The Brooke County Prosecuting Attorney’s office has various responsibilities and duties in regard to its service of the citizens of Brooke County. Primary among these duties are the following:
- Prosecution of all felony matters within Brooke County;
- Prosecution of all misdemeanor matters within Brooke County;
- Grand Jury preparation and presentment;
- Supreme Court appeals;
- Prosecution of juvenile delinquent matters;
- Prosecution of abuse and neglect cases;
- Legal representation of the Brooke County Commission;
- Legal representation of the Brooke County Board of Education;
- Advising all Brooke County law enforcement agencies on investigations and legal issues;
- Establishing guidelines and procedures for the prosecution of criminal matters;
ANATOMY OF PROSECUTION
The three main areas of prosecution which the Brooke County Prosecuting Attorney’s office handles can be generally categorized as felony prosecutions, misdemeanor prosecutions, and juvenile prosecutions. Each type of prosecution, while similar in many respects, has their own distinct procedures and time tables for the handling and resolutions of each case. Below you will find a general description of the anatomy of the prosecution of each of the above three categories of cases.
It is our hope that the below descriptions will assist victims of crimes, their families, and interested citizens in understanding the legal system and framework in which our office must work. We are describing what happens during the prosecution of a typical case as it proceeds through the criminal justice system, but it is important to understand that each case is unique, and often different issues arise throughout a prosecution that may not be specifically addressed below.
Before you can understand the operation of the criminal justice system, it is important to recall that every defendant enjoys the presumption of innocence and the burden of proof always remains with the prosecution. As most people have heard, the burden of proof in a criminal case is “beyond a reasonable doubt” which is the highest level of proof required by the American justice system. Given the presumption of innocence and the high level of burden of proof, the prosecution of a criminal case is a difficult thing, and requires a great deal of evidence to establish guilty beyond a reasonable doubt. It is through this prism that our office works in the handling of the above three categories of prosecution.
Felony cases are by definition the most serious cases handled by our office. Although each case is an individual matter, in general the framework for the handling of a felony prosecution is as follows
(a) A felony criminal charge can be brought in three ways. The first of which is through an arrest and the filing of a Criminal Complaint in the Brooke County Magistrate Court’s office. A Criminal Complaint sets forth the felony charge against the defendant, including a brief recitation of the facts to establish probable cause that the defendant has committed the crime charged in the Complaint. Probable cause is a lower burden of proof which is placed upon the State in the filing of all initial felony proceedings. The standard for probable cause is to establish through the presentation of evidence that the defendant has probably committed the charged crime.
If a Defendant is incarcerated at the time of the filing of the criminal complaint, a preliminary hearing will be scheduled within ten days of his arrest, but if he remains free on bond subsequent to arrest, a preliminary hearing will be scheduled within twenty days of his arrest. The preliminary hearing will take place in the Brooke County Magistrate Court before a Brooke County Magistrate, and three potential outcomes can result upon the conclusion of a preliminary hearing. The first is that a preliminary hearing may proceed with evidence being presented to the Brooke County Magistrate, resulting in that Magistrate making a determination that probable cause exists. This means that the defendant probably committed the offenses charged in the Criminal Complaint or Complaints and that the case will be bound over to the Brooke County Circuit Court for later presentation to a Brooke County Grand Jury. The second is a preliminary hearing may be held, with the Magistrate determining that insufficient evidence exists to establish probable cause that the crime charged in the Complaint or Complaints was committed, and as a result the Criminal Complaint may be dismissed. Finally, the third is the defendant may waive his right to a preliminary hearing and agree that the matter should be bound over for consideration by a Brooke County Grand Jury.
It is important to note that while preliminary discussions may occur between the defendant and the State at the preliminary hearing regarding the possible resolution of the pending criminal charges, no felony matter can be adjudicated at the Magistrate Court level, meaning that, any felony charge in which the defendant may enter a guilty plea, or proceed to trial with must take place within the Brooke County Circuit Court. Should the charges presented in a Criminal Complaint be bound over to Circuit Court those matters will then be presented to a Brooke County Grand Jury for further consideration.
