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State v. Hicks

Supreme Court of Appeals of West Virginia

January 13, 2020

State of West Virginia, Plaintiff Below, Respondent
Alan Lane Hicks, Defendant Below, Petitioner

          Putnam County Nos. 86-F-59, 88-F-2


         Petitioner Alan Lane Hicks, pro se, appeals the Circuit Court of Putnam County's January 18, 2019, order denying his Rule 35 motion for reduction of sentence. Respondent the State of West Virginia, by counsel Benjamin F. Yancey, III, submitted a summary response to which petitioner submitted a reply.

         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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 1986, petitioner was indicted by a Putnam County Grand Jury for the first-degree murder of Pedro Gaona after Mr. Gaona's body was found floating in the Kanawha River in Putnam County. Mr. Gaona had been shot twice, and several items of personal property were missing from his person, including a gold bracelet, a gold necklace, and his wallet that contained approximately $10, 000. In 1988, petitioner was indicted of aggravated robbery and conspiracy to commit murder; the indictment alleged that petitioner conspired with Curtis Ransom and David Reed to murder Mr. Gaona and that the three stole personal property from Mr. Gaona in excess of $200. The indictments were joined by order entered in June of 1988.

         Petitioner was tried in September of 1988, and at the close of the State's case, the circuit court granted petitioner's motion for judgment of acquittal as to the charge of aggravated robbery but not the lesser included offense of grand larceny. The jury convicted petitioner of first-degree murder without a recommendation of mercy, conspiracy to commit murder, and grand larceny. Petitioner was sentenced to life in the penitentiary without the possibility of parole for first-degree murder, one to five years of incarceration for conspiracy to commit murder, and one to ten years of incarceration for grand larceny. In its October 25, 1988, sentencing order, the circuit court ordered that petitioner's sentences run concurrently to one another.

         On February 23, 1989, petitioner filed a Rule 35 motion titled "Motion for Reduction of Life Without Mercy Sentence Under Rule 35," wherein he requested that his sentence be reduced to life with mercy or, alternatively, to an indeterminate sentence of five to eighteen years.[1]Petitioner's motion centered around his lack of prior criminal history and his assertion that he did not fall into the category of criminal for which a life without mercy sentence is intended. The circuit court did not issue an order on that motion. Petitioner filed a direct appeal with this Court, though that appeal was refused in January of 1990.

         Petitioner then filed a petition for writ of habeas corpus before the circuit court in 1997. Next, he filed a petition for a writ of mandamus with this Court, wherein he addressed the circuit court's failure to rule on his Rule 35 motion to reduce his sentence. In response, the circuit court stated that it lacked jurisdiction to rule on that motion due to its untimely filing. This Court issued a Rule to Show Cause Order in January of 2019, and the circuit court subsequently denied petitioner's Rule 35 motion due to a lack of jurisdiction, by order entered on January 18, 2019. The circuit court further held that, even if it had jurisdiction, a reduction of petitioner's sentence would be inappropriate due to the seriousness of his crimes. Petitioner appeals from that order.

"In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review." Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, State v. Marcum, 238 W.Va. 26, 792 S.E.2d 37 (2016).

         On appeal, petitioner sets forth two assignments of error. First, he seeks the correction of what he claims is an illegal sentence. Petitioner contends that when the State argued against petitioner's motion for a judgment of acquittal as to robbery, the prosecutor stated that "[t]he essential difference is that the essential element of aggravated robbery is there is property taken by threat or presentment of a firearm, wherein grand larceny you don't have the element of a firearm." The circuit court granted the motion as to aggravated robbery but not as to the lesser included offense of grand larceny. Petitioner asserts that the "acquittal order is legally based upon a factual variance between the indictment and the proof at trial." Further, he argues that the State "created a collateral estoppel in an endeavor to secure a lesser included grand larceny conviction[, as t]he record reveals that originally the thrust of the motion for acquittal was the lack of intent to deprive the victim of property." He also contends that the "fundamental nature of the double jeopardy rule is manifested by its explicit extension to situations where an acquittal is based upon an egregiously erroneous foundation."

         According to petitioner, his indictment directly tracked West Virginia Code § 62-9-6, which sets forth the language for a robbery indictment. Petitioner argues that "[o]ther than the elements of grand larceny the indictment stated that the petitioner 'did by presentment of a firearm . . . an assault unlawfully and feloniously make . . . .' The State's process of bringing separate indictments, then joining them, amended the indictment to a specific intent crime." He further contends that acquittals are substantive rulings that conclude criminal proceedings and raise significant double jeopardy concerns. Petitioner argues that, in the instant case, the acquittal "concluded proceedings, not only on the aggravated robbery charge, but the murder charge as well, because the robbery and the murder were alleged to be the same transaction."

         Finally, with regard to his first assignment of error, petitioner asserts that his acquittal on the robbery indictment serves as an acquittal of first-degree murder. In an argument that is difficult to follow, petitioner points to State ex rel. Daye v. McBride, 222 W.Va. 17, 658 S.E.2d 547 (2007), [2] where petitioner contends this Court found that the trial court properly applied

Rule 35(a) to change a prisoner's sentence where the State filed a timely recidivist information based on his two prior felony convictions, where he admitted the allegations in the information, and once that procedure was complete, the trial court has no authority but to impose a life sentence. If the Trial Court in Daye had no authority but to impose a life sentence after he admitted the allegations in the information, how much more would this Court be required to hold the State to the 'Black Letter Law' involved in the collateral estoppel at issue here now that the petitioner has pointed out the Prosecutor[']s reliance upon the theory that both charges were the same transactions, i.e., felony murder, then waived evidence required to support the murder.

         The State argues that petitioner's challenges to the validity of his convictions are improper in a Rule 35 motion and cannot be raised for the first time on appeal. As this Court previously found, "a Rule 35(b) motion is essentially a plea for leniency from a presumptively valid conviction." State v. Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (1996). Further, "Rule 35(b) is not a mechanism by which defendants may challenge their convictions and/or the validity of their sentencing." Syl. Pt. 2, in part, Marcum. We agree with the State that petitioner's argument is essentially that his sentence is illegal due to his alleged wrongful conviction. In addition, [a]s ...

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