Monongalia County 09-F-68
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.
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.
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
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.
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.
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
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.
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.
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).
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
[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 ...