Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Juan M.

Supreme Court of West Virginia

May 19, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Juan M. Defendant Below, Petitioner

         Kanawha County 14-F-392

          MEMORANDUM DECISION

         Petitioner Juan M., by counsel Andrew Shumate, appeals the Circuit Court of Kanawha County's July 20, 2016, amended sentencing order following his convictions for nineteen counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust.[1] Respondent the State of West Virginia, by counsel Gordon L. Mowen II, filed a response in support of the circuit court's order. Petitioner also submitted a reply.

         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.

         J.S. was fifteen years old when her father, petitioner, allegedly sexually violated her by coming into her room at night and forcing her to perform oral sex upon him. This continued almost daily for over one year. Petitioner would ejaculate on the floor near the hallway or in J.S.'s hand but would use a towel to try to clean the carpet. After approximately a year, petitioner would also force J.S. to strip naked and rub her vagina on his penis. He unsuccessfully attempted to penetrate her vagina and anus. J.S. eventually confided in her boyfriend, D.R., that she was being abused, and police were notified. Petitioner was indicted on twenty counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust under West Virginia Code § 61-8D-5.

         Maureen Runyon, a forensic interviewer, conducted a recorded interview with J.S. During the interview, J.S. discussed the alleged sexual acts with Ms. Runyon, clearly identifying her father as the perpetrator and describing moles on petitioner's penis to Ms. Runyon. Prior to trial, petitioner filed a motion to suppress evidence relating to the interview on the ground that the State failed to preserve a diagram of a male body Ms. Runyon used during the interview, which was not marked upon or retained. The circuit court denied that motion.

         The police also interviewed petitioner during their investigation. They received consent to search the home when petitioner stated it did not matter where they checked in the house. During that search, police found semen stains in the area where J.S. testified that petitioner would ejaculate - in the hallway just outside of her room. Testing identified the sperm and related biological materials as matching petitioner's DNA. Petitioner subsequently submitted a motion to suppress evidence of that DNA material on the carpet, asserting that he did not give police permission to search the hallway of his home. The circuit court denied that motion.

         During the course of the trial, petitioner's trial counsel from the Kanawha County Public Defender's Office, Sara Whittaker and Ronnie Sheets, became aware that their office also represented one of the trial witnesses, D.R., on unrelated charges. As a result, D.R. was appointed new counsel who was not affiliated with the Public Defender's Office.

         Petitioner was found guilty of nineteen counts of the felony offense of sexual abuse by a parent, guardian, custodian, or person in position of trust following a jury trial. The circuit court convicted him of the same by order entered March 24, 2016. Pursuant to the amended sentencing order entered July 20, 2016, petitioner was sentenced to the following terms of incarceration: a) for counts one through seven, an indeterminate term of not less than ten nor more than twenty years, said sentences to run concurrently to each other; b) for counts eight, ten, eleven, and twelve, an indeterminate term of not less than ten nor more than twenty years, said sentences to run concurrently to each other but consecutively to the sentences for counts one through seven; c) for counts thirteen through sixteen, an indeterminate term of not less than ten nor more than twenty years, said sentences to run concurrently to each other but consecutively to the sentences imposed in counts one through seven and eight, ten, eleven, and twelve; and d) for counts seventeen through twenty, an indeterminate term of not less than ten nor more than twenty years, said sentences to run concurrently to each other but consecutively to the sentences imposed in counts one through seven, eight, ten, eleven, twelve, and thirteen through sixteen. In addition to the effective sentence of forty to eighty years of incarceration, petitioner was ordered to serve ten years of extended supervision, pursuant to West Virginia Code § 62-12-26, following the expiration of the sentences of incarceration and ordered to register as a sexual offender for life. However, the circuit court stayed the execution of the sentence pursuant to West Virginia Code § 62-7-1. Petitioner appeals his convictions.

         On appeal, petitioner asserts four assignments of error with differing standards of review. First, petitioner argues that the circuit court erred in refusing to declare a mistrial after discovering that petitioner's attorneys had a conflict of interest. He contends that another client of the Kanawha County Public Defender's office, D.R., appeared as a witness for the State at trial, so petitioner's counsel was unable to properly attack D.R.'s credibility as a witness. He asserts that he was not asked to waive the conflict. He contends that this was an actual conflict so he was not required to show prejudice in order to sustain his claim of ineffective assistance of counsel. Petitioner asserts that Rule 1.7(a)(2) of the West Virginia Rules of Professional Conduct supports his contention that the apparent concurrent conflict of interest existed because there was a significant risk that the representation of one or more clients would be materially limited by the lawyers' responsibilities to D.R.[2]

         We note that we have repeatedly held as follows:

It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim.

Syl. Pt. 10, State v. Triplett, 187 W .Va. 760, 421 S.E.2d 511 (1992). This Court does not have a sufficient record to determine whether petitioner received ineffective assistance of counsel at trial. However, to the extent petitioner asserts that his counsel had a conflict of interest, such contention is negated by the record currently before this Court. A review of the record reveals that it was the prosecutor's office that brought the potential conflict issue to the attention of the circuit court and petitioner's counsel. Based on petitioner's counsels' discussion with the circuit court, the circuit court concluded that petitioner's counsel was unaware that the public defender's office may have been representing D.R. at the time of petitioner's trial. Petitioner's trial counsel explained that they had no idea the public defender's office had been appointed to represent D.R.; they had no contact with D.R. regarding his misdemeanor case; and they had not had any contact with the attorney who had been appointed to handle D.R.'s case. They were also unsure whether the public defender's office actually represented D.R. at that time. Based on that information, the circuit court appointed a private attorney to handle D.R.'s misdemeanor charge and prohibited petitioner's counsel from communicating with the attorneys involved in D.R.'s representation. Therefore, it is apparent from the record on appeal that the circuit court averted any potential for conflict involving petitioner's trial counsel, petitioner, and D.R.

         Petitioner next argues that law enforcement violated his Fourth Amendment rights by conducting a warrantless search of his home, which resulted in the discovery of the semen stain. He contends that he consented only to a search of J.S.'s bedroom, which he asserts did not include the hallway outside of her bedroom. However, the semen stain at issue was found in the hallway using what he describes as advanced scientific equipment.

         Our decision in State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50 (1995), is particularly relevant to our consideration of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.