No. 21-0404 – State of West Virginia ex rel. Scott R. Smith, Prosecuting Attorney, Ohio County v. The Honorable Michael J. Olejasz, Judge of the Circuit Court of Ohio County, West Virginia, and Chandis Wesley Linkinogger, Defendant. FILED November 19, 2021 released at 3:00 p.m. Wooton, Justice, concurring: EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
I concur in the Court’s judgment that under the facts and circumstances of this
case, the Circuit Court of Ohio County committed clear legal error in dismissing the two
counts of sexual assault in the second degree as a discovery sanction, and that for this
reason, the State is entitled to a writ preventing the circuit court from enforcing any of the
rulings set forth in the court’s April 22, 2021, order. I write separately, however, to address
several points in the majority opinion which I find to be troubling.
At the outset, I found this case to be a close one. Without question, in his
argument to the circuit court in support of the motion to dismiss defense counsel was guilty
of obfuscation, if not actual misrepresentation. Further, the fact that he waited until the
second day of trial to move to dismiss the indictment, after the jury had been seated and
sworn, gives rise to a strong suspicion that the discovery dispute in this case was
manufactured ‒ pure gamesmanship from the outset. However, the assistant prosecutor was
likewise not free from fault; he failed to grasp that the circuit court might not (and in fact
did not) agree with his assessment that the sought-after forensic evidence was immaterial
to the case against the petitioner, in light of his anticipated defense of consent. Once the
court ordered accelerated disclosure of forensic evidence from the state police laboratory,
1 it was incumbent on the prosecutor to follow his own advice, without delay: “[W]hen it
comes to the [lab], you have got to get on their tails and tell them ‘I need this, I need this,
I need this.’” Nonetheless, by his own admission to the circuit court, “I didn’t do that in
this case[.]” As a result, the circuit court was justifiably frustrated when, on the morning
trial began, the lab results had still not been produced.
It is well established in our case law that a circuit judge has broad discretion
to control his or her docket. See, e.g., State v. Boyd, No. 17-1067, 2019 WL 2406729, at
*4 (W. Va. June 7, 2019) (memorandum decision) (“Under the circumstances now before
us, and in light of the circuit court’s unique familiarity with the factors that would impede
the expeditious administration of justice, we find no reason to disturb the ‘broad discretion’
conferred on the trial court for the management of its docket.”) (citing Barlow v. Hester
Indus, Inc., 198 W. Va. 118, 127, 479 S.E.2d 628, 637 (1996)). Nonetheless, for the circuit
court to dismiss the sexual assault counts, with prejudice, and declare a mistrial on the
burglary and strangulation counts, was so precipitous ‒ and so without precedential support
‒ as to be “clearly erroneous as a matter of law” within the meaning of syllabus point four
of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). First, as far as we
can ascertain from the record before us, the petitioner, Chandis Wesley Linkinogger, had
not demanded his statutory right to be tried in the term of indictment. 1 Moreover, there was
no speedy trial issue raised under these facts and circumstances. “‘It is the three-term rule,
1 W. Va. Code § 62-3-1 (2020). 2 W. Va. Code, 62-3-21, which constitutes the legislative pronouncement of
our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.’
Syllabus point 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (1986).” Syl. Pt. 2,
State ex rel. Porter v. Farrell, 245 W. Va. 272, __, 858 S.E.2d 897, 899 (2021). Second,
the facts and circumstances of this case were far removed from those present in State ex
rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994), where this Court held that “[a]
circuit court may choose dismissal for egregious and repeated violations where lesser
sanctions such as a continuance would be disruptive to the administration of justice or
where the lesser sanctions cannot provide the same degree of assurance that the prejudice
to the defendant will be dissipated.” Id. at 135, 454 S.E.2d at 429, Syl. Pt. 3. Here, the
State’s failure to produce lab reports within one month of being ordered to do so was a
singular failure, not part of a pattern of repeated violations. A continuance of the trial would
not have caused demonstrable prejudice to the petitioner; indeed, it would have enabled
him to utilize the lab reports that he contended were key to his defense that the victim was
high on drugs and thus a willing participant in so-called “rough sex” that included
strangulation. See State ex rel. Smith v. Olejasz, No. 20-1028, 2021 WL 5177341, at *5-6
(W. Va. filed Nov. 8, 2021) (memorandum decision) (discussing preference for
continuances where the State’s production of discovery is delayed). Third, it is critical to
recall that production of the lab reports was not attributable to any negligence or
malfeasance on the part of the State ‒ other than, perhaps, a failure to nag often and/or
loudly enough ‒ but rather delay attributable to the state police lab, an entity over which
the State had no control. See id. at *6 (rejecting argument that the State was properly
3 sanctioned for delay in producing autopsy report, where the delay was caused by the State
Medical Examiner’s Office over which the State exercised no control).
