


| Volume 5, Issue 1 | An informative newsletter of the State of West Virginia Public Defender Services. | May 2004 |
First the good
news. During the recent Extraordinary
Session the Legislature gave Public Defender Services a $4.2 million
supplemental appropriation for this fiscal year. That amount should be sufficient for us to
become current on all private counsel billings by early
summer.

| United States Supreme Court Updates |
| December 2003 - March 2004 |
United States v.
Banks, (02-473,
December 2, 2003) (Souter, J. for a unanimous Court)
http://supct.law.cornell.edu/supct/html/02-473.ZO.html
Federal and local law enforcement officers went to respondent’s apartment
to execute a warrant to search for cocaine. They called out “police search
warrant” before knocking on the front door hard enough to be heard by officers
at the back door. There was no indication whether anyone was home, and after
waiting for 15 to 20 seconds with no answer, the officers broke open the front
door with a battering ram. Respondent was in the shower and testified that he
heard nothing until the crash of the door, which brought him out dripping to
confront the police. The search produced weapons, crack cocaine, and other
evidence of drug dealing.
The Court granted certiorari to
consider how to go about applying the standard of reasonableness to the length
of time police with a warrant must wait before entering without permission after
knocking and announcing their intent in a felony case.
Although there was no dispute in
this case over whether or not the officers were obliged to knock and announce
their intentions before executing the warrant (the police concededly arrived at
respondent’s door without reasonable suspicion of facts justifying a no-knock
entry), the Court discussed standards for requiring or dispensing with a knock
and announcement, since the same
criteria bear on when the officers could legitimately enter after
knocking. This case turned on the significance of exigency revealed by
circumstances known to the officers which the Government claimed was a risk of
losing easily disposable evidence arising shortly after knocking and announcing.
The Court found it was a close call, but after 15 or 20 seconds without a
response, police could fairly suspect that cocaine would be gone if they were
reticent any longer.
Held: the officers’ 15-to-20-second wait before
forcible entry satisfied the Fourth Amendment.
Maryland v.
Pringle, (No.
02-809, Dec. 15) (Rehnquist, C.J. for a unanimous Court) http://supct.law.cornell.edu/supct/html/02-809.ZO.html
A passenger car occupied by three
men was stopped for speeding by a police officer. Respondent was a passenger in
the front seat. The officer, upon searching the car with the driver-owner's
consent, seized $763 of rolled-up cash from the glove compartment and five
glassine baggies of cocaine from between the back-seat armrest and the back
seat. After all three men denied ownership of the cocaine and money; the officer
arrested each of them.
The Court of Appeals of Maryland
held that, absent specific facts tending to show respondent's knowledge and
dominion or control over the drugs, “the mere finding of cocaine in the back
armrest when [respondent] was a front seat passenger in a car being driven by
its owner is insufficient to establish probable cause for an arrest for
possession.”
It was uncontested that the officer,
upon recovering the five plastic glassine baggies containing suspected cocaine,
had probable cause to believe a felony had been committed. The sole question is
whether the officer had probable cause to believe that respondent committed that
crime.
Held: the officer had probable cause to
arrest respondent. Reversed.
http://supct.law.cornell.edu/supct/html/02-1060.ZO.html
An unknown motorist traveling on a
highway in Illinois struck and killed a 70-year-old bicyclist. The motorist
drove off without identifying himself. About one week later at about the same
time of night and at about the same place, local police set up a highway
checkpoint designed to obtain more information about the accident from the
motoring public. Police cars with flashing lights partially blocked the
eastbound lanes of the highway. An officer stopped each vehicle for 10 to 15
seconds to ask the occupants whether they had seen anything happen there the
previous weekend and to hand each driver a flyer requesting assistance in
identifying the vehicle and driver in the accident.
As the respondent approached the
checkpoint, his van swerved, nearly hitting one of the officers. The officer
smelled alcohol on respondent's breath. He directed him to a side street where
another officer administered a sobriety test and then arrested him. Respondent
was tried and convicted in Illinois state court of driving under the influence
of alcohol.
The Court found the decision in
Indianapolis v. Edmond, 531 U.S. 32 (2000) did not govern the outcome of this
case, noting that the checkpoint stop here differed significantly from that in
Edmond. The stop’s primary law enforcement purpose was not to determine whether
a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as
members of the public, for their help in providing information about a crime in
all likelihood committed by others. The police expected the information elicited
to help them apprehend, not the vehicle’s occupants, but other individuals.
The Court found certain
considerations, taken together, were convincing that an Edmond-type presumptive
rule of unconstitutionality does not apply here. The considerations included:
the fact that such stops normally lack individualized suspicion cannot by itself
determine the constitutional outcome; special law enforcement concerns will
sometimes justify highway stops without individualized suspicion; unlike Edmond,
the context here (seeking information from the public) is one in which, by
definition, the concept of individualized suspicion has little role to play;
information-seeking highway stops are less likely to provoke anxiety or to prove
intrusive; the law ordinarily permits
police to seek the voluntary cooperation of members of the public in the
investigation of a crime; and the Court did not believe that an Edmond-type rule
is needed to prevent an unreasonable proliferation of police
checkpoints.
Considering the reasonableness of
the checkpoint stop before them in light of all the factors addressed, the Court
held the stop was constitutional.
Fellers v. United
States, (No.
02-6320, January 26) (O'Connor, J.)
http://supct.law.cornell.edu/supct/html/02-6320.ZO.html
After a grand jury indicted the
petitioner, police officers went to his home, advised the petitioner they had
come to discuss his involvement in methamphetamine distribution and informed him
they had a warrant for his arrest and that a grand jury had indicted him. During
the course of the arrest, the petitioner made inculpatory statements. The
petitioner was transported to jail, at which point he was advised of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966) and Patterson v. Illinois, 487
U.S. 285 (1988) for the first time. He signed a Miranda waiver form and
reiterated the inculpatory statements he had made earlier and made additional
statements. At trial, the District Court suppressed the "unwarned" statements
made at the home, but admitted petitioner's jailhouse statements pursuant to
Oregon v. Elstad, 470 U.S. 298 (1985), concluding petitioner had knowingly and
voluntarily waived his Miranda rights before making the
statements.
