Criminal Law Newsletter
of WEST VIRGINIA PUBLIC DEFENDER SERVICES
|Volume 3, Issue 3||December 2002|
Public Defender Services is currently suffering from severe under-funding. Requests for additional funds have not been granted for the last several fiscal years, resulting in an estimated deficit in FY 2002 (ending June 30, 2002) of $3,000,000. The current year deficit is at least that amount, for a total FY 2003 deficit of approximately $ 6,000,000. On March 18, 2002 we warned all current service providers of the FY 2002 deficit. As the additional memos of May 28 and June 18, 2002 pointed out, this difficulty will continue through the current fiscal year.
In addition to initial budgetary under-funding, we have also suffered from across the board expenditure reductions. PDS has taken extraordinary steps to economize in Public Defender offices in order to fund private appointed counsel. In FY 2000 the entire 3% reduction, amounting to $826,712, was taken from Public Defender budgets. In FY 2001 the expenditure reduction of $764,514 was also taken from Public Defenders.
Even more importantly, funds were also transferred from Public Defender budgets back to appointed counsel. In FY 2001, $2,145,106 was reallocated. In FY 2002, $2,315,120 was reallocated. Clearly, the only element within PDS control has been carefully managed to the benefit of private counsel. Total expenditures for private counsel rose from $12,633,115 in FY 2000, to $14,763,083 in FY 2001, before falling back to $13,987,546 in FY 2002.
Even after transferring $2 million dollars from the fourth quarter allocation (not additional money), as of 1 December 2002 we will have approximately $4 million dollars of unpaid vouchers on hand. The December allocation (we are given monthly disbursements to spend) will pay for vouchers received through 5 September 2002. Despite the steps that will be taken once again to drain Public Defender resources, there is nothing that can be done to make up for the current deficit except supplemental funding for this fiscal year.
I suggest that you contact your local elected representatives to apprise them of this problem. Certainly the funding of the constitutional right to counsel is at least equally important, if not paramount to, other constitutional requirements like a thorough and efficient education.
(All opinions included in the Fall 2002 Case Update may be viewed online at http://www.state.wv.us/wvsca/fall2002.htm)
State v. Seenes, No. 30409 - October 11, 2002 (Reversed and Remanded for Dismissal of Indictment) (Per Curiam)DETAINERS - INTERSTATE AGREEMENT ON DETAINERS
The appellant, while incarcerated in Ohio, sent West Virginia authorities his request for final disposition of a pending indictment. The request was received in West Virginia on June 6, 2000. Although the appellant was arraigned in West Virginia within the 180-day period, the trial was not scheduled until January of 2001. The Court held that it was incumbent upon the prosecution to alert the court to the implications of the Interstate Agreement on Detainers (IAD), and its requirement that an accused be tried within 180 days of the state's receipt of the appellant's demand for final disposition. The Court held that the State is strictly bound by the 180-day rule in Article III(a) of the IAD, and that under Article V(c) of the IAD, dismissal of the indictment with prejudice was the appropriate remedy.
State ex rel. Gessler v. Mazzone, No. 30626 - October 11, 2002 (Writ of Prohibition Denied) (Per Curiam)
PLEA AGREEMENTS - VALIDITY - DOUBLE JEOPARDY
The petitioner entered into a plea agreement wherein he agreed to plead guilty to two felony offenses in exchange for the dismissal of six other charges. Prior to the sentencing, the judge discovered that the offenses to which the petitioner had pleaded guilty had been classified as misdemeanors at the time of the commission of the acts. The court determined that the plea agreement was thus invalid and unenforceable, set the agreement aside, and reinstated the six charges that had been dismissed with prejudice. The petitioner claimed that the reinstatement of these charges constituted a violation of double jeopardy.
The Court held that there was no violation of double jeopardy, and that since the plea agreement was a comprehensive agreement, the failure of one part of the agreement (i.e., the legal impossibility of the plea) necessarily required vacation of the entire plea agreement and restoration of the parties to their pre-plea position.
