State of West Virginia ex rel. Catie Wilkes Delligatti, Prosecuting Attorney of Berkeley County v. The Honorable Bridget Cohee, Judge of the Circuit Court of Berkeley County, and Lateef Jabrall McGann

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
State of West Virginia ex rel. May 26, 2023
Catie Wilkes Delligatti, released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Prosecuting Attorney of Berkeley County, SUPREME COURT OF APPEALS
Petitioner, OF WEST VIRGINIA

vs.) No. 22-921 (Berkeley County 22-F-8)

The Honorable Bridget Cohee,
Judge of the Circuit Court of Berkeley
County, and Lateef Jabrall McGann,
Respondents.

MEMORANDUM DECISION

Petitioner Catie Wilkes Delligatti, Prosecuting Attorney of Berkeley County (“the State”),
by counsel Catie Wilkes Delligatti, Joseph R. Kinser, and Shannon Frederick Kiser, filed a petition
for a writ of prohibition seeking to prevent the circuit court from enforcing its order entered on
November 22, 2022, denying the State’s motion to reconsider the court’s October 20, 2022,
decision granting defendant’s motion to dismiss the recidivist information. 1 Respondent Lateef
Jabrall McGann, (“defendant”), by counsel S. Andrew Arnold, filed a summary response.
Petitioner argues that the circuit court committed clear error by exceeding its legitimate powers
when it dismissed a recidivist action filed by the State after the State had timely amended its
original recidivist information to correct an immaterial clerical error to a citation contained in the
original information.

After considering the parties’ written and oral arguments, the appendix record, and the
applicable law, the Court finds that this case satisfies the “limited circumstances” requirement of
Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriate for a
memorandum decision rather than an opinion. For the reasons set forth below, we grant the State’s
petition for writ of prohibition.

Defendant was convicted of one felony count of fleeing with reckless indifference in
violation of West Virginia Code section 61-5-17(f), and one misdemeanor count of fleeing on foot
in violation of West Virginia Code section 61-5-17(d). On February 10, 2022, immediately after

1
The circuit court presumably entertained the State’s motion for reconsideration due to
defendant’s late filing of the motion to dismiss on the morning of October 17, 2022, which was
the day of the pretrial. As the State indicated in its motion, “due to the late filing of the motion [to
dismiss], and the clear case law to the contrary, the State asks this Court to RECONSIDER its
ruling on the Defendant’s Motion to Dismiss and proceed with the Recidivism Trial in 22-F-8.”

1
defendant’s convictions, the State filed a recidivist information against defendant. 2 In addition to
the above-referenced felony conviction, the State alleged that defendant was “the same individual
convicted” of two prior qualifying offenses (federal felony possession with intent to distribute
cocaine base and felon in possession of a firearm; state felony offense of wanton endangerment).
Finally, the State alleged that “Lateef MCGANN is a habitual offender and because of LATEEF
MCGANN’s prior listed convictions, he shall be sentenced to life in prison pursuant to W. Va.
Code § 61-11-18(c).”

In the allegation pertaining to sentencing the State subsequently found a clerical error in
the information: it identified the statutory authority for recidivist life enhancement as West
Virginia Code section 61-11-18(c), 3 which addresses the recidivist penalty for the qualifying
offense of murder, rather than West Virginia Code section 61-11-18(d), 4 which correctly addresses
defendant’s status as a third-time offender.

On February 28, 2022, prior to defendant’s arraignment on the original recidivist charge,
the State e-filed an amended information correcting the citation error. Although the amended
information contained the same criminal action number (22-F-8) as the original recidivist
information, it was e-filed in the underlying criminal action (21-F-248) rather than in the recidivist
action (22-F-8) where the original information had been filed. 5 Despite this filing error, defendant
does not argue that he did not receive the amended information when it was filed.

