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WV SUPREME COURT
Spring 2002 Case Update

SER Gardner v. W. Va. Div. of Corrections and W. Va. Parole Board # 30038 - January 30, 2002

        Following his arrest for misdemeanor offenses, Gardner, a parolee, entered into an agreement with the parole board that if he had no further parole violations during a 30 day period that he would be reinstated to parole. While he had no new violations, Gardner pleaded guilty to the initial misdemeanor charges. The parole board then revoked his parole, citing his convictions. The Court granted Gardner's request for a writ of habeas corpus, holding that the parole board was bound by the terms of its agreement with Gardner, and that the convictions were not "new" offenses. The Court held that principles of law applicable to plea agreements between the State and a defendant also apply to conditional agreements between a parolee and the parole board.

WRIT GRANTED.

http://www.state.wv.us/wvsca/docs/spring02/30038.htm

State of West Virginia v. Ronald L. Adams, # 29960 - February 11, 2002

         The appellant challenged a 90 year sentence imposed by the court for a single count of aggravated robbery. The appellant's sole assertion on appeal was that the sentence was disproportionate to the offense. In reviewing the sentence, the Court restated the proportionality principles and examined the sentence under the "subjective/objective" tests from State v. Cooper, 172 W.Va. 266, 304 SE 2d 851 (1983). In essence, the Court held that because of the surrounding factors in the case, i.e., the defendant's record and certain elements of the plea agreement, the sentence did not "shock the conscience", nor did it violate objective standards.

90 YEAR SENTENCE AFFIRMED.

http://www.state.wv.us/wvsca/docs/spring02/29960.htm

Pamela Games Neely v. Real Property, # 29999 - February 22, 2002

        The State filed a forfeiture petition against real estate owned by the appellant. Following a default judgment, which was based on a 4-day delay in the filing of the answer, the appellant sought an appeal based, in part, on defective service of process. The appellant alleged that the State had neglected to serve the petition on a co-owner of the property and a separate lien-holder, as required by W.Va. Code 60A-7-705. The Court agreed with the appellant, noting that the State must exercise "diligent efforts" to identify and serve all property owners, and that the failure to do so can vitiate a forfeiture petition.

DEFAULT JUDGMENT REVERSED, REMANDED FOR FURTHER PROCEEDINGS.

http://www.state.wv.us/wvsca/docs/spring02/29999.htm

State v. Robert McClain, # 29839 - February 21, 2002

        In this appeal, the defendant challenged the circuit court's refusal to grant the defendant credit for 119 days served in the jail, when the trial court imposed a six-month jail term as a condition of probation. The Court addressed the distinction between jail terms imposed as a condition of probation for offenses with a minimum or indeterminate sentence, and those imposed under other statutory penalties (i.e., "no more than three years"). The Court held that the Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution required that the defendant receive credit for all terms of incarceration imposed.

REVERSED IN PART AND REMANDED.

(Richard Holicker, Kanawha Co. P.D. Office, for the Appellant).

http://www.state.wv.us/wvsca/docs/spring02/29839.htm

In Re Daniel D. and Samantha D., # 29965 - February 22, 2002

        In this abuse/neglect action, the Court addressed the issue of the appellant's assertion of his Fifth Amendment right against self-incrimination and the effect that such assertion can have on the abuse/neglect proceeding. After the filing of an abuse/neglect petition, which alleged sexual improprieties by the appellant against his daughter, the appellant exercised his right to remain silent at the abuse/neglect hearings. The appellant continued this assertion after the eventual indictment and through the dispositional hearing, which assertion apparently resulted in the termination of his parental rights.

        The Court reversed the termination and remanded the matter to the circuit court to permit the appellant an additional improvement period. The Court ruled, in essence, that when a party to an abuse/neglect action provides information to any party pursuant to a court order, that such information could not be subsequently used against the person in criminal proceedings.

REVERSED AND REMANDED WITH DIRECTIONS.

http://www.state.wv.us/wvsca/docs/spring02/29965.htm

State v. Lance A. Tyler, #29759 - March 15, 2002

        Following a guilty plea, the appellant challenged his 30 year sentence for aggravated robbery on the grounds that the sentence was disproportionate to the character and degree of the offense. The appellant noted that the victim had not been injured; that he had no prior felony convictions; that he had cooperated with authorities; and that there was conflicting evidence regarding his involvement in the robbery. The Court reviewed the proportionality of the sentence under the "subjective/objective" standards of State v. Cooper, 172 W.Va. 266, 304 SE 2d 851 (1983). Noting the use of a handgun in the commission of the offense and the appellant's refusal to divulge the identity of his accomplice, the Court held that the defendant's sentence did not subjectively "shock the conscience". The Court also noted that the sentence did not violate the objective standards set forth in Cooper, i.e., the nature of the offense, the legislative purpose behind the punishment, a comparison with other jurisdictions, and a review of West Virginia precedent (the opinion contains a fair discussion of numerous past West Virginia cases on this issue). The Court therefore held that the sentence was not constitutionally disproportionate.

