STATE of West Virginia ex rel. Clayton COLLINS, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County, Respondent. STATE of West Virginia ex rel. John Leslie PEEPLES, Petitioner, v. Honorable David W. KNIGHT, Judge of the Circuit Court of Mercer County, Respondent.
Nos. 22781, 22783
Supreme Court of Appeals of West Virginia
Decided June 19, 1995
460 S.E.2d 636
Submitted April 4, 1995. Dissenting Opinion of Retired Justice Neely July 12, 1995.
In Firstbank Shinnston, 185 W.Va. at 762, 408 S.E.2d at 785, we found the aforementioned reasoning equally applicable to a lender under a deed of trust named as mortgagee under a standard mortgage clause, considering that there is an independent contract of insurance which exists between it and the insurer. Thus, in that Wesbanco is deemed an insured to the extent of the balance due it from Motorists Mutual, it should be compensated for the costs it incurred in compelling Motorists Mutual to honor its contractual obligation. Id.
Having concluded that Wesbanco was entitled to the fire insurance proceeds as of the date of the fire, we hold that it has substantially prevailed in its suit against Motorists Mutual. Wesbanco is, therefore, entitled to recover its reasonable attorneys’ fees which are to be determined, on remand, by the circuit court.
VI.
For reasons discussed herein, we hereby affirm the order of the Circuit Court of Wood County insofar as it found the mortgage clause in the Jones’ fire insurance policy to be a standard mortgage clause. However, we reverse that portion of the circuit court‘s order which found that Wesbanco was entitled to payment under the insurance policy as of the date payments on the loan ceased and further, we reverse the circuit court‘s denial of Wesbanco‘s claim for reasonable attorneys’ fees. This case is therefore remanded for determination of reasonable attorneys’ fees incurred by Wesbanco.
Affirmed, in part; reversed, in part; and remanded with directions.
BROTHERTON and RECHT, JJ., did not participate.
MILLER, Retired J., and CLECKLEY, J., deeming themselves disqualified, did not participate.
FOX, SPAULDING and RANSON, JJ., sitting by temporary assignment.
R. Thomas Czarnik, Princeton, for petitioner John Leslie Peeples.
Darrell V. McGraw, Jr., Atty. Gen., Silas B. Taylor, Sr. Deputy Atty. Gen., Charleston, for respondents.
McHUGH, Chief Justice:
This opinion involves two separate petitions for writs of prohibition. One of the petitions was filed by Clayton Collins against the respondent, the Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County. The other petition was filed by Leslie Peeples against the Honorable David Knight, Judge of the Circuit Court of Mercer County. The petitions will be consolidated for decision because both seek to prohibit a trial judge from denying a jury trial de novo in the circuit court on appeal from a criminal conviction in a magistrate court. For the reasons set forth below, petitioner Collins’ writ of prohibition is granted as moulded; however, we deny petitioner Peeples’ writ of prohibition.
I.
In June of 1994 significant statutory changes were made regarding the appeal of a criminal conviction in magistrate court to the circuit court. Although petitioner Collins’ magistrate court trial had not been held, he had been arrested and had already waived his right to a jury trial in the magistrate court when the statutory changes occurred in June of 1994. Petitioner Peeples, however, was arrested in August of 1994, which was after the statutory changes had been made.
A.
Statutory Changes
Prior to June 10, 1994, a person convicted of a criminal offense in magistrate court had a statutory right to appeal his or her conviction to the circuit court and receive a trial de novo which included the right to a trial by jury. See
In 1994 a provision was added to
The amendment to
Under the amendments the circuit court has the authority to reverse, affirm, remand, or modify the magistrate judgment order pursuant to
B.
Petitioner Clayton Collins
Petitioner Collins was arrested in December of 1993 and charged with four counts of third degree sexual abuse pursuant to
In October of 1994, petitioner Collins gave his notice of intent to appeal the judgment of conviction in magistrate court to the Circuit Court of Harrison County for a trial de novo and filed a “jury claim” seeking a trial by jury in the circuit court. The circuit court entered an order denying petitioner Collins’ request for a trial by jury. Therefore, petitioner Collins is seeking a writ of prohibition from this Court in order to prohibit the circuit court from trying the case without a jury.
C.
Petitioner Leslie Peeples
In August of 1994, petitioner Peeples was arrested for driving under the influence of alcohol. Petitioner Peeples did not demand a jury trial in magistrate court. Following his trial, petitioner Peeples was convicted of first offense DUI pursuant to
Petitioner Peeples appealed his conviction to the Circuit Court of Mercer County, and demanded a trial by jury. The circuit court denied petitioner Peeples’ request for a trial by jury. Thus, petitioner Peeples seeks the same relief as petitioner Collins.
