Submitted: February 7, 2018
from the Circuit Court of Marion County The Honorable David
R. Janes, Judge Criminal Action No. 04-F-62
A. Shough, Esq. Counsel for the Petitioner.
Patrick Morrisey, Esq. Attorney General, Robert L. Hogan,
Esq. Deputy Attorney General Counsel for the Respondent.
JUSTICE LOUGHRY dissents and reserves the right to file a
BY THE COURT
"This Court reviews the circuit court's final order
and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed
de novo." Syl. Pt. 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.3d 114 (1996).
"The right to a jury trial does not attach to a hearing
requested pursuant to West Virginia Code § 27-6A-6
(2013) for the purpose of permitting a criminal defendant,
who has been adjudged incompetent, to establish any defenses
to the charged offense other than the defense of not guilty
by reason of mental illness." Syllabus, State v.
Gum, 234 W.Va. 263, 764 S.E.2d 794 (2014).
WORKMAN, CHIEF JUSTICE:
petitioner, Carter PerryKing, was charged with two counts of
sexual abuse by a parent, guardian or custodian and two
counts of second degree sexual assault in 2004. By order
entered December 18, 2008, the circuit court found that the
petitioner was not competent to stand trial and that he would
have been convicted of the criminal charges against him. The
circuit court found that it would maintain jurisdiction over
the petitioner for forty to ninety years - the maximum
possible sentence the petitioner would have received if
convicted - or until the petitioner attained competency,
whichever occurred first.
2016, the petitioner moved the circuit court for a hearing to
offer a defense, other than not guilty by reason of mental
illness, to the merits of the criminal charges against him
pursuant to West Virginia Code § 27-6A-6 (2013), which
hearing may be held at the circuit court's discretion.
The circuit court denied the petitioner's motion. The
Court must decide whether the circuit court abused its
discretion in denying the petitioner's motion to offer a
defense to the merits of charges brought against him in 2004.
Based upon a review of the appendix record,  the parties'
briefs and arguments and all other matters before the Court,
we find that the circuit court abused its discretion in not
affording the petitioner a hearing in this case and,
therefore, reverse and remand the matter to the circuit court
for a hearing pursuant to West Virginia Code § 27-6A-6.
Facts and Procedural History
February 3, 2004, the petitioner was indicted on two counts
of sexual abuse by a parent, guardian or custodian and two
counts of second degree sexual assault. The charges stemmed
from events that occurred on December 8, 2003, wherein the
petitioner, who was forty years old at the time, was alleged
to have engaged in, or attempted to engage in, acts of sexual
intercourse or intrusion with T.M.,  a female child in his care,
custody, or control.
November 30, 2004, the circuit court found that the
petitioner was not capable of participating substantially in
his defense, was not able to understand the nature and
consequences of a criminal trial and may pose a danger to
himself and/or others. Because the circuit court determined
that there was a substantial likelihood that the petitioner
would "attain competency within the ensuing six (6)
months[, ]" it committed him to William R. Sharpe, Jr.,
Memorial Hospital for an improvement period not to exceed six
months, which was according to the law at the
time. See W.Va. Code § 27-6A-2(b)
(2004) (providing that "[i]f the defendant is found
incompetent to stand trial, the court of record shall upon
the evidence make further findings as to whether or not there
is a substantial likelihood that the defendant will attain
competency within the next ensuing six months, and if the
court of record so finds, the defendant may be committed to a
mental health facility for an improvement period not to
exceed six months.").
order entered by the circuit court on October 4, 2007,
memorializing a hearing on the petitioner's motion to
suppress statements that he made to law enforcement regarding
the allegations against him, reveals that the petitioner
"was first evaluated for his competency to stand trial.
He was originally found incompetent to stand trial; however,
his competency was later restored after being educated on the
issues regarding the trial of his case." The petitioner
was out on bond pending trial.
at the suppression hearing, the circuit court heard testimony
from Dr. William Fremouw, who had examined the petitioner on
April 13, and September 13, 2006. Dr. Fremouw testified that
the petitioner was mildly retarded with an IQ of 60 or 70.
Dr. Fremouw further testified that the petitioner "would
not have been competent to understand his Miranda rights due
to his low IQ, his lack of experience with the criminal
justice system, and his willingness to please." The
circuit court further noted that Dr. Ryan Finkenbine had
examined the petitioner at the State's request and
determined that the petitioner was able to "knowingly
and voluntarily waive his Miranda rights, but was not able to
do so intelligently. He also determined that '[h]is
capacity to adapt his knowledge in situations where he may
show reasonable judgement, to weigh matters appropriately,
and to consider the consequences of waiving his rights was
poor.'" The circuit court concluded that the
petitioner's motion to suppress his statements should be
granted because he did not possess sufficient capacity to
make "a knowing and voluntary confession."
at a December 18, 2007, hearing on the petitioner's
motion for further mental examination,  which was held
before jury selection in the criminal trial commenced, the
petitioner's counsel raised serious concerns about his
client's competency to stand trial. In conjunction with
this motion, the petitioner's counsel contacted Dr.
Fremouw and asked that he do another evaluation of the
petitioner. There was no objection by the State and the
petitioner was evaluated further by Dr. Fremouw.
Fremouw again testified at the hearing that it was his
opinion that the petitioner was not competent to stand trial.
Dr. Fremouw noted that this was his opinion in 2006 and
remained his opinion at the time of the hearing. He testified
that he had serious concerns about the defendant's
competency to stand trial, because "[h]e lacks the
ability to meaningful [sic] consult and assist counsel."
The circuit court indicated at the hearing that the trial
would not go forward as the court believed that "at this
time he is not competent to stand trial[, ]" and that it
was taking the matter under advisement. The circuit court
indicated that it wanted to give the State an opportunity to
consult with other psychiatrists or psychologists and that
the court did not want to "send . . . [the petitioner]
to the State Hospital without a more detailed hearing and
determine what . . . [its] options . . . [were]." The
parties were asked to schedule a hearing after the first of
the year, which would have been in 2008.
circuit court's order entered on December 18, 2008,
reflects that a hearing was held on October 10, 2008,
which the State and the petitioner appeared by counsel
"for the purpose of addressing the Defendant's
previously filed Motion addressing the Defendant's
competency to stand trial." See W.Va. Code
§ 27-6A-3 (2013). The circuit court found that the
petitioner was not competent to stand trial "because he
does not exhibit sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding
and a rational as well as factual understanding of the
proceedings against him." The circuit court further
found that the petitioner was "not substantially likely
to attain competency and that the indictment against the
defendant involves acts of violence against a person."
The circuit also found that "the Defendant would have
been convicted of" the offenses for which he was
indicted "but for the determination that he is not
competent to stand trial[.]" The circuit court ordered
that the petitioner be committed to William R. Sharpe, Jr.,
Hospital and that the court "maintains jurisdiction over
the defendant for forty (40) years to (90) years, the maximum
possible sentence defendant would have received if he had
been convicted of the crime(s) charge[d], or until the
defendant regains competency and the criminal charges reach
resolution which is sooner." The circuit court later
placed the petitioner in the Browns Mill Group Home following
a dangerousness evaluation as the court found it to be the
least restrictive suitable placement.
April 24, 2013, the petitioner moved the circuit court for an
"opportunity to offer a defense to the charges pending
against the defendant before the court" pursuant to West
Virginia Code § 27-6A-6. The basis for the motion was
that the petitioner "believes that he can establish a
defense of not guilty and requests the opportunity to do
so." Then, on December 9, 2013, the petitioner filed a
"Notice of Request of Withdrawal of Bench Trial"
that had been scheduled for January 2, 2014.
April 13, 2016, the petitioner filed a second motion for
hearing to offer a defense pursuant to West Virginia Code
§ 27-6A-6. In the motion, the petitioner argued that
"[a]fter investigating this matter counsel believes the
defendant has been found incompetent to proceed to trial, and
not likely to be restored to competency thereto, but has
never had an opportunity to challenge the allegations against
him." A hearing was scheduled for September 28, 2016.
But rather than allowing the petitioner to proceed with the
hearing requested, the circuit court questioned the
timeliness of the petitioner's motion. Specifically, the
circuit court inquired of the petitioner's counsel as to
why the petitioner's motion "wasn't . . . done
in 2008 prior to Judge Fox's finding . . . [presumably
concerning the petitioner not being competent to stand
trial]." The circuit court asked whether the hearing the
petitioner sought had been waived, stating
So if it's waived then, how can he have a hearing now? If
the attorney representing him at that time decided in making
some strategic decision that it wasn't in his best
interest to conduct that hearing back in 2008 prior to Judge
Fox's finding, how is it that he has the right to do it
the circuit court indicated that there may have been a
strategic advantage to not having the hearing in 2008 when it
stated: "He [the petitioner] could have witnesses to
die, witnesses to move away, evidence could be lost, as . . .
[the State] has suggested. There may be a significant
strategic benefit to him by delaying the trial. Generally
speaking, it's to a defendant's benefit to delay
every criminal trial."
petitioner's counsel told the circuit court that he was
seeking, on his ...