2
The Legislature designated the crime of fleeing with reckless indifference, W. Va. Code
§ 61-5-17(f), as a “qualifying offense” in West Virginia Code section 61-11-18(a).
3
See W. Va. Code § 61-11-18(c) (providing that a person “shall be punished by
imprisonment in a state correctional facility for life and is not eligible for parole[]” for recidivism
where the person had been previously convicted of first degree murder, second degree murder, or
sexual assault in the first degree as set forth in section 61-8B-3).
4
See id. § 61-11-18(d) (providing that a person who “shall have been twice before
convicted in the United States of a crime . . . which has the same or substantially similar elements
as a qualifying offense, the person shall be sentenced to imprisonment in a state correctional
facility for life[]” within certain specified limitations as provided).
5
The State represents that “[i]n some counties, such as Berkeley, a new case number is
generated in which to file the recidivist matter and all associated pleadings and orders. In others,
such as Monongalia County, recidivist proceedings are filed exclusively within the triggering
felony’s case number.” We question the practicality of the procedure used in Berkeley County, as
a recidivist action is integrally connected with the underlying qualifying criminal conviction. The
practice of generating an entirely new case file for a recidivist information presents an open
invitation for the potential to erroneously file a document in the related underlying criminal action
(that actually occurred in this case) instead of the recidivist action. Nonetheless, when this type of
error occurs, it can and should be easily resolved by the clerk’s office notifying the State of the
filing error so that the information can be placed in the correct file.

2
 On March 9, 2022, defendant was arraigned after the amended information was filed. 6
According to the “Arraignment Order” entered on March 11, 2022, the circuit court advised
defendant that if he “admitted he was the same” individual as described in the information, “the
Court would sentence him pursuant to W. Va. Code § 61-11-18.” Defendant exercised his right to
remain silent and “waive[d] the reading of the information in open court.” Following the
arraignment, defendant’s counsel withdrew, new counsel was appointed, and the State served
defendant’s new counsel with the amended information as part of discovery.

On October 17, 2022, the day on which the circuit court had scheduled a pretrial hearing
to resolve two previously filed motions to dismiss,7 defendant filed a third motion to dismiss the
recidivist information based upon the State’s clerical error in the original information: the citation
to West Virginia Code section 61-11-18. Specifically, defendant argued, relying on State ex rel.
Ringer v. Boles, 151 W. Va. 864, 157 S.E.2d 554 (1967), and Holcomb v. Ballard, 232 W. Va.
253, 752 S.E.2d 284 (2013), 8 that

[b]efore this Court now is an information that cites the wrong
section of the statute. The information cites to the section regarding
murder, 61-11-18(c). As the following term of court expired the
third Tuesday of May 2022, the statute cannot be bent by a curative
motion to permit the matter to proceed. It appears that the State at
some point became aware of the defect in the information and even
drafted an amended information which was provided to the defense
in discovery. No amended information was filed, and defendant was
brought before this Court on 10 March 2022 on the information
currently before this Court. Were this matter a common law criminal
case a motion to amend might be made and granted. This is entirely
a statutory case, however, and no such cure is available to the State.
This matter now is beyond statutory reach.

After the hearing, the circuit court granted defendant’s motion. In its October 20, 2022, order, the
court found that the amended information had been “filed in the defendant’s recent felony case
styled 21-F-248 rather than in this case 22-F-8.” The court determined that the recidivist statutes
are to be construed in favor of the defendant, that a harmless error analysis was prohibited, and
that the error “[wa]s not curable as the following term of court expired in May of this year.”

6
The “amended information” was not specifically mentioned during the arraignment
before the circuit court.
7
Defendant filed three separate motions to dismiss the information. The first two – a
motion to dismiss based upon language in the plea agreement from the 2008 conviction precluding
the State from seeking a later recidivist enhancement, and a motion to dismiss based on defendant’s
claim that a lifetime enhancement was disproportionate to the qualifying and predicate offenses –
were both denied by the circuit court and are not the subject of this original proceeding before the
Court.
8
Both Ringer and Holcomb are discussed infra in greater detail.

