State of West Virginia v. Brandon Daniel Wilson ( 2021 )

FILED
August 27, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0528 (Harrison County 18-F-240-3)
Brandon Daniel Wilson,
Defendant Below, Petitioner
MEMORANDUM DECISION
Self-represented petitioner Brandon Daniel Wilson appeals the June 5, 2020, order of the
Circuit Court of Harrison County denying his motions for a new trial pursuant to Rule 33 of the
West Virginia Rules of Criminal Procedure. Respondent State of West Virginia, by counsel Holly
M. Flanigan, filed a response in support of the circuit court’s order. Petitioner filed a reply.
The 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner was indicted in the Circuit Court of Harrison County on one count of soliciting a
minor via a computer pursuant to West Virginia Code § 61-3C-14b(b) by committing:
an overt act designed to bring himself into the physical presence of [a] minor, or the
person believe[d] to be a minor, with the intent to commit an illegal act proscribed
by [West Virginia Code § 61-8B-5] or [West Virginia Code § 61-8B-9] and engage
in any sexual activity or conduct with such minor that is prohibited by law, but
[petitioner] failed to solicit, entice, seduce or lure a minor as the person [petitioner]
believed to be a minor was . . . an adult male law enforcement officer with the
Bridgeport Police Department[.]
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Petitioner and the State entered into a plea agreement, in which petitioner agreed to plead guilty to
the lesser included felony offense of soliciting a minor via a computer pursuant to West Virginia
Code § 61-3C-14b(a). The parties further agreed that petitioner would register as a sex offender
and that sentencing was “left in the sole discretion of the [circuit court].”
At the plea hearing, the circuit court engaged in a colloquy with petitioner about his
proposed guilty plea. The circuit court questioned petitioner as to his background and use of
“controlled substances, prescription drugs, over[-]the[-]counter medications, synthetic drugs, or
alcohol within the past forty-eight hours [before the plea hearing], . . . to all of which [petitioner]
answered satisfactorily to the [c]ourt.” The circuit court further “inquired as to whether . . .
[petitioner] was fully satisfied with the services of [trial] counsel, to which [petitioner] answered in
the affirmative.” The circuit court further interrogated petitioner about the constitutional rights he
would be giving up by pleading guilty, including “the right to move to suppress illegally obtained
evidence and illegally obtained confessions[,] . . . the right to challenge in the trial [c]ourt and on
appeal all pretrial and trial proceedings, to all of which [petitioner] replied in the affirmative and
indicated that he desired to voluntarily give up and waived . . . [his] constitutional rights.” Finally,
the circuit court asked petitioner if he knew that the penalty for the lesser included felony offense
of soliciting a minor via a computer pursuant to West Virginia Code § 61-3C-14b(a) was “an
indeterminate sentence of not less than two (2) nor more than ten (10) years [of incarceration], . . .
to all of which [petitioner] answered in the affirmative.”
Thereafter, petitioner, petitioner’s trial counsel, and counsel for the State executed the
written plea agreement in “open [c]ourt”; petitioner further executed a written plea of guilty in
“open [c]ourt.” Accordingly, the circuit court found as follows:
Whereupon, following questions propounded by the [c]ourt to [petitioner]
and responses thereto by [petitioner] and his counsel, the [c]ourt did FIND that
[petitioner] freely and voluntarily entered his guilty plea with advice and
consultation of competent counsel, and after being fully advised of his
constitutional rights and [petitioner] understood those rights, and has knowingly
and voluntarily waived his rights and with the knowledge of the consequences of
his plea of guilty, including the penalty that may be imposed. The [c]ourt did
further FIND that [petitioner] was competent to enter his pleas and he was
effectively represented by competent counsel and fully advised of his rights.
The circuit court held its acceptance of petitioner’s guilty plea in abeyance and ordered that the
presentence investigation report “shall include a physical, mental[,] and psychiatric study and
diagnosis[.]”
At a March 15, 2019, hearing, the circuit court ordered that the presentence investigation
report and the assessment report be “made a part of the record” and found that petitioner “knew
what he was doing when admitting his guilt, and knowingly and intelligently voluntarily waiv[ing]
his rights.” Accordingly, the circuit court accepted petitioner’s “plea of guilty to the felony offense
of [s]oliciting a [m]inor [v]ia [a] [c]omputer, a violation of West Virginia Code § 61-3C-14b(a),
that being a lesser included felony offense contained in the [i]ndictment in this case” and
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adjudicated petitioner convicted of the lesser included felony offense. Thereafter, the circuit court
sentenced petitioner to two to ten years of incarceration for soliciting a minor via a computer
pursuant to West Virginia Code § 61-3C-14b(a). The circuit court entered its order accepting
petitioner’s guilty plea and sentencing him on April 10, 2019.
Subsequent to the circuit court’s April 10, 2019, order, trial counsel filed a motion to
withdraw from the case, and petitioner requested to proceed as a self-represented litigant. The
circuit court granted both trial counsel’s motion and petitioner’s request. On March 20, 2020,
petitioner filed two motions pursuant to Rule 33 of the West Virginia Rules of Criminal Procedure,
which provides, in pertinent part:
The court on motion of a defendant may grant a new trial to that defendant if
required in the interest of justice. . . . A motion for a new trial based on the ground
of newly discovered evidence may be made only after final judgment, but if an
appeal is pending the court may grant the motion only on remand of the case. A
motion for a new trial based on any other grounds shall be made within ten days
after verdict or finding of guilty or within such further time as the court may fix
during the ten-day period.