Office of Lawyer Disciplinary Counsel v. Nichols, No. 30690 - October 11, 2002 (Temporary Suspension Of Law License Ordered) (Per Curiam)
ATTORNEYS - DISCIPLINARY PROCEEDINGS
The attorney was the subject of two separate ethical complaints alleging, inter alia, the failure on the part of the attorney to file lawsuits and misrepresentation to the clients as to the status of the cases. While the disciplinary investigations were being conducted, the attorney became the subject of several additional complaints alleging similar conduct. The Office of Lawyer Disciplinary Counsel (OLDC) sought the temporary suspension of the attorney's law license until the initial underlying complaints are resolved.
The Court agreed with the OLDC, finding that there was sufficient credible evidence to believe that the attorney had committed violations of the Rules of Professional Conduct, and that the attorney would pose a substantial threat of irreparable harm to the public and to the integrity of the judicial process if the attorney's license were not suspended.
State ex rel. Holcomb v. Nibert, No. 30519, October 18, 2002 (Writ of Mandamus Denied) (Per Curiam)
SENTENCING - FINES AND COSTS
The petitioner was convicted of a number of misdemeanor offenses, and did not pay the assessed fines and costs. Several years later, following the revocation of his driver's license, the petitioner filed for dismissal of the fines and costs, citing among other issues his inability to pay. The circuit court refused to dismiss the fines and costs, and the petitioner filed for a writ of mandamus to compel dismissal of the fees.
Held: That West Virginia Code, 59-1-36, which permits waiver of certain fees and costs of county and state agencies, does not apply to fines and costs assessed by magistrate courts.
Lawyer Disciplinary Board v. Lusk, No. 29972, November 1, 2002 (License to Practice Law Annulled) (Per Curiam)
ATTORNEYS - DISCIPLINARY PROCEEDINGS
The attorney was the subject of four (4) separate ethical complaints. The attorney failed to respond to three of the complaints, and did not file a response to the Statement of Charges (and Amended Statement of Charges) filed by the Investigative Panel. Based on the attorney's failure to file a response, the hearing Panel Subcommittee deemed admitted the factual allegations contained in the Statements. Based upon these violations and the aggravating circumstances surrounding these violations, the hearing Panel Subcommittee recommended that the attorney's license be annulled and that he be ordered to pay restitution to various clients.
Held: That the attorney's actions in failing to respond to clients, failing to file requested actions, failing to pay service providers and failing to respond to LDB requests justified annulment of the attorney's law license.
In re Kristopher E. and Kenneth C. E., No. 30444, November 4, 2002 (Per Curiam) (Reversed and Remanded) [Gail Vorhees, Public Defender Corp., 18th Circuit, for Appellant].
ABUSE AND NEGLECT - RELINQUISHMENT OF PARENTAL RIGHTS
Appellant father sought review of ruling of circuit court terminating his parental rights. During abuse/neglect proceedings, appellant had indicated willingness to voluntarily relinquish rights, but circuit court had required adjudication of father as abusive/neglectful parent.
Held: That in accordance with In Re James G. (No. 30039, June 13, 2002), a trial court can accept a voluntary relinquishment of parental rights without adjudicating the underlying question of abuse/neglect.
State v. Donna Manley, No. 30408, November 1, 2002 (Per Curiam) (Affirmed)
SENTENCING - PROPORTIONALITY
Appellant pleaded guilty to a number of forgery and uttering charges and was sentenced to 8 to 80 years imprisonment. The sentence was subsequently reduced to 6 to 60 years. Appellant claimed that sentence was disproportionate to nature and character of offenses, and was disproportionate to sentences for co-defendants.
Held: That since sentences were imposed on statutes with fixed maximum periods of incarceration, i.e., 1 to 10 years each, and that since no impermissible factors were considered in imposing sentences, the sentences were within the proper parameters and thus did not warrant application of constitutional proportionality standards.