II.
The petitioners maintain that Rule 20.1 of the West Virginia Rules of Criminal Procedure for Magistrate Courts and
In addressing these concerns we are mindful of the following:
“In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.” Point 1 Syllabus, State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740 [, 143 S.E.2d 351 (1965)]. Syl. pt. 3, State ex rel. W. Va. Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).
Syl. pt. 3, State ex rel. Lambert v. County Comm‘n, 192 W.Va. 448, 452 S.E.2d 906 (1994).
A.
Our initial inquiry is whether
There are two constitutional provisions which note the right to a trial by jury.
The petitioners argue that even if they had a jury in the magistrate court criminal proceeding, they are entitled to a twelve-person jury in the circuit court on appeal. However, the
B.
Although raised clearly and expressly only by the respondents, we address whether a defendant‘s due process rights set forth in the
The legislature shall determine the qualifications and the number of magistrates for each court ... provided that the legislature shall not have the power to require that a magistrate be a person licensed to practice the profession of law, nor shall any justice or judge of any higher court establish any rules which by their nature would dictate or mandate that a magistrate be a person licensed to practice the profession of law.
(emphasis added). Additionally, the respondents point out that
Furthermore, the respondents assert that the due process clauses of the
[H]is lack of professional legal training and his inability to attain that status of a duly licensed attorney at law do not of themselves render his judgment of conviction of a defendant of a criminal offense of which the justice has jurisdiction violative of the due process clauses of the Federal and State Constitutions.
This Court further stated that
[t]hough no person may engage in the practice of law unless he is a duly licensed attorney at law, a justice of the peace, in the trial and disposition of a case of which he has jurisdiction, is not engaged in the practice of law but instead acts in a judicial capacity and is engaged in the discharge of a judicial function.
Id. at 891-92, 180 S.E.2d at 78. However, the respondents acknowledge that when Moats was decided the criminal defendant had a statutory right to a jury trial de novo on appeal to a circuit court from a criminal conviction before a justice of the peace.
The Supreme Court of the United States has not yet addressed whether the United States Constitution is violated if a criminal defendant does not have a lawyer-judge preside at his or her trial. The closest the Supreme Court of the United States has come to deciding the issue was in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). In North the Supreme Court of the United States determined that Kentucky procedures provided for a trial de novo, which included the right to a trial by jury, before a lawyer-judge; therefore, the
Several state courts have addressed the issue and have found that due process rights are not violated when a criminal trial is presided over by a lay person. For instance, although not directly on point, the Supreme Court of New Mexico found that allowing a non-lawyer police court judge to preside over a criminal trial did not violate the state and federal constitutions. Tsiosdia v. Rainaldi, 89 N.M. 70, 547 P.2d 553 (1976). In arriving at its conclusion the Supreme Court of New Mexico made the following observation:
[O]ur legal system is primarily of an adversary nature, and the guardianship of the defendant‘s rights lies chiefly with his attorney, not the judge. Rights not asserted by the defendant‘s attorney generally are waived. Furthermore, it is not the function of the judge to second guess the tactics or strategies of the defendant‘s attorney at each step of the defense of an accused. The judge‘s major function is to determine which of two espoused viewpoints—the attorney‘s or the prosecutor‘s—is applicable to the facts of the case before him. An unbiased and reasonably intelligent person should be able to choose fairly between such espoused viewpoints. Fairness in this context is not critically dependent upon the judge being a member of the bar; a judge must have wisdom and common sense which are at least as dependable as an education in guaranteeing the defendant a fair trial. As with district court judges, as a last resort the appellate process is able to correct the mistakes of law of a municipal court judge. We therefore hold that fairness is not so inextricably tied to the education of an attorney that without such an education a municipal court judge cannot be fair.
Id. at 72, 547 P.2d at 555 (footnotes omitted). We find the rationale of the Supreme Court of New Mexico to be persuasive.
