State of West Virginia v. Michael Vance ( 2022 )

FILED
May 26, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia
Petitioner Below, Respondent
vs.) No. 21-0523 (Mingo County No. J21-F45)
Michael Vance,
Respondent Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael Vance, by counsel Mark Hobbs, appeals the June 2, 2021, order of the
Circuit Court of Mingo County that sentenced him for his conviction by a jury of (1) wanton
endangerment in violation of West Virginia Code § 61-7-12 to an indefinite term of not less than
one nor more than five years in prison; and (2) cruelty to animals in violation of West Virginia
Code § 61-8-19(b) to an indefinite term of not less than one nor more than five years in prison.
Respondent State of West Virginia, by counsel Patrick Morrisey and Andrea Nease Proper, filed
a response.
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 with regard to
petitioner’s first and third assignments of error. For these reasons, a memorandum decision
affirming the order of the circuit court regarding those two assignments of error is appropriate
under Rule 21(c) of the Rules of Appellate Procedure. However, regarding petitioner’s second
assignment of error, petitioner and the State of West Virginia agree that the circuit court erred in
imposing an improper sentence upon petitioner. Thus, as we discuss below, under Rule 21(d) of
the Rules of Appellate Procedure, we reverse and remand this case to the circuit court with
instructions to impose a proper sentence.
This case arises from petitioner Michael Vance’s June 3, 2020, shooting and killing of a
pit bulldog named “Diesel” who was owned by petitioner’s neighbor, Larry “Bo” Jones. At the
time of the shooting, petitioner and his dog, “Patches,” who is also a pit bull, were in close
proximity to Diesel and Mr. Jones, and the two dogs were fighting.
Thereafter, a Mingo County grand jury indicted petitioner during the January 2021 term of
court on two counts: Count I alleged that petitioner “did unlawfully, knowingly, intentionally,
wantonly and feloniously perform an act with a firearm that created a substantial risk of death or
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serious bodily injury to [Mr.] Jones . . . in violation of West Virginia Code § 61-7-12.” Count II
alleged that petitioner “did unlawfully, knowingly, intentionally cruelly mistreat an animal, to-wit:
a dog by shooting and wounding said dog . . . in violation of West Virginia Code § 61-8-19(b).”
At petitioner’s April 5, 2021, trial, Deputy Joshua Tincher of the Delbarton Police
Department testified as follows: First, he obtained surveillance videos of petitioner’s shooting of
Diesel. One video showed that at the time of the shooting, Patches was on a leash but that petitioner
did not use the leash to control Patches. The video also shows that Mr. Jones let Diesel out of the
door of the apartment where he lived and that the two “dogs start[ed] to go at each other a little bit
playing around and you hear [petitioner] saying “Git him, Patches. Git him, Patches . . . that’s
when [petitioner] fires the gun and shoots Diesel, who later died[.]” Second, petitioner told the
deputy prior to Diesel’s death that he was going to kill Diesel. Third, on the day of the shooting,
there was a report that Diesel “laid down a dirt bike and its rider, [Hayden Malin].” A video was
played of that incident at trial that showed Diesel was wagging his tail at the time he encountered
the dirt biker. Fourth, during the deputy’s investigation of the shooting, Glen Dale Canada, a local
store owner, signed a statement claiming that the day before the shooting petitioner said he was
going to kill Diesel. Fifth, the deputy spoke with a “Mr. Hunt” who reported seeing petitioner
shoot the dog and that Mr. Jones was “standing right there.” The second video obtained by Deputy
Tincher was then played, which showed Patches attacking Diesel although it did not show
petitioner shooting Diesel. Petitioner’s counsel lodged no hearsay objections during the deputy’s
testimony.
