Stephen Upton v. Municipality of the Town of Flatwoods ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Stephen Upton,
FILED
Petitioner Below, Petitioner January 6, 2017
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 16-0204 (Braxton County 15-M-AP-1) OF WEST VIRGINIA
Municipality of the Town of Flatwoods,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Stephen Upton, pro se, appeals the February 9, 2016, order of the Circuit Court
of Braxton County remanding petitioner’s case to the Municipal Court of the Town of Flatwoods
which subsequently reinstated his misdemeanor conviction for operating a motor vehicle without a
motor vehicle inspection sticker. Respondent Municipality of the Town of Flatwoods, by counsel
Jasmine R.H. Morton, filed a response, and petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case
is remanded to the circuit court with directions to evaluate the record, determine whether petitioner
was guilty of operating a motor vehicle without a motor vehicle inspection sticker, and enter
judgment accordingly.
On March 3, 2015, petitioner was cited for operating a motor vehicle without a motor
vehicle inspection sticker pursuant to West Virginia Code § 17C-16-9 and Flatwoods Municipal
Code § 345.32. Petitioner pled not guilty to the charge, and the Municipal Court of the Town of
Flatwoods scheduled a bench trial on the matter for May 9, 2015. On April 22, 2015, the municipal
court received petitioner’s response to the trial notice. In his response, petitioner stated that he
could not appear for the May 9, 2015, bench trial and that he was not guilty of the charge because
he had taken advantage of West Virginia Code § 17C-16-9’s safe harbor provision.1 Accordingly,
1
West Virginia Code § 17C-16-9 provides, as follows:
(continued . . .)
1
by order entered June 3, 2015, the municipal court granted a continuance and rescheduled
petitioner’s bench trial for July 11, 2015.
Petitioner failed to appear for the July 11, 2015, bench trial because of work commitments.
However, on September 13, 2015, petitioner filed a motion to dismiss the charge against him. The
municipal court denied petitioner’s motion to dismiss and found him guilty of operating a motor
vehicle without a motor vehicle inspection sticker. In its November 18, 2015, judgment order, the
municipal court fined petitioner $50 plus court costs in the amount of $105.
Petitioner appealed the municipal court’s November 18, 2015, judgment order to the
Circuit Court of Braxton County, which scheduled a trial de novo for February 2, 2016.2 Petitioner
failed to appear for trial. By order entered February 9, 2016, the circuit court found that petitioner
had notice of the February 2, 2016, trial because petitioner filed a pleading with the court noting
that he received notice of the trial. The circuit court found that petitioner was “the party
challenging” the municipal court’s November 18, 2015, judgment order, but “failed to appear” for
the trial de novo. Accordingly, the circuit court remanded petitioner’s case to the municipal court.
The municipal court subsequently reinstated its November 18, 2015, judgment order that found
petitioner guilty of operating a motor vehicle without a motor vehicle inspection sticker and fined
him $50 plus court costs in the amount of $105.
Petitioner now appeals the circuit court’s February 9, 2016, order remanding the case to the
municipal court. “This Court reviews the circuit court’s final order and ultimate disposition under
an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va.
178, 469 S.E.2d 114 (1996). Based on our review of the record herein, we find that the circuit
court’s remand of the case to the municipal court was erroneous.
Before addressing that issue, we address two other issues, the resolution of which will aid
in the disposition of this appeal. First, petitioner contends that he “appeared” for the February 2,
. . . Provided, That any person who obtains an inspection and a
current and valid certificate of inspection and who, within five days
of the issuance of a citation for a violation of the provisions of this
section, provides a receipt of inspection to and makes the vehicle so
operated available for examination by a court of competent
jurisdiction, shall not be guilty of a violation of the provisions of this
section: Provided, however, That the misdemeanor penalty shall be
imposed if the certificate of inspection has not been valid for a
period exceeding three months prior to the date of the issuance of a
citation.
2
Black’s Law Dictionary defines a “trial de novo” as “[a] new trial on the entire case—that
is, on both questions of fact and issues of law—conducted as if there had been no trial in the first
instance.” BLACK’S LAW DICTIONARY 1737 (10th ed. 2014).
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2016, trial because Rule 7(e) of the West Virginia Rules of Criminal Procedure for Magistrate
Courts permitted him to appear through “[a] written answer.” Respondent counters that, while the
Rules of Criminal Procedure for Magistrate Courts generally apply to this case pursuant to West
Virginia Code § 8-10-2(d), they do not allow for appearances through written pleadings. We agree
with respondent and find that, contrary to petitioner’s contention, Rule 7(e) does not permit him to
appear at trial by written answer. Therefore, we conclude that the circuit court did not err in finding
that petitioner failed to appear for the February 2, 2016, trial.