Petitioner appealed his conviction
arguing his jailhouse statements should have been suppressed as fruits of the
statements obtained at his home in violation of the Sixth Amendment. The Court
of Appeals affirmed. With respect to his argument that the officers' failure to
administer Miranda warnings at his home violated his Sixth Amendment right to
counsel under Patterson, the Court of Appeals found Patterson to be inapplicable
"for the officers did not interrogate [petitioner] at his home" and that the
jailhouse statements were properly admitted under Elstad because of a knowing
and voluntary waiver.
In Massiah v. United States, 377
U.S. 201 (1964) the Sixth Amendment right to counsel was found to be violated
when federal agents deliberately elicited statements from the accused after
indictment and in the absence of counsel. Patterson holds that the Sixth
Amendment does not bar post-indictment questioning in the absence of counsel if
a defendant waives the right to counsel.
Here, the Court held the Court of
Appeals erred in holding that the absence of an "interrogation" foreclosed
petitioner's claim that the jailhouse statements should have been suppressed as
fruits of the statements taken from petitioner at his home. The Court
found:
1. There was no question that the
officers "deliberately elicited" information from petitioner. Because the
discussion took place after petitioner had been indicted, outside the presence
of counsel and in the absence of any waiver of petitioner's Sixth Amendment
rights, the Court of Appeals erred in holding that the officers' actions did not
violate the Sixth Amendment;
2. Because of its erroneous
determination that petitioner was not questioned in violation of the Sixth
Amendment, the Court of Appeals improperly conducted its "fruits" analysis under
the Fifth Amendment, specifically applying Elstad to hold that the admissibility
of the jailhouse statements turned solely on whether the statements were
"knowingly and voluntarily made". The Court of Appeals did not reach the
question whether the Sixth Amendment requires suppression of petitioner's
jailhouse statements on the ground that they were the fruits of previous
questioning conducted in violation of the Sixth Amendment deliberate-elicitation
standard.
The Court remanded to the Court of
Appeals to address the issue of whether the rationale of Elstad applies when a
suspect makes incriminating statements after a knowing and voluntary waiver of
his right to counsel notwithstanding earlier police questioning in violation of
the Sixth Amendment.
Groh v. Rameriz, (No. 02-811, Feb. 24) (Stevens, J.)
http://supct.law.cornell.edu/supct/html/02-811.ZO.html
Officer conducting search was not
entitled to qualified immunity. Petitioner, a Special ATF Agent, conducted a
search of respondents’ home pursuant to a warrant that failed to describe the
“persons or things to be seized.” The questions presented in this 42 U.S.C. 1983
action are (1) whether the search violated the Fourth Amendment, and (2) if so,
whether petitioner nevertheless is entitled to qualified immunity, given that a
Magistrate Judge, relying on an affidavit that particularly described the items
in question, found probable cause to conduct the search.
A concerned citizen informed petitioner that on a number of visits to
respondents’ ranch the visitor had seen a large stock of weaponry, including an
automatic rifle, grenades, a grenade launcher, and a rocket launcher. Based on
that information, petitioner prepared and signed an application for a warrant to
search the ranch. The application stated that the search was for “any automatic
firearms or parts to automatic weapons, destructive devices to include but not
limited to grenades, grenade launchers, rocket launchers, and any and all
receipts pertaining to the purchase or manufacture of automatic weapons or
explosive devices or launchers.” Petitioner supported the application with a
detailed affidavit, which he also prepared and executed, that set forth the
basis for his belief that the listed items were concealed on the ranch.
Petitioner then presented these documents to a Magistrate, along with a warrant
form that petitioner also had completed. The Magistrate signed the warrant
form.
Although the application particularly described the place to be searched
and the contraband petitioner expected to find, the warrant itself failed to
identify any of the items that petitioner intended to seize. In the portion of
the form that called for a description of the “person or property” to be seized,
petitioner typed a description of respondents’ two-story blue house rather than
the alleged stockpile of firearms. The warrant did not incorporate by reference
the itemized list contained in the application. It did, however, recite that the
Magistrate was satisfied the affidavit established probable cause to believe
that contraband was concealed on the premises, and that sufficient grounds
existed for the warrant’s issuance. The home was searched and no illegal weapons
or explosives were discovered. Respondents brought this
action.
Held: (1) The warrant was plainly
invalid. The warrant in this case was based on probable cause, was supported by
a sworn affidavit, described particularly the place of the search, but failed
altogether to provide a description of the items to be seized. The fact that the
application adequately described the “things to be seized” did not save the
warrant from its facial invalidity. The Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents. (2) Petitioner is
not entitled to qualified immunity.
http://supct.law.cornell.edu/supct/html/02-8286.ZO.html
Petitioner Banks was convicted of capital murder and sentenced to death.
Prior to trial, the State advised Banks ’s attorney there would be no need to
litigate discovery issues, representing there would be no necessity for motions
and that the State would provide all discovery to which he was entitled. Despite
that undertaking, the State withheld evidence that would have allowed Banks to
discredit two essential prosecution witnesses. The State did not disclose that
one of those witnesses was a paid police informant, nor did it disclose a
pretrial transcript revealing that the other witness’ trial testimony had been
intensively coached by prosecutors and law enforcement
officers.
Additionally, the prosecution raised no red flag when the informant
testified, untruthfully, that he never gave the police any statement and,
indeed, had not talked to any police officer about the case until a few days
before the trial. Instead of correcting the informant’s false statements, the
prosecutor told the jury that the witness “ha[d] been open and honest with you
in every way,” and that his testimony was of the “utmost significance”.
Similarly, the prosecution allowed the other key witness to convey,
untruthfully, that his testimony was entirely unrehearsed. Through direct appeal
and state collateral review proceedings, the State continued to hold secret the
key witnesses’ links to the police and allowed their false statements to stand
uncorrected.
Ultimately, through discovery and an evidentiary hearing authorized in a
federal habeas corpus proceeding, the long-suppressed evidence came to light.
The District Court granted Banks relief from the death penalty, but the Court of
Appeals reversed finding Banks had documented his claims of prosecutorial
misconduct too late and in the wrong forum and that therefore he did not qualify
for federal-court relief. Bank's Brady claims arose under the regime in place
prior to the Antiterrorism and Effective Death Penalty Act of
1996.