Mr. Jones, Diesel’s owner, testified that he lived in the same apartment building as did
petitioner and that his apartment was directly below petitioner’s apartment. Mr. Jones said Diesel
was outside with him just before the incident with Patches and that he did not know that Patches
was nearby until the incident occurred. Mr. Jones said that on the day in question, he and Diesel
had been outside and, as he opened his apartment building door to let Diesel back into his
apartment, he saw petitioner and Patches approach. Mr. Jones said that petitioner called him a
name and then dropped Patches’ leash. He said that Diesel got loose and “went on” Patches and
“started beating him up.” Mr. Jones stated that, at that point, petitioner shot Diesel in the back and
that Diesel died soon thereafter. Finally, Mr. Jones further testified that he was “close to” Diesel
when petitioner shot Patches.
Hayden Malin, the dirt bike rider mentioned above, testified that Diesel approached him
while he was on his dirt bike and startled him. He described Diesel as “[v]ery playful,” said that
Diesel’s tail was wagging, and that Diesel did not attempt to knock him off his dirt bike.
Glen Dale Canada testified regarding a statement he signed and gave to Deputy Tincher.
The signed statement provided the following:
[Petitioner] said on June 2nd . . . he was going to kill [Diesel] on June 3rd and then
on June 3rd [petitioner] walked his dog up to [Diesel] and when the dog[s] got into
it [petitioner] shot [Diesel] with the pistol he was carrying. This happened right
behind my store.
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The statement was then entered into evidence. On cross-examination, Mr. Canada stated that
petitioner did not say on which date he planned to kill Diesel and that someone else wrote out the
statement he signed. Mr. Canada clarified that petitioner came into his store and said, “I’m going
to kill that dog” and that petitioner identified Diesel as the dog he intended to kill.
Charles Albert Hunt testified that he lived near petitioner and Mr. Jones and that he knew
Diesel. He said that on the day petitioner shot Diesel, he saw Diesel and Patches lick each other
and then start to fight. He said the dogs broke apart momentarily and then began to fight again.
Mr. Hunt said that, at that point, petitioner shot Diesel. Mr. Hunt further testified that, at one point,
Mr. Jones was standing about ten or fifteen feet from where the dogs were fighting and, when
petitioner shot Diesel, Mr. Jones was close enough to have reached down and grabbed Diesel. Mr.
Hunt described Diesel as a gentle dog who was bigger than Patches.
Thereafter, the State rested and petitioner moved for a directed verdict on the wanton
endangerment count claiming that Mr. Jones was not close enough to Diesel to be in any danger
from the gun shot that killed Diesel. The circuit court denied petitioner’s motion.
Petitioner called two witnesses during his case-in-chief. His first witness was his daughter,
Michelle Vance. Ms. Vance testified that she lived in the same apartment building as did petitioner
but in a different apartment. She said that Diesel was bigger than Patches and that the dogs had
always been kept apart because it was unknown how they would react to each other. Ms. Vance
said that when she saw Diesel lunge at Patches, she ran to help her father and then heard the gun
shot. She said she asked petitioner where the shot came from and that petitioner replied, “I had to
do it.” Ms. Vance said she got Patches leashed and then went back to check on petitioner. Ms.
Vance opined that the dogs fought for “a couple of minutes” and that her father pulled on Patches’
chain, but Patches pulled him across the road. Ms. Vance also said that, prior to the dog fight,
petitioner and Mr. Jones were arguing and that Mr. Jones “cussed” at petitioner and the petitioner
“cussed back.” She stated that, in response, Mr. Jones opened his door and said, “Get ‘em Diesel”
and that the dog complied and ran straight to petitioner and Patches. Ms. Vance also estimated that
Mr. Jones was about fifteen feet away from Diesel when petitioner shot Diesel. She then testified
to an instance in which she alleged Diesel bit someone in the ankle and to a second instance in
which Diesel allegedly jumped on a dirt bike rider and tried to bite him.
Petitioner testified next. He admitted that he and Mr. Jones were not friends and that on the
day in question he “cussed [Mr. Jones] out” for breaking into his conversation with another person.
