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State v. Allman

Supreme Court of West Virginia

April 5, 2018

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
MICHAEL KEITH ALLMAN, Defendant Below, Petitioner.

          Submitted: March 13, 2018

          Appeal from the Circuit Court of Wood County The Honorable Jeffrey B. Reed Case No. 15-F-179

          Richard D. Smith, Jr., Esq. Attorney for Petitioner.

          Patrick Morrisey, Esq. Attorney General Virginia Robert Hogan, Esq. Assistant Attorney General Attorneys for Respondent.

          CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.


         1. "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).

         2. "'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syl. Pt. 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999).

         3. "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

         4. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

          5. An individual charged with a felony who escapes from lawful custody or confinement as prescribed in West Virginia Code § 61-5-10 (2000) (Repl. Vol. 2014) may be convicted of the offense of felony escape irrespective of the ultimate outcome of the charge for which he or she was in lawful custody or confinement.

         6. "'A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)." Syl., State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

         7. "A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal." Syl. Pt. 1, Maples v. W. Virginia Dep't of Commerce, Div. of Parks & Recreation, 197 W.Va. 318, 475 S.E.2d 410 (1996).


          Workman, C. J.

         This is an appeal from the November 7, 2016, order denying Michael Keith Allman's (hereinafter "petitioner") motion for a new trial on his convictions of felony escape, destruction of property, and petit larceny and resultant November 9, 2016, sentencing order. Petitioner argues that his sentence on the felony escape conviction is "disproportionate" to the offense because he was ultimately found guilty only of a misdemeanor, rather than a felony, on the underlying charge from which he escaped. Petitioner further argues as to both the felony escape and related destruction of property convictions that the circuit court erred in failing to grant a new trial on the basis of newly-discovered, exculpatory evidence. Finally, as to the underlying petit larceny conviction, petitioner asserts that the circuit court erred in permitting the State to elect to prosecute the felony escape and destruction of property charges prior to the underlying grand larceny charge.

         Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court committed no reversible error and therefore affirm petitioner's conviction and the circuit court's denial of a new trial.


         Petitioner was charged with grand larceny after he was discovered on surveillance video removing a purse from a vehicle in the parking lot of a laundromat. The purse allegedly contained $225 in cash, a ring valued at $1, 992, two additional rings, a checkbook, and other miscellaneous items. Petitioner was placed on home confinement as a condition of his bond; he was ordered while on home confinement to remain at his ...

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