The Supreme Court reversed and remanded, holding the Court of Appeals
erred in dismissing Bank's "paid informant" Brady claim and denying him a
certificate of appeal-ability on his "intensely coached witness" Brady claim. When police
or prosecutors conceal significant exculpatory or impeaching material in the
State’s possession, it is ordinarily incumbent on the State to set the record
straight.
Baldwin v.
Reese (02-964,
March 2) (Breyer, J.)
http://supct.law.cornell.edu/supct/html/02-964.ZO.html
Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies thereby giving the State the opportunity to
pass upon and correct a federal rights violation. To provide the State with the
necessary opportunity, the claim must be “fairly presented” in each appropriate
state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim.
Respondent appealed his state court convictions and sentences through
Oregon’s state court system and then brought collateral relief proceedings in
the state courts. After the lower courts denied collateral relief, respondent
filed a petition for discretionary review in the Oregon Supreme Court. He
raised, among other grounds, ineffective assistance of both trial and appellate
counsel, but did not allege in the petition that the appellate ineffective
assistance claim violated federal law. The Oregon Supreme Court denied
review.
On federal habeas review, the District Court held that respondent had not
“fairly presented” his federal ineffective assistance of appellate counsel claim
to the higher state courts because his brief in the state appeals court had not
indicated that he was complaining about a violation of federal
law.
The Ninth Circuit reversed finding that respondent had satisfied the
“fair presentation” requirement because the justices of the Oregon Supreme Court
had the opportunity to read the lower court decision and had they read the
opinion of the lower state court they would have, or should have, realized that
respondent's claim rested upon federal law.
The Supreme Court reversed, holding that ordinarily a state prisoner does
not “fairly present” a claim to a state court if that court must read beyond a
petition or brief that does not alert it to the presence of a federal claim in
order to find material, such as a lower court opinion in the case, that does so.
To say that a petitioner “fairly presents” a federal claim when an appellate
judge can discover that claim only by reading lower court opinions in the case
is to say that those judges must read the lower court opinions. The Court found
federal habeas law does not impose such a requirement and noted that a litigant
wishing to raise a federal issue can easily indicate the federal law basis for
the claim in a state court petition or brief, for example, by citing in
conjunction with the claim the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by simply labeling the claim
“federal.”
http://supct.law.cornell.edu/supct/html/02-9410.ZS.html
Petitioner was tried for assault and attempted murder. The State sought
to introduce a recorded statement that petitioner’s wife Sylvia made during
police interrogation, as evidence that the stabbing was not in self-defense.
Sylvia did not testify at trial because of Washington’s marital privilege.
Petitioner argued that admitting the evidence would violate his Sixth Amendment
right to be confronted with the witnesses against him. Under Ohio v. Roberts,
448 U.S. 56 (1980), that right does not bar admission of an unavailable
witness’s statement against a criminal defendant if the statement bears
“adequate ‘indicia of reliability,” a test met when the evidence either falls
within a “firmly rooted hearsay exception” or bears “particularized guarantees
of trustworthiness.” The trial court admitted the statement on the latter
ground. The Washington Supreme Court upheld the conviction, finding the
statement reliable. At issue is whether the State's use of Sylvia's statement
violated the Confrontation Clause.
Held: The Confrontation Clause was
violated. Where testimonial statements are at issue the only indicium of
reliability sufficient to satisfy constitutional demands is confrontation.
Reversed.
The Court
found their cases have remained faithful to the Framers' understanding that
testimonial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable and only where the defendant has had a prior
opportunity to cross-examine. The Court noted that although the results of their
decisions have generally been faithful to the original meaning of the
Confrontation Clause, the same could not be said for their rationales. The test
in Ohio v. Roberts departs from the historical principles outlined by the Court.
Where testimonial statements are involved, the Court did not think the Framers
meant to leave the Sixth Amendment's protection to the vagaries of the rules of
evidence, much less to amorphous notions of "reliability". The Roberts test
allows a jury to hear evidence, untested by the adversary process, based on a
mere judicial determination of reliability.
The Court
found where non-testimonial hearsay is at issue, it is wholly consistent with
the Framers’ design to afford the States flexibility in their development of
hearsay law-as does Roberts, and as would an approach that exempted such
statements from Confrontation Clause scrutiny altogether. Where testimonial
evidence is at issue, however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination. The Court left
for another day any effort to spell out a comprehensive definition of
“testimonial" finding whatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations. These are the modern practices with closest
kinship to the abuses at which the Confrontation Clause was
directed.
http://supct.law.cornell.edu/supct/html/02-1541.ZS.html
This case concerns the extent to which a trial judge, before accepting a
guilty plea from an un-counseled defendant, must elaborate on the right to
representation.
Respondent was arrested in 1996 in
Iowa for operating a motor vehicle (OWI) while under the influence. At his
arraignment, he affirmed that he wanted to represent himself and to plead
guilty. The trial court conducted the guilty plea colloquy required by the Iowa
Rules of Criminal Procedure, informed the respondent of the maximum and minimum
penalties for an OWI conviction, informed the respondent of the elements of the
offense charged, and accepted the factual basis and the guilty
plea.
In 1998 respondent was again charged with OWI. Represented by counsel, he
plead guilty to a second offense. In 2000 he was charged with third-offense OWI.
Represented by counsel, he plead not guilty and moved to preclude the use of the
first offense conviction to enhance. He argued the 1996 waiver of counsel was
not knowing, intelligent and voluntary because he was not made aware of the
dangers and disadvantages of self-representation. The trial court denied the
motion and the Iowa Court of Appeals affirmed. The Supreme Court of Iowa
reversed, holding the 1996 guilty plea colloquy had been constitutionally
inadequate because the respondent was not advised specifically that waiving
counsel's assistance in deciding whether to plead guilty (1) entails the risk
that a viable defense will be overlooked and (2) deprives him of the opportunity
to obtain an independent opinion on whether, under the facts and applicable law,
it is wise to plead guilty.
Held: The Supreme Court reversed, holding
that neither warning ordered by the Iowa Supreme Court is mandated by the Sixth
Amendment. The constitutional requirement is satisfied when the trial court
informs the accused of the nature of the charges against him, of his right to be
counseled regarding his plea, and of the range of allowable punishments
attendant upon the entry of a guilty plea.
·
FOURTH AMENDMENT - THE
GOVERNMENT'S AUTHORITY TO CONDUCT SUSPICIONLESS INSPECTIONS AT THE BORDER
INCLUDES THE AUTHORITY TO REMOVE, DISASSEMBLE AND REASSEMBLE A VEHICLE'S FUEL
TANK
United States v.
