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State v. Lowe

Supreme Court of West Virginia

February 2, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Keith W.R. Lowe, Defendant Below, Petitioner

         Kanawha County 04-F-57

          MEMORANDUM DECISION

         Petitioner Keith W.R. Lowe, pro se, appeals the November 16, 2016, order of the Circuit Court of Kanawha County denying his motion to vacate his conviction for first-degree murder. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order.[1]

         The 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.

         By order entered on April 29, 2005, petitioner was convicted of first-degree murder as a result of a jury's verdict of guilty. The jury did not recommend mercy. Consequently, the circuit court sentenced petitioner to a life term of incarceration without the possibility of parole. Petitioner sought review of his conviction, but this Court refused his appeal by an order entered on November 28, 2006.

         Petitioner has since filed two petitions for a writ of habeas corpus. When he filed each petition, petitioner requested that the judge who presided at trial recuse himself from presiding over petitioner's habeas proceeding. Although the trial judge disputed petitioner's reasons for requesting his recusal, he voluntarily recused himself. In each habeas case, the same judge was assigned to preside following the voluntary recusal of the trial judge.

         In the first habeas proceeding, [2] the circuit court appointed an attorney for petitioner and then held an evidentiary hearing on October 9, 2009. Following that hearing, the circuit court denied habeas relief by order entered on January 25, 2010. In denying the first habeas petition, the circuit court noted that petitioner alleged that, in November/December of 2004, the newly-elected prosecuting attorney suggested that the trial judge could possibly be hired as an assistant prosecutor as follows:

Petitioner further complain[ed] about a discussion the new prosecutor had with the presiding judge about potential employment, although the prosecutor clearly testified that no offer was made to the [j]udge and that the presiding judge, within two days of that discussion, simply expressed a lack of interest. No further discussion was had of the matter.[3]

         The circuit court found that there was "no impropriety" in the trial judge's conduct. Petitioner sought review of the January 25, 2010, order denying his habeas petition, but this Court refused his appeal by order entered on June, 25, 2010.

         Throughout the second habeas proceeding, [4] several attorneys were appointed to represent petitioner. However, the circuit court eventually allowed petitioner to proceed pro se following either each attorney's withdrawal or petitioner's refusal of their services. The circuit court denied habeas relief by order entered on December 7, 2016. In that order, the circuit court found that "an evidentiary hearing [was] unnecessary." The circuit court rejected petitioner's claim that his attorney in the first habeas proceeding failed to fully litigate the issue of whether the trial judge violated the judicial canons by "negotiating for a position as an assistant prosecutor." The circuit court referenced its finding from its January 25, 2010, order denying petitioner's first habeas petition that "no job offer was made" to the trial judge and that the judge quickly expressed a lack of interest. The circuit court concluded that the trial judge "presided over the trial impartially, " and, therefore, habeas counsel had no duty to pursue the matter further. Petitioner appealed the December 7, 2016, order denying his second habeas petition, and that appeal remains pending.[5]

         On August 1, 2016, petitioner filed a motion in the underlying criminal case to vacate his conviction for first-degree murder based on the trial judge's alleged conflict of interest. Though petitioner again requested that the trial judge recuse himself, the trial judge found that there was no longer any need for his voluntary recusal. Consequently, the trial judge transmitted petitioner's motion for disqualification to this Court for a ruling by the Chief Justice pursuant to Rule 17.01 of the West Virginia Trial Court Rules. By administrative order entered on October 7, 2016, the Chief Justice found that the trial judge's disqualification was "not warranted" and denied the motion. Subsequently, by order entered on November 16, 2016, the trial judge denied petitioner's motion to vacate his conviction, finding that it was improperly filed in a closed criminal case.

         Petitioner now appeals the circuit court's November 16, 2016, order denying his motion to vacate his conviction for first-degree murder. Because we construe petitioner's motion as one requesting a new trial, [6] the following standard of review applies to this case:

"'"Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).' Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997)." Syl. Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Syl. Pt. 2, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013) (per curiam).

         On appeal, petitioner fails to cite a court rule under which he may file a motion to vacate more than eleven years after his conviction for first-degree murder was obtained by the State. The State argues that petitioner's motion was not properly filed under Rule 33 of the West ...


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