No. 32875 - State of West Virginia ex rel. Pamela Jean Games-Neely v. Honorable David
H. Sanders, Judge of the Circuit Court of Berkeley County, and Jason Eric VanMetre
Maynard, Justice, concurring:
I concur to the majority opinion because I believe that it properly construes
W.Va. Code § 5-1-11(d), the applicable statute in this case, and reaches a common sense
The dissenting opinion asserts that W.Va. Code § 5-1-11(d) should be read and
applied as preserving this State's right to proceed with the prosecution of a defendant after
he or she has been extradited to a demanding state and later returned to the asylum state.
The problem with this construction is that it does not accord with the plain language of the
statute. According to W.Va. Code § 5-1-11(d), in part.
Nothing in this article contained shall be deemed to constitute a waiver
by this state of its right, power or privilege to try such demanded person for
an offense committed within this state, or of its right, power or privilege to
regain custody of such person by extradition proceedings or otherwise for the
purpose of trial, sentence or punishment for any offense committed within this
As noted in the majority opinion, while one
purpose of this statute is intended to do what the
dissenting opinion indicates, to regain custody of a defendant after extradition, the
disjunctive or prior to offering the remedy of regaining custody of a defendant clearly
demonstrates that the former portion of the statute refers to trying a demanded person before
he or she is permitted to leave the state. The dissenting opinion would have this Court
completely disregard the first portion of the statute in clear contravention of our rules of
In addition, the writer of the dissenting opinion accuses the majority of
ignoring the second paragraph of W.Va. Code § 5-1-11(b). This is not true. As clearly
explained in the majority opinion, W.Va. Code § 5-1-11(b) simply does not address the
instant facts _ waiver of extradition by an individual who has also been charged with
committing a crime in West Virginia.
Finally, the writer of the dissenting opinion inaccurately characterizes the
majority opinion as permitting a prosecuting attorney solely to decide questions relating to
waiver of extradition. To the contrary, the majority properly construes the applicable statute
to preserve the right, power, and privilege of this State to try a person charged with a crime
before that person is permitted to leave the State. Significantly, as noted in the majority
opinion, the result of the position advocated by the writer of the dissenting opinion would
leave the decision of whether a defendant may be extradited to another state, prior to
prosecution in this State, entirely up to the defendant. Such a result would be absurd and
certainly not what the Legislature intended.
Accordingly, for the reasons set forth above, I concur.