In Re Tonjia M., No. 30404, November 1, 2002 (Per Curiam) (Affirmed)
ABUSE AND NEGLECT - TERMINATION OF PARENTAL RIGHTS
Appellant/father sought review of order terminating parental rights. Appellant also sought review of denial of post-adjudicatory period of improvement; denial of visitation during pendency of action; and admission into evidence of photographs made from an undeveloped roll of film found at appellant's home during search.
Held: That circuit court's finding of abuse-neglect, given conflicting expert testimony regarding whether child was victim of abuse, was not clearly erroneous. Also, that trial court did not abuse discretion in denying period of improvement or visitation, and that admission of photographs was, given weight of evidence against appellant, harmless error.
State v. Susan Brown, No. 30403, November 4, 2002 (Per Curiam) (Reversed and Remanded)
DOUBLE JEOPARDY - SENTENCING
Appellant was convicted at trial of, inter alia, larceny by embezzlement and larceny by fraudulent schemes. Appellant asserted, and State conceded, that convictions for both charges for a single incident violated double jeopardy principles.
Held: That under State v. Rogers, 209 W. Va. 348, 547 S. E. 2d 910 (2001), double jeopardy was violated by conviction for both offenses. Instead of ordering a new trial, the Court ordered re-sentencing in accordance with Rogers.
Lawyer Disciplinary Board v. Sims, No. 28473, November 4, 2002 (Per Curiam) (Public Reprimand + Costs)
ATTORNEYS - DISCIPLINE
Prosecuting Attorney was removed from office in In Re Sims, 206 W. Va. 213, 523 S.E. 2d 273 (1999) for various improprieties. Disciplinary proceedings were instituted to determine appropriate sanction for attorney's extrajudicial statements to media regarding grand jury matters. Hearing Panel recommended suspension of law license.
Held: That suspension of law license was not warranted, chiefly due to mitigating factor that attorney had been removed from office and that such removal was an "effective, dramatic and powerful punishment" for improper acts.
State of West Virginia v. Paul Varner, Jr., No. 30518, November 8, 2002 (Per Curiam) (Reversed and Remanded)
JUROR DISQUALIFICATION - JUROR MISCONDUCT
The appellant was convicted of first-degree murder. During voir dire, a juror (the eventual foreperson) did not respond to a question regarding past criminal history. The juror had, in fact, been charged several months earlier with a drug offense and was, at the time of the appellant's trial, under an agreement with the state wherein she was would undergo drug testing in lieu of prosecution. The appellant's counsel learned of the situation post-trial from an alternate juror and brought it to the attention of the court, which denied the appellant's motion to set aside the verdict.
Held: That the appellant was denied a fair trial because of the "well-grounded suspicion" that the juror, who was a party to a "very unusual" agreement with the State at the time of the trial, would likely favor the State because of the favorable treatment received from the prosecuting attorney's office. The Court brushed aside the State's arguments that (1) the appellant's motion was untimely because it was not raised immediately upon discovery, but a few weeks afterwards, and (2) the appellant had failed to show that the juror was not fair and impartial.
Mugnano v. Painter, No. 30618, November 18, 2002 (Per Curiam) (Denial of Habeas Corpus Affirmed) (Richard Lorenson, Chief Public Defender for 11th Judicial Circuit, for Petitioner)
HABEAS CORPUS - IMPROPER STATEMENTS BY PROSECUTOR DURING SENTENCING
Petitioner pleaded guilty to first degree murder. As part of plea bargain, the State agreed not to recommend a specific sentence. At the sentencing hearing, and in response to defense counsel's statement regarding petitioner's advanced age if subsequently released from prison, the prosecutor stated that the victim would"still be dead" at such time. There was no objection to this statement. Following denial of his appeal, the petitioner asserted on habeas corpus that this statement amounted to a comment on a specific sentence and thus violated the plea agreement.
Held: That the statement did not violate the plea agreement. The Court affirmed the decision of the circuit court in denying habeas relief on the ground that the State had reserved in the plea agreement the right to address the trial court in regard to the petitioner's "acceptance of responsibility" and the nature and seriousness of the crime. The Court held that the statement was not a recommendation regarding a specific sentence. The Court also determined (1) that it was not error for the trial court to refuse to appoint counsel for the petitioner for his habeas proceeding, and (2) that since it was not error for the prosecutor to make the statement in question, the petitioner was not denied effective assistance of counsel by trial counsel's failure to object to the statement.