Flores-Montano, (No. 02-1794, March 30)
(Rehnquist, J. for a unanimous Court) http://supct.law.cornell.edu/supct/html/02-1794.ZO.html
Respondent attempted to enter
the United States at the international border in southern California.
Thirty-seven kilograms of marijuana were seized by custom officials from
respondent's gas tank which officials had removed and disassembled. The District
Court granted the respondent's motion to suppress finding that reasonable
suspicion was required to justify the search. The Ninth Circuit affirmed.
Held: reversed. The search in
question did not require reasonable suspicion. The Court found the reasons that
might support a requirement of some level of suspicion in the case of highly
intrusive searches of the person - dignity and privacy interests of the person
being searched - simply do not carry over to vehicles. Complex balancing tests
to determine what is a "routine" search of a vehicle, as opposed to more
"intrusive" search of a person, have no place in border searches of vehicles.
The Court concluded the Government's authority to conduct suspicionless
inspections at the border includes the authority to remove, disassemble and
reassemble a vehicle's fuel tank.
2004 WEST VIRGINIA LEGISLATURE
Some
highlights:
·
DUI - SB 166 - inter alia (see below) reducing the
allowable blood alcohol content for driving under the influence from ten
hundredths to eight hundredths of one percent of body weight and limits the
prior offenses that can be used to enhance sentences to those that occurred
within the ten-year period preceding the date of arrest.
·
Domestic Violence - SB 258
- (see below)
relating to the enforcement of domestic violence protective orders generally; inter alia granting full faith and
credit to out-of-state protection orders.
·
Collection of Racial
Profiling Data - SB 271 - inter alia (see below) requiring all
state law-enforcement officers to collect certain data during traffic
stops.
·
Right to post-conviction
DNA testing - HB 4156
SELECTED BILLS PASSED:
·
SB 166 - passed 2/5/04; in effect ninety
days from passage; approved by Gov. 2/16/04; relating to driving a motor vehicle
or operating a motorized vessel while under the influence of alcohol, controlled
substances or drugs; limiting the prior offenses that can be used to enhance
sentences to those that occurred within the ten-year period next preceding the
date of arrest in the current proceeding; and imposing additional costs on
defendants convicted of offenses involving the driving of a motor vehicle or
operating a motorized vessel while under
the influence of alcohol, controlled substances or drugs for the use of counties
and municipalities.
·
SB 181- passed 3/11/04; in effect
ninety days from passage; approved by Gov. 3/23/04; relating to permitting a
retired member of the state police to carry a concealed weapon for the life of
the member.
·
SB 208 - passed 3/11/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to allowing members
of the state police to engage in certain political activities while out of
uniform and off duty.
·
SB 258 - passed 2/19/04; in effect
ninety days from passage; approved by Gov. 3/3/04; > relating to the
enforcement of domestic violence protective orders generally; granting full
faith and credit to out-of-state protection orders; expanding the West Virginia
state police registry of in-state protective orders to include registration of
out-of-state protection orders; expanding offenses and penalties for violations
of in-state protective orders to include violations of conditions of bail,
probation or parole which are intended to protect the personal safety of
another; adopting the uniform interstate enforcement of domestic violence
protection orders act; setting forth definitions; providing for enforcement of
out-of-state protection orders even if the relief sought would not be available
in West Virginia; setting forth criteria for enforcement of out-of-state
protection orders, including protection provisions of valid out-of-state orders
governing custody and visitation and mutual protection orders; providing that an
out-of-state protection order which appears authentic on its
face is presumed to be valid; providing for non-judicial enforcement of
out-of-state protection orders by law-enforcement officers with probable cause
to believe that a valid protection order exists and has been violated; providing
for registration of an out-of-state protection order with the West Virginia
state police; providing that registration is not a prerequisite to enforcement
of an out-of-state protection order; providing immunity from civil or criminal
liability for law-enforcement or other government officers or agencies for good
faith acts or omissions undertaken in the course of enforcing an out-of-state
protection order; providing criminal penalties for violation of out-of-state
protection orders or conditions of bail, probation or parole; specifying that a
protected individual may pursue other remedies; urging a construction of the act
that encompasses uniformity of application and construction with other states
that adopt it; and specifying the orders and actions to which the act is
applicable.
·
SB 271 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 3/31/04; relating to racial profiling
data collection; defining terms; requiring all state law-enforcement officers to
collect certain data during traffic stops; requiring the division of motor
vehicles to develop forms and compile the data collected; establishing penalties
for agencies which fail to comply; providing limited civil liability protection
for officers collecting data; providing form content; providing consultation
with law- enforcement organizations relating to developing forms; requiring
director of the governor's committee on crime, delinquency and correction to
conduct analysis and distribute data;
requiring promulgation of emergency and legislative rules; providing effective
date for requiring collection of data; providing for annual report to the
Legislature; and expiring data collection requirements.
·
SB 316 – passed 3/13/04; to take effect
July 1, 2004; approved by Gov. 4/7/04; relating to regional jail and
correctional facility authority funds; providing statutory procedures for
determining the cost per day for inmates incarcerated in facilities operated by
the authority; and outlining the allocation of costs for housing inmates SB 317
- passed 3/13/04; to take effect July 1, 2004; approved by Gov. 4/5/04; relating
to allowing the commissioner of the division of corrections to increase the
parolee supervision fee to forty dollars.
·
SB 319 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to young adult
offenders found unfit to remain at a center for young adult offenders;
specifying entitlement to a hearing before the committing court; providing
standard of review; and allowing reliance on record established at the center
under specified circumstances.
·
SB 406 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to allowing victims
of crime to be notified by telephone when a specified defendant is released from
custody.
·
SB 533 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/2/04; relating to authorizing the
division of corrections to charge a fee of up to one hundred dollars to adult
offenders applying for transfer under the interstate compact for the supervision
of adult offenders; setting up a special revenue account; and providing for
expenditure of moneys.
·
SB 558 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/1/04; all relating to crimes of
embezzlement; removing certain evidentiary presumptions which have been deemed
unconstitutional; creating a new crime of embezzlement related to the willful
and fraudulent misuse of a power of attorney or other fiduciary relationship;
and providing that such crimes of embezzlement or fraudulent conversion to be
punishable as larceny.