3
 On October 19, 2022, the State filed a motion for reconsideration, acknowledging the
defect in the original recidivist information but arguing that it was merely a scrivener’s error which
had been corrected less than twenty days later when an amended information was filed. The State
argued that it had never alleged that the defendant was previously convicted of murder, but rather
sought recidivist enhancement due to the defendant’s status as a third-time habitual offender. The
State asserted that “[d]efendant, and the [c]ourt were in possession of the Amended Recidivist
Information of the 9th day of March 2022, when the Defendant was presented for arraignment on
those allegations[]” and were properly on notice of the charge against him. The State argued that
defendant “was confronted with the Amended Recidivist Information and, when asked by the Court
if he was the same Lateef McGann twice previously convicted as described in the Information, the
Defendant chose to remain silent.” (Footnote omitted). More precisely, the State argued that the
substance of the arraignment – whether in regard to the original information or the amended
information – “would have been identical” because the prior qualifying convictions were
unchanged. Finally, in regard to defendant’s arguments that both the original and the amended
informations were defective – the former due to an incorrect statutory citation and the latter due to
being filed in defendant’s related underlying criminal action – the State argued that West Virginia
does not treat these type of immaterial defects in a recidivist information as fatal. See State v.
Crabtree, 198 W. Va. 620, 634, 483 S.E.2d 605, 619 (1996). Thus, the State contended that
because defendant had notice of the nature of the recidivist action against him, including the
qualifying convictions relied upon, the scrivener’s error should be found to be harmless as it neither
prejudiced nor surprised defendant in any way.

The circuit court held a hearing on the motion on November 17, 2022. By order entered
on November 22, 2022, it denied petitioner’s motion to reconsider its prior ruling, finding that “the
erroneous citation in the State’s original information was error. Further, the State’s attempt to
remedy the error by filing an amended information in 21-F-248 instead of in 22-F-8 was not
harmless error.”

The State filed a petition for writ of prohibition with this Court on December 21, 2022,
seeking to prevent the circuit court from dismissing the recidivist information. We previously held
in syllabus point one of State ex rel. Smith v. Olejasz, 245 W. Va. 799, 865 S.E.2d 820 (2021), that

“[t]he State may seek a writ of prohibition in this Court in a
criminal case where the trial court has exceeded or acted outside of
its jurisdiction. Where the State claims that the trial court abused its
legitimate powers, the State must demonstrate that the court’s action
was so flagrant that it was deprived of its right to prosecute the case
or deprived of a valid conviction. In any event, the prohibition
proceeding must offend neither the Double Jeopardy Clause nor the
defendant’s right to a speedy trial. Furthermore, the application for
a writ of prohibition must be promptly presented.” Syllabus Point 5,
State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded
by statute on other grounds as recognized by State v. Butler, 239 W.
Va. 168, 799 S.E.2d 718 (2017).

4
The Court has also established the foregoing framework to be used in determining whether a writ
of prohibition should be granted:

“In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as
direct appeal, to obtain the desired relief; (2) whether the petitioner
will be damaged or prejudiced in a way that is not correctable on
appeal; (3) whether the lower tribunal’s order is clearly erroneous as
a matter of law; (4) whether the lower tribunal’s order is an oft
repeated error or manifests persistent disregard for either procedural
or substantive law; and (5) whether the lower tribunal’s order raises
new and important problems or issues of law of first impression.
These factors are general guidelines that serve as a useful starting
point for determining whether a discretionary writ of prohibition
should issue. Although all five factors need not be satisfied, it is
clear that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.” Syllabus Point 4, State ex
rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

In support of the requested writ of prohibition, the State’s argument, at its core, is that that
the circuit court exceeded its legitimate powers when it committed clear error by dismissing the
recidivist information due to an immaterial clerical error in a citation, despite the State’s timely
filing of an amended information to correct that error. In taking this action, the State contends, the
court erroneously found that an immaterial error in a recidivist information constituted a
procedural, jurisdictional defect pursuant to Holcomb and was therefore not subject to a harmless
error analysis. See 232 W. Va. at 253, 752 S.E.2d at 285, Syl. Pt. 1 (holding that “[t]he procedural
recidivist requirements of W. Va. Code § 61-11-19 (1943) (Repl.Vol.2010) are mandatory,
jurisdictional, and not subject to harmless error analysis[,]” and discussed infra in greater detail).

