State of West Virginia v. Dustin M.

FILED
August 27, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Petitioner Below, Respondent
vs.) No. 20-0255 (Mercer County 18-M-AP-12 and 18-M-AP-13)
Dustin M.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Dustin M., by counsel Dennis R. Bailey, appeals the Circuit Court of Mercer
County’s December 20, 2019, order denying his “Motion to Re-sentence.” 1 Respondent State of
West Virginia, by counsel Lara K. Bissett, filed a response in support of the circuit court’s order
and a supplemental appendix. On appeal, petitioner asserts that the circuit court erred by failing to
resentence him in order for him to appeal his underlying conviction.
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 separate criminal complaints filed in March and June of 2017, petitioner was charged
with two misdemeanor offenses of domestic battery against his six-year-old child and the child’s
mother. A bench trial was held in March of 2018 in magistrate court wherein petitioner was
convicted of both counts of domestic battery. The next month, petitioner appealed his conviction
to circuit court, and a bench trial was conducted in circuit court in June of 2018. The circuit court
convicted petitioner in July of 2018, finding that the State had proved its case beyond a reasonable
doubt. The circuit court imposed the same sentence pronounced by the magistrate court: ninety
days in jail, which was suspended in lieu of twelve months of unsupervised probation. At
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); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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sentencing, petitioner was advised of his right to appeal and was instructed that he must file any
notice of appeal within thirty days of sentencing.
In September of 2019, petitioner filed a motion to resentence in circuit court. In support of
his motion, petitioner noted that he was a career police officer, but his conviction prohibited him
from possessing a firearm. Petitioner alleged that “[d]ue to the apparent advice of previous counsel,
and [his] subsequent resulting belief that he was not permitted to pursue this matter any further,
[he] originally allowed his appeal period to lapse.” As such, he requested that the circuit court
resentence him for the sole purpose of “allowing him to explore the possibility of an appeal.” The
State responded to petitioner’s motion and argued that petitioner failed to demonstrate “good
cause” for resentencing. The State noted that petitioner was informed of his right to appeal at
sentencing but chose not to exercise that right in excess of a year after his conviction and sentence.
Finally, the State argued that petitioner failed to assert “any facts that his prior counsel failed to
exercise his right to appeal or inform the [c]ourt of [his] desire to appeal his conviction.”
The circuit court held a hearing on petitioner’s motion in October of 2019, wherein
petitioner’s counsel acknowledged that the motion “really comes down to the sound discretion of
the trial court.” Further, petitioner’s counsel acknowledged that the circuit court informed
petitioner of his right to appeal at the sentencing hearing. At the 2019 hearing, the State argued
that given petitioner’s experience as a law enforcement officer and his prior appeal from magistrate
court to circuit court, he was aware of the right to appeal his conviction. The State further noted
that fifteen months had passed since petitioner’s conviction and petitioner had completed his
twelve months of probation, thereby discharging his sentence. In rebuttal, petitioner’s counsel
asserted that petitioner had only recently realized the “burden” of not exercising his right to appeal.
After hearing the arguments, the circuit court found that petitioner had discharged his sentence and
because over a year had passed since his conviction, it lacked jurisdiction and legal authority to
consider the motion. As such, on December 20, 2019, the circuit court denied petitioner’s motion
for resentencing. It is from this order that petitioner appeals.
Our standard of review has been stated as follows:
“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).
On appeal, petitioner asserts that the circuit court erred in failing to resentence him for
purposes of an appeal of his convictions for domestic battery. Petitioner asserts that his trial
counsel failed to appeal his convictions, despite a request from petitioner to do so.
Although petitioner alleges that his trial counsel “failed to file an appeal upon his request,”
petitioner fails to provide any evidence or facts in support of this ground in the record. Further,
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petitioner’s current counsel acknowledged that in both petitioner’s motion for resentencing and
during the hearing on that motion “[petitioner] originally allowed his appeal period to lapse.” The
record is clear that petitioner was advised by the circuit court of his right to appeal and he was
instructed that he must file a notice of any appeal within thirty days of his sentencing. This Court
has held that “[t]he 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, in part, Rhodes v. Leverette, 160 W.
Va. 781, 239 S.E.2d 136 (1977) (emphasis added). The record makes clear that it was petitioner’s
inaction that resulted in no appeal being filed.
Further, petitioner discharged his sentence by successfully completing his year-long
probation period and then waited an additional three months before filing his motion to resentence.
This Court has previously held that once a defendant completes his period of probation, the circuit
court can no longer exercise jurisdiction over him. See Syl. Pt. 7, in part, State v. Inscore, 219 W.
Va. 443, 634 S.E.2d 389 (2006) (“In order to sustain and extend the jurisdictional authority . . .
subsequent to the expiration of the probationary period, the probationer must at least be charged
with the probation violation prior to such expiration. Where no such charges are brought prior to
the expiration of the probationary term, jurisdiction does not continue beyond the date of such
expiration.”) (citation omitted); State v. Duke, 200 W. Va. 356, 368, 489 S.E.2d 738, 750 (1997)
(finding that because the petitioner’s probationary term had expired, the court lacked jurisdiction
to revoke his probation and reimpose his suspended sentence); Jett v. Leverette, 162 W. Va. 140,
144, 247 S.E.2d 469, 471 (1978) (finding that “when either the statutory maximum or the shorter
term has been served, the court no longer has jurisdiction to revoke probation”) (citations omitted).
Accordingly, the circuit court did not abuse its discretion or otherwise err when it held that it no
longer had jurisdiction over petitioner, and, therefore, lacked the authority to resentence him.
For the foregoing reasons, we affirm the circuit court’s December 20, 2019, order denying
petitioner’s motion for resentencing.
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
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