State of West Virginia v. Jeffrey Dumire

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia,
Plaintiff Below, Respondent November 4, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 19-0898 (Marion County 18-F-32) OF WEST VIRGINIA
Jeffrey Dumire,
Defendant Below, Petitioner
MEMORANDUM DECISION
Self-represented petitioner Jeffrey Dumire appeals the Circuit Court of Marion County’s
September 6, 2019, order denying petitioner’s “Motion to Resentence for Direct Appeal Purposes”
and “Motion for Appointment of Appellate Counsel.” The State of West Virginia, by counsel Holly
M. Flanigan, filed a response asserting that because the circuit court’s order is insufficient as a
matter of law, this Court should remand this case to the circuit court with directions to enter an
order containing appropriate findings of fact and conclusions of law. On appeal, petitioner argues
that the circuit court erred in denying his motion for resentencing without setting forth any findings
of fact or conclusions of law.
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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is vacated, and this case
is remanded to the circuit court for specific findings of fact and conclusions of law regarding
petitioner’s “Motion to Resentence for Direct Appeal Purposes.”
Petitioner was indicted by a Marion County grand jury in July of 2017 on two counts of
first-degree sexual abuse and one count of sexual abuse by a parent, guardian, or custodian. In
June of 2018, petitioner entered into a plea agreement, agreeing to plead guilty to one count of
first-degree sexual abuse; one count of sexual abuse by a parent, guardian, or custodian; and one
count of first-degree sexual assault. Following the entry of petitioner’s plea, in September of 2018,
the circuit court sentenced petitioner to 40 to 145 years of incarceration for his various convictions.
In October of 2018, petitioner sent a letter to his trial counsel, Mr. Zachary Dyer, asking
him to file a notice of intent to appeal, a petition for suspension of his sentence, a petition for
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correction or reduction of his sentence, and a copy of discovery, among other requests. The docket
sheet does not reflect that Mr. Dyer filed any motions on behalf of petitioner.
On August 21, 2019, petitioner, without counsel, filed a “Motion to Resentence for Direct
Appeal Purposes” and “Motion for Appointment of Appellate Counsel.” Petitioner’s motion for
resentencing noted that he told his trial counsel that he desired to file an appeal challenging his
sentence on various grounds. Petitioner further contended that his trial counsel, Mr. Dyer, failed
to file an appeal. In his resentencing motion, petitioner asserted that: (1) he had a right to appeal
his conviction from a guilty plea; (2) appellate rights cannot be destroyed by counsel’s inactions
or a defendant’s delay in notifying the court of such inaction; (3) trial counsel should have known
that petitioner desired to file an appeal, as a rational defendant would want to appeal a
disproportionate sentence; (4) petitioner communicated to counsel a desire to appeal; and (5) due
to trial counsel’s deficient performance, petitioner is entitled to resentencing.
The next month, without holding a hearing, the circuit court denied petitioner’s motions
without making any findings of fact or conclusions of law. The order provided as follows:
On August 21, 2019, a “Motion to Resentence for Direct Appeal Purposes”
and a “Motion for Appointment of Appellate Counsel” were filed by the defendant,
Jeffrey Dumire, pro se.
Having reviewed the written motions, as well as the entire court file, this
[c]ourt is of the opinion that there are no appealable issues, that the defendant is not
entitled to the relief sought in his motions and, further, that no hearing with regard
thereto is warranted.
Accordingly, it is ORDERED that defendant’s Motion to Resentence for
Direct Appeal Purposes and Motion for Appointment of Appellate Counsel are
hereby DENIED, without hearing.
Petitioner appeals from that September 6, 2019, order.
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 argues that the circuit court abused its discretion in denying his
motion to resentence for purposes of pursuing a direct appeal. The State concedes that the circuit
court’s order does not contain appropriate findings of fact and conclusions of law “to permit
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meaningful appellate review” by this Court. State v. Redman, 213 W. Va. 175, 178, 578 S.E.2d
369, 372 (2003). As this Court has found,
[w]ithout findings of fact and conclusions of law, this Court is unable to determine
the basis for the court’s decision and whether any error has occurred. Consequently,
in cases where there is an absence of adequate factual findings, it is necessary to
remand the matter to the lower court to state or, at a minimum, amplify its findings
so that meaningful appellate review may occur.
Mullins v. Mullins, 226 W. Va. 656, 662, 704 S.E.2d 656, 662 (2010).
We, therefore, vacate the circuit court’s September 6, 2019, order denying petitioner’s
“Motion to Resentence for Direct Appeal Purposes” and “Motion for Appointment of Appellate
Counsel.” Upon remand, the circuit court shall enter an order setting forth findings of fact and
conclusions of law sufficient to allow meaningful appellate review in the event that petitioner
elects to file an appeal.
Vacated and remanded.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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