State of West Virginia v. John Henry Miller ( 2022 )

FILED
September 19, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0891 (Fayette County 06-F-23)
John Henry Miller,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner John Henry Miller appeals the order of the Circuit Court of Fayette County,
entered on October 7, 2021, resentencing him (for purposes of appeal) to an effective term of
imprisonment of seventy to one hundred eighty years upon his conviction, following a jury trial,
of five counts of incest and five counts of first-degree sexual assault. 1
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the briefs and the record presented, the Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Mr. Miller was convicted and sentenced in 2006, but he did not appeal the circuit court’s
judgment at that time. In 2021, the circuit court resentenced him for purposes of appeal and
appointed counsel to assist with filing an appeal with this Court. Counsel filed a notice of appeal
without identifying specific assignments of error. When he later filed his appellate brief, counsel
represented that he had thoroughly reviewed the record but identified no issues to raise on appeal.
Consequently, rather than presenting “appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal” (see W. Va. R. App. P. Rule 10(c)(7)), counsel asked that the
Court provide direction on petitioner’s responsibilities under Rule 10(c)(10) of the West Virginia
Rules of Appellate Procedure and the application of Anders v. California, 386 U.S. 738, 744
(1967), in situations like this one. 2 He further asks that we clarify the extent of our review when
1
Petitioner appears by counsel Lonnie C. Simmons. Respondent State of West Virginia
appears by counsel Patrick Morrisey, Lindsay S. See, and William E. Longwell.
2
Rule 10(c)(10) provides:
(continued. . . )
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counsel fails to identify an appealable issue.
We find that petitioner has not presented assignments of error concerning the conduct of
the underlying criminal proceedings but instead asks that we provide instruction about the required
procedure before this Court. By extension, we interpret petitioner’s request as one for an advisory
opinion.
It is a deeply rooted and fundamental law that “this Court is not authorized
to issue advisory opinions[.]” State ex rel. City of Charleston v. Coghill, 156 W.Va.
877, 891, 207 S.E.2d 113, 122 (1973) (Haden, J., dissenting). In this regard, we
observed in Harshbarger v. Gainer, 184 W.Va. 656, 659, 403 S.E.2d 399, 402
(1991), that “[s]ince President Washington, in 1793, sought and was refused legal
advice from the Justices of the United States Supreme Court, courts—state and
federal—have continuously maintained that they will not give ‘advisory opinions.’”
Moreover, in United Fuel Gas Co. v. Public Service Commission, 73 W.Va. 571,
578, 80 S.E. 931, 934 (1914), we noted that “[b]y the plain terms of the Constitution
appellate jurisdiction is limited to controversies arising in judicial proceedings[.]”
State ex rel. Morrisey v. W. Va. Off. of Disciplinary Couns., 234 W. Va. 238, 246, 764 S.E.2d 769,
777 (2014). Petitioner has identified no error in the trial proceedings, and we discern none from
our own review of the appendix record on appeal. Accordingly, there is no justiciable controversy
before us, and we will engage in no further discussion that may lead to an advisory opinion that
The following requirements must be observed when counsel in a criminal, habeas
corpus, or abuse and neglect case is directed by a client to file an appeal where
counsel lacks a good faith belief that an appeal is reasonable and warranted under
the circumstances:
(a) Counsel must engage in a candid discussion with the client regarding the merits
of the appeal. If, after consultation with the client, the client insists on
proceeding with the appeal, counsel must file a notice of appeal and perfect the
appeal on the petitioner’s behalf. The petitioner’s brief should raise any
arguable points of error advanced by the client. Counsel need not espouse
unsupportable contentions insisted on by the client[] but should present a brief
containing appropriate citations to the appendix and any case law that supports
the assignments of error.
(b) In extraordinary circumstances, if counsel is ethically compelled to disassociate
from the contentions presented in the brief, counsel must preface the brief with
a statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should
not inject disclaimers or argue against the client’s interests. If counsel is
ethically compelled to disassociate from any assignments of error that the client
wishes to raise on appeal, counsel must file a motion requesting leave for the
client to file a pro se supplemental brief raising those assignments of error that
the client wishes to raise but that counsel does not have a good faith belief are
reasonable and warranted.
2
we are not authorized to provide.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 19, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
3