Petitioner said that Mr. Jones then called to Diesel and that Diesel and Patches “postured up beside
of each other,” but that “Patches made no attempt to go to him or anything.” He said the dogs then
fought for about “maybe 30, 30 seconds, at least.” He said he tried to pull Patches away from
Diesel, but that Diesel had hold of Patches and he could not pull the dogs apart. Petitioner said Mr.
Jones just watched. Petitioner further testified that he did not want to kill Diesel and did not intend
to kill him when he left his house with Patches. Petitioner denied telling Mr. Canada that he was
going to shoot Diesel. Petitioner said that, instead, he told Mr. Canada that “I wish some of his
friends, one of [Mr. Jones’s] friends would get him to ease up because he was going to get his dog
shot, because he’d threatened me so many times with him.” Thereafter, petitioner again moved for
a judgment of acquittal on both charges. The court denied that motion.
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The jury deliberated for an hour and fifteen minutes and then indicated they were hung on
Count Two (cruelty to animals) but had a unanimous verdict on Count One (wanton
endangerment). The court read the jury an Allen charge and asked them to deliberate for another
hour on Count Two. The jury then retired to the jury room and, thereafter, returned with a verdict
finding petitioner guilty of both counts of the indictment.
Petitioner’s conviction order was entered April 19, 2021. On April 30, 2021, petitioner
moved for a judgment of acquittal on Count Two (cruelty to animals). Petitioner argued that he
was indicted on a misdemeanor but was erroneously convicted of a felony. The court denied that
motion by order entered June 2, 2021.
At petitioner’s May 18, 2021, sentencing hearing, petitioner sought probation claiming
serious health problems and advanced age. The State sought consecutive terms. By order entered
June 2, 2021, the circuit court sentenced petitioner for his conviction for wanton endangerment in
violation of West Virginia Code § 61-7-12 to an indefinite term of not less than one nor more than
five years in prison; and for cruelty to animals in violation of West Virginia Code § 61-8-19(b) to
an indefinite term of not less than one nor more than five years in prison. The court ordered that
the sentences be served consecutively. Petitioner now appeals and raises three assignments of
error.
In his first assignment of error, petitioner argues that the circuit court abused its discretion
by permitting Deputy Tincher to testify regarding what witnesses and others told him where that
testimony did not fall under any hearsay exception. Specifically, petitioner cites to Deputy
Tincher’s testimony regarding the following three persons: (1) “[Mr. Canada] told me that
[petitioner] had come in [to Mr. Canada’s store] the day before [the shooting] and stated that he
was going to kill [Mr. Jones’] dog[].” (2) Mr. Hunt said, “he seen [petitioner] shoot the dog” and
agreed that Mr. Jones was close to the shooting which presented “a danger” due to the possibility
of “ricochets,” “debris,” and “injuries that could disfigure you or maim you or actually kill you.”
(3) “Nichole,” the dirt bike rider’s girlfriend, said “she heard something that sounded like a gunshot
but didn’t see it[.]” Petitioner admits that his counsel did not object to this testimony at trial.
Therefore, we review this assignment of error for plain error.
“The plain-error doctrine . . . authorizes [an appellate court] to correct only ‘particularly
egregious errors,’ . . . that ‘seriously affect the fairness, integrity or public reputation of judicial
proceedings[.]’” United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1(1985). “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114(1995). Plain error warrants reversal “solely in those circumstances in which a miscarriage of
justice would otherwise result.” Id. at 18, 459 S.E.2d at 129 (citing United States v. Frady, 456
U.S. 152, 163 n.14 (1982)).
Petitioner “bears the burden of persuasion on each of the four prongs of the plain error
standard.” Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010). “Satisfying all four prongs of
the plain-error test is difficult[.]” United States v. Williamson, 706 F.3d 405, 413 (4th Cir. 2013).
