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State v. William N.

Supreme Court of Appeals of West Virginia

January 13, 2020

State of West Virginia, Plaintiff Below, Respondent
v.
William N., Defendant Below, Petitioner

          Monongalia County 09-F-68

          MEMORANDUM DECISION

         Petitioner William N., by counsel Jason T. Gain, appeals the July 31, 2018, order of the Circuit Court of Monongalia County that denied his motion for reduction of sentence. The State of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court's order.

         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, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 2008, a Grand Jury in the Circuit Court of Monongalia County returned a four-count indictment against petitioner consisting of three counts of incest and one count of sexual abuse by a parent, guardian, custodian, or a person in a position of trust. The victim was petitioner's step-daughter.

         The parties negotiated a plea deal under which petitioner would plead guilty to two counts of incest, with the parties retaining the right to argue sentencing. The State agreed to dismiss the remaining two counts of the indictment. On September 24, 2009, petitioner was sentenced to five-to-fifteen years of imprisonment on each count, which were ordered to run consecutively (for a cumulative sentence of ten to thirty years), with an additional term of twenty years of supervised release.

         On December 12, 2013, petitioner filed a petition for a writ of habeas corpus alleging, inter alia, that he received ineffective assistance of counsel because he was not advised by counsel, nor did the plea agreement state, that he was subject to a period of supervised release upon the completion of his prison sentence. By order entered January 10, 2017, petitioner was permitted to withdraw his guilty plea.

         On May 5, 2017, the State secured a superseding indictment that charged petitioner with thirteen counts of sexual abuse by a parent, guardian, or custodian for the same conduct underlying the original four-count indictment. Petitioner filed a motion to dismiss the superseding indictment on the ground that it violated due process as vindictive and retaliatory. By order entered October 11, 2017, the circuit court granted petitioner's motion and dismissed the superseding indictment.

         On October 30, 2017, petitioner pled guilty to all four counts of the original indictment: three counts of incest and one count of sexual abuse by a parent, guardian, or custodian, or a person in a position of trust. On January 2, 2018, he was sentenced to three consecutive five-to-fifteen year terms of incarceration on the incest charges, and a concurrent ten-to-twenty year term for the charge of sexual abuse by a parent, guardian, or custodian. The circuit court also ordered a period of supervised release of twenty-five years.

         On May 1, 2018, petitioner filed a motion to reduce his sentence, pursuant to West Virginia Rule of Criminal Procedure 35(a) and (b). The State filed a response. By order entered July 31, 2018, the circuit court denied petitioner's motion. This appeal followed.

         At issue in this appeal is whether the circuit court's imposition of a harsher sentence upon resentencing after petitioner successfully challenged his original plea in a habeas proceeding violated his constitutional right to due process. Because this issue presents a question of law, we review it de novo. See Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         Petitioner relies on this Court's decision in State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), in which the defendant was tried in 1975 on the charge of reckless driving before a justice of the peace, convicted, and fined $50. Upon a trial de novo in the circuit court, he was again convicted (on the same charge) but sentenced to thirty days in jail and a $200 fine. The defendant appealed the increased sentence, and this Court reversed, holding that

[a] defendant who is convicted of an offense in a trial before a justice of the peace and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va. Const. art. 3, § 10.

Eden, 163 W.Va. at 371, 256 S.E.2d at 870, syl. pt. 2. Here, petitioner argues that the Court's reasoning in Eden applies:

[p]rotection of the criminal defendant's fundamental right to appeal and avoidance of any possible vindictiveness in resentencing would force us to hold that upon a defendant's conviction at retrial following prosecution of a successful appeal, imposition by the sentencing court of an increased sentence violates due process and the ...

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