My first area of concern with the majority opinion is in the Court’s
unquestioning acceptance of the proposition that in cases where the State seeks
extraordinary relief, “[t]he scope of appellate review must necessarily be an abuse of
discretion standard.” Rusen, 193 W. Va. at 140, 454 S.E.2d at 434. This formulation,
although contained in the body of the Rusen opinion, is nowhere to be found in the syllabus
points. Instead, as stated in syllabus point one, in criminal cases where the State seeks a
writ of prohibition the scope of appellate review is confined to cases where the circuit court
has “exceeded or acted outside its jurisdiction[.]” Id. at 135, 454 S.E.2d at 429, Syl. Pt. 1,
in part. The scope of review as set forth in the syllabus point of Rusen squarely aligns with
the now-virtually canonical test established in Hoover, which was decided three years after
Rusen. However, the scope of review set forth in the body of Rusen, dutifully recited by
the majority in this case, does not. See, e.g., Syl. Pt. 3, in part, State ex rel. Almond v.
Rudolph, 2 238 W. Va. 289, 794 S.E.2d 10 (2016) (“[T]his Court will use prohibition in this
discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention
Although this case appears in both the West Virginia Reports and the South Eastern 2
Reporter as State ex rel. Almond v.
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No. 21-0404 – State of West Virginia ex rel. Scott R. Smith, Prosecuting Attorney, Ohio County v. The Honorable Michael J. Olejasz, Judge of the Circuit Court of Ohio County, West Virginia, and Chandis Wesley Linkinogger, Defendant. FILED November 19, 2021 released at 3:00 p.m. Wooton, Justice, concurring: EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
I concur in the Court’s judgment that under the facts and circumstances of this
case, the Circuit Court of Ohio County committed clear legal error in dismissing the two
counts of sexual assault in the second degree as a discovery sanction, and that for this
reason, the State is entitled to a writ preventing the circuit court from enforcing any of the
rulings set forth in the court’s April 22, 2021, order. I write separately, however, to address
several points in the majority opinion which I find to be troubling.
At the outset, I found this case to be a close one. Without question, in his
argument to the circuit court in support of the motion to dismiss defense counsel was guilty
of obfuscation, if not actual misrepresentation. Further, the fact that he waited until the
second day of trial to move to dismiss the indictment, after the jury had been seated and
sworn, gives rise to a strong suspicion that the discovery dispute in this case was
manufactured ‒ pure gamesmanship from the outset. However, the assistant prosecutor was
likewise not free from fault; he failed to grasp that the circuit court might not (and in fact
did not) agree with his assessment that the sought-after forensic evidence was immaterial
to the case against the petitioner, in light of his anticipated defense of consent. Once the
court ordered accelerated disclosure of forensic evidence from the state police laboratory,
1 it was incumbent on the prosecutor to follow his own advice, without delay: “[W]hen it
comes to the [lab], you have got to get on their tails and tell them ‘I need this, I need this,
I need this.’” Nonetheless, by his own admission to the circuit court, “I didn’t do that in
this case[.]” As a result, the circuit court was justifiably frustrated when, on the morning
trial began, the lab results had still not been produced.
It is well established in our case law that a circuit judge has broad discretion
to control his or her docket. See, e.g., State v. Boyd, No. 17-1067, 2019 WL 2406729, at
*4 (W. Va. June 7, 2019) (memorandum decision) (“Under the circumstances now before
us, and in light of the circuit court’s unique familiarity with the factors that would impede
the expeditious administration of justice, we find no reason to disturb the ‘broad discretion’
conferred on the trial court for the management of its docket.”) (citing Barlow v. Hester
Indus, Inc., 198 W. Va. 118, 127, 479 S.E.2d 628, 637 (1996)). Nonetheless, for the circuit
court to dismiss the sexual assault counts, with prejudice, and declare a mistrial on the
burglary and strangulation counts, was so precipitous ‒ and so without precedential support
‒ as to be “clearly erroneous as a matter of law” within the meaning of syllabus point four
of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). First, as far as we
can ascertain from the record before us, the petitioner, Chandis Wesley Linkinogger, had
not demanded his statutory right to be tried in the term of indictment. 1 Moreover, there was
no speedy trial issue raised under these facts and circumstances. “‘It is the three-term rule,
1 W. Va. Code § 62-3-1 (2020). 2 W. Va. Code, 62-3-21, which constitutes the legislative pronouncement of
our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.’