Second, petitioner contends that he was entitled to a jury trial in the municipal court
because he requested a trial by jury.3 This is significant because, if petitioner had a jury trial in the
municipal court, his appeal to the circuit court would have been based on a review of the record
rather than a trial de novo. See W.Va. Code § 8-34-1(e).4 In the syllabus of Champ v. McGhee, 165
W.Va. 567, 270 S.E.2d 445 (1980), we held that “[u]nder art. 3, § 14 of the West Virginia
Constitution, the right to a jury trial is accorded in both felonies and misdemeanors when the
penalty imposed involves any period of incarceration.” Pursuant to West Virginia Code §
17C-16-9, the maximum punishment for operating a motor vehicle without a motor vehicle
inspection sticker is no more than a fine of $100. Thus, a jury trial was not constitutionally
required in this case. Respondent further argues that, while the municipal court has discretion to
hold a jury trial in other criminal cases (if requested by the defendant) pursuant to West Virginia
Code § 8-10-2(d), the municipal court had no opportunity to exercise that discretion because
petitioner failed to appear for his trial. Based on our review of the record and the relevant law, we
conclude that because (a) petitioner did not face any possibility of incarceration and (b) petitioner
failed to appear for his trial, West Virginia Code § 8-10-2(d) did not require that he be afforded a
jury trial either as a matter of right or as a matter of discretion on the part of the municipal court.5
3
Respondent does not dispute that petitioner requested a jury trial in the municipal court
despite the fact that the written record is unclear on the matter. While respondent asserts that
petitioner’s request was untimely under Rule 5(d) of the Rules of Criminal Procedure for
Magistrate Courts, we do not address that argument because, as discussed in more detail below, we
find that, assuming, arguendo, that such a request was timely made, petitioner was not entitled to a
jury trial under the facts and circumstances of this case.
4
In an appeal on the record, West Virginia Code § 8-34-1(f)(4) provides that the circuit
court has the authority to dismiss the appeal and/or remand the case to the municipal court. See
W.Va. Code §§ 8-34-1(f)(4)(A) and (C).
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West Virginia Code § 8-10-2(d) provides, as follows:
Only a defendant who has been charged with an offense for which a
period of confinement in jail may be imposed is entitled to a trial by
jury. If a municipal court judge determines, upon demand of a
defendant, to conduct a trial by jury in a criminal matter, it shall
follow the procedures set forth in the rules of criminal procedure for
magistrate courts promulgated by the Supreme Court of Appeals,
(continued . . .)
3
We now turn to petitioner’s argument that the circuit court erred in remanding the case to
the municipal court following his failure to appear at the February 2, 2016, trial de novo.
Respondent counters that, because petitioner failed to appear at the trial, the circuit court did not
err in remanding the case to the municipal court to permit that court to reinstate its November 18,
2015, judgment order. However, respondent’s argument is contrary to our precedent regarding the
nature of appeals in which the appellant is entitled to a trial de novo.
“An appeal from [an inferior court’s] judgment vacates and annuls the judgment.” Syl. Pt.
2, Elkins v. Michael, 65 W.Va. 503, 64 S.E. 619 (1909) (emphasis added); Smith v. City of
Morgantown, No. 12-1513, 2013 WL 5525744, at *1 and n.1 (W.Va. October 4, 2013)
(memorandum decision) (citing Elkins and stating that municipal court’s judgment was annulled
because petitioner received trial in circuit court). The municipal court’s judgment order was
rendered a nullity because, once petitioner appealed that order, and was entitled to a trial de novo
in the circuit court, “the case could only be tried . . . upon its merits in the circuit court, and
judgment rendered upon the evidence adduced [in that court].” Pickenpaugh v. Keenan, 63 W.Va.
304, 305, 60 S.E. 137, 138 (1908); accord Laber v. Harvey, 438 F.3d 404, 420-1 (4th Cir. 2006).
Given that petitioner failed to appear for the February 2, 2016, trial despite receiving
adequate notice, it was permissible for the circuit court to find that, based on the record, petitioner
was guilty of operating a motor vehicle without a motor vehicle inspection sticker. However, our
holdings in Elkins and Pickenpaugh precluded the circuit court from remanding the case to the
municipal court for reinstatement of that court’s judgment order because petitioner was entitled to
a judgment by the circuit court “rendered upon the evidence adduced [in that court].”
Pickenpaugh, 63 W.Va. at 305, 60 S.E. at 138. Therefore, we conclude that the circuit court’s
February 9, 2016, order remanding the case to the municipal court must be reversed and the case
remanded to the circuit court.
Petitioner contends that he had good cause to fail to appear for the February 2, 2016, trial
because of his work commitments. However, we find that simply choosing to honor another
obligation over appearing in court does not constitute good cause for a failure to appear. Given the
lack of good cause for petitioner’s non-appearance, the circuit court is not required to schedule
another trial de novo. Therefore, upon remand from this Court, we direct the circuit court to
evaluate the record, determine whether petitioner was guilty of operating a motor vehicle without a
motor vehicle inspection sticker, and enter judgment accordingly.
For the foregoing reasons, we reverse the circuit court’s February 9, 2016, order and
remand this case to the circuit court with directions to evaluate the record, determine whether
petitioner was guilty of operating a motor vehicle without a motor vehicle inspection sticker, and
enter judgment accordingly.
except that the jury in municipal court shall consist of twelve
members.
(emphasis added).
4
Reversed and Remanded with Directions.
ISSUED: January 6, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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