Moreover, in a case which is factually similar to the cases now before us, the Supreme Court of Arizona found that the due process clause is not violated when a non-lawyer judge presides over a criminal trial if the decision of the non-lawyer judge is subject to meaningful review. Palmer v. Superior Court, 114 Ariz. 279, 281, 560 P.2d 797, 799 (1977). The Supreme Court of Arizona found that a law-trained judge is on the court to which the appeal is made and that court has a record of the proceeding before the lay judge. Additionally, the court to which the appeal is made has the authority to grant a trial de novo if it finds that there are deficiencies in the record. Thus, the due process rights of the defendant are not violated. Id. See also Walker v. State, 204 Ga.App. 559, 420 S.E.2d 17 (1992) (A defendant‘s due process rights were not violated just because his conviction, by a non-lawyer judge, was not entitled to de novo review by a lawyer judge); People v. Sabri, 47 Ill.App.3d 962, 6 Ill.Dec. 104, 362 N.E.2d 739 (1977) (Based on the facts in that case, the court found that a defendant may be tried by a non-lawyer judge where there is the possibility of imprisonment without violating the due process clause); State v. Duncan, 269 S.C. 510, 238 S.E.2d 205 (1977) (The due process rights of the defendant are not violated by a non-lawyer magistrate presiding over the defendant‘s trial even if the defendant is not automatically entitled to a jury trial de novo on appeal) and Canaday v. State, 687 P.2d 897 (Wyo.1984) (The defendant‘s due process rights are not violated when a non-lawyer justice of the peace presides over his trial since the defendant has the right to appeal to a lawyer judge). But see Gordon v. Justice Court for Yuba Judicial District of Sutter County, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974), cert. denied, 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 415 (1975) (Having a non-lawyer justice of the peace preside over a criminal trial which results in a jail sentence violates a defendant‘s due process rights since justice
Thus, there are other jurisdictions which have found that a defendant‘s due process rights are not violated when a non-lawyer judge presides over the trial. Moreover, in the cases before us, the amended statutory scheme has taken into consideration a defendant‘s due process rights.
For instance, magistrates are not completely unskilled in the law. Pursuant to
As we previously stated, the amended statutory scheme provides that all jury trials “shall be recorded electronically.”
On appeal, the reviewing court must consider a list of factors such as whether the judgment of the magistrate is arbitrary, capricious, or an abuse of discretion; contrary to constitutional rights; in excess of statutory jurisdiction; without observance of procedure required by law; unsupported by substantial evidence; or unwarranted by the facts. See
Accordingly, we hold that a defendant‘s due process rights set forth in the
III.
Petitioner Peeples generally asserts that he was denied equal protection of the law because if he had been arrested in a municipality and charged with violating an ordinance, he would have been entitled to a twelve-person jury trial in municipal court and to a twelve-person jury trial on appeal to the circuit court from the judgment in municipal court.5 More simply, as the respondent notes, petitioner Peeples argues that the differences in procedure between the municipal and magistrate courts denies him equal protection of the law. We disagree.
We are mindful of the following:
1. ‘General and indefinite terms of one provision of a constitution, literally embracing numerous subjects, are impliedly limited and restrained by definite and specific terms of another, necessarily and inexorably withdrawing from the operation of such general terms, a subject which, but for such implied withdrawal, would be embraced and governed by them.’ Syllabus Point 5, Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786 (1917).
2. ‘A constitutional amendment, as the last word from the people on a subject under consideration, should be given controlling effect where there is irreconcilable conflict between it and other constitutional provisions, but no such effect should be given where it and other provisions of the Constitution may be read together and harmonized without destroying the effect and purpose of any of them.’ Syllabus Point 3, Berry v. Fox, 114 W.Va. 513, 172 S.E. 896 (1934).
Syl. pts. 1 and 2, State ex rel. Boards of Educ. v. Chafin, 180 W.Va. 219, 376 S.E.2d 113 (1988).
The Judicial Reorganization Amendment of 1974 amended the
Thus, based on the principles set forth in syllabus points 1 and 2 of Chafin, supra, the Judicial Reorganization Amendment of 1974, which specifically prescribes the procedures to be used in the magistrate court, controls the resolution of this issue. Accordingly, we find petitioner Peeples’ equal protection argument to be without merit.6
IV.
Petitioner Collins asserts that since he waived his right to a jury trial in the magistrate court in 1993 before the amended statutes changing the appeal procedure from magistrate court were enacted, it would violate ex post facto principles found in
In syllabus point 1 of Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980) this Court held:
Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.
In Adkins, this Court held that in order to avoid violating the ex post facto clauses of the
The Supreme Court of the United States found that analyzing an ex post facto question involving a procedural change by determining whether or not the change deprives the accused of substantial protections which the existing law gives to the accused of a crime is misleading. Id. Additionally, the Court in Collins found that labeling the questioned law change as procedural or substantive was also misleading. Id. Instead, the Supreme Court of the United States in Collins found that the following summary, previously enunciated in Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217 (1925), best exemplifies the original understanding of the meaning of the ex post facto clause:
‘It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’
Collins, 497 U.S. at 42, 110 S.Ct. at 2719, 111 L.Ed.2d at 39.8
Therefore, if the questioned procedural change does not fit into the above framework, then the procedural change in the criminal proceeding is not prohibited as ex post facto according to the Supreme Court of the United States’ analysis in Collins, supra. Indeed, the Court in Collins overruled two of its prior cases which did not fit into the framework established in Beazell, supra. One case in particular is of interest: Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898).