Conversely, defendant argues that the circuit court did not err in finding that the State’s
initial recidivist information was not timely amended by the filing of an amended information in a
“different case file,” that the State’s error was a jurisdictional defect as set forth in Holcomb and
was therefore not subject to a harmless error analysis, and that the court did not exceed its
legitimate powers by granting defendant’s motion to dismiss.9

9
We note that during oral argument, defendant also relied upon State ex rel. Housden v.
Adams, 143 W. Va. 601, 103 S.E.2d 873 (1958). However, defendant’s summary response failed
to include any citation to or discussion of this case in violation of Rule 10(e) of the West Virginia
Rules of Appellate Procedure (providing that a summary response “clearly exhibit[] the points of
fact and law being presented and the authorities relied on[]”). In any event, we find that Housden
is not controlling, and in light of the Rule 10(e) violation see no need to discuss it.

5
 West Virginia Code section 61-11-19 establishes the procedural requirements for a
recidivist information:

A prosecuting attorney, when he or she has knowledge of a
former sentence or sentences to the penitentiary of any person
convicted of an offense punishable by confinement in the
penitentiary, may give information thereof to the court immediately
upon conviction and before sentence. Said court shall, before
expiration of the next term at which such person was convicted,
cause such person or prisoner to be brought before it, and upon an
information filed by the prosecuting attorney, setting forth the
records of conviction and sentence, or convictions and sentences, as
the case may be, and alleging the identity of the prisoner with the
person named in each, shall require the prisoner to say whether he
or she is the same person or not. If he or she says he or she is not, or
remains silent, his or her plea, or the fact of his or her silence, shall
be entered of record, and a jury shall be impaneled to inquire
whether the prisoner is the same person mentioned in the several
records. If the jury finds that he or she is not the same person, he or
she shall be sentenced upon the charge of which he or she was
convicted as provided by law; but if they find that he or she is the
same, or after being duly cautioned if he or she acknowledged in
open court that he or she is the same person, the court shall sentence
him or her to such further confinement as is prescribed by § 61-11-
18 of this code on a second or third conviction as the case may be

(Emphasis added).

This Court has distilled the foregoing statutory jurisdictional requirements for a recidivist
information to three main components: “a recidivist information is sufficient if it alleges a previous
conviction with such particularity as to give reasonable notice to the defendant: (1) of the nature
and character of the previous conviction; (2) of the court wherein the previous conviction occurred;
and (3) that the identity of the person previously convicted is the same as the defendant.” Syl. Pt.
3, State v. Hillberry, in part, 233 W. Va. 27, 754 S.E.2d 603 (2014); see W. Va. Code § 61-11-19.
Fundamentally, there is no requirement in either the statute or our case law that the “punishment,”
i.e., sentencing, statute, W. Va. Code § 61-11-18, be included or even referenced in a recidivist
information, as the directive of West Virginia Code section 61-11-19 is that the circuit court “shall
sentence” defendant to further confinement as prescribed by section 61-11-18.

The Court has found that the failure of the State or the circuit court to abide by the
mandatory, jurisdictional statutory requirements of the recidivist statute is fatal to its enforcement.
See Holcomb, 232 W. Va. at 253, 752 S.E.2d at 285, Syl. Pt. 1. In this regard, both Ringer and
Holcomb involved mandatory, jurisdictional statutory deficiencies. In Ringer, a recidivist
information was filed by the prosecutor following the defendant’s criminal conviction, during the
same term of court, and before sentence was imposed. 151 W. Va. at 868, 157 S.E.2d at 556-57.
At the recidivist hearing, the defendant denied that he was the same person named in the

6
information and the trial court then determined that he was. The court then sentenced the defendant
as a habitual offender. Id.