30 YEAR SENTENCE AFFIRMED.

http://www.state.wv.us/wvsca/docs/spring02/29759.htm

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US SUPREME COURT UPDATE
Selected Cases
October, 2001 - March 19, 2002

    Civil commitment of sexual offenders requires proof of serious difficulty in controlling behavior

Kansas v. Crane, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (Breyer,J)

http://supct.law.cornell.edu/supct/html/00-957.ZO.html

In Kansas v.Hendricks, 521 U.S. 346, the Supreme Court upheld civil commitment under the Kansas Sexually Violent Predator Act noting that "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety."

Held: Hendricks set forth no requirement of total or complete lack of control, but the Constitution does not permit commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. Finding that there must be proof of serious difficulty in controlling behavior, the Court vacated and remanded.

    Forfeiture notice to federal prisoner satisfies Due Process

Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (Rehnquist, C.J.) (Affirmed)

http://supct.law.cornell.edu/supct/html/00-6567.ZO.html

While petitioner was in prison on federal drug charges, the FBI began an administrative process to forfeit cash seized in the execution of a search warrant by sending notice by certified mail addressed to the petitioner in care of the federal correctional institution where he was incarcerated, to the address of the residence where he was arrested, and to an address in the town where his mother lived. When no response was received to these notices within the time allotted, the cash was administratively forfeited.

Held: the FBI's notice of the cash forfeiture satisfied due process.

    Federal habeas review not precluded by procedural default rule injected into case by appellate court

Lee v. Kemna, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (Ginsburg, J.)

http://supct.law.cornell.edu/supct/html/00-6933.ZO.html

Petitioner asserts that a Missouri trial court deprived him of due process when the court refused to grant an overnight continuance of his trial to locate subpoenaed, previously present, but suddenly missing witnesses key to his defense against felony charges. On direct review, the Missouri Court of Appeals disposed of the case on a state procedural ground finding the continuance motion defective under the State's rules and declined to consider the merits of Lee's plea that the trial court had denied him a fair opportunity to present a defense. Neither the trial judge nor the prosecutor identified any procedural flaw in the presentation or content of Lee's motion for a continuance. The Missouri Court of Appeals, however, held the denial of the motion proper because Lee's counsel had failed to comply with Missouri Supreme Court Rules not relied upon or even mentioned in the trial court.

Held: the Missouri Rules, as injected into this case by the state appellate court, did not constitute state grounds adequate to bar federal habeas review.

    Search pursuant to search condition in probation order

United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (Rehnquist, J. for a unanimous Court)

http://supct.law.cornell.edu/supct/html/00-1260.ZO.html

Knights was sentenced by a California court to summary probation for a drug offense. The probation order included the condition: that Knights would "[s]ubmit his … person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Three days after Knights was placed on probation, the latest in more than 30 recent acts of vandalism against PG & E facilities in Napa County occurred. Suspicion for these acts had long focused on Knights. A sheriff's detective, with reasonable suspicion, subsequently searched Knights's apartment.

Relying on its earlier decisions holding that the search condition in the probation order "must be seen as limited to probation searches, and must stop short of investigation searches", the Ninth Circuit affirmed the lower court's ruling granting Knights motion to suppress.

Held: the warrantless search pursuant to the probation condition and supported by reasonable suspicion satisfied the Fourth Amendment.

   Totality of the circumstances test for reasonable suspicion

United States v. Arvizu, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (Rehnquist, C.J. for a unanimous Court)

http://supct.law.cornell.edu/supct/html/00-1519.ZO.html

Respondent was stopped by a border patrol agent while driving on an unpaved road in a remote area of southeastern Arizona. A search of his vehicle turned up more than 100 pounds of marijuana. The Court of Appeals for the Ninth Circuit reversed the denial of his suppression motion, categorizing certain factors relied upon by the District Court as simply out of bounds in deciding whether there was "reasonable suspicion" for the stop.

