a magistrate court or courts with the right of
appeal as prescribed by law.” “A statute similar to W.Va. Code, 50-5-13 [1976], appeared
in this State as early as 1863.” State ex rel. O’Neill v. Gay, 169 W. Va. 16, 20 n.2, 285
S.E.2d 637, 639 n.2 (1981).

8
the language must prevail and further inquiry is foreclosed.’” 10 On the contrary, “[a]

statute that is ambiguous must be construed before it can be applied.” 11 We have

recognized that “[w]hile ‘silence does not equate to ambiguity[,]’ ‘silence may render a

statute ambiguous when the missing subject reasonably is necessary to effectuate the

provision as written.’” 12 Of course, “[t]he primary object in construing a statute is to

ascertain and give effect to the intent of the Legislature.” 13 With that foundation laid, we

turn to § 50-5-13 and the parties’ arguments. 14

A. W. Va. Code § 50-5-13(a) and (e)

The parties agree that Mr. Folse, who entered a no-contest plea in magistrate

court, unrepresented, may appeal the resulting conviction to circuit court. Based on the

10
Ancient Energy, Ltd. v. Ferguson, 239 W. Va. 723, 726, 806 S.E.2d 154, 157
(2017) (quoting Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573,
587, 466 S.E.2d 424, 438 (1995)).
11
Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
12
McElroy Coal Co. v. Schoene, 240 W. Va. 475, 492, 813 S.E.2d 128, 145 (2018)
(quoting State v. Ramos, 49 A.3d 197, 204 (Conn. 2012) (citations omitted)).

Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d
13

361 (1975).
14
West Virginia Code § 50-5-13 is a lengthy statute. For the ease of the reader, we
reproduce in the body of the opinion the pertinent subsections, only, rather than the entire
statute. We label each portion of the following analysis accordingly.

9
plain language of subsections (a) and (e) of § 50-5-13, we agree and conclude that the

circuit court erred when it dismissed Mr. Folse’s appeal.

Subsections (a) and (e) of § 50-5-13 provide, in pertinent part,

(a) Any person convicted of an offense in a magistrate
court may appeal such conviction to circuit court as a matter of
right by requesting such appeal within twenty days after the
sentencing for such conviction.

....

(e) Notwithstanding any other provision of this code to
the contrary, there shall be no appeal from a plea of guilty
where the defendant was represented by counsel at the time the
plea was entered: Provided, That the defendant shall have an
appeal from a plea of guilty where an extraordinary remedy
would lie or where the magistrate court lacked jurisdiction.

In sum, under (a), “[a]ny person convicted of an offense in a magistrate court

may appeal such conviction to circuit court as a matter of right,” subject to the proviso in

(e). There, the Legislature qualified the phrase “any person,” and excised from that class

granted an appeal by right those defendants who pled guilty in magistrate court “where the

defendant was represented by counsel at the time the plea was entered . . . .” 15 While Mr.

15
See also R. Crim. P. for Mag. Cts. of W. Va. 20.1(a) (“Except for persons
represented by counsel at the time a guilty plea is entered, any person convicted of a
misdemeanor in a magistrate court may appeal such conviction to the circuit court as a
matter of right.”). Section 50-5-13(e) and Rule 20.1(a) speak to a guilty plea, rather than

10
Folse pled no contest in magistrate court, he was not represented by counsel when he

entered that plea. Consequently, Mr. Folse is a “person” entitled to appeal his conviction

in magistrate court to circuit court under West Virginia Code § 50-5-13(a) and the circuit

court erred by concluding otherwise. 16

B. West Virginia Code § 50-5-13(b)

The question is what happens once Mr. Folse is in circuit court? West

Virginia Code § 50-5-13(b) would answer that question had Mr. Folse been convicted in

magistrate court after a jury trial or a bench trial. Subsection (b) states:

a no-contest plea. The parties do not dispute that those provisions would also apply to a
no-contest plea entered by a defendant when unrepresented by counsel.
16
The elephant in this room, of course, is that after waiving his right to a jury trial
in magistrate court, Mr. Folse elected to enter a plea of no contest. Ordinarily, in circuit
court, “a criminal defendant who pleads guilty has . . . waived his or her right to appeal,”
except where the issue on appeal is “‘the voluntariness of the guilty plea or the legality of
the sentence.’” State v. Howell, No. 16-0541, 2018 WL 7075301, at *3 (W. Va. Apr. 13,
2018) (memorandum decision) (quoting Sy. Pt. 1, State v. Sims, 162 W. Va. 212, 248
S.E.2d 834 (1978)). But, in terms of a guilty plea entered in magistrate court, the
Legislature has adopted a different rule—that “there shall be no appeal from a plea of guilty
where the defendant was represented by counsel at the time the plea was entered,” only.
W. Va. Code § 50-5-13(e) (emphasis added). “In the interpretation of statutory provisions
the familiar maxim expressio unius est exclusio alterius, the express mention of one thing
implies the exclusion of another, applies.” Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532,
327 S.E.2d 710 (1984). Consequently, we are left with no choice but to conclude that those
defendants who enter a guilty plea in magistrate court, unrepresented, remain within that
category of persons “convicted of an offense in a magistrate court [who] may appeal such
conviction to circuit court as a matter of right . . . .” W. Va. Code § 50-5-13(a).