On appeal, the Court voided the recidivist sentence, holding, in part, that

when, upon inquiry by the trial court, the prisoner denies that he is
the same person as the one alleged in the information to have been
convicted previously of a felony, it is the mandatory duty of the
court, under the provisions of the statute, to impanel a jury to
determine whether the prisoner is the same person previously
convicted as alleged in the information. The procedure being wholly
statutory, the trial court in such circumstances has no jurisdiction to
try that issue in lieu of a jury upon testimony taken at the bar of the
court.

Id. at 864-65, 157 S.E.2d at 554-55, Syl. Pt. 1, in part.

In Holcomb, the defendant was convicted of child neglect causing injury or death and a
recidivist information was filed the same day charging that petitioner had been convicted of five
felony offenses. He was convicted of the recidivist charges and sentenced to life imprisonment.
232 W. Va. at 254-55, 752 S.E.2d at 285-86. Thereafter, he moved for a new trial, which was
granted. Id. at 254, 752 S.E.2d at 285. After a second trial, the defendant was again convicted of
a child neglect felony and a new recidivist information (“the second information”) seeking a life
sentence was filed the next day. The defendant was not served with a copy of the second
information until the last day of the term of court. The defendant was not arraigned on the second
information until the next term of court. He was ultimately found guilty on the second recidivist
information and sentenced to life imprisonment. Id. at 255, 752 S.E.2d at 286.

On appeal, the defendant argued in Holcomb that the second recidivist life sentence was
invalid because he was not arraigned on the recidivist information during the same term of court
in which he was convicted for the underlying offense. Id. The circuit court had found this error to
be harmless. However, the State conceded that the second recidivist proceeding was invalid
because the defendant was not arraigned in the same term of court in which he was convicted of
the underlying offense, as mandated by the recidivist statute, and asked this Court to remand for
imposition of a life sentence pursuant to the defendant’s conviction in the first recidivist
proceeding. 10 Id. This Court agreed that because the defendant had not been arraigned within the
mandatory time constraints of West Virginia Code section 61-11-19, his recidivist conviction must
be reversed. We held in syllabus point one that “[t]he procedural recidivist requirements of W.
Va. Code § 61-11-19 (1943) (Repl.Vol.2010) are mandatory, jurisdictional, and not subject to
harmless error analysis.” 232 W. Va. at 253, 752 S.E.2d at 285, Syl. Pt. 1.

10
The Court easily dispensed with the State’s argument by holding that “[a] recidivist
sentence under W. Va. Code § 61-11-19 (1943) (Repl.Vol.2010) is automatically vacated
whenever the underlying felony conviction is vacated.” Holcomb, 232 W. Va. at 253, 752 S.E.2d
at 285, Syl. Pt. 3.

7
 Here, our review of both the original information and the amended information
demonstrates that both met all the aforementioned procedural requirements of West Virginia Code
section 61-11-19; see Hillberry, 233 W. Va. at 29, 754 S.E.2d at 606, Syl. Pt.3, in part. The fact
that the original information contained a scrivener’s error in the citation of a sentencing provision 11
was wholly immaterial, as it was not one of the mandatory jurisdictional provisions in the statute
intended to provide defendant with “reasonable notice.” See id. Further, defendant does not
dispute that the factual allegations contained in both the original information and amended
information provided him with “reasonable notice.” See id. To the contrary, defendant attacks the
original recidivist information solely on the ground that it contained a citational error, and the
amended information solely on the ground that it was incorrectly filed in “a different case file” –
defendant’s related underlying criminal action.

We find that the error in the original information did not impact any of the procedural
requirements of the statute and was therefore immaterial. Accordingly, a harmless error analysis
was appropriate. See Hillberry, 233 W. Va. at 35, 754 S.E.2d at 611 (finding no reversible error
where “[t]he information listed the previous criminal convictions with particularity, because it
identified the nature and character of the previous offenses, identified the courts where the previous
convictions occurred, and it identified the defendant as the same person previously convicted of
those offenses”); Gardner v. Ballard, No. 13-1301, 2014 WL 5546202, at *4 (W. Va. Nov. 3,
2014) (determining that a clerical error in the recidivist information in regard to an incorrect
sentence listed in the information was harmless); Crabtree, 198 W. Va. at 633-34, 482 S.E.2d at
618-19 (finding that the circuit court allowing the State’s oral amendment to the wording of the
information during the recidivist proceedings was not an abuse of discretion).

