State of West Virginia v. Gregory F. ( 2022 )

FILED
April 20, 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. 20-0411 (Webster County 14-F-62)
Gregory F.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Gregory F., 1 a self-represented litigant, appeals the order of the Circuit Court of
Webster County, entered on May 26, 2020, denying his motion for resentencing. Respondent State
of West Virginia appears by counsel Patrick Morrisey and Scott E. Johnson.
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. As more fully explained herein, the Court is of the opinion that the circuit court
erred in denying Mr. F.’s motion for resentencing without first conducting an evidentiary hearing
to address Mr. F.’s allegation that his trial counsel failed to assist him in filing a direct appeal.
Accordingly, this case satisfies the “limited circumstance” requirement of Rule 21(d) of the
Revised Rules of Appellate Procedure and is appropriate for a memorandum decision rather than
an opinion.
Pursuant to an agreement with the State, Mr. F. entered a plea of guilty to one count of
sexual abuse and one count of first-degree sexual assault in the Circuit Court of Webster County
in December of 2014. In July of 2015, the circuit court sentenced Mr. F. to incarceration for a term
of five to twenty-five years on the sexual abuse conviction, and a consecutive term of twenty-five
to one-hundred years on the sexual assault conviction. Mr. F. did not appeal his conviction or
sentence. In May of 2020, well into his terms of incarceration, Mr. F. filed a motion asking that
the circuit court resentence him for purposes of appeal. He asserted that he instructed his trial
attorney to file an appeal, and that he forwarded his attorney a letter asking to discuss a criminal
appeal, but the trial attorney neither filed nor responded. The circuit court denied Mr. F.’s motion
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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by order entered on May 26, 2020, explaining that “[a]ll appeal times ran years ago, and [Mr. F.’s]
appropriate remedy would be to file an [o]mnibus [h]abeas [c]orpus petition, if he believes he has
appropriate grounds therefor.”
Mr. F. asserts three assignments of error on appeal. In short, he argues that the circuit court
abused its discretion and infringed on his state and federal constitutional rights by (1) failing to
resentence him; (2) denying his motion without first conducting an evidentiary hearing; and (3)
denying his motion without first making findings of fact and considered conclusions of law. We
review Mr. F.’s assignments of error under the following standard:
“In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West
Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).
Syl. Pt. 1, State v. Meadows, 231 W. Va. 10, 743 S.E.2d 318 (2013).
Mr. F. alleged that his trial counsel failed to act on his instruction to file an appeal. The
State concedes that this allegation triggered the need for an evidentiary hearing. We explained in
State v. Higgins, No. 19-0893, 2020 WL 5092917, at *1 (W. Va. Aug. 28, 2020)(memorandum
decision), that when a criminal defendant files a motion for resentencing and further alleges that
his counsel failed to file an appeal after having been directed to do so, the circuit court is obligated
to provide an evidentiary hearing to consider the merits of the defendant’s allegation. The rationale
underlying this obligation was explained as follows:
“One convicted of a crime is entitled to the right to appeal that
conviction and where he is denied his right to appeal such denial
constitutes a violation of the due process clauses of the state and
federal constitutions and renders any sentence imposed by reason of
the conviction void and unenforceable.” Syllabus, State ex rel.
Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972).
Syl. Pt. 1, Billotti v. Dodrill, 183 W. Va. 48, 394 S.E.2d 32 (1990). “The
constitutional right to appeal cannot be destroyed by counsel’s inaction or by a
criminal defendant’s delay in bringing such to the attention of the court, but such
delay on the part of the defendant may affect the relief granted.” Syl. Pt. 8, Rhodes
v. Leverette, 160 W. Va. 781, 239 S.E.2d 136 (1977). Ordinarily, the appropriate
relief for the denial of the right to appeal is a resentencing, to begin anew the four-
month appeal time pursuant to Rule 5(f) of the West Virginia Rules of Appellate
Procedure and West Virginia Code § 58-5-4, and the appointment of appellate
counsel. See Carter v. Bordenkircher, 159 W. Va. 717, 726, 226 S.E.2d 711, 717
(1976).
Higgins, 2020 WL 5092917, at *2.
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For the foregoing reasons, we reverse the order denying petitioner’s motion for
resentencing and remand this case to the Circuit Court of Webster County to conduct the requisite
evidentiary hearing. If the circuit court determines that petitioner requested that his attorney file
an appeal, the circuit court should resentence him for purposes of appeal and appoint appellate
counsel.
Reversed and remanded.
ISSUED: April 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
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