State v. Michael Flippo, No. 30527, November 27, 2002 (Davis, C.J.) (Affirmed) (Ira Mickenberg and George Castelle, 13th Circuit Public Defenders Office, for Appellant).
SEARCH AND SEIZURE - IMPLIED CONSENT TO SEARCH - INEVITABLE DISCOVERY RULE
Following remand by the United States Supreme Court (Flippo v. United States, 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed 2d 16 (1999)), the trial court conducted a hearing to determine the admissibility of a series of photographs seized from a briefcase at the scene of a homicide. The trial court held that the photographs were admissible based on an "implied consent" to search the scene provided by the defendant. The trial court also held, in the alternative, that the photos were admissible under the "inevitable discovery " rule. Lastly, the trial court held that, to the extent that the photos were erroneously admitted, that any such error would be harmless.
Held: in a 67-page opinion, the Court (1) adopted the "implied consent" exception to the search warrant requirement, but held that the exception was inapplicable to the appellant because he had effectively revoked his consent upon being advised that he was suspect in the homicide; (2) adopted the minority view regarding the application and use of the "inevitable discovery" exception to the warrant requirement, but held that the exception did not apply to the defendant's case because the police had not initiated any steps to procure a search warrant at the time of the discovery of the photographs; and (3) held that the improper admission of the photos was harmless error, given what the Court termed "overwhelming evidence" proving the defendant's guilt and the non-prejudicial nature of the photos.
State ex rel. Clifford v. Stucky, No. 30739, November 27, 2002 (Albright, J.) (Writ of Prohibition Granted)
COMPLAINTS - DEFECTS IN COMPLAINTS NOT INVALIDATING COMPLAINT
Defendant was charged with misdemeanor battery. The magistrate who issued the summons failed to check the box marked "probable cause found" on the complaint. On appeal, the circuit court determined that the magistrate's failure to check the appropriate box was a material defect in the initiation of the action and dismissed the complaint. The State filed for a writ of prohibition to prohibit the dismissal of the case.
Held: That the magistrate's failure to check the probable cause box was not a material defect. The Court observed that when the complaint was read in conjunction with the summons issued by the same magistrate (the first words of which were,"The Court has found probable cause..."), it was clear that the magistrate had made a probable cause determination. The Court held that the documents initiating a criminal prosecution must be "taken as a whole" in determining whether a probable cause determination has been made.
State ex rel. Youngblood v. Sanders, No. 30785, November 27, 2002 (Albright, J.) (Writ of Prohibition Granted)
ATTORNEYS -CONFLICT OF INTERESTS - REPRESENTATION OF CO-DEFENDANTS
Prior to an attorney's representation of a defendant in a murder case, a paralegal in the attorney's office held a short meeting with the wife of a co-defendant. The attorney did not represent the co-defendant for financial reasons, but during the meeting the wife did disclose certain facts to the paralegal. After the co-defendant pleaded guilty and agreed to testify against the client, the State filed a motion to disqualify counsel for the defendant. The trial court granted the motion, holding that the facts disclosed to the paralegal created a conflict of interest for the attorney.
Held: That no conflict of interest existed, and that the defendant had a right to have his attorney represent him at trial. The Court determined that the matters discussed between the paralegal and the co-defendant's wife were either general statements of facts and procedure, or concerned matters that were "generally known" and contained in police reports.
In re Aaron Thomas M., No. 30600, November 27, 2002 (Per Curiam) (Termination of Parental Rights Affirmed)
TERMINATION OF PARENTAL RIGHTS - MARIJUANA USE AS CONSTITUTING GROUNDS FOR TERMINATION
The DHHR filed a fifteen-count petition alleging abuse and neglect by the mother of three children. The primary ground relied upon by the State concerned the confiscation of a marijuana pipe from one of the children at school. The trial court determined, inter alia, that the child's familiarity with the pipe, coupled with the mother's repeated failure of drug tests, led to the conclusion that the children were being abused by the mother's use of marijuana in their presence.
