Submitted: March 13, 2018
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
JUSTICE WORKMAN delivered the Opinion of the Court.
BY THE COURT
"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).
"'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).
"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).
"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
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.
"'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).
"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
Workman, C. J.
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.
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.
FACTS AND PROCEDURAL HISTORY
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 ...