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.
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.
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). 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."
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." 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
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
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
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
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.
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.
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.
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
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?
DEFENSE COUNSEL: She never told you he put his hand in her
DEFENSE COUNSEL: So you have no recollection of that
On cross-examination, the State attempted to impeach
JJ.'s testimony, as follows:
THE STATE: Do you remember texting [the victim] about this
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
THE STATE: But you have texted her before; haven't you?
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."
THE STATE: Do you remember when [the victim] texted you and
said, "Don't you remember me telling you about it
when it happened?"
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?
THE STATE: Did you come here with family?
THE STATE: And you don't want to see anything bad happen
to him; do you?
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