Syllabus point 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (1986).” Syl. Pt. 2,
State ex rel. Porter v. Farrell, 245 W. Va. 272, __, 858 S.E.2d 897, 899 (2021). Second,
the facts and circumstances of this case were far removed from those present in State ex
rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994), where this Court held that “[a]
circuit court may choose dismissal for egregious and repeated violations where lesser
sanctions such as a continuance would be disruptive to the administration of justice or
where the lesser sanctions cannot provide the same degree of assurance that the prejudice
to the defendant will be dissipated.” Id. at 135, 454 S.E.2d at 429, Syl. Pt. 3. Here, the
State’s failure to produce lab reports within one month of being ordered to do so was a
singular failure, not part of a pattern of repeated violations. A continuance of the trial would
not have caused demonstrable prejudice to the petitioner; indeed, it would have enabled
him to utilize the lab reports that he contended were key to his defense that the victim was
high on drugs and thus a willing participant in so-called “rough sex” that included
strangulation. See State ex rel. Smith v. Olejasz, No. 20-1028, 2021 WL 5177341, at *5-6
(W. Va. filed Nov. 8, 2021) (memorandum decision) (discussing preference for
continuances where the State’s production of discovery is delayed). Third, it is critical to
recall that production of the lab reports was not attributable to any negligence or
malfeasance on the part of the State ‒ other than, perhaps, a failure to nag often and/or
loudly enough ‒ but rather delay attributable to the state police lab, an entity over which
the State had no control. See id. at *6 (rejecting argument that the State was properly
3 sanctioned for delay in producing autopsy report, where the delay was caused by the State
Medical Examiner’s Office over which the State exercised no control).
My first area of concern with the majority opinion is in the Court’s
unquestioning acceptance of the proposition that in cases where the State seeks
extraordinary relief, “[t]he scope of appellate review must necessarily be an abuse of
discretion standard.” Rusen, 193 W. Va. at 140, 454 S.E.2d at 434. This formulation,
although contained in the body of the Rusen opinion, is nowhere to be found in the syllabus
points. Instead, as stated in syllabus point one, in criminal cases where the State seeks a
writ of prohibition the scope of appellate review is confined to cases where the circuit court
has “exceeded or acted outside its jurisdiction[.]” Id. at 135, 454 S.E.2d at 429, Syl. Pt. 1,
in part. The scope of review as set forth in the syllabus point of Rusen squarely aligns with
the now-virtually canonical test established in Hoover, which was decided three years after
Rusen. However, the scope of review set forth in the body of Rusen, dutifully recited by
the majority in this case, does not. See, e.g., Syl. Pt. 3, in part, State ex rel. Almond v.
Rudolph, 2 238 W. Va. 289, 794 S.E.2d 10 (2016) (“[T]his Court will use prohibition in this
discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention
Although this case appears in both the West Virginia Reports and the South Eastern 2
Reporter as State ex rel. Almond v. Rudolph, the correct title should be State ex rel. Almond v. Murensky. The Honorable Rudolph J. Murensky, Jr., a long-serving circuit judge in McDowell County, West Virginia, was the respondent in the petition for relief 4 of a clear statutory, constitutional, or common law mandate which may be resolved
independently of any disputed facts[.]”).
I acknowledge that an argument can be made ‒ and indeed, has been made ‒
that in criminal cases where the State seeks extraordinary relief, the Hoover factors are
weighted differently “because the State has no right to appeal [a discretionary ruling], it
has no other means to obtain relief from the circuit court’s ruling.” State ex rel. Wade v.
Hummel, 243 W. Va. 408, 415, 844 S.E.2d 443, 450 (2020); see also Hoover, 199 W. Va.
at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4. The problem with this statement is that its
application, standing alone, has the potential to cut far too broadly; under the Wade
rationale the State could seek review of any adverse ruling on a writ. In this regard, the
Court must be mindful of the admonition that “if this Court is to retain its proper role[,]”
we must “develop some level of judicial discipline to curb [our] apparent eagerness to
become involved in the merits of every case [brought on a request for extraordinary relief.]”
State ex rel. Justice v. King, 244 W. Va. 225, __, 852 S.E.2d 292, 310 (2020) (Workman,
J., concurring). Because I share the concern voiced by Justice Workman, I would eschew
reliance on the legally shaky proposition that as long as the State is the petitioner, this Court
can correct any abuse of discretion on a writ. Instead, I would require the State to show, as
its basis for seeking extraordinary relief, that the circuit court’s ruling was a substantial,
clear-cut, legal error. In my view, the State made such a showing in this case, and it is for
5 that reason I concur with the Court’s judgment that the Prosecuting Attorney of Ohio
County was entitled to issuance of a writ of prohibition.
Finally, I take issue with the Court’s reliance on State v. Adkins, 170 W. Va.
46, 289 S.E.2d 720 (1982), cited and discussed at length in footnote two, for the proposition
that “double jeopardy is only triggered when the action taken is equated to an acquittal[.]”