“[S]uch error is rarely found.” 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 46.02[2]
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(3rd ed. 2002). “Historically, the ‘plain error’ doctrine ‘authorizes [an appellate court] to correct
only particularly egregious errors’ . . . that ‘seriously affect the fairness, integrity or public
reputation of judicial proceedings[.]” Miller, 194 W. Va. at 18, 459 S.E.2d at 129 (citing United
States v. Young, 470 U.S. 1, 15 (1985)). “Plain error warrants reversal ‘solely in those
circumstances in which a miscarriage of justice would otherwise result.’ United States v. Frady,
456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816, 827 n. 14 (1982).” Id.Assuming that an error is “plain,” the inquiry must proceed to its last step
and a determination made as to whether it affects the substantial rights of the
defendant. To affect substantial rights means the error was prejudicial. It must have
affected the outcome of the proceedings in the circuit court, and the defendant
rather than the prosecutor bears the burden of persuasion with respect to prejudice.
Id., Syl. Pt. 9.
Petitioner fails to meet this burden of persuasion. First, Mr. Canada, Mr. Malin, and Mr.
Hunt all testified on direct examination and were cross-examined by petitioner’s trial counsel.
When a declarant of a hearsay statement appears for cross-examination at trial, there is no violation
of the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); California
v. Green, 399 U.S. 149, 162 (1970). Further, “[t]he Clause does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541
U.S. at 59 n.9.
As for “Nichole,” although she did not testify at petitioner’s trial, she was mentioned twice
by Deputy Tinchner. On direct, the deputy said that he spoke with Nichole and learned that she
was Mr. Malin’s girlfriend and that she heard a gunshot but did not see anything. On cross-
examination, the deputy said that “all [Nichole] heard was the shot.” Even if we presume this
testimony is hearsay, it does not rise to the level of plain error because “[a]n error in admitting
hearsay evidence is harmless where the same fact is proved by an eyewitness or other evidence
clearly establishes the defendant’s guilt.” Syl. Pt. 4, State v. Helmick, 201 W. Va. 163, 495 S.E.2d
262 (1997). Moreover, Nichole’s statement to Deputy Tincher regarded the identity of her
boyfriend, Mr. Malin. That statement was not used to prove any fact in dispute. Thus, Deputy
Tincher’s testimony regarding Nichole did not violate Rule 801(c)(2) of the West Virginia Rules
of Evidence, which provides that “‘Hearsay’ means a statement that . . . (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Thus, petitioner fails to show
that the deputy’s brief testimony regarding Nichole satisfied the final two prongs of the plain error
test, i.e., that the deputy’s brief testimony regarding Nicole’s alleged statements affected
petitioner’s substantial rights or seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. Accordingly, we find no error.
In petitioner’s second assignment of error he argues that the circuit court erred by
sentencing him to an indefinite term of incarceration for his conviction of wanton endangerment
with a firearm because the relevant statute, West Virginia Code § 61-7-12, required the circuit
court to impose a definite term of incarceration. In support, petitioner highlights that the State
concedes that he was improperly sentenced to an indeterminate sentence.
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“[We] review[] sentencing orders . . . under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W.
Va. 271, 496 S.E.2d 221 (1997).
West Virginia Code § 61-7-12 provides:
Any person who wantonly performs any act with a firearm which creates a
substantial risk of death or serious bodily injury to another shall be guilty of a
felony, and, upon conviction thereof, shall be confined in the penitentiary for a
definite term of years of not less than one year nor more than five years, or, in the
discretion of the court, confined in the county jail for not more than one year, or
fined not less than two hundred fifty dollars nor more than two thousand five
hundred dollars, or both.
In light of this clear language, we concur that the circuit court erroneously sentenced
petitioner for his conviction for wanton endangerment with a firearm to an indeterminate sentence.
West Virginia Code § 61-7-12 clearly requires a determinate sentence of between one and five
years for a conviction under that section. A criminal sentence “must conform strictly to the statute
which prescribes the punishment to be imposed and . . . any variation from its provisions, either in
the character or the extent of the punishment inflicted, renders the judgment absolutely void.” Syl.
Pt. 1, in part, State ex rel. Boner v. Boles, 148 W. Va. 802, 137 S.E.2d 418 (1964) (citing Syl. Pt.