Held: That the trial court was not "clearly erroneous" in concluding that the mother had used drugs in the presence of her children, and that such use constituted abuse. The Court also concluded that the trial court was not in error in terminating the mother's parental rights, and that any error by the trial court in compelling the mother to testify at the adjudicatory hearing was invited and waived.
State ex rel. Berry v. McBride, No. 30696, November 27, 2002 (Per Curiam) (Writ of Mandamus Granted)
PRISON/JAIL CONDITIONS - RIGHT TO SOLE OCCUPANCY OF CELL
The petitioner, an inmate at Mount Olive who is confined to a wheelchair, filed a writ of mandamus to require the warden to provide him with a one-inmate cell. The warden had previously placed another inmate in the cell, and had indicated that if overcrowding conditions persisted another inmate might be placed in the cell at a future date.
Held: That the petitioner did not have a constitutional right, or a right under the Americans with Disabilities Act, to a one-inmate cell because of his medical condition. However, because state prison regulations mandate that a "single-occupancy" cell cannot contain more than one inmate, and because the Warden had not denied the petitioner's assertion that his cell was "single-occupancy", the Court held that the petitioner was entitled to sole occupancy of his cell.
The October 2002 term of the United States Supreme Court began on Monday, October 7. Cases are scheduled for oral argument through January 2003. Additional cases will be scheduled for argument February through April 2003.
The following selected cases are scheduled for argument. Available briefs can be found at: http://supreme.lp.findlaw.com/supreme_court/docket/2002/november.html#01-9094CIVIL RIGHTS
Since the purpose of this newsletter is to provide you with information and tools to help you in your job, suggestions about feature articles, issues you want addressed or other items you would like to see in the publication are more than welcome. You may have a funny experience or a learned treatise of your own that you would like to share with other criminal defense practitioners. Please send any suggestions, comments and/or contributions to Russ Cook at WV Public Defender Services by conventional or electronic mail at email@example.com.
TRAINING AND CLE - TOPICS AND SPEAKERS - The Criminal Law Research Center (CLRC) would like to hear from any and all persons with specific ideas regarding future seminars to be presented by the CLRC. If you have any ideas for specific seminar topics, or if you or anyone you know would be interested in presenting a topic at a training session, please contact Russ Cook at (304) 558-3905, or by e-mail at firstname.lastname@example.org
Each day, Public Defenders throughout the state are confronted with particular issues or events that, while they may seem unique, may have been encountered by other Public Defenders. [For example, a short while back I was asked about the ramifications of Rule 12(h) of the West Virginia Rules of Criminal Procedure. This rule permits a judge, after granting a motion to dismiss an indictment based on defects in the indictment, to order that the defendant be "continued in custody" pending the filing of a new indictment. The rule contains no limitation as to the length of time that a defendant may be held after his/her indictment is dismissed. Prior to this question, I had never seen this provision applied by any court.] Needless to say, it is often helpful to draw upon the resources and experience that is available to us through our colleagues in the Public Defender offices.
Do you have a unique experience or issue that you would like to share or discuss with your fellow Public Defenders? The CLRC is inviting all Public Defenders to submit any questions, comments or opinions on particular issues for publication in the West Virginia Criminal Law Resource Center Newsletter. Please forward all submissions to Russ Cook at the CLRC, or e-mail submissions to email@example.com
Christmas is a time for pausing to appreciate the goodwill of others. We here at Public Defender Services would like to extend our warmest wishes and a hope for peace and goodwill to you and your families throughout the holiday season.
Have A Very Merry Christmas
A Happy New Year
A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~
Jack Rogers, Executive Director
Inquiries, articles and suggestions welcome.
Please direct the same to Jack Rogers, Russ Cook or Elizabeth Murphy by any of the following means:
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