11
In the case of an appeal of a criminal proceeding tried
before a jury, the hearing on the appeal before the circuit court
shall be a hearing on the record. In the case of an appeal of a
criminal proceeding tried before the magistrate without a jury,
the hearing on the appeal before the circuit court shall be a trial
de novo, triable to the court, without a jury.

So, under subsection (b), the circuit court hears an appeal following a jury

trial in magistrate court “on the record,” 17 while the hearing on appeal from a bench trial is

a trial “de novo, triable to the [circuit] court, without a jury.” 18 But the statute is silent as

to the form of hearing in circuit court due to a defendant like Mr. Folse—one eligible to

appeal to circuit court under § 50-5-13(a), but whose magistrate court conviction followed

neither a jury nor a bench trial. That omission leads us to conclude that § 50-5-13(b) is

ambiguous; Mr. Folse’s right to an appeal under § 50-5-13(a) cannot be realized until this

Court ascertains the legislative intent behind § 50-5-13(b), and then implements that intent

by directing that Mr. Folse receive either a hearing on the magistrate court record in circuit

court or a trial to the circuit court, de novo.

17
See also R. Crim. P. for Mag. Cts. of W. Va. 20.1(d) (“An appeal of a magistrate
court criminal proceeding tried before a jury shall be heard on the record in circuit court.”).
18
W. Va. Code § 50-5-13(b); see also W. Va. Code § 50-5-13(d) (“[i]n the case of
an appeal of a criminal proceeding tried without a jury, the party seeking the appeal shall
file with the circuit court a petition for appeal and trial de novo”).

12
As should be clear from the preceding overview of § 50-5-13(b), the

Legislature views appeals from jury trials and bench trials in magistrate court differently.

This is evident not only in § 50-5-13(b), but also in West Virginia Code § 50-5-8(e) and

(f) (1994) (“Trial by jury; trial to the court.”). 19 In pertinent part, § 50-5-8(e) and (f) state,

(e) For purposes of appeal, when a jury trial is had in
magistrate court, the magistrate court shall be a court of limited
record. Trials before a magistrate when a jury is empaneled
shall be recorded electronically. . . .

(f) If neither party to a civil action demands a jury trial,
or if the defendant in a criminal proceeding waives the right to
trial by jury, the matter shall be tried by the magistrate sitting
without a jury. For purposes of appeal, when a nonjury trial is
had in magistrate court, the magistrate court shall not be a court
of limited record and the magistrate shall not electronically
record the action or proceeding.

Subsection (e) of § 50-5-8 requires the magistrate court to function as a

“court of limited record” and to electronically record jury trials held there “[f]or purposes

of appeal.” “The reason for requiring electronic recording under [50-5-8(e)] is to enable

the circuit court to decide the appeal without hearing further evidence, as required by

section 50-5-13(b), and to preserve a record for further appeal.” 20 Section 50-5-8(f) does

19
Article VIII, § 10 provides that magistrate courts “shall be courts of record if so
prescribed by law.” See, e.g., W. Va. Code § 50-5-8(e); see also W. Va. R. Crim Pro.
5.1(c)(1) (“A magistrate shall record electronically every preliminary examination
conducted.”).
20
State v. Bergstrom, 196 W. Va. 656, 659, 474 S.E.2d 586, 589 (1996).

13
not impose the same requirements on the magistrate court when a defendant “waives the

right to trial by jury . . . and a nonjury trial is had in magistrate court . . . .” 21 In those

circumstances, the magistrate court is prohibited from recording; “[f]or purposes of

appeal,” it does not function as a “court of limited record.” 22

Section 50-5-8(e) and (f) along with § 50-5-13(a) 23 and (b) lead us here: the

Legislature requires magistrate courts to make a “limited record”—i.e., an electronic

recording—for purposes of appeal from jury trials but it prohibits magistrate courts from

doing so for purposes of appeal from bench trials. So, the defendant appealing from a jury

trial in magistrate court can make use of the trial “testimony or other matters reflected in

the recording . . . in prosecuting [his] appeal,” 24 which enables the circuit court to “take[]

21
W. Va. Code § 50-5-8(f).
22
Id.
23
Id. § 50-5-13(a) (“Any person convicted of an offense in a magistrate court may
appeal such conviction to circuit court as a matter of right by requesting such appeal within
twenty days after the sentencing for such conviction.”).
24
Id. § 50-5-13(c)(1) (“To prepare the record for appeal, the defendant shall file
with the circuit court a petition setting forth the grounds relied upon, and designating those
portions of the testimony or other matters reflected in the recording, if any, which he or she
will rely upon in prosecuting the appeal.”).

