State of West Virginia v. Raymond M. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia,
Plaintiff Below, Respondent November 4, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 19-0860 (Harrison County 16-F-140-3 and 19-C-180-3) OF WEST VIRGINIA
Raymond M.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Raymond M., self-represented litigant, appeals the Circuit Court of Harrison
County’s September 17, 2019, order denying his motion to correct an illegal sentence under Rule
35(a) of the West Virginia Rules of Criminal Procedure. 1 The State of West Virginia, by counsel
Andrea Neese Proper, filed a response. Petitioner filed a reply. On appeal, petitioner argues that
the circuit court erred in denying his Rule 35(a) motion to correct an illegal sentence and his
motion for appointment of counsel.
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 standard of review, 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner was indicted in the Circuit Court of Harrison County in 2016 on one count of
second-degree sexual assault; five counts of sexual abuse by a parent, guardian, or custodian; five
counts of incest; and four counts of first-degree sexual assault. Following a three-day trial held in
April of 2017, petitioner was convicted of all counts charged in the indictment. In June of 2017,
petitioner was sentenced to
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
consecutive terms of 10 to 25 years of imprisonment upon his conviction of second-
degree sexual assault and 25 to 100 years of imprisonment upon his conviction of
first-degree sexual assault, with the second of those terms to run concurrently with
terms of imprisonment of 10 to 20 years for each conviction of five counts of sexual
abuse by a parent, guardian, or custodian; 5 to 15 years of imprisonment for each
conviction of five counts of incest; and terms of imprisonment of 25 to one 100
years for each of conviction of three additional counts of first-degree sexual assault
for an effective sentence of 35 to 100 years of imprisonment. See State v. R.M., No 17-0646, 2018
WL 4908464, at *1 (W. Va. Oct. 10, 2018)(memorandum decision). Petitioner appealed his
sentence to this Court, which was affirmed by memorandum decision. Id.Subsequent to the denial of his appeal, petitioner filed a Rule 35(a) motion to correct an
illegal sentence. In his motion, petitioner argued that the State impermissibly charged him with
both sexual abuse by a parent, guardian, or custodian and incest. Petitioner contended that these
crimes effectively had the same elements and that he should have been charged with either one
crime or the other but not both. Petitioner requested that the circuit court grant him relief by
appointing him counsel for the purpose of his motion, holding a hearing on the matter, and either
granting him a new trial or vacating his sentences with regard to his incest charges.
By order entered September 17, 2019, the circuit court denied petitioner’s Rule 35(a)
motion and his accompanying motion for counsel. The circuit court found that none of petitioner’s
charges violated the proscription against double jeopardy. According to the circuit court, the West
Virginia Legislature explicitly intended that sexual abuse by a parent, guardian, or custodian be
a separate and distinct crime from general sexual offenses. Further, the circuit court noted that
this Court previously held that first-degree sexual assault and incest do not constitute the same
offense for the purposes of double jeopardy. See State v. Ray, 221 W. Va. 364, 371-72, 655 S.E.2d
110, 117-18 (2007). As such, the circuit court denied petitioner’s Rule 35(a) motion and denied
his request for appointment of counsel because his motion was “frivolous and is not a critical
stage that would justify the appointment of an attorney.” Petitioner appeals the September 17,
2019, order denying his Rule 35(a) motion and his motion for appointment of counsel.
This Court has established the following standard of review for a circuit court’s ruling on
Rule 35(a) motions:
In reviewing the findings of fact and conclusions of law of a circuit court
concerning an order on a motion made under Rule 35 of the West Virginia Rules
of Criminal Procedure, we apply a three-pronged standard of review. We review
the decision on the Rule 35 motion under an abuse of discretion standard; the
underlying facts are reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to a de novo review.
Syl. Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).
On appeal, petitioner first argues that the circuit court erred in denying his motion for
appointment of counsel to assist with the filing of his Rule 35(a) motion. Petitioner contends that,
2
contrary to the circuit court’s findings, he was at a “critical stage” of the proceedings because he
was raising “multiple Double Jeopardy Constitutional violations.” Petitioner correctly points out
that Rule 44 of the West Virginia Rules of Criminal Procedure provides that “[e]very defendant
who is unable to obtain counsel shall be entitled to have counsel assigned to represent him or her
at every stage of the proceedings from initial appearance before the magistrate or the court through
appeal, unless the defendant waives such appointment.” (Emphasis added). Petitioner further
acknowledges that “[a] critical stage of a criminal proceeding is where the defendant’s right to a
fair trial will be affected.” State v. Tiller, 168 W. Va. 522, 285 S.E.2d 371 (1981) (emphasis
added). However, petitioner fails to cite to any authority establishing that he was entitled to counsel
at this post-appeal juncture. Clearly, petitioner’s motion was beyond the appellate process and his
right to a fair trial was not affected. Accordingly, we find that petitioner failed to establish that he
was entitled to counsel, especially given that we find that his Rule 35(a) motion was without merit
as more fully set forth below.