The Grand Jury is a body of sixteen citizens of Brooke County which are seated three times within a calendar year. Brooke County’s Grand Juries occur on the first Monday of March, June and November each year. In very rare and special occasions a Grand Jury may be called out for the presentation of a felony offense on a date other than the regularly scheduled Grand Jury proceedings. It is the duty of the Brooke County Prosecuting Attorney’s office to prepare an Indictment charging each criminal defendant with all of the offenses which the Grand Jury is to consider. Those charges can either be presented by direct indictment, meaning that the defendant has not been previously charged with a Criminal Complaint, or by proceeding with bound over cases previously considered at the Magistrate Court level as described in the preliminary hearing described above. When charging a defendant by Indictment, the State is not bound to the presentation of only those charges previously charged and presented at the Magistrate Court level, however, the State is required to present any and all charges available to it at the time of the Grand Jury proceeding which the State wishes to be considered by the Grand Jury for Indictment.
Once again, the burden of proof at the Grand Jury proceeding is a probable cause standard. Upon a Grand Jury being seated by the Brooke County Circuit Court Judge, it is the duty and requirement of the Prosecuting Attorney to present the Foreman of the Grand Jury with the charging Indictment for each and every defendant to be presented at that Grand Jury proceeding. Thereafter, the State will call a witness or witnesses to present testimony before the Grand Jury regarding the charges contained in each Indictment. Upon the conclusion of the State’s case the Grand Jury has the opportunity to question the witnesses presented by the State, and upon the conclusion of said questioning, the Prosecuting Attorney and witnesses leave the jury room while the Grand Jury votes as to whether the charges contained in the Indictment are a true or not true bill. A true bill means that at least twelve of the sixteen grand jurors have voted in the affirmative that probable cause has been found regarding an offense. Any and all indictments returned as true bills then move to the trial phase of a felony criminal proceeding. It is important to note that the Grand Jury proceeding is a secret proceeding and that no outside parties are present during the presentation of a case to the Grand Jury, nor during the Grand Jury’s deliberation and voting, including the defendant or defense counsel.
Upon the return of a true bill charging a defendant with felony charges, the Circuit Court of Brooke County will either issue an arrest warrant for a charged defendant, or request that the Circuit Clerk of Brooke County issue a Summons advising a defendant to appear at the Brooke County Circuit Court on a particular date and time to be presented with the charges against them. This initial arrest or appearance before the Brooke County Circuit Court starts the trial phase of a felony criminal proceeding.
In addition to presenting felony charges to a Grand Jury there is one other method available to the State of West Virginia for the filing of felony charges in Circuit Court. That proceeding is called the filing of an Information.
An Information is a similar document to an Indictment, which contains all of the charges which the State of West Virginia wishes to have considered at the trial phase of a felony criminal proceeding. Unlike an Indictment however, an Information is not presented to the Grand Jury, and is filed directly with the Brooke County Circuit Court. Also unlike an Indictment, an Information cannot be filed without the consent of a criminal defendant, and the defendant’s formal waiver of the presentation of the criminal charges to a Grand Jury. In most instances, the only time an Information is used to charge a criminal defendant in Circuit Court are those instances in which the State and the criminal defendant have come to terms on a plea agreement between the time the defendant’s initial arrest, and a subsequently scheduled Grand Jury proceeding.
After a defendant has been charged in Circuit Court by either an Indictment or an Information, a felony criminal proceeding moves to the trial phase, which is usually initiated with the defendant’s first appearance in the Brooke County Circuit Court at which time they are presented with the formal charges against them.
A felony charge can be resolved in several ways once initiated in Circuit Court. The two most familiar are an adjudication either through trial or plea agreement. The most common way that a felony criminal charge is resolved is by plea agreement, which means that a defendant appears before the Circuit Court Judge and enters a guilty plea or pleas to some or all of the charges contained in their Indictment or Information. In most cases this guilty plea is entered in exchange for an agreed recommendation of sentence by the State.
It is the policy of the Brooke County Prosecuting Attorney’s Office in almost all situations to not proceed with the presentation of a proposed plea agreement without the agreement of the victims and the investigating officers as to the proposed plea terms. However, it is not a legal requirement that the Prosecutor’s office obtain the consent of either the victim or the police officer to a proposed plea agreement, and in unusual circumstances, there are occasions in which a plea agreement is entered in which a victim or investigating officer does not concur with the proposed plea terms. These situations occur very rarely, and normally only arise when there is a great discrepancy in the State’s evaluation of the case, from that of the victim or investigating officer, or in cases where the victim is seeking a lesser sentence than that recommended by the State. In some circumstances plea agreements are entered by a defendant in which there is no agreed recommendation for a sentence by the State of West Virginia. In these cases, a defendant will enter a guilty plea or pleas before the Circuit Court Judge, and both the defendant and the State of West Virginia are free to argue for whatever sentence they deem appropriate in that matter. In those cases, like in a trial, sentencing remains in the sole discretion of the Court, and the Brooke County Circuit Judge determines what sentence the defendant shall receive as a result of his guilty plea.