14
on the role of a reviewing court . . . rather than a trial court when a criminal conviction

from [a jury trial in] magistrate court is appealed to it . . . .” 25

Conversely, the defendant appealing from a nonjury trial in magistrate court

has no electronic recording of that trial upon which he may rely to prosecute his appeal to

circuit court; yet he is still a “person convicted of an offense in magistrate court” who “may

appeal [that] conviction to circuit court as a matter of right . . . .” 26 To ensure that such a

defendant’s appeal by right under § 50-5-13(a) remains meaningful, however, the

Legislature directed in § 50-5-13(b) that “the hearing on the appeal before the circuit court

shall be a trial de novo, triable to the court, without a jury.” Ultimately, we ascertain that

in § 50-5-13(b), the Legislature expressed its intent that when a defendant appeals a

conviction in magistrate court to circuit court under § 50-5-13(a), the form of the

25
State ex rel. Collins v. Bedell, 194 W. Va. 390, 395, 460 S.E.2d 636, 641 (1995);
see also Bergstrom, 196 W. Va. at 659, 474 S.E.2d at 589; see Martin v. W. Va. Div. of
Lab. Contractor Licensing Bd., 199 W. Va. 613, 618, 486 S.E.2d 782, 787 (1997) (noting
that because § 50-5-8(e) begins with the phrase “‘[f]or purposes of appeal[,]’ . . . it appears
that the legislature did not intend magistrate court to be courts of limited record for any
purpose other than appeal,” a view “supported by the fact that the legislature also amended
the statutory provisions pertaining to the method to be used by the circuit court in hearing
appeals from magistrate court proceedings”).
26
W. Va. Code § 50-5-13(a).

15
proceeding in circuit court depends upon whether the magistrate court functioned as a court

of limited record for purposes of appeal at the time the defendant was convicted.

Having ascertained the legislative intent behind § 50-5-13(b), we are now

left to effect it in these circumstances. We have already established that Mr. Folse is

eligible to appeal his conviction under § 50-5-13(a), meaning that the scope of his hearing

on appeal to the circuit court depends on whether the magistrate court functioned for

purposes of appeal as a court of limited record at the time of his conviction. It did not. So,

as is the case with appeals from bench trials conducted in magistrate court, the hearing of

Mr. Folse’s appeal before the circuit court must be a trial de novo, to the circuit court, to

allow Mr. Folse to meaningfully exercise his right to appeal under § 50-5-13(a). 27

The State’s arguments to the contrary are not compelling. First, the State

cites § 50-5-13(b) and (d) and asserts that “[t]he entry of a no contest or guilty plea on the

record in magistrate court is treated in a similar manner [as a jury trial in magistrate court]

and decided on the record.” We have already construed § 50-5-13(b) as affording Mr.

27
The State represents that Mr. Folse “asserts that he was entitled to a de novo trial
under West Virginia Code § 50-5-13(e).” That is only partially correct. Mr. Folse first
maintains that he is entitled to a trial de novo to the circuit court under § 50-5-13(b) and
(d). Only then does he argue that “at bare minimum, [he] would be entitled to such review
on appeal,” i.e., review under § 50-5-13(e). We do not read Mr. Folse’s position as limited
to seeking review under subsection (e), and in other portions of its brief, the State concedes
as much.

16
Folse a trial de novo to the circuit court because the magistrate court did not conduct the

proceedings underlying Mr. Folse’s appeal as a court of limited record. Section 50-5-13(d)

does not undo that construction. 28

The State also cites State v. Garman, attempting to bolster its argument that

the hearing on appeal is to be decided on the magistrate court record, alone. 29 There, the

defendant entered a plea of no contest in magistrate court while represented by counsel,

placing him in the category of defendants subject to § 50-5-13(e). 30 As noted above,

subsection (e) does away with the appellate rights of such defendants except “where an

extraordinary remedy would lie,” so that in Garman, the circuit court properly entertained

the defendant’s appeal contesting the voluntariness of his plea. 31 In doing so, “the circuit

