State of West Virginia v. Michael Paul Conn

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term
FILED
March 21, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0382 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
V.
MICHAEL PAUL CONN,
Defendant Below, Petitioner.
_________________________________________________________
Certified Question from the Circuit Court of Cabell County
The Honorable Paul T. Farrell, Judge
Indictment No. 14-F-512
CERTIFIED QUESTION ANSWERED
_________________________________________________________
Submitted: February 15, 2022
Filed: March 21, 2022
Jeremy B. Cooper Patrick Morrisey
Blackwater Law PLLC Attorney General
Aspinwall, Pennsylvania Lara K. Bissett
Attorney for the Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE MOATS delivered the Opinion of the Court.
JUSTICE ALAN D. MOATS, sitting by temporary assignment.
JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law answered
and certified by a circuit court is de novo.” Syllabus point 1, Gallapoo v. Wal-Mart Stores,
Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996).
2. “When a certified question is not framed so that this Court is able
to fully address the law which is involved in the question, then this Court retains the power
to reformulate questions certified to it under both the Uniform Certification of Questions
of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 [(1998)], the
statute relating to certified questions from a circuit court of this State to this Court.”
Syllabus point 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).
i
Moats, Justice:
The Circuit Court of Cabell County certifies one question to this Court
pertaining to whether an “attempt to commit an assault during the commission of a
felony”—when the underlying felony is sexual assault in the third degree—is a qualifying
offense under the Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to -10
(hereinafter sometimes referred to as “the Act”), which would require Petitioner Michael
Paul Conn (“Mr. Conn”) to register as a sex offender for life. After considering the parties’
briefs and oral arguments, the appendix record submitted, and the applicable legal
authority, we conclude that Mr. Conn’s conviction for “attempt to commit an assault during
