State of West Virginia v. Langley ( 2022 )

FILED
January 18, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0903 (Monongalia County 20-F-152)
Jon Langley,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Jon Langley, by counsel Peter Dinardi, appeals the October 19, 2020, order of
the Circuit Court of Monongalia County that sentenced him to one to five years in prison for one
count of attempting to disarm a law enforcement officer; twelve months in jail for misdemeanor
battery on a law enforcement officer; and twelve months in jail for misdemeanor obstruction.
Respondent, the State of West Virginia, by counsel Patrick Morrisey and Katherine M. Smith, filed
a summary 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 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.
On May 28, 2020, Monongalia County Deputy Sheriff J.D. Morgan and another officer
attempted to execute a capias warrant on petitioner and to serve him with a family violence
protective order. The officers located a man they believed to be petitioner, but who identified
himself only as “Adam.” Correctly suspecting that “Adam” was petitioner, the officers attempted
to handcuff him, but petitioner jerked out of Deputy Morgan’s grasp. Deputy Morgan then caught
petitioner and tackled him. In response, petitioner twice head-butted Deputy Morgan in the face
and then grabbed for the deputy’s gun, but instead got the deputy’s taser. Petitioner shot Deputy
Morgan in the left forearm using the taser. Thereafter, the officers were able to handcuff petitioner,
place him under arrest, and properly identify him.
Jennifer Yost was appointed as petitioner’s counsel. After his first meeting with Ms. Yost,
petitioner demanded new counsel. Therefore, Ms. Yost filed a motion with the trial court on June
8, 2020, seeking to withdraw as petitioner’s counsel on the ground that “she was informed by her
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client at a meeting . . . at the North Central Regional Jail that he would like to be appointed a new
attorney for this matter.” On June 10, 2020, the circuit court denied that motion without a hearing
finding that petitioner’s counsel “fails to identify any persuasive ground upon which said motion
should be granted.”
On June 18, 2020, petitioner was indicted on three counts: (1) attempting to disarm a police
officer; (2) battery on a law enforcement officer; and (3) obstruction.
Petitioner’s trial took place on August 25, 2020. During voir dire, venire member James
Hall advised that (1) his aunt had worked for the Bureau of Prisons and was currently a court
officer, and (2) two of his cousins worked for the Federal Bureau of Investigation (“FBI”).
Petitioner states that his counsel did not question Mr. Hall on voir dire or object to Mr. Hall serving
on the jury. Mr. Hall ultimately sat on the jury which found petitioner guilty on all three counts of
the indictment.
By order entered October 19, 2020, the circuit court sentenced petitioner to (1) one to five
years in prison for attempting to disarm a police officer; (2) twelve months in jail for misdemeanor
battery on a law enforcement officer; and (3) twelve months in jail for misdemeanor obstruction.
The court ordered the misdemeanor sentences to run concurrently to one another, and
consecutively to petitioner’s sentence for attempting to disarm a law enforcement officer.
Petitioner now appeals and raises two assignments of error. Petitioner first argues that Ms.
Yost provided ineffective assistance because she did not object to Mr. Hall serving on petitioner’s
jury or question him about his aunt who had worked for the Bureau of Prisons and is now a court
officer, or about his cousins who worked for the FBI, to determine if Mr. Hall was biased or
prejudiced against him. Petitioner contends that this failure was particularly problematic given that
the alleged victim was a law enforcement officer. Petitioner highlights that “[t]he object of jury
selection is to secure jurors who are not only free from improper prejudice and bias, but who are
also free from the suspicion of improper prejudice or bias.” O’Dell v. Miller, 211 W. Va. 285, 288,
565 S.E.2d 407, 410 (2002). Petitioner notes that
a defendant’s right to an impartial jury includes the right to an adequate voir dire to
identify unqualified jurors. See Morgan v. Illinois, 504 U.S. 719, 729–30, 112 S.Ct.
2222, 2230, 119 L.Ed.2d 492, 503 (1992); Syl. pt. 4, State v. Peacher, 167 W.Va.
540, 280 S.E.2d 559 (1981). Voir dire must be probing enough to reveal jurors’
prejudices regarding issues that may arise at trial so that counsel may exercise their
challenges in an informed manner.
State v. Miller, 197 W. Va. 588, 603, 476 S.E.2d 535, 550 (1996). Petitioner contends that Ms.
Yost could have had no possible strategy that would have led her not to question Mr. Hall about
any potential bias or prejudice. Accordingly, he concludes that she provided ineffective assistance
in failing to question Mr. Hall on voir dire and to strike him as a juror.
“Traditionally, an ineffective assistance of counsel claim is not cognizable on direct appeal
because of the insufficiency of the record from the criminal trial.” State v. Moore, No. 13-0332,
2013 WL 5708427, at *1 (W. Va. Oct. 21, 2013)(memorandum decision).
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In a direct appeal, . . . it is often difficult, if not impossible, for this Court to
determine “whether the attorney’s performance below was ineffective or merely
the result of trial strategy.” State v. Bess, 185 W.Va. 290, 293, 406 S.E.2d 721, 724
(1991). In past cases, this Court has cautioned that “[i]neffective assistance claims
raised on direct appeal are presumptively subject to dismissal.” State v. Miller, 197
W.Va. 588, 611, 476 S.E.2d 535, 558 (1996). See City of Philippi v. Weaver, 208
W.Va. 346, 351, 540 S.E.2d 563, 568 (2000). Such claims are more properly raised
in a post-conviction collateral proceeding “to promote development of a factual
record sufficient for effective review.” Miller, 197 W.Va. at 611, 476 S.E.2d at 558.
We have explained that
“[i]t is the extremely rare case when this Court will find
ineffective assistance of counsel when such a charge is raised as an
assignment of error on a direct appeal. The prudent defense counsel
first develops the record regarding ineffective assistance of counsel
in a habeas corpus proceeding before the lower court, and may then
appeal if such relief is denied. This Court may then have a fully
developed record on this issue upon which to more thoroughly
review an ineffective assistance of counsel claim.”
Syl. Pt. 10, State v. Hutchinson, 215 W.Va. 313, 599 S.E.2d 736 (2004) (quoting
Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992)).
State v. Woodson, 222 W. Va. 607, 621, 671 S.E.2d 438, 452 (2008). Here, because the record is
insufficient to review petitioner’s claim of ineffective assistance of counsel, it must be dismissed.
Thereafter, petitioner “may reassert the ineffective assistance claim in a petition for writ of habeas
corpus so that a full development of the record may be made before the trial court.” Id.Petitioner’s claim regarding juror bias is also not properly before the Court. Petitioner
admits that his counsel did not object to Mr. Hall serving on the jury. In fact, petitioner never raised
any issue of bias regarding Mr. Hall to the trial court.
Ordinarily, a defendant who has not proffered a particular claim or defense
in the trial court may not unveil it on appeal. Indeed, if any principle is settled in
this jurisdiction, it is that, absent the most extraordinary circumstances, legal
theories not raised properly in the lower court cannot be broached for the first time
on appeal. We have invoked this principle with a near religious fervor. This variant
of the “raise or waive” rule cannot be dismissed lightly as a mere technicality. The
rule is founded upon important considerations of fairness, judicial economy, and
practical wisdom.
Miller, 197 W. Va. at 597, 476 S.E.2d at 544. Moreover,
[w]hen a defendant has knowledge of grounds or reason for a challenge for
cause, but fails to challenge a prospective juror for cause or fails to timely assert
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such a challenge prior to the jury being sworn, the defendant may not raise the issue
of a trial court’s failure to strike the juror for cause on direct appeal.
Syl. Pt. 5, State v. Tommy Y., Jr., 219 W. Va. 530, 637 S.E.2d 628 (2006).
Despite not being properly before the Court, we nevertheless observe that at petitioner’s
trial, the court, the State, and petitioner’s counsel conducted voir dire of the venire. None of the
responses to the questions asked during voir dire indicated that Mr. Hall was unable to sit as an
impartial juror. Additionally, neither the State nor the defense moved to strike Mr. Hall from the
jury. As noted above, the only evidence petitioner presents in support of his claim that Mr. Hall
was biased is that (1) Mr. Hall’s aunt had worked for the Bureau of Prisons and is a court officer,
and (2) two of his cousins worked for the FBI. “The relevant test for determining whether a juror
is biased is ‘whether the juror[] . . . had such a fixed opinion that [he or she] could not judge
impartially the guilt of the defendant.” Miller, 197 W. Va. at 605, 476 S.E.2d at 552 (quoting
Patton v. Yount, 476 U.S. 1025, 1035 (1984) (citations omitted)).
In determining whether a juror should be excused, our concern is whether
the juror holds a particular belief or opinion that prevents or substantially impairs
the performance of his or her duties as a juror in accordance with the instructions
of the trial court and the jurors’ oath. Wainwright v. Witt, 469 U.S. 412, 424, 105
S.Ct. 844, 852, 83 L.Ed.2d 841, 851–52 (1985); Phillips, 194 W.Va. at 588, 461
S.E.2d at 94. A juror is impartial if he or she can lay aside any previously formed
impression or opinion of the parties or the merits of the case and can render a verdict
based on the evidence presented at trial. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct.
1639, 1643, 6 L.Ed.2d 751, 756 (1961).
Miller, 197 W. Va. at 605, 476 S.E.2d at 552. “Actual bias can be shown either by a juror’s own
admission of bias or by proof of specific facts which show the juror has such prejudice or
connection with the parties at trial that bias is presumed.” Id. at Syl. Pt. 5.
The fact that Mr. Hall’s aunt was formerly employed with the Bureau of Prisons and is a
court officer, and that his cousins were employed by the FBI, does not, alone, demonstrate any
actual bias. Moreover, during voir dire, both the court and the State repeatedly asked the venire
whether they were aware of any prejudice or bias that would prevent or interfere with their ability
to serve as fair and impartial jurors. Two potential jurors, neither of which was Mr. Hall, admitted
biases and, as a result, were removed from the venire for cause. Mr. Hall did not claim to have any
prejudice or bias and neither the State nor the defense sought to strike him for cause. In fact,
nothing in the record evidences that Mr. Hall was biased against petitioner. Accordingly, we reject
this assignment of error.
In petitioner’s second assignment of error, he contends that the judge initially assigned to
his case erred in denying his motion for new court-appointed counsel. Petitioner argues that his
motion should have been granted because he sought new counsel after meeting with Ms. Yost,
and, thereafter, Ms. Yost moved to withdraw as petitioner’s counsel. Petitioner contends that
because the circuit court did not hold a hearing on his motion, he was given no opportunity to
explain why he wanted new counsel, nor did Ms. Yost have an opportunity to explain why she
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filed her motion. Finally, petitioner argues that Ms. Yost should have renewed her motion to
withdraw as petitioner’s counsel before the second judge assigned to his case who presided over
petitioner’s trial. Petitioner concludes that he was prejudiced by Ms. Yost’s failure to do so.
“Although an indigent criminal defendant has a right to be represented by counsel, he does
not have a right to be represented by a particular lawyer, or to demand a different appointed lawyer
except for good cause.” Watson v. Black, 161 W. Va. 46, 52, 239 S.E.2d 664, 668 (1977); see also
State v. Reed, 223 W. Va. 312, 317, 674 S.E.2d 18, 23 (2009) (“‘[A]n indigent criminal defendant
may demand different counsel for good cause, such as the existence of a conflict of interest or, if
the potential conflict is disclosed in a timely fashion, he may elect to waive his rights and keep the
court appointed counsel.’ State v. Reedy, 177 W.Va. 406, 411, 352 S.E.2d 158, 163 (1986).”).
“Good cause for the relief of a court-appointed counsel consists of: (1) a conflict of interest; (2) a
complete breakdown in communication with court-appointed counsel after the exhaustion of good
faith efforts to work with counsel; or, (3) an irreconcilable conflict which might lead to an unjust
verdict.” Watson, 161 W. Va. at 46, 239 S.E.2d at 665, Syl. Pt. 5. Here, petitioner provided no
“good cause” in support of his motion for new counsel. Thus, we find that he was not entitled to
alternate court-appointed counsel and, therefore, find no error. For the same reason, we reject
petitioner’s argument that he was prejudiced when Ms. Yost failed to renew her motion to
withdraw before the judge who presided over petitioner’s trial. Finally, we note that there is no
right to a hearing on a motion to withdraw as counsel. See W. Va. Trial Ct. R. 4.03(b) (“[T]he
court may set the matter for hearing[.]” (Emphasis added.)) Moreover, the approval of such a
motion “rest[s] in the sound discretion of the court[.]” Id. Accordingly because petitioner failed to
identify any persuasive ground upon which his motion for new counsel should have been granted,
we find he is entitled to no relief.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 18, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William D. Wooton
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