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John J. v. Dingus

Supreme Court of West Virginia

April 7, 2017

John J., Petitioner Below, Petitioner
v.
Dennis Dingus, Warden, Stevens Correctional Center, Respondent Below, Respondent

         Kanawha County 15-P-258

          MEMORANDUM DECISION

         Petitioner John J., by counsel R. Chad Duffield, appeals the April 7, 2016, order of the Circuit Court of Kanawha County that denied his petition for post-conviction habeas corpus relief. Respondent Dennis Dingus, Warden of the Stevens Correctional Center, by counsel Gordon L. Mowen, II, filed a response.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On April 1, 2013, a criminal complaint was filed against petitioner that charged him with sexual abuse in the first degree in violation of West Virginia Code § 61-8B-7(a).[1] The criminal complaint listed the sentence for a conviction of first degree sexual abuse as "1 to 5 years or up to $10, 000 and 1 to 5 years."[2]

         One month later, petitioner was indicted on three counts of sexual abuse in the first degree in violation of West Virginia Code § 61-8B-7(a). These crimes were alleged to have occurred during the previous "six years" (between May 2007 and May 2013), when the victim was "younger than twelve years old."[3] In May of 2007, petitioner was forty-nine years old. Pursuant to West Virginia Code § 61-8B-7(c) "the penalty for any person violating the provisions of subsection (a) of this section who is eighteen years of age or older and whose victim is younger than twelve years of age, shall be imprisoned for not less than five nor more than twenty-five years and fined not less than one thousand dollars nor more than five thousand dollars." Thus, petitioner's potential sentence for each count of first degree sexual abuse was five to twenty-five years in prison, and not one to five years as noted in petitioner's criminal complaint.

         Following his indictment, petitioner filed an "Affidavit: Eligibility for Appointed or Public Defender Counsel." The completed affidavit contained petitioner's cell phone number. In response, the circuit court appointed trial counsel.

         Prior to trial, petitioner participated in a competency evaluation. The psychologist found petitioner competent to stand trial and noted in her report that petitioner "understood the charges against him to be sexual abuse with a possible sentence of one to five years." The psychologist's evaluation was discussed at an October 2, 2013, pretrial hearing; however, petitioner's potential sentence was not mentioned. Also at the October 2, 2013, hearing, petitioner's counsel expressed concern about the indictment's failure to provide a more specific timeframe as to when petitioner's crimes allegedly occurred. The next day, the State informed trial counsel that the alleged acts occurred during the "summer of 2008." At that time, the victim was seven years old and petitioner was fifty years old.

         A week prior to trial, the State offered petitioner a plea agreement, which his trial counsel urged petitioner to accept. The plea offer provided that if petitioner pled guilty to one count of sexual abuse in the third degree, a misdemeanor and a lesser-included offense of Count One, then the State would dismiss the remaining two felony counts of first degree sexual abuse. The crime of sexual abuse in the third degree carries a maximum sentence of ninety days and a maximum fine of $500. Despite the generous nature of the plea offer, petitioner refused it on the ground that he was innocent.

         Petitioner's jury trial commenced on October 15, 2013. Prior to voir dire, trial counsel asked the circuit court to spread the plea offer on the record. In so doing, the circuit court stated that the potential sentence for each count in petitioner's indictment was not less than five nor more than twenty-five years in prison. Petitioner claims that this was the first time he learned that his potential sentence was five to twenty-five years on each count and that he immediately asked trial counsel about the sentence discrepancy. Despite this claim, petitioner acknowledges that he told the trial court he understood his potential sentence was five to twenty-five years for each count and that he wished to proceed with trial.

         At trial, the victim testified on direct examination as follows: During the summer of 2008, when she was seven years old, she awoke to find petitioner's hand down her pajama pants and on her "private part." She got up and went to the bathroom, but when she came back to bed, petitioner touched her or attempted to touch her again. Petitioner touched her outside her clothes a week or two later. She told her friend, J.J., who is petitioner's great-niece, about the abuse soon after it occurred, but did not tell anyone else because she was scared. Five years later, in 2013, she told her aunt about the abuse and then told the police. On cross-examination by petitioner's counsel, the victim stated as follows: After the alleged abuse, she went to Myrtle Beach, King's Island, a NASCAR race, and an eight-day soapbox derby with petitioner and often stayed with him in the same hotel room. She also went camping with petitioner in 2009, 2010, and 2011. Petitioner gave the victim's sister more things than he gave her and petitioner treated her sister better than he did her.

         The victim's sister testified that, after the police became involved in the case, she (the sister) received a text message from petitioner in which he wrote the following:

I want you to know it never happened like [the victim] said it did. She came in the bedroom while I was asleep and got in bed and pulled her underwear to one side and had ahold of my finger and was rubbing it on herself when I woke up.

         The State entered a photograph of the text message at trial, without objection from petitioner's counsel. Both the victim and her mother testified that the phone number from which the text message was sent was petitioner's phone number. A detective then testified that he was able to reach petitioner by calling that same phone number. The State then referred the detective to petitioner's "West Virginia Public Defender Services 'Affidavit: Eligibility for Appointed or Public Defender Counsel'" and asked him about the phone number found thereon. At that point, the circuit court called counsel to the bench and noted that it was "highly improper" for the State to tell the jury that petitioner had court-appointed counsel. The circuit court then precluded the State from using the affidavit. However, the State entered into evidence a heavily redacted version of the affidavit, without objection from petitioner's counsel.

         The defense called only one witness, J.J., the victim's friend and petitioner's grandniece, to counter the victim's testimony that she told J.J. about the assault soon after it happened. When J.J. testified, petitioner and other members of J.J.'s family were in the courtroom. On direct, J.J. testified as follows:

DEFENSE COUNSEL: Do you have any recollection of ever having a conversation with [the victim] about something [petitioner] did to her?
J.J.: No.
DEFENSE COUNSEL: She never told you he put his hand in her pants.
J.J.: No.
DEFENSE COUNSEL: So you have no recollection of that whatsoever.
J.J.: No.
On cross-examination, the State attempted to impeach JJ.'s testimony, as follows:
THE STATE: Do you remember texting [the victim] about this case?
J.J.: No.
THE STATE: You don't.
J.J.: (Shakes her head side to side.)
THE STATE: But you text her on a regular basis; don't you?
J.J.: No.
THE STATE: But you have texted her before; haven't you?
J.J.: Yes.
THE STATE: In fact, [J.J.], do you remember [the victim] texting you about this case, and you said, quote, "I don't think you are a liar."
J.J.: No.
THE STATE: Do you remember when [the victim] texted you and said, "Don't you remember me telling you about it when it happened?"
J.J.: No.
THE STATE: And you texted back yes - or "Yah"?
J.J.: No. THE STATE: You don't remember that? Okay. Also who is the defendant to you? Is he, like your uncle?
J.J.: Yes.
THE STATE: Did you come here with family?
J.J.: Yes.
THE STATE: And you don't want to see anything bad happen to him; do you?
J.J.: No.

         On redirect, petitioner's counsel asked J.J. whether she had been telling the truth during her direct examination; J.J. answered in the affirmative. Thereafter, the defense rested and the State recalled the victim as a rebuttal witness. Through the victim, the State entered the following text message ...


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