Gary Elmer Tacy, by counsel Jeremy B. Cooper, appeals the
Circuit Court of Randolph County's July 22, 2016, order
sentencing him to an aggregate term of incarceration of five
to eighteen years for one count of attempted second-degree
robbery and one count of wearing a mask or face covering.
Respondent, the State of West Virginia, by counsel Shannon
Fredrick Kiser, filed a response. Petitioner filed a reply.
On appeal, petitioner argues that the circuit court erred by
denying his motion to dismiss or to continue the trial when
exculpatory evidence that was not disclosed until shortly
before the beginning of the trial.
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.
of 2010, petitioner entered the High Life Lounge in Randolph
County, West Virginia and handed the cashier a note. The note
read as follows: "Be quiet. You are being robbed. I [do
not] want to hurt anybody. Give me the money from your
registers. [Do not] set off you[r] silent alarms and I will
leave." Petitioner wore a fake beard to conceal his
identity. The cashier alerted the other individuals at the
High Life Lounge to the attempted robbery and petitioner fled
the premises. During the investigation, the police performed
individual photographic line-ups with witnesses present
during the robbery. The cashier could not identify petitioner
in the photographic line-ups and noted that none of the
individuals in the photographic line-ups had beards. However,
another witness positively identified petitioner as the
perpetrator of the robbery and his fingerprints were
positively matched to a fingerprint on the demand note handed
to the cashier. Petitioner was subsequently arrested.
Petitioner was indicted by a Randolph County grand jury on
October 26, 2010, on one count of attempted second-degree
robbery, in violation of West Virginia Code §
61-2-12(b), and one count of wearing a mask or face covering,
in violation of West Virginia Code § 61-6-22(a)(2).
February of 2011, petitioner's jury trial commenced.
Petitioner moved the circuit court to dismiss or to continue
the trial. In support of his motion, petitioner argued that
he received notice of exculpatory evidence shortly before
trial. Specifically, petitioner claimed that he received the
transcript from the grand jury hearing which showed that two
witnesses, including the cashier, failed to identify him in
the photographic line-ups conducted by the police on the
night of the attempted robbery. The circuit court found that
the evidence was exculpatory and held that petitioner could
use the evidence for impeachment purposes. The circuit court
also held that petitioner could effectively cross-examine
witnesses regarding the photographic line-ups and the trial
could proceed "fairly to [petitioner], even though the
disclosure, or the lack of disclosure, could have been an
issue." The circuit court then denied petitioner's
motion to dismiss or continue the trial and noted his
objection on the record. Ultimately, the jury found
petitioner guilty of both counts as charged in the
indictment. Petitioner did not appeal his conviction.
April of 2011, petitioner was sentenced to an aggregate term
of incarceration of six to nineteen years. Thereafter,
petitioner filed a post-conviction habeas corpus petition,
alleging a variety of constitutional errors. The circuit
court denied him relief on all grounds alleged by order
entered on August 19, 2011. Petitioner appealed the circuit
court's order and requested a renewal of his appeal
period on his conviction below. This Court upheld the circuit
court's order in Tacy v. Mirandy, No. 15-0041,
2015 WL 6181454 (W.Va. Oct. 20, 2015) (memorandum decision).
of 2016, petitioner filed a motion for resentencing in his
underlying criminal case and a renewal of his appeal period,
based upon the circuit court's discretionary authority to
renew an appeal period, as set forth in State ex rel
Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972).
The circuit court granted his motion and resentenced him for
the purposes of appeal by order entered on July 22, 2016. The
circuit court sentenced petitioner to an aggregate term of
incarceration of five to eighteen years for one count of
attempted second-degree robbery and one count of wearing a
mask or face covering. The circuit court also ordered that
petitioner receive credit for time served. It is from this
order that petitioner appeals.
Court reviews petitioner's assignment of error under the
In reviewing challenges to findings and rulings made by a
circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and
we review the circuit court's underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535
S.E.2d 484 (2000).
argues on appeal that the circuit court abused its discretion
by denying his motion to continue his trial. In support of
his argument, petitioner argues that the State withheld
exculpatory evidence not discovered by petitioner's
counsel "until she reviewed the grand jury transcript
prepared shortly before trial." Petitioner contends that
he should have been granted additional time to prepare a
defense in light of the new information. Petitioner also
argues that the State had a duty to disclose the exculpatory
evidence prior to trial, pursuant to the holdings in
Brady v. Maryland, 373 U.S. 83 (1963) and Buffey
v. Ballard, 236 W.Va. 509, 782 S.E.2d 204 (2015). Upon
our review, we find no error in the circuit court's
denial of petitioner's motion to continue the trial.
concerning the grant or denial of a motion for continuance
"is addressed to the sound discretion of the trial
court, and its ruling will not be disturbed on appeal unless
there is a showing that there has been an abuse of
discretion." Syl. Pt. 2, in part, State v.
Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979). Furthermore,
we have previously held that
[t]here are three components of a constitutional due process
violation under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v.
Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the
evidence at issue must be favorable to the defendant as
exculpatory or impeachment evidence; (2) the evidence must
have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must have been material,
i.e., it must have prejudiced the defense at trial.
Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650
S.E.2d 119 (2007). Evidence is considered suppressed when
"the existence of the evidence was known, or reasonably
should have been known, to the government, the evidence was
not otherwise available to the defendant through the exercise
of reasonable diligence, and the government either willfully
or inadvertently withheld the evidence until it was too late