Id. at 51, 289 S.E.2d at 724-25. First, in footnote two the majority devotes some 500 words
to discussing what it then concedes to be obiter dicta, inasmuch as the circuit court’s
dismissal of the sexual assault counts in this case “cannot be equated as an acquittal.” Thus,
the lengthy discussion of Adkins is wholly beside the point and unnecessarily complicates
what should be the holding in this case: double jeopardy does not apply to bar a retrial on
the sexual assault counts because the court’s dismissal of those counts came in response to
the petitioner’s motion ‒ a motion based on what the record conclusively shows to have
been a misrepresentation of the facts by defense counsel.
“‘“When a mistrial is granted on motion of the defendant, unless the defendant was provoked into moving for the mistrial because of prosecutorial or judicial conduct, a retrial may not be barred on the basis of jeopardy principles.” Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982).’ State v. Pennington, 179 W.Va. 139, 365 S.E.2d 803 (1987).”
State ex rel. Bass v. Abbot, 180 W. Va. 119, 375 S.E.2d 590 (1988); see also Syl. Pt. 3, in
part, State v. Elswick, 225 W. Va. 285, 693 S.E.2d 38 (2010).
6 Second, I would place no reliance on Adkins, as the case upon which the
Adkins Court relied, State v. Bennett, 157 W. Va. 702, 203 S.E.2d 699 (1974), was
subsequently overruled in State v. Petry, 166 W. Va. 153, 273 S.E.2d 346 (1980). 3 In
Adkins the petitioner was convicted of first-degree murder. Significantly, he was charged
and convicted as a principal ‒ indeed, as the sole perpetrator of the crime. Id. at 51, 289
S.E.2d at 724-25. On appeal, the Court found that the evidence at trial had established
nothing more than aiding and abetting, which, under Bennett, would have entitled him to a
directed verdict of acquittal because “[a]n accused who is indicted solely as a principal in
the first degree is entitled to a directed verdict of acquittal upon proof by the State that he
was only a principal in the second degree.” Adkins, 170 W. Va. at 49, 289 S.E.2d at 722.
Then, in a feat of legal gymnastics, the Court held that petitioner Adkins was “entitled to a
directed verdict of acquittal due to a variance between pleading and proof[,]” and could be
retried on a different theory, aiding and abetting, because “the ‘acquittal’ . . . was not based
upon ‘a resolution . . . of some or all of the factual elements of the offense charged.’” Id.
This holding ‒ which, tellingly, was not reflected in any syllabus points in
Adkins ‒ was based on an acquittal that was wholly theoretical, making it impossible for a
reviewing court to determine its basis. Thus, any discussion of whether the non-existent
“acquittal” was based on “prosecutorial or judicial ‘bad faith,’ including evidentiary
3 Because Petry had not yet been decided at the time defendant/petitioner Adkins was indicted and tried, the Adkins Court found that Bennett, not Petry, was the basis for decision. 7 insufficiency,” 4 was rank speculation. Additionally, the Court’s logic in Adkins, which was
untethered to any analysis of the facts of the case, would lead to an absurd result; in any
criminal case an acquittal can be said to be a variance between pleading (the indictment
alleging commission of a specified crime) and proof (the evidence failing to prove
commission of that crime). Accordingly, we clarified in State v. Corra, 223 W. Va. 573,
678 S.E.2d 306 (2009), that “[i]f the proof adduced at trial differs from the allegations in
an indictment, it must be determined whether the difference is a variance or an actual or a
constructive amendment to the indictment.” Id. at 581-82, 678 S.E.2d at 314-15 (citation
omitted). 5 In Adkins, it can hardly be gainsaid that where the indictment charged the
defendant with murder, but the proof established his guilt only of aiding and abetting ‒
which, pursuant to Bennett, was a wholly separate offense from the charged offense of
murder ‒ there was a constructive amendment to the indictment. Accordingly, pursuant to
Corra, “[b]ecause there was insufficient evidence to convict the defendant of the charges
for which he was indicted, a retrial is prohibited.” 223 W. Va. at 583, 678 S.E.2d at 316.
In short, the majority weakens the authority of its opinion by engaging in a
lengthy discussion, albeit in a footnote, of a case whose legal underpinnings do not rest on
4 Adkins, 170 W. Va. at 51, 289 S.E.2d at 724-25.
5 A constructive amendment deprives a defendant of his or her rights under article III, section 4 of the West Virginia Constitution, which provides in relevant part that “[n]o person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury.” 8 solid ground. This observation has even greater force where the discussion is nothing but
dicta, which unnecessarily complicates what is a straightforward legal question deserving
of a straightforward legal answer.
For the reasons set forth herein, I respectfully concur.