The second most common method of adjudication for a felony criminal proceeding is for the matter to proceed to trial. A trial occurs when a petit jury, a jury of twelve citizens, is seated and presented the evidence by the State of West Virginia through witnesses and physical evidence. Of course in this proceeding the defendant is always present, and represented by counsel, who also may present evidence and has the opportunity to question and challenge all witnesses and evidence presented by the State. This is when the standard of beyond a reasonable doubt is applied by the jury, and as previously described; this is the highest standard in American law. Upon the conclusion of a trial, there are three potential outcomes: guilty, not guilty, or a mistrial. A guilty finding leads a case to the next phase of a felony proceeding, the dispositional or sentencing phase. A not guilty finding by a jury results in the dismissal of all charges in which a not guilty is made. The third outcome, a mistrial, occurs only when a jury is unable to reach a decision on a particular charge or charges. The result of a mistrial is not the entry of a not guilty finding against the defendant, but simply results in the discharge of that petit jury, and the retrial of the case at hand. In almost all cases, a jury is able to satisfy its duties and return either a guilty or not guilty verdict; however in rare occasions mistrials do occur.
There are several other potential adjudications available at the trial level of a felony offense, all of which occur on an infrequent basis and usually only happen under very specific circumstances. Some potential additional outcomes are the diversion of the felony prosecution for some type of drug or mental health treatment, the dismissal of a case as a result of a legal issue, or a defendant being found not guilty by reason of insanity or mental defect. Upon the conclusion of the trial phase of a felony proceeding, the matter is then move to the dispositional or sentencing phase.
As described above, a felony proceeding moves to the sentencing phase most often through the entry of a guilty plea through a plea agreement. In many cases, the parties have reached an agreed sentence to recommend to the Court as a result of the defendant’s guilty plea, which may include the requirement that the defendant serve time in the West Virginia State Penitentiary system, receive home confinement, receive probation, or some combination of all of those. In cases in which the sentence is being left at the sole discretion of the Court, either through a plea agreement or a guilty finding at trial, the Court orders a presentence investigation, which is completed by the Brooke County Adult Probation Officer. A presentence investigation report compiles various bits of information, including statements from law enforcement officers and victims, and is presented to the Judge prior to the sentencing of a defendant. This is one of the elements that the Judge considers when determining a sentence for a criminal defendant.
In cases in which sentences are being left to the discretion of the Court, a sentencing hearing will be held, at which time victims of the crimes being considered by the Court will be given notice and the opportunity to appear and make a victim impact statement. Prior to that hearing a victim will be contacted by the Brooke County Adult Probation Office to provide a victim impact statement in the presentence investigation report. However, the victim has a right to make a victim impact statement in open court and on the record. At a sentencing hearing, the Court not only considers the presentence investigation report, and any victim impact statement made by victims in the case, but also considers the argument of both the Prosecuting Attorney and defense counsel, and provides the defendant his opportunity to exercise his right to allocution, which is the defendant’s right to state his position on sentencing before the Court. In addition, the parties may call witnesses either in support or to refute the recommended sentence being argued for by either side. Upon the conclusion of this hearing, the Circuit Court Judge will issue a sentence according to the statutory sentencing guidelines required as a result of the offense in which the defendant has been convicted.
Felony offenses in the state of West Virginia carry with them specific statutory sentences which have been prescribed by the West Virginia Legislature. In most cases the Court has very little discretion in terms of the amount of years a defendant can be ordered to serve as a result of a particular felony conviction. However, the Court does have the alternatives to suspend penitentiary sentences in many cases and place a defendant on either a period of probation or home confinement. This is called an alternative sentence and is another option available to the Court at the dispositional or sentencing phase of a felony proceeding.
The foregoing is a general breakdown of a felony proceeding as it would be handled here in Brooke County, West Virginia, although again it should be noted that every case is unique and a case in which are involved in may or may not follow the description above. Should a victim of a crime ever have any questions or concerns regarding a criminal proceeding in which they are involved they should always feel free to contact the Brooke County Prosecuting Attorney’s office at either the address, phone number or email address provided in this website.