Petitioner secondly argues that the circuit court erred in denying his Rule 35(a) motion.
According to petitioner, his sentence violates the proscription against double jeopardy as he was
charged with and convicted of multiple counts of both incest and sexual abuse by a parent,
guardian, or custodian, thereby incurring multiple punishments for the same offense. 2 Petitioner
contends that these offenses require the same elements of proof and that one offense cannot be
committed without committing the other offense. Petitioner avers that the case law relied upon by
the circuit court was distinguishable and not applicable to his case. As such, petitioner contends
that his sentence is illegal, and the circuit court erred in denying his Rule 35(a) motion.
This Court has determined that
[t]he Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution consists of three separate constitutional protections. It protects against
a second prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects against
multiple punishments for the same offense.
Syl. Pt. 1, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
A claim, like petitioner’s, that “double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as to
punishment.” Id. at 138, 416 S.E.2d at 255, syl. pt. 7.
2
While petitioner does not appear to argue that his incest and first-degree sexual assault
convictions violate the proscription against double jeopardy, we nevertheless note that this Court
previously held that “[s]eparate convictions for first[-]degree sexual assault and incest, although
they arise from the same act, do not constitute the same offense for purposes of the Double
Jeopardy Clause of the West Virginia Constitution.” Syl. Pt. 12, State v. Ray, 221 W. Va. 364, 655
S.E.2d 110 (2007). Accordingly, petitioner’s convictions for these offenses do not violate the
Double Jeopardy Clause.
3
In ascertaining legislative intent, a court should look initially at the language of the
involved statutes and, if necessary, the legislative history to determine if the
legislature has made a clear expression of its intention to aggregate sentences for
related crimes. If no such clear legislative intent can be discerned, then the court
should analyze the statutes under the test set forth in Blockburger . . . .
Syl. Pt. 6, in part, State v. George W.H., 190 W. Va. 558, 439 S.E.2d 423 (1993) (citation omitted).
The Blockburger test provides that
“[w]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182,
76 L.Ed. 306, 309 (1932).
Gill, 187 W. Va. at 138, 416 S.E.2d at 255, syl. pt. 4.
Here, there was no double jeopardy violation as the legislature clearly intended that the
offenses of incest and sexual abuse by a parent, guardian, or custodian be distinct for the purposes
of punishment. Indeed, in Gill we held that
W.Va.Code, 61-8D-5(a) (1988), states, in part: “In addition to any other
offenses set forth in this code, the Legislature hereby declares a separate and
distinct offense under this subsection[.]” Thus, the legislature has clearly and
unequivocally declared its intention that sexual abuse involving parents,
custodians, or guardians, W.Va.Code, 61-8D-5, is a separate and distinct crime
from general sexual offenses, W.Va.Code, 61-8B-1, et seq., for purposes of
punishment.
187 W. Va. at 138, 416 S.E.2d at 25, syl. pt. 9. Further, we have specifically addressed whether
convictions for incest and sexual abuse by a parent, guardian, or custodian arising out of the same
incident violate the Double Jeopardy Clause. In George W.H., we held that
the legislature specifically directed that [sexual abuse by a parent, guardian, or
custodian] be considered separate from other offenses in the Code. We, therefore,
hold that the defendant’s convictions under W.Va.Code, 61-8-12, for incest, and
under W.Va. Code, 61-8D-5(a), for sexual abuse by a custodian, do not violate the
double jeopardy prohibition against multiple punishments for the same offense. The
legislature made it exceptionally clear that W.Va. Code, 61-8D-5(a), is a separate
offense from other Code sections.
190 W. Va. at 568, 439 S.E.2d at 433. While petitioner attempts to distinguish George W.H. by
arguing that the defendant in that case was a custodian and not a parent, our holding was not based
upon this alleged distinction. Rather, it was based upon the clear legislative intent set forth in West
Virginia Code § 61-8D-5(a) that sexual abuse by a parent, guardian, or custodian be considered a
separate offense. Given the clear intent of the legislature, it is unnecessary that we apply the
4
Blockburger test. Based on the foregoing, we find that petitioner is entitled to no relief in this
regard.
For the foregoing reasons, the circuit court’s September 17, 2019, order denying petitioner
relief under Rule 35(a) is hereby affirmed.
Affirmed.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
5