Additional support for our determination that the scrivener’s error in the original recidivist
information was harmless error is found in Rule 7 of the West Virginia Rules of Criminal
Procedure. Rule 7(c)(3) provides: “Harmless Error. Error in the citation or its omission shall not
be ground for dismissal of the indictment or information or for reversal of the conviction if the
error or omission did not mislead the defendant to his or her prejudice.” The error in this case was
undisputedly an “[e]rror in the citation,” which under Rule 7 is not a ground for dismissal of an
information unless it “mislead[s] the defendant to his or her prejudice.” Id. Defendant does not
allege being misled to his prejudice from the State’s immaterial clerical error nor, and our review
of the appendix record reveals no evidence that he was misled. Rule 7(c)(3) therefore supports our
conclusion that the State’s clerical error in citing the incorrect subsection citation to West Virginia
Code section 61-11-18 was harmless error.

Moreover, with respect to the circuit court’s refusal to consider the amended information
to have been timely filed simply because it was electronically filed in defendant’s underlying
criminal action rather than in the recidivist action, see text supra, we find our decision in Crabtree
controlling. See 198 W. Va. at 633-34, 482 S.E.2d at 618-19. As previously discussed, in Crabtree
the defendant argued that the circuit court erred in allowing the State to orally amend the
information during the recidivism proceeding to correct a typographical error. Id. Specifically,
the defendant argued that amending one of the prior convictions, “breaking and entering,” to

11
See W. Va. Code § 61-11-18.

8
“entering without breaking” was a material change and “could only be made in the same term as
the last felony conviction relied upon for the information.” Id. at 633, 482 S.E.2d 619. We easily
dispensed with this alleged error, finding that the correction was not a material change to the
information:

the trial judge found that copies of the convictions were attached to
the information provided to the defendant and, therefore, the
defendant had notice that it was a typographical error. Thus, there
was no element of surprise to the defendant when the error was
corrected and the defendant was not prejudiced by the change.

Id. at 634, 482 S.E.2d at 619.

Similarly, in the instant case defendant was arraigned on the original information filed
against him and had been provided with a copy of the amended information prior to the March 9,
2022, arraignment. As in Crabtree, defendant had notice of the clerical citational error 12 and, as
previously discussed, there was no element of surprise or prejudice to him. See id. Critically,
however, in this case – unlike Crabtree – both the original information and amended information
were filed during the same term of Court as defendant’s underlying conviction. See id. at 633-34,
482 S.E.2d at 618-19. For these reasons, we conclude that the circuit court clearly erred in finding
the amendment to the original information to be untimely, and thus disallowing it, simply because
the amended information was filed in defendant’s related underlying criminal case. Simply stated,
because defendant was on notice of the immaterial scrivener’s error in the original information
and also on notice of the amended information which was limited to correcting that error, and
because both the original and amended informations were filed within the same term of court as
defendant’s underlying conviction, the amended information was timely filed as a matter of law.

Consequently, pursuant to the factors enunciated in Hoover, we grant the State a writ of
prohibition. See 199 W. Va. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4. The State lacks the ability to
pursue a direct appeal or otherwise challenge the circuit court’s ruling other than by seeking
extraordinary relief. Moreover, the circuit court erred as a matter of law in its decision to dismiss
the recidivist proceedings.

For the foregoing reasons, the Circuit Court of Berkeley County is prohibited from
enforcing its November 22, 2022, order (and related October 20, 2022, order) which granted
defendant’s motion to dismiss the recidivist action.

Writ Granted.

ISSUED: May 26, 2023

12
Defendant does not dispute that he possessed a copy of the amended information at that
arraignment and was provided an additional copy of the amended information as part of discovery
provided to defendant upon being appointed new counsel (which occurred prior to the filing of the
motions to dismiss).

9
CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn

10