Preston County 13-F-65
MEMORANDUM DECISION
Petitioner
Stephen H., pro se, appeals the Circuit Court of Preston
County's July 7, 2017, order denying his motion to
resentence for the purpose of appeal. The State, by counsel
Scott E. Johnson, filed a response in support of the circuit
court's order. Petitioner filed a reply. On appeal,
petitioner alleges that the circuit court erred in denying
his motion to resentence for the purpose of appeal when he
was not advised of the dangers of proceeding pro se with his
direct appeal.
This
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,
this 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.
In
November of 2013, petitioner was indicted on thirteen counts:
two counts of sexual abuse by a parent, custodian, or person
in a position of trust; one count of use of obscene matter
with intent to seduce a minor; and ten counts of soliciting a
minor via computer.
The
matter proceeded to trial in January of 2015. Petitioner was
represented by counsel throughout the proceedings. The jury
returned a verdict in which it found petitioner guilty of one
count of sexual abuse by a parent, custodian, or person in a
position of trust; ten counts of soliciting a minor via
computer; and one count of use of obscene matter with intent
to seduce a minor. In May of 2015, the circuit court
sentenced petitioner to an effective sentence of four to
twenty years of incarceration, with five years of probation
and ten years of extended supervised release. Petitioner, pro
se, appealed his conviction in June of 2015. This Court
affirmed the circuit court's order in June of 2016.
See State v. Stephen H., No. 15-0801, 2016 WL
3165791 (W.Va. June 6, 2016)(memorandum decision). Subsequent
to petitioner's direct appeal, he filed a Rule 35(b)
Motion for Reduction of Sentence, which the circuit court
granted in October of 2016, reducing his sentence to two to
ten years of incarceration with five years of probation and
ten years of extended supervised release.
In May
of 2017, petitioner filed a motion to resentence for purpose
of appeal and argued that he should be resentenced for the
purpose of "regaining his right of direct appeal under
Rule 5 of the West Virginia Rules of Appellate
Procedure." Specifically, petitioner argued that he
never knowingly and intentionally waived his right to counsel
in his direct appeal because he was not informed of the
dangers and disadvantages of filing a direct appeal pro se.
The circuit court denied petitioner's motion, finding
that: (1) petitioner was never denied his right to assistance
of counsel because he never requested that he be appointed
counsel, (2) petitioner was represented by counsel throughout
his trial proceedings, (3) petitioner had the right to
proceed pro se, [1] and (4) petitioner was not entitled to a
second chance at a direct appeal as he provided no legal
authority supporting such an argument. Moreover, the circuit
court noted that petitioner was provided a notice of
appellate rights and had the notice read to him in open
court.[2] The circuit court concluded that
petitioner was provided with notice that, if he were unable
to pay for an attorney, one would be appointed to represent
him upon his written request. The circuit court noted that
petitioner did not file a written request and proceeded to
file his direct appeal, which was addressed by this Court. It
is from the July 7, 2017, order denying his motion for
resentencing that petitioner appeals.
We have
previously established the following standard of review:
"In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential
standard of review. We review the final order and the
ultimate disposition 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. 2,
Walker v. West Virginia Ethics Com'n, 201 W.Va.
108, 492 S.E.2d 167 (1997).
Syllabus, State v. Maisey, 215 W.Va. 582, 600 S.E.2d
294 (2004).
On
appeal, petitioner argues that the circuit court erred in
denying his motion to resentence for the purpose of appeal
when he was not advised of the dangers of proceeding pro se
with his direct appeal. We find petitioner's argument to
be without merit. In his brief on appeal, petitioner fails to
cite to any authority demonstrating that the circuit court
abused its discretion in denying his motion to resentence for
the purpose of appeal. Moreover, any argument petitioner sets
forth regarding any perceived deficiency in the circuit
court's notice of appellate rights provided to him in May
of 2015 will not be addressed as his time to raise that issue
on appeal has long since passed. Accordingly, we find that
petitioner is entitled to no relief in this regard.
For the
foregoing reasons, the circuit court's July 7, 2017,
order denying petitioner's motion to resentence for the
purpose of appeal is hereby affirmed.
Affirmed.
CONCURRED IN BY: Chief Justice Margaret L. Workman Justice
Menis E. Ketchum Justice Robin Jean ...