In re: Ronald Call ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: Ronald Call
FILED
November 23, 2015
No. 13-1115 (Putnam County 13-C-281) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Ronald Call, by counsel Timothy J. LaFon, appeals the Circuit Court of
Putnam County’s March 6, 2014, order denying his motion to reconsider the order denying
petitioner’s motion to reinstate his gun rights. The State of West Virginia, by counsel Laura
Young, filed its response in support of the circuit court’s order. Petitioner filed a reply brief. On
appeal, petitioner argues that the circuit court erred in concluding that his gun rights could not be
reinstated in West Virginia pursuant to his domestic violence battery conviction when he did not
have advice of counsel at the plea.
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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In September of 2009, petitioner was charged with the misdemeanor offenses of domestic
battery and domestic assault. In November of 2009, petitioner moved the magistrate court to
permit him to represent himself. The magistrate court granted his motion, petitioner represented
himself, and he pled no contest to domestic battery in exchange for the dismissal of the domestic
assault charge and a domestic violence protection order violation charge.
In September of 2013, petitioner filed a petition to have his gun rights reinstated pursuant
to West Virginia Code § 61-7-7(c). The circuit court denied the petition and concluded that it did
not have the authority to reinstate petitioner’s gun rights because a reinstatement of his rights
pursuant to West Virginia Code § 61-7-7(c) would be a violation of federal law. Petitioner did
not appeal the circuit court’s denial of his petition for reinstatement. Subsequently, in March of
2014, petitioner filed a motion for reconsideration, and the circuit court denied that motion by
order dated March 6, 2014. It is from this order that petitioner now appeals.
The record on appeal indicates that petitioner filed his motion for reconsideration
approximately six months after the circuit court denied his petition to have his gun rights
reinstated. We have previously held that:
“When a party filing a motion for reconsideration does not indicate under
which West Virginia Rule of Civil Procedure it is filing the motion, the motion
will be considered to be either a Rule 59(e) motion to alter or amend a judgment
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or a Rule 60(b) motion for relief from a judgment order. If the motion is filed
within ten days of the circuit court’s entry of judgment, the motion is treated as a
motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-
day limit, it can only be addressed under Rule 60(b).”
Syl. Pt. 2, Powderidge Unit Owners Assoc. v. Highland Props., Ltd., 196 W.Va. 692, 474 S.E.2d
872 (1996). Because petitioner filed his motion well outside the ten-day time frame for a Rule
59(e) motion, we will treat it as one filed pursuant to Rule 60(b).
In addressing Rule 60(b) motions, this Court has previously established the following
standard of review:
“A motion to vacate a judgment made pursuant to Rule 60(b),
W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s
ruling on such motion will not be disturbed on appeal unless there is a showing of
an abuse of such discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204
S.E.2d 85 (1974).Ross v. Ross, 187 W.Va. 68, 415 S.E.2d 614 (1992).”
Johnson v. Nedeff, 192 W.Va. 260, 266, 452 S.E.2d 63, 69 (1994). Upon our review, we find no
error in the circuit court’s order denying petitioner’s motion for reconsideration.
We have previously held that ‘[a] circuit court is not required to grant a Rule 60(b)
motion unless a moving party can satisfy one of the criteria enumerated under it.” Jordache
Enters., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W.Va. 465, 472-73, 513 S.E.2d
692, 699-700 (1998). We have additionally held that:
“One of the purposes of West Virginia Rule of Civil Procedure 60(b) is to
provide a mechanism for instituting a collateral attack on a final judgment in a
civil action when certain enumerated extraordinary circumstances are present.
When such extraordinary circumstances are absent, a collateral attack is an
inappropriate means for attempting to defeat a final judgment in a civil action.”
Syl. Pt. 2 Hustead ex rel. Adkins v. Ashland Oil, Inc., 197 W.Va. 55, 475 S.E.2d 55 (1996).
Petitioner failed to establish before the circuit court any of the grounds for relief under
Rule 60(b). In fact, petitioner failed to even allege any grounds from Rule 60(b) in his motion.
Consequently, the only way in which we could have addressed the substance of his current
claims on appeal was through an appeal of the circuit court’s denial of his original petition for
reinstatement of his gun rights. However, as noted above, petitioner failed to appeal the circuit
court’s order. Our law is quite clear in holding that “[a]n appeal of the denial of a Rule 60(b)
motion brings to consideration for review only the order of denial itself and not the substance
supporting the underlying judgment nor the final judgment order.” Syl. pt. 3, Toler v. Shelton,
157 W.Va. 778, 204 S.E.2d 85 (1974). In other words, for this Court to reach the substance of
the issues presented by petitioner, he should have appealed the denial of his petition for the
reinstatement of his gun rights. Simply put, “Rule 60(b) is not a substitute for an appeal.” Nancy
Darlene M. v. James Lee M., 195 W.Va. 153, 156, 464 S.E.2d 795, 798 (1995).
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For the foregoing reasons, we find no error in the circuit court’s March 6, 2014, order and
we hereby affirm the same.
Affirmed.
ISSUED: November 23, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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