Held: reversed and remanded. The Court found the approach taken by the Court of Appeals, one of evaluation and rejection of seven listed factors in isolation from each other, departs sharply from Fourth Amendment teachings and did not take into account the "totality of the circumstances," as prior cases have understood that phrase. The Court noted the Court of Appeals appeared to believe that each observation by the agent that was by itself readily susceptible to an innocent explanation was entitled to no weight and rejected this "divide and conquer" analysis. The Court cited prior case law where factors susceptible to innocent explanation in isolation were collectively found to amount to reasonable suspicion. The Court also found the Court of Appeals' view that it was necessary to "clearly delimit" an officer's consideration of certain factors to reduce "troubling … uncertainty," also runs counter to prior cases and underestimates the usefulness of the reasonable suspicion standard in guiding officers in the field.

    Rule 11 violations are subject to the plain error rule after a review of the entire record

United States v. Vonn, 122 S.Ct. 1043 (2002) (Souter, J.)

http://supct.law.cornell.edu/supct/html/00-973.ZO.html

Rule 11 of the Federal Rules of Criminal Procedure sets forth the procedure a trial judge must follow to ensure that a guilty plea is knowing and voluntary. Rule 11(h) provides that any variance which does not affect substantial rights shall be disregarded and is similar to the general "harmless error rule" in Rule 52(a). Rule 11 does not include a "plain error" provision as that set forth in Rule 52(b) which provides that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court".

Under the harmless error standard, consideration of error raised by a defendant's timely objection is subject to an opportunity by the Government to show that any error had no effect on the defendant's substantial rights. Plain error analysis, however, requires a defendant who sat silent at trial to show that his substantial rights were affected and to persuade the court that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

The questions presented are: (1) whether Congress's importation of the harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eliminate a silent defendant's burdens under the Rule 52(b) plain-error review, and instead give him a right to subject the Government to the burden of demonstrating harmlessness; and (2) whether a court reviewing Rule 11 error under either standard is limited to examining the record of the colloquy between court and defendant when the guilty plea was entered, or may look to the entire record begun at the defendant's first appearance in the matter leading to his eventual plea.

Held: a silent defendant has the burden to satisfy the plain-error rule and a reviewing court may consult the whole record when considering the effect of any error on substantial rights.

    Parole ineligibility in capital case

Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (Souter, J.) (Reversed and remanded)

http://supct.law.cornell.edu/supct/html/00-9280.ZO.html

Petitioner was convicted of murder, kidnapping, armed robbery and possession of a knife during the commission of a violent crime. Petitioner's request for a jury instruction that if he received a sentence of life imprisonment, he would be ineligible for parole was denied.

Held: the petitioner was entitled to a jury instruction that he would be ineligible for parole under a life sentence. In Shafer v. South Carolina, 532 U.S. 36 (2001), the Court reiterated the holding of Simmons v. South Carolina, 512 U.S. 154 (1994) that when "a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant 'to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.' "

Note: West Virginia case law sets forth a trial court's responsibility for instructing a jury in cases where mercy is an option. Syl. pt. 3 of State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977) provides: "In a case in which a jury may return a verdict of guilty of murder of the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that to such verdict it may add a recommendation of mercy, that such recommendation would mean that the defendant could be eligible for parole consideration only after having served a minimum of [ ] years and that otherwise the defendant would be confined to the penitentiary for life without possibility of parole."

And in State v. Headley, 168 W.Va. 138, 282 S.E.2d 872 (1981), the Court continued: "...Furthermore, the court must explain briefly that mere eligibility for parole in no way guarantees immediate parole after [ ] years and that parole is given to inmates only after a thorough consideration of their records by the parole board. See W.Va. Code, 62-12-13 (1981)."

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UPCOMING TRAINING EVENTS

West Virginia Public Defender Services will be sponsoring the 2002 Annual Public Defender Conference on June 21-22, 2002 at Canaan Valley Resort in Davis, West Virginia.

Watch this space for details of the Conference, including speaker information, in future editions of the Newsletter.

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Wanted: Any and All Suggestions

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 rcook@pds.state.wv.us.

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West Virginia Criminal Law Newsletter

A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~

Department of Administration
Public Defender Services
Building 3, Room 330
1900 Kanawha Blvd., East
Charleston, WV 25305-0730
(304) 558-3905 phone
(304) 558-1098 fax

E-mail Jack Rogers:jrogers@pds.state.wv.us

E-mail Russ Cook:rcook@pds.state.wv.us

E-mail Elizabeth Murphy: liz@wvdefender.com

(Publications available in large type upon request)