28
Cf. Syl. Pt. 3, State ex rel. DeCourcy v. Dent, 240 W. Va. 163, 807 S.E.2d 834
(2017) (“An appeal of a civil action tried before a magistrate without a jury under West
Virginia Code § 50-5-12(b)(2016) [governing appeals from civil proceedings in magistrate
court] shall be a trial de novo, meaning a new trial in which the parties may present new
evidence including witness testimony not presented in magistrate court.”).
29
Garman, 2014 WL 1673031.
30
Id. at *2.
31
See W. Va. Code § 50-5-13(e) (stating that “there shall be no appeal from a plea
of guilty where the defendant was represented by counsel at the time the plea was entered:
Provided, That the defendant shall have an appeal from a plea of guilty where an
extraordinary remedy would lie or where the magistrate court lacked jurisdiction”); see,
e.g., Montgomery v. Ames, 241 W. Va. 615, 626, 827 S.E.2d 403, 414 (2019) (“A habeas
petitioner seeking to overturn his guilty plea bears the burden of persuasion with respect to
the voluntariness of the plea.”).

17
court held a hearing to take evidence on the circumstances of the entry of the plea,” as there

was “no record of the plea hearing.” 32 Ultimately, the circuit court denied the defendant’s

appeal, and this Court affirmed.

In citing Garman, the State appears to be advocating for, as Mr. Folse puts

it, a “Garman style” hearing in circuit court on the limited issue of the voluntariness of his

no-contest plea. In its current iteration, § 50-5-13 does not permit us to follow the State’s

lead. As discussed above, Mr. Folse is not subject to § 50-5-13(e), so Garman cannot apply

to limit the scope of Mr. Folse’s appeal to the voluntariness of his no-contest plea. Further,

we held in State ex rel. O’Neill v. Gay, that “[p]ursuant to the provisions of W. Va.Code,

50-5-13 [1976], a defendant who pleads guilty in magistrate court to a criminal offense

may appeal to circuit court, and to obtain such an appeal, the defendant need not allege

error committed by the magistrate court.” 33 It is true that following O’Neill, the Legislature

amended § 50-5-13 to include the limiting language that now appears in subsection (e). 34

32
Garman, 2014 WL 1673031, at *2.

Syl., State ex rel. O’Neill, 169 W. Va. at 16, 285 S.E.2d at 637 (superseded in part
33

by West Virginia Code § 50-5-13 (1984)).
34
See 1984 W. Va. Acts 712; State v. Kerns, 183 W. Va. 130, 133−34 n.4, 394
S.E.2d 532, 535−36 n.4 (1990) (“Prior to the 1984 amendment to W.Va.Code, 50-5-13, this
Court had held that any defendant who pleads guilty in magistrate court to a criminal
offense may appeal to a circuit court.”) (citing Syl., O’Neill, 169 W. Va. at 16, 285 S.E.2d
at 637).

18
But the Legislature went no further, so that our holding in State ex rel. O’Neill v. Gay is

superseded only partially, and persists with regard to those defendants—such as Mr.

Folse—who do not fall within the ambit of § 50-5-13(e). 35

35
At oral argument, the State urged this Court to affirm the circuit court’s order
because Mr. Folse did not timely file an appeal from the judgment order in magistrate court.
The State admitted that it had not raised this argument in its response brief; still, the State
suggested that it would be proper for this Court to act on the argument because we may
“‘affirm the judgment of the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground, reason or theory
assigned by the lower court as the basis for its judgment.’ Syllabus point 3, Barnett v.
Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).” Syl. Pt. 2, Adkins v. Gaston, 218 W.
Va. 332, 624 S.E.2d 769 (2005). The State’s suggestion overlooks that, except in
extraordinary or exceptional circumstances, the Court,

limit[s] a party to asserting the issues and arguments in an
appeal to those clearly set forth in a party’s brief . . . because
raising an issue or argument in an appellate brief provides the
necessary notice to both this Court and the opposing party as
to what they confront so each can adequately prepare and
discharge their respective responsibilities.

Argus Energy, LLC v. Marenko, ___ W. Va. ___, 887 S.E.2d 223, 228 (2023).

Finally, during oral argument, the State alluded to its concern that the timeliness of
Mr. Folse’s appeal was a jurisdictional matter. “In cases dealing with subject matter
jurisdiction, the rule against raising a new issue or argument in oral argument—premised
as it is on principles of waiver—does not apply . . . .” Id. at ___, 887 S.E.2d at 229.
Regardless, even if the State is correct that the timeliness of Mr. Folse’s appeal has
jurisdictional implications, it also implies factual questions that this Court cannot resolve
in the first instance.

19
IV. CONCLUSION

For the reasons discussed above, we reverse the circuit court’s order of

November 1, 2021, and remand this matter for further proceedings in accordance with this

Opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9895591. Public record. Not legal advice.