In Thompson the defendant was convicted by a jury of twelve persons of grand larceny when Utah was a territory. Subsequently, the defendant was granted a new trial, and Utah, in the meantime, was admitted into the Union as a State. The Constitution of the new state of Utah required that juries in noncapital cases consist of eight jury members. The defendant was retried with an eight-member jury and convicted. The Supreme Court of the United States reversed the conviction because the new state constitution deprived him of a substantial right by not allowing him to have a twelve-person jury, thus violating the ex post facto clause of the constitution. Id.
In Collins the Supreme Court of the United States revisited Thompson and in overruling its analysis of the ex post facto clause, stated: “The right to jury trial provided by the Sixth Amendment is obviously a ‘substantial’ one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.” Collins,9
We find the reasoning of the Supreme Court of the United States in Collins, supra, to be persuasive in interpreting the
‘1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the commission of the offence, in order to convict the offender.’10
Collins, 497 U.S. at 42, 110 S.Ct. at 2719, 111 L.Ed.2d at 38-39 (emphasis in original and footnote added).
Accordingly, we hold that a procedural change does not violate the ex post facto principle found in the
In the case before us, the elimination of the trial de novo on appeal from a criminal proceeding in magistrate court does not alter the definition of a crime, deprive petitioner Collins of a defense, or increase his punishment. Thus, the elimination of a right to a trial by jury on appeal from the magistrate court criminal proceeding does not violate the ex post facto clauses of the
However, as the respondent concedes, petitioner Collins was entitled to seek a jury trial in magistrate court once the right to a de novo jury trial on appeal to the circuit court was eliminated. Pursuant to
The record indicates that petitioner Collins waived his right to a jury trial in magistrate court before the statutory amendments were enacted; however, petitioner Collins’ non-jury trial took place after the statutory amendments were enacted. The record does not reveal whether petitioner Collins was given an opportunity to voluntarily and intelligently waive his right to a trial by jury pursuant to the 1994 statutory amendments. Clearly, petitioner Collins could not have anticipated waiving his right to a jury trial on appeal in the circuit court when he waived his right to a jury trial in the magistrate court proceeding. The 1994 amendments, which took away a defendant‘s statutory right to a jury trial on appeal in the circuit court, had not yet been enacted. Therefore, the Circuit Court of Harrison County should determine whether petitioner Collins was given an opportunity to request a jury trial after the statutory amendments were enacted, and if not, afford petitioner Collins the opportunity to exercise his right to a trial by jury.
V.
In conclusion, we have held that we will not grant a writ of prohibition unless there is a substantial, clear-cut legal error in contravention of statutory, constitutional, or common laws:
In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
Syl. pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). Based on our discussion above, petitioner Collins’ writ of prohibition is granted as moulded, and we direct the Circuit Court of Harrison County to determine whether or not petitioner Collins was given the opportunity to request a trial by jury in magistrate court once the amended statutory provisions were enacted. However, we deny petitioner Peeples’ writ of prohibition since he has failed to show that there is a substantial, clear-cut legal error in contravention of the constitution.
No. 22781—Writ granted as moulded.
No. 22783—Writ denied.
BROTHERTON, J., did not participate.
FOX, J., sitting by temporary assignment.
NEELY, Retired J., participated in consideration and decision of case.
NEELY, Retired J., reserves the right to file a dissenting opinion.
(Filed July 12, 1995)
I dissent in a case where there is no harm to these particular defendants because I believe that a criminal defendant appealing from a proceeding in magistrate court before a non-lawyer judge, should be afforded a statutory right to a jury trial de novo on appeal to the circuit court. Accordingly, I would find that
I believe the majority‘s opinion is just another step in the ongoing trend in American law to abolish the constitutional rights of criminal defendants and to destroy citizens’ rights to a jury trial. For an in depth discussion of this alarming and insidious trend, see State v. Rummer, 189 W.Va. 369, 384-403, 432 S.E.2d 39, 54-73 (1993) (Neely, J., dissenting). Rummer involved different issues but the effect of the Court‘s decision was the same—a further erosion of the civil rights of criminal defendants.