·
VETOED BY GOV. 3/24/04 -
SB 566 - passed
3/13/04; relating to creating the "Unborn Victims of Violence Act"; defining
certain terms; identifying offenses of violence against a person that are
committed against a pregnant woman or her embryo or fetus in the womb;
establishing that an embryo or fetus in the womb may be a separate and distinct
unborn victim in the case of certain violent crimes against a pregnant woman or
her embryo or fetus in the womb; providing exceptions against the application of
this section to certain persons or entities; specifying penalties; and providing
that a conviction under this section, or of this article, is not a bar to
prosecution of, or punishment for, any other crime allegedly committed by the
defendant arising from the same incident.
·
HB 2088 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/2/04; relating to authorizing local
law- enforcement officers who are members of drug task forces to have access to
prescription drug monitoring data.
·
HB 2200 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to creating the
felony offense of injury, defacing or destruction of property causing damage,
destruction or diminution in value of twenty-five hundred dollars or more; and
providing penalties.
·
HB 3096 - passed March 10, 2004; in
effect ninety days from passage; approved by Gov. 3/25/04; relating to
authorizing cooperation of campus police and rangers employed by the
Hatfield-McCoy regional recreation authority with other law-enforcement
agencies.
·
HB 4020 - passed 2/12/04; in effect
ninety days from passage; approved by Gov. 2/23/04; relating to limiting
disclosure of personal information maintained by the legislative, judicial or
executive agencies of the state of West Virginia relating to state employees due
to their state employment and creating lesser restrictions on information
maintained by executive branch agencies on citizens
generally.
·
HB 4022 - passed 2/26/04; in effect
ninety days from passage; approved by Gov. 3/9/04; relating to the regulation of
all-terrain vehicles generally; prohibiting operation on interstate highways and
on center-lined roads or roads with more than two lanes; exceptions to
prohibition; prohibiting operation with more than one passenger unless allowed
under manufacturers’ specifications; prohibiting child passengers unless
operator is an adult or has a level two intermediate driver’s license; requiring
certain equipment; prohibiting riders under the age of eighteen without a
helmet; providing for criminal penalties for violations; requiring safety
awareness courses; creating exceptions; providing for regulation by local
government authority; requiring rental dealers to provide safety equipment;
providing certain exemptions for use on private property; providing
exemption for farm and commercial use;
and clarifying application of rules of operation.
·
HB 4037 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/6/04; relating to providing certain
juvenile justice records to public school officials and limiting disclosure of
certain records.
·
HB 4055 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/6/04; all relating to the
supervision and return of juvenile offenders, juvenile runaways and other
juveniles; authorizing and directing the governor to execute an interstate
compact for the supervision and return of juvenile offenders, juvenile runaways
and other juveniles; purpose; definitions; creation of the interstate commission
for juveniles; powers and duties; bylaws; immunity; defense and indemnification;
promulgation of rules; dispute resolution; annual assessment on member states;
state council for interstate juvenile supervision; effective date; withdrawal
from compact; default of a compact state; fines; suspension; termination;
severability; binding effect of compact; and appointment of compact
administrator.
·
HB 4097 - passed 3/9/04; in effect ninety
days from passage; approved by Gov. 3/22/04; relating to clarifying those
persons or entities responsible for paying certain fees assessed by the clerk of
a circuit court for processing of criminal bonds and bail-piece.
·
HB 4104 - passed 3/11/04; in effect
ninety days from passage; approved by Gov. 3/25/04; relating to creating the
crimes of scanning device and re-encoder fraud; providing definitions; and
establishing criminal penalties therefore.
·
HB 4148 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; all relating to bail
bondspersons; requiring the supreme court of appeals shall to adopt rules
specifying the qualifications of persons and corporations applying for authority
to engage in the bonding business in West Virginia; allowing bail bondsperson to
deliver offenders to county and regional jails without bail-piece; setting
requirements; setting forth requirements related to medical treatment of
defendant prior to authorities taking custody pursuant to a bail-piece;
providing for certain immunities from liability; and providing
penalties.
·
HB 4156 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; all relating to DNA testing
for convicts under certain circumstances.
·
HB 4294 - passed 3/11/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to removing the
requirement that funds expended from the worthless check fund to pay for
additional deputy clerks be proportionate to the time expended on worthless
check cases.
·
HB 4364 - passed 3/12/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to including
division of forestry employees in the assault and battery statute with similar
state personnel.
·
HB 4373 - passed 3/10/04; in effect
ninety days from passage; approved by Gov. 3/25/04; relating to making it a
crime to possess or use a traffic-control device with an infrared or electronic
device designed to change traffic light indication; exceptions; and providing
for penalties.
·
HB 4388 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/2/04; relating to creating the
criminal offense of possession of fraudulently obtained or counterfeit sales
receipts or universal product codes or devices to produce counterfeit sales
receipts or universal product codes with the intent to cheat or defraud;
creating new felony offense for such illegal activity; and establishing
penalties.
·
HB 4433 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to abuse or neglect
of an incapacitated adult; adding the crimes of abuse and neglect of an elder
person age sixty-five years or older and the crime of misuse and
misappropriation of the funds or assets of an elder person; and creating the
crime of misuse or misappropriation of the funds or assets of an elder person
through deception, intimidation, coercion, the infliction of bodily injury or
the threat of bodily injury; and penalties.
·
HB 4492 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/6/04; relating to creating the
criminal offense of soliciting certain minors or one believed to be a minor via
computer to commit violations of certain criminal laws; and providing
penalties.
·
HB 4598 - passed 3/10/04; in effect
ninety days from passage; approved by Gov. 3/25/04; relating to restricting
courts from requiring conditions on the out-of-home placement of children
inconsistent with existing licensing regulations.
·
HB 4605 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/7/04; all relating to domestic
violence generally; clarifying the relationship between temporary and final
domestic violence protective orders and the provisions of protective measures
reflected in temporary or final divorce orders entered in divorce proceedings or
other types of domestic proceedings; making the violation of emergency or final
protective orders issued by injunctive relief or protective order in a divorce
proceeding a misdemeanor; clarifying provisions related to the arrest and
criminal enforcement of protective order violations; clarifying the penalties
which may be imposed for the first and subsequent violation of such protective
orders; authorizing the governor's committee on crime, delinquency and
correction to develop and promulgate rules regarding the procedures for the
dispatch of matters involving domestic violence; relating to prohibitions
against the issuance of licenses and permits to carry concealed weapons and the
possession of firearms as they pertain to persons who have been convicted of
domestic violence offenses and/or are subject to domestic violence protection
orders; and clarifying who is proscribed from possessing a firearm due to
domestic violence convictions.