3, State ex rel. Nicholson v. Boles, 148 W. Va. 229, 134 S.E.2d 576 (1964)), overruled on other
grounds by State v. Eden, 163 W. Va. 370, 256 S.E.2d 868 (1979).
“When a sentence imposed in a criminal case is void, either because of lack
of jurisdiction or because it was not warranted by statute for the particular offense,
the court may set aside such void sentence and pronounce a valid sentence even
though the execution of the void sentence has commenced, and without regard to
the time when, or the term within which, such void sentence was imposed.”
Syllabus point 6, State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418(1964), overruled on other grounds by State v. Eden, 163 W.Va. 370, 256 S.E.2d
868 (1979).
Syl. Pt. 5, State v. Cottrill, 204 W. Va. 77, 511 S.E.2d 488 (1998). The proper action in such cases
is remand for a correction of sentence: “the lower court’s imposition of an indefinite term [when
the law requires a definite term] merited reversal only for the purpose of having the judgment of
sentence corrected.” State v. Lawson, 165 W. Va. 119, 123, 267 S.E.2d 438, 440 (1980); see also
State v. Williams, 172 W. Va. 295, 312, 305 S.E.2d 251, 268 (1983) (affirming a conviction but
reversing the sentencing order and remanding for resentencing). Therefore, we remand this case
to the circuit court with instructions that petitioner be resentenced for his conviction for wanton
endangerment with a firearm commensurate with the sentence permitted by West Virginia Code §
61-7-12.
In petitioner’s third and final argument, he claims that his trial counsel “appears to have
been ineffective” as counsel offered no jury instructions and, apparently, made no objections
during the evidence phase of trial.
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In reviewing counsel’s performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts
or omissions were outside the broad range of professionally competent assistance
while at the same time refraining from engaging in hindsight or second-guessing of
trial counsel’s strategic decisions. Thus, a reviewing court asks whether a
reasonable lawyer would have acted, under the circumstances, as defense counsel
acted in the case at issue.
Miller, 194 W. Va. at 6-7, 459 S.E.2d 117-18, Syl. Pt. 6.
“In past cases, th[e] Court has cautioned that ‘[i]neffective assistance claims raised on
direct appeal are presumptively subject to dismissal.’” State v. Woodson, 222 W. Va. 607, 621,
671 S.E.2d 438, 452 (2008) (quoting State v. Miller, 197 W. Va. 588, 611, 476 S.E.2d 535, 558
(1996)); State ex rel. Daniel v. Legursky, 195 W. Va. 314, 317 n.1, 465 S.E.2d 416, 419 n.1 (1995)
(“Traditionally, ineffective assistance of counsel claims are not cognizable on direct appeal.”); see
also State v. Martin R., No. 15-0580, 2016 WL 1456077, at *3 (W. Va. April 12,
2016)(memorandum decision) (same). Indeed, the Court has held 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. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992).
The very nature of an ineffective assistance of counsel claim demonstrates the
inappropriateness of review on direct appeal. To the extent that a defendant relies
on strategic and judgment calls of his or her trial counsel to prove an ineffective
assistance claim, the defendant is at a decided disadvantage. Lacking an adequate
record, an appellate court simply is unable to determine the egregiousness of many
of the claimed deficiencies. Such a situation exists here.
Miller, 194 W. Va. at 15, 459 S.E.2d at 126. Here, petitioner’s claims of ineffective assistance of
counsel implicate trial counsel’s strategic decisions and judgment calls regarding objections and
jury instructions. Therefore, we decline to address petitioner’s ineffective assistance of counsel
claim on direct appeal.
Accordingly, for the foregoing reasons, we affirm, in part, and reverse, in part, the circuit
court’s June 2, 2021, sentencing order and remand the case with instructions that petitioner be
resentenced for his conviction of wanton endangerment with a firearm to a definite term of
incarceration as required by West Virginia Code § 61-7-12.
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Affirmed, in part, reversed, in
part, and remanded.
ISSUED: May 26, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
NOT PARTICIPATING:
Justice C. Haley Bunn
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