Under the former statutory scheme, the question on appeal from a jury trial before a magistrate was not whether the judgment of the court not of record was correct, but whether the accused is guilty of the offense charged and for which he has been tried. However, as stated by the majority, under the amended statute the circuit court takes on the role of a reviewing court, rather than a trial court. The 1994 amendments penalize criminal defendants exercising their right to a jury trial below by stripping them of their right to a de novo trial on appeal to the circuit court. However, when they graciously and expeditiously waive their right to a jury trial below, they are rewarded with the right to a de novo trial before a lawyer-judge on appeal.
This amounts to an unconstitutional deprivation of due process, based in part on the inherently political nature of our magistrate system. The requirements to be a magistrate in West Virginia are simple: if you are over twenty-one years of age, with a high school education or its equivalent, absent any felony or misdemeanor convictions involving moral turpitude, you, too, can run for election in your county of residence.
Basically, without even being asked to walk and chew gum at the same time, a total buffoon can win an election and be rewarded with a four-year term as a magistrate. The mandatory training program for magistrate judges helps smart, interested magistrates, but is largely wasted on dim bulbs or those who don‘t want to learn. There is nothing fundamentally wrong with the concept of using non-lawyer judges for misdemeanors. However, in the big picture, some due process attaches even to misdemeanor cases.
The Supreme Court of the United States has indirectly addressed the constitutionality of non-lawyer magistrates in the case from Kentucky of North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), as mentioned in the majority opinion. In North, the appellant claimed that when incarceration is a possible penalty, due process required that his case initially be tried before a judge with formal legal training, irrespective of whether a trial de novo was available before a lawyer/judge on appeal. The Supreme Court essentially found this argument mooted by the fact that in Kentucky a defendant facing a criminal sentence did have the opportunity “[i]n all instances” to have a trial de novo before a lawyer/judge. North, 427 U.S. at 334, 96 S.Ct. at 2712 [emphasis added.] Thus, the Court tacitly affirmed the constitutionality of non-lawyer judges based upon the guarantee of a trial de novo on appeal before a lawyer/judge.
In Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), decided just two days after the North decision, the Supreme Court again partially relied on the existence of a trial de novo to uphold a state court system when a defendant in a criminal case was initially tried without a jury before a nonlawyer judge, but had the right to obtain a trial de novo by jury on appeal. Thus, in Ludwig the Supreme Court ruled that no due process violation was found.
Our amended statute eliminates the right to a trial de novo on appeal for defendants who exercise their constitutional right to a jury trial; although, a trial de novo before a judge is preserved for defendants waiving their right to a jury trial below.
In the case of an appeal of a criminal proceeding tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of a criminal proceeding tried before the magistrate without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.
[Emphasis added.] The mere fact that the 1994 statute provides that all jury trials in magistrate court be electronically recorded, thus theoretically preserving the record for review on appeal, should not be used to disguise the fact that we have effectively eliminated a criminal defendant‘s right to trial by jury in the presence of a lawyer/judge.
No doubt the majority, as well as the Legislature, rightfully assumes they are highly unlikely ever to be in a position to benefit from the constitutional rights designed to protect criminal defendants. Presumably this explains the haste with which such rights have been diminished or eliminated by this Court and others. See State v. Charles, 183 W.Va. 641, 398 S.E.2d 123 (1990) (Miller, J., dissenting; Neely, J., joining) (creation of “lustful disposition” exception to
Notes
Appeal to Circuit Court. (a) Except for persons represented by counsel at the time a guilty plea is entered, any person convicted of a misdemeanor in a magistrate court may appeal such conviction to the circuit court as a matter of right....
....
(d) An appeal of a magistrate court criminal proceeding tried before a jury shall be heard on the record in circuit court. An appeal of a criminal proceeding tried before a magistrate without a jury shall be by trial de novo in circuit court without a jury.
The due process clause of the
Additionally, we note that although there is no specific equal protection clause in the
Additionally, we are mindful that the ex post facto principle is applicable only in criminal matters. See Tanner v. Workers’ Compensation Comm‘r, 176 W.Va. 427, 430, 345 S.E.2d 29, 32 (1986).
Mere procedural changes which affect only the mode of trial or the rules of evidence and which do not work to the substantial disadvantage of an accused are not customarily held to be within the ex post facto prohibition.... However, procedural changes can be ex post facto depending on their effect on the accused.
State v. R.H., 166 W.Va. 280, 289, 273 S.E.2d 578, 584 (1980), overruled on a different ground, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981) (citations omitted).