·
HB 4634 - passed 3/13/04; in effect
ninety days from passage; approved by Gov. 4/5/04; relating to requiring persons
incarcerated in county or regional jails who have been convicted of a
misdemeanor to pay for the costs of up to thirty days of their incarceration;
requiring determination of ability to pay; and allowing for modification of
assessment based upon need.
· HB 4649 - passed 3/11/04; in effect ninety days from passage; approved by Gov. 3/25/04; relating to child welfare; providing for a child advocacy center participation in multidisciplinary investigative teams; providing for uniform comprehensive assessments of children; preference to instate placement; including in team, child, the juvenile’s attorney, appropriate school official, court-appointed special advocate when available, and a representative from the licensed domestic violence program serving the county, when appropriate and available; requiring team preference of in-state placement; requiring court preference of instate placement; and requiring that reasons for out-of-state placement be in order.
Full text of bills and other
information can be found at the Legislative web site:

| W.Va. Supreme Court Case Updates |
| September 2003 through April 2004 |
State v. Gary
Cummings, No.
30911, October 10, 2003
The appellant appealed the circuit
court’s order requiring him to pay restitution following his convictions for
fraudulent schemes, embezzlement, forgery and uttering. The restitution order
required that the appellant pay nearly $ 50,000 in
restitution, including $12,000 for income lost by the victim as a result of
court appearances, and over $2,300 in interest
that had accrued on a line of credit during the course of the appellant’s
actions.
Held: that (1) that trial court had
erred in failing to make findings of fact regarding the appellant’s ability to
make restitution; (2) that it was error to require the appellant to pay
restitution for income lost as a result of court appearances, based on a lack of
statutory authority for such restitution; and (3) the issue of restitution for
interest incurred must be re-examined on remand to determine whether the
interest was incurred voluntarily, or whether it was necessitated by the
appellant’s criminal actions.
In
Re:Erica C., Et.Al., No. 31245 & 31246, November
5, 2003
Parents of three children appealed
the decision of the circuit court to terminate parental rights and deny
post-termination visitation. Testimony offered at the adjudicatory hearing
indicated that, in addition to a continuing period of drug abuse and domestic
violence, two of the children had been left locked in a car in June 2001.
Following termination of the appellant’s parental rights, the circuit court
denied post-termination visitation. The court found that the previous incidents,
and a number of incidents following the disposition hearing, indicated that
continued visitation would not be in the best interests of the children.
Held: (1) That the trial court correctly
determined that there was no reasonable likelihood that the conditions of abuse
/neglect, including drug abuse and domestic violence, could be substantially
corrected, and that the termination of the appellant’s parental rights was not
erroneous; and (2) that incidents occurring both before and after the
disposition hearing, including additional acts of domestic violence and numerous
visitation absences, indicated that post-termination visitation would be
detrimental to the well-being of the children.
AFFIRMED.
The appellant pleaded guilty to
kidnapping and wanton endangerment following an altercation with his girlfriend.
At his sentencing hearing, the girlfriend pleaded for leniency and noted that
she had not been injured in the incident. The appellant also presented the
testimony of a psychologist indicating that the appellant’s actions were
atypical and that he was a low risk to ever repeat such behavior. Despite this
evidence, the trial court sentenced the defendant to the maximum determinate
sentence of 30 years imprisonment under W. Va. Code 61-2-14a (a)(4), which was
to run concurrently with a 5 year sentence imposed for wanton endangerment.
Held: That in light of the appellant’s
age, the testimony of the victim of the offense, and the psychological evidence,
the determinate sentence of 30 years imposed by the trial court was
disproportionate to the offense committed by the appellant. The Court cited the
standards enunciated in State
v. Cooper, 172 W.
Va. 266, 304 S.E. 2d 851 (1983), noting that the maximum sentence imposed by the
trial court shocked the conscience of the Court.
In a move
which was criticized by Justice Davis in her concurring opinion, the Court
ordered that the trial court, on remand, sentence the appellant to the minimum
10 year sentence authorized under the statute.
REVERSED
AND REMANDED WITH DIRECTIONS.
Petitioners, who were incarcerated
inmates, filed Freedom of Information requests with their respective circuits in
order to obtain documents for preparation of habeas corpus petitions. The
circuit courts denied the petitioner’s requests, and the petitioners, in a
consolidated action, requested that the Court mandate that the materials be
delivered as per their requests.
Held: That an inmate cannot use the
provisions of the Freedom of Information Act (§ 29B-1-1, et seq.) to obtain court
records for the purpose of filing a habeas corpus petition. The Court held that
inmates are bound to follow the discovery procedures set forth in the Rules
Governing Post-Conviction Habeas Corpus Proceedings.
WRIT
DENIED.
State
v. Sheila Brooks, No. 31158, November 14,
2003
The appellant was convicted of
misdemeanor battery. The appellant had entered a dwelling in search of an
acquaintance and engaged in an altercation with a third party. The appellant
asserted that she had acted in self-defense; however, the trial court refused to
give the jury the self-defense instruction offered by the appellant, citing that
certain language in the instruction falsely informed the jury that an initial
aggressor can rely on self-defense. The court redacted certain portions of the
instruction and read the instruction to the jury as amended. The appellant
asserted that the trial court’s action in revising the instruction was error.
Held: That the trial court did not err
in refusing to give the instruction as offered. The Court noted that in
State
v. Smith, 170 W.
Va. 654, 295 S.E. 2d 820 (182) and State
v. Wykle, 208 W.
Va. 369, 540 S.E. 2d 586 (2000), the Court held that a person who is at fault or
is an initial aggressor can not rely on self-defense. Citing the appellant’s
aggressive entry into the dwelling, and testimony indicating that the appellant
had brandished a crowbar and initially struck the victim upon entry, the Court
determined that the trial court had not abused its discretion in refusing the
instruction as proffered.
AFFIRMED.
State
v. Whalen, #
31244, November 21, 2003 (Starcher, C.J.)