Upon the conclusion of the above-described felony proceedings, including those resolved through a plea agreement, appeals to the West Virginia Supreme Court of Appeals or various federal courts are filed on behalf of the defendant. These appeals are almost always filed in matters in which a defendant has been found guilty subsequent to a trial as various legal issues arise during the course of a trial which the defendant may try to challenge to have a verdict of guilty overturned. Moreover, although plea agreements filed in Brooke County often require a defendant to waive any appeal rights which he or she may have, defendants nonetheless occasionally file appeals to try to get sentences or guilty findings overturned subsequent to plea agreement. This appeal phase can sometimes take years to resolve. However, in most cases, defendants’ appeals are unsuccessful and the defendant is usually required to remain incarcerated pending the resolution of any appeal proceeding.
Similar to felonies, misdemeanor prosecutions are initiated upon the filing of a Criminal Complaint in the Magistrate Court of Brooke County: However, unlike felonies misdemeanors are adjudicated primarily at the Magistrate Court level. Upon the filing of a misdemeanor complaint or upon a defendant’s arrest on a misdemeanor offense, proceedings are set in Magistrate Court before one of the Brooke County Magistrates. Within twenty days of a defendant’s arrest or service with a misdemeanor Complaint, the defendant may request a jury trial at the Magistrate Court level. A jury trial at the Magistrate Court level proceeds in a similar fashion as described above in the felony section. In addition, a defendant may choose to proceed to adjudication through a bench trial before the Brooke County Magistrate.
As is the case with felonies, misdemeanor charges are most often resolved through plea agreement with various sentences being available to the Magistrate Court ranging from unsupervised probation to jail time in the West Virginia Northern Regional Jail. The maximum sentence for any misdemeanor offense is one year in the West Virginia Northern Regional Jail. Like felonies, this sentence can sometimes be suspended with the defendant being placed on home confinement or some other type of alternative sentence.
If a charge is not resolved through a plea agreement, various hearings may be held addressing motions to suppress and other legal issues prior to a trial by jury or before the Magistrate. Upon conviction, a defendant who goes to trial before a Magistrate has the opportunity to appeal that Magistrate’s decision to the Brooke County Circuit Court for a potential retrial at the Circuit Court level. Any defendant that proceeds to trial by jury at the Magistrate Court level may also appeal their conviction to the Circuit Court level. However, that appeal will be considered by the Circuit Court only by reviewing the record without a retrial on those charges.
Juveniles are any individuals who are under the age of eighteen years. A juvenile proceeding is a closed proceeding, and the information is not open and available to the public. However, in its most basic sense juveniles are charged with the same crimes as their adult counterparts, whether categorized as a misdemeanor or felony offense. Conversely though, in cases where a juvenile is charged through the filing of a Juvenile Petition, those charges normally proceed within the Juvenile Court system which not only provides the juveniles all of the same rights enjoyed by every other criminal defendant, but also sets up various other requirements and dispositional options not available in the adult system.
Very often, prior to the filing of a Juvenile Petition, and for minor offenses, cases involving juveniles are handled through the Juvenile Mediation Program which is run by the Brooke County Probation Office. In many cases juvenile matters are resolved prior to the filing of a formal Juvenile Petition through the use of this mediation program. In more serious cases, or cases involving repeat offenders, criminal charges can be brought against a juvenile through the filing of a Juvenile Petition. As is in the case with adult felony matters, a preliminary hearing is held before a Juvenile Referee at the Brooke County Magistrate Court level and if probable cause is found that the charge contained in the Juvenile Petition was committed by the juvenile, that matter is bound over for consideration by the Juvenile Court before the Circuit Court Judge of Brooke County.
Once a case has been brought by Petition to the Circuit Court level, it may be resolved in many fashions. As with adults, the cases may be pled, or tried by bench or jury trial, leading to a dispositional hearing in which the Judge can sentence a juvenile offender from probation to incarceration or placement in a juvenile facility. Unlike adults, the prosecutor and court are required by law to consider various dispositional option other than placement for most juvenile offenders, as placement is reserved for certain types of serious violent offense or repeat offenders.
All of the above is a short summarized version of a prosecution as viewed through the eyes of a prosecutor. As is the case in most professions, the devil is in the details, and there is of course numerous other facets to handling a prosecution that would take a law school class to fully examine. Although there are always exception to the rule, it is the hope of the Prosecutor’s office that this outline will give those people unfamiliar with the criminal justice system here in West Virginia an idea of what goes into the handling and resolution of a criminal case. Of course should any victim of a crime have questions about the status or handling of their case, they should never hesitate to contact the Prosecuting Attorney’s office at (304) 527-4220 to discuss any concerns they may have.