Each of petitioner’s motions is confusing and difficult to follow. For example, while petitioner
states on appeal that he alleged that the investigating officer testified falsely in his second Rule 33
motion, the second motion refers to the first Rule 33 motion as the motion raising the allegation of
false testimony. We find that, in addition to raising a false testimony claim, petitioner’s first Rule
33 motion raised a purported violation of Rule 6 of the Rules of Criminal Procedure which governs
grand jury procedure even though according to petitioner’s own exhibit—the indictment—it was
“[f]ound upon [a witness’s] testimony” presented before the grand jury. We further find that, in
petitioner’s second Rule 33 motion, he alleged evidence tampering by the State, a failure to advise
him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and ineffective assistance of trial
counsel.
By order entered on June 5, 2020, the circuit court denied petitioner’s Rule 33 motions as
time-barred, finding that the March 20, 2020, motions were not within ten days of the entry of the
April 10, 2019, order accepting his guilty plea. The circuit court further found that petitioner’s
motions were without merit, determining that petitioner “knowingly, voluntarily[,] and
intelligently entered a plea of guilty to the lessor included offense of [s]oliciting a [m]inor [v]ia [a]
computer [pursuant to West Virginia Code § 61-3C-14b(a)]” and “there is no basis in law or fact to
now grant the [Rule 33 motions].” 1
Petitioner now appeals the circuit court’s June 5, 2020, order denying his Rule 33 motions
for a new trial. We review the circuit court’s order under the following standard:
1
In its June 6, 2020, order, the circuit court also denied a July 15, 2019, motion for
reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, the
denial of which petitioner does not challenge on appeal.
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“ ‘ “Although the ruling of a trial court in granting or denying a motion for a
new trial is entitled to great respect and weight, the trial court’s ruling will be
reversed on appeal when it is clear that the trial court has acted under some
misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia-Pacific
Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews v.
Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).” Syl.
Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).
Syl. Pt. 2, State v. Blevins, 231 W. Va. 135, 744 S.E.2d 245 (2013).
On appeal, petitioner raises issues not set forth in his Rule 33 motions: (1) non-disclosure
of exculpatory evidence; (2) non-disclosure of the grand jury transcript; (3) failure to promptly
present petitioner before a magistrate; and (4) involuntary guilty plea. The State argues that this
Court should decline to review these issues as they were not presented to the circuit court. We
agree with the State.
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides, in pertinent
part, that petitioner’s “argument must contain appropriate and specific citations to the record on
appeal, including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal,” and that “[t]he Court may disregard errors that are not adequately
supported by specific references to the record on appeal.” “To preserve an issue for appellate
review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the
nature of the claimed defect.” Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470
S.E.2d 162 (1996). “‘One of the most familiar procedural rubrics in the administration of justice is
the rule that the failure of a litigant to assert a right in the trial court likely will result’ in the
imposition of a procedural bar to an appeal of that issue.” State v. Miller, 194 W. Va. 3, 17, 459
S.E.2d 114, 128 (1995); see also State v. J.S., 233 W. Va. 198, 207, 757 S.E.2d 622, 631 (2014)
(finding that “[t]he failure to timely raise the issue below has resulted in waiver of the matter in this
appeal”). Here, pursuant to Rule 10(c)(7), we find that the only issues before us are those raised in
petitioner’s Rule 33 motions, which were a false testimony claim, a purported violation of Rule 6
of the Rules of Criminal Procedure, an evidence tampering claim, an alleged failure to advise
petitioner of his Miranda rights, and an ineffective assistance of trial counsel claim.
Newly discovered evidence was not one of the issues raised in petitioner’s Rule 33
motions; Rule 33 provides, in pertinent part, that “[a] motion for a new trial based on any other
grounds shall be made within ten days after verdict or finding of guilty or within such further time
as the court may fix during the ten-day period.” Here, petitioner does not allege—and the circuit
court did not find—that the court extended the ten-day period for filing motions for a new trial.
Rather, based on our review of the record, we find that the circuit court properly found that
petitioner failed to file his Rule 33 motions until March 20, 2020, over eleven months after his
April 10, 2019, conviction. Therefore, we conclude that the circuit court did not err in denying
petitioner’s Rule 33 motions as time-barred. Due to our finding that the circuit court properly
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denied petitioner’s Rule 33 motions as time-barred, we find that there is no need to review its
ruling that the motions also lacked merit. 2
For the foregoing reasons, we affirm the circuit court’s June 6, 2020, order denying
petitioner’s motions for a new trial pursuant to Rule 33 of the West Virginia Rules of Criminal
Procedure.
Affirmed.
ISSUED: August 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
2
We note, as does the State, issues such as ineffective assistance of trial counsel are
appropriately raised in a post-conviction habeas corpus proceeding rather than in a criminal appeal
due to the need to provide “[t]his Court . . . a fully developed record . . . upon which to more
thoroughly review an ineffective assistance of counsel claim.” Syl. Pt. 10, State v. Triplett, 187 W.
Va. 760, 421 S.E.2d 511 (1992); see also Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606(1981) (finding that certain issues such as ineffective assistance of trial counsel must be litigated in
a collateral proceeding).
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