Appellant Whalen pleaded guilty to
burglary. At sentencing, the trial court determined that the offense was
“sexually motivated” and ordered the appellant to register as a sexual offender.
The appellant contested this condition, asserting that neither he nor his
counsel were aware that the court could (or intended) to make a finding that the
appellant was a sexual offender.
Held: That when a defendant may be
convicted of any offense that is not facially a sexual offense under
§ 15-12-2(b), a trial court must
advise the defendant of the possibility of a sexual motivation finding prior to
any trial or plea. Because the appellant was not advised of this possibility
prior to his plea, the Court determined that the appellant would be permitted to
withdraw his guilty plea.
REMANDED
WITH DIRECTIONS.
State
v. Hinchman, #
31153, November 24, 2003 (Per Curiam)
In February 1992, warrants
were issued for the appellant based upon allegedly worthless checks written by
the appellant. The appellant was arrested on these charges until November 1995
and was indicted in January 1996. The appellant pleaded nolo contendere in March
1996 to two counts of obtaining money by a worthless check and was sentenced to
two consecutive sentences of one to five years imprisonment, but these sentences
were suspended and the appellant was placed on probation. Two years later the
appellant’s probation was revoked and the original sentence was reinstated. The
appellant subsequently appealed the circuit court’s order reinstating the
original sentences.
The appellant primary
contentions on appeal were (1) that he was denied the right to a speedy trial by
the delay between the offense and his indictment; (2) that he was prejudiced by
pre-indictment delay; (3) that he was denied credit for time served; and (4)
that his trial counsel was ineffective.
Held: The Court held that (1)
there was no violation of the appellant’s right to a speedy trial, noting that
once an indictment has been returned, it is the three-term rule, as provided in
W. Va. Code, § 62-3-21 (1959), which constitutes the legislative pronouncement
of the speedy trial standard; (2) there was no merit to the appellant’s related
argument that his due process rights were violated by pre-indictment delay,
finding that in the absence of a prima facie excessive delay similar to the
eleven-year delay in State ex rel.
Leonard v. Hey, 269 S.E. 2d 394 (1980), a defendant must show actual
prejudice caused by the delay. The Court noted that the appellant had failed to
present any evidence that the State’s failure to bring the indictment was a
deliberate device designed to gain an advantage over the appellant, and also did
not present any evidence indicating that the delay actually prejudiced his
defense; (3) the appellant’s argument regarding ineffective assistance of
counsel was the same claim that he had raised in a previous habeas corpus
proceeding which the Court had found to be without merit; and (4) the Court
remanded the matter to the circuit court for the issuance of a new order
granting the appellant a re-computation of credit for time served, based upon an
agreement between the appellant and the State regarding such
time.
AFFIRMED IN
PART, REVERSED IN PART AND REMANDED.
State
v. Damian R., #
31116, November 21, 2003 (Starcher, C.J.)
A
juvenile petition was filed at the request of the mother of the juvenile, Damian
R., requesting that the juvenile be adjudicated as a status offender. The basis for the petition was the juvenile’s
disruptive behavior at home and at school. At the adjudicatory hearing, the
juvenile admitted to the factual allegations of the petition and was adjudged to
be a juvenile status offender. The court referred the juvenile to the Department
of Health and Human Resources (“DHHR”) for “treatment according to statute. The
DHHR was contacted by school and was advised that the juvenile had “acted out”
in school. The DHHR responded to this call by filing a petition with the circuit
court, requesting custody of the juvenile and placement at a secure facility.
At
a hearing on this petition, the State presented the testimony of two witnesses,
who testified that they had been notified by other persons of the juvenile’s
actions at school. The juvenile’s attorney objected to the hearsay nature of
this testimony, but the court overruled the objection and granted the DHHR’s
request for custody and placement. Counsel for the juvenile and the juvenile’s
mother objected to this finding on the grounds that the DHHR had failed to
provide services or counseling prior to changing custody. On appeal, the
juvenile asserted (1) that the hearsay evidence adduced at the hearing on the
petition was inadmissible, and (2) that the award of custody was improper
because the DHHR had neglected to provide services constituting a less
restrictive alternative than removal from his mother’s custody.
Held:
The Court agreed with the juvenile, noting that while prior provision of
services is not in all cases a necessary jurisdictional prerequisite for an
order changing custody, petitions seeking such custody for status offenders must
specifically show the necessity of such a request and that all reasonable
efforts to provide services have been made. The Court held that the evidence
adduced at the hearing did not establish such necessity, noting that no evidence
had been introduced regarding the establishment of an individualized plan of
rehabilitation pursuant to W. Va. Code § 49-5B-4(b) (1999).
The
Court also held that in the absence of emergency circumstances, a circuit
court’s decision to award custody of a juvenile status offender to the DHHR may
not be based entirely upon hearsay evidence. (The Court did not specifically
address this new syllabus point to the instant case, having already determined
in the prior issue that the State had not adduced sufficient evidence to justify
removal of the juvenile from his mother’s custody.)
State
v. Sprague, #
30966, November 26, 2003 (Per Curiam)
Appellant,
an inmate at the West Virginia Industrial Home for Youth, engineered an escape
in conjunction with another inmate. While the other inmate withdrew from the
plan, the appellant successfully escaped from the facility, seriously injuring a
correctional officer in the process. Following the appellant’s arrest in
Virginia one month later, the appellant was tried in Harrison County on charges
of escape, malicious assault on a correctional officer, aggravated robbery and
conspiracy to commit escape. The appellant was convicted of each of these
charges and sentenced to varying terms of imprisonment.
The
appellant asserted on appeal (1) that the prosecuting attorney, during his
closing argument, had improperly alluded to his decision to remain silent during
the trial, and (2) that the trial was held in an improper
venue.
Held:
The Court determined that remarks by the prosecuting attorney during his closing
argument amounted to an improper comment on the appellant’s decision to remain
silent during the trial. The prosecutor had stated that, “[t]he Defendant, as
you have noted, as you have seen from this trial, has not contradicted any of
the State’s evidence or any of the State’s testimony basically about the
events[.]” The Court determined that the prosecutor’s remark “served to
accentuate and highlight the fact that the appellant sat silently without taking
the stand”, and plainly amounted to a comment on the appellant’s choice not to
testify. Noting that this remark clearly violated the appellant’s right to
remain silent under the Fifth Amendment to the United States Constitution and
Article III, Section 5 of the West Virginia Constitution, the Court found that
this remark clearly prejudiced the appellant and reversed the appellant’s
conviction and remanded the case for a new trial.
On
the venue issue, the Court noted that under W. Va. Code § 61-11-11 (1923) and §
61-11-12 (1984), venue was proper in the circuit court of Harrison County. §
61-11-11 provides that an offense committed on the boundary of any two counties
may be prosecuted in either county. The Court noted that one of the appellant’s
witnesses had testified that the Industrial Home for Youth bestrides the border
of Harrison and Doddridge counties. Further, the Court observed that under §
61-11-12, when a crime is committed in more than one county, venue may exist in
any county where a substantial element of the offense occurred. The Court thus
determined that the State had met its burden of proof on the issue of
venue.
REVERSED
AND REMANDED.
State
Of West Virginia v. $43,000 In Cashier’s Checks, # 31224, November 26, 2003
(Maynard, J.)
Following
a number of controlled buys of prescription narcotics from appellant Kenneth
Jenkins, the State arranged a reverse buy wherein Jenkins agreed to purchase 430
Oxycontin tablets from an undercover officer. Mr. Jenkins removed $6,000.00 from
a safety deposit box which he maintained at a local bank for this purpose. He
was arrested at the time of the transaction. During the course of a search of
his residence, officers located the key to the safety deposit box. Pursuant to a
search warrant, the officers found the cashier’s check’s in question. The checks
had been purchased by Jenkins during a three-day period in November
2000.
The
State initiated a forfeiture proceeding pursuant to W. Va. Code § 60A-7-701, et
seq. (1988). The parties submitted cross-motions for summary judgment, and the
circuit court granted the motion of the State and ordered forfeiture of the
cashier’s checks.
Jenkins
appealed the circuit court’s grant of summary judgment, arguing that the circuit
court erred in finding a substantial connection between his drug transactions
and the $43,000.00 in cashier’s checks. Jenkins also maintained that there was
an “obvious cloud of uncertainty as to the applicable burden of proof” in the
forfeiture action.
Held:
The Court agreed with Jenkins to the degree that it recognized an inconsistency
between Syllabus Point 5 of Frail v. $ 24,900.00 in U.S.
Currency,
192 W. Va. 473, 453 S.E. 2d 307 (1994) (permitting forfeiture on a “probable
cause” standard of evidence) and various other enactments, including W. Va.
Code, § 60A-7-705(e) (1988) (requiring proof based upon a preponderance of the
evidence). The Court observed that it would be a “constitutional anomaly” to
permit forfeiture of property under only a showing of probable cause. The Court
therefore modified Frail and clarified that “preponderance of the evidence” was
the applicable standard in forfeiture cases.
The
Court further found that the State had established its burden under either
standard, observing that the checks were found in a safety deposit box from
which Jenkins had recently removed a substantial sum of cash to engage in the
“reverse sting”. Noting Jenkins failure to explain the source of the funds (the
Court repeatedly emphasized that Jenkins’ only source of income was Social
Security disability checks, food stamps and a medical card), the Court noted
that the circuit court had correctly concluded, based upon a preponderance of
the evidence, that the checks had been used or were intended to be used to
facilitate drug transactions.
AFFIRMED.
In
Re: Desarae M., et. al., No. 31432, December 2,
2003
Abuse/neglect proceedings were
instituted against the mother of three children because of alleged abuse to
Desarae M.. After adjudication, the court placed the mother on a
post-adjudicatory improvement period and ordered that certain goals and
requirements be part of the period. However, the court did not order, nor did
the DHHR prepare, a family case plan as required in §
49-6D-3(a).
Following
termination of her parental rights to all of her children, the mother appealed,
asserting a number of assignments of error.
Held: That the court’s failure to order and prepare
a family case plan constituted reversible error. The Court noted the necessity
of the family case plan for both the parents and the DHHR, and the importance of
the plan in establishing distinct goals and standards. The Court remanded with
directions to grant one additional period of improvement.
The
Court also held that the court did not err in terminating the appellant’s
parental rights to the other two children, holding that such children were
clearly at risk of sustaining similar abuse.
REVERSED
AND REMANDED WITH DIRECTIONS.
State v. Joseph Watkins, No. 31231, December 3,
2003
Appellant pleaded guilty to
petit larceny in connection with the theft of four dogs. The appellant, along
with a co-defendant, had stolen the animals along with hunting paraphernalia.
The appellant was sentenced to one year in jail and was fined the sum of $
2,500.00, the maximum sentence for petit larceny. The appellant asserted that
the sentence imposed was (1) disparate to the sentence imposed upon his
co-defendant, who was sentenced to ninety hours of community service and fined
$300.00, and (2) disproportionate to the offense
committed.
Held: The Court denied the
appellant’s assertions and affirmed the sentences. In regard to the appellant’s
assertion that his sentence was disparate to that imposed upon his co-defendant,
the Court noted that the co-defendant had not pleaded guilty to petit larceny
under W. Va. Code § 61-3-13 (1994), but rather to the separate offense of the
unlawful theft of a dog under W. Va. Code § 19-20-12 (1984). The Court
determined that since the defendants had pleaded guilty to separate offenses,
involving separate potential sentences, the defendants were not “similarly
situated” and the appellant’s claim regarding disparate sentencing was without
merit.
Regarding the appellant’s
claim that his sentence was disproportionate to the character and degree of the
offense, the Court observed that the sentence was within the legislatively
prescribed limits of § 61-3-13, and that the appellant had not contended that
the sentence was based upon impermissible factors.
AFFIRMED.
State ex rel. Brum v.
Bradley, No. 31561, December 3,
2003
Petitioner was charged with
domestic battery on June 6, 2002. The magistrate scheduled two “discovery
conferences” on the matter in August and September of 2002. Following these
conferences, the case was scheduled for trial for November 18, 2002. Prior to
the trial date, the petitioner filed a motion to dismiss the warrant, arguing
that the trial date exceeded the “one-term” rule of W. Va. Code §62-3-21. The
magistrate denied the motion, but the petitioner sought immediate relief from
the circuit court. The circuit court determined that there had been a violation
of the 120-day rule and ordered the case dismissed. The order did not state,
however, whether the dismissal was with or without
prejudice.
The circuit court subs