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State v. King

Supreme Court of West Virginia

April 5, 2018

STATE OF WEST VIRGINIA, Respondent
v.
CARTER PERRY KING, Petitioner

          Submitted: February 7, 2018

          Appeal from the Circuit Court of Marion County The Honorable David R. Janes, Judge Criminal Action No. 04-F-62

          Scott 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 dissenting opinion.

         SYLLABUS BY THE COURT

         1. "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).

         2. "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:

         The 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.

         In 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, [1] 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.

         I. Facts and Procedural History

         On 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., [2] a female child in his care, custody, or control.[3]

         On 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.[4] 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.").

         An order entered by the circuit court on October 4, 2007, memorializing a hearing on the petitioner's motion to suppress statements[5] 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."[6] The petitioner was out on bond pending trial.

          Also 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."

         Thereafter, at a December 18, 2007, hearing on the petitioner's motion for further mental examination, [7] 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.

         Dr. 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.

         A circuit court's order entered on December 18, 2008, reflects that a hearing was held on October 10, 2008, [8] in 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.[9]

          On 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.

         On 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 now?

         Further, 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."

         The petitioner's counsel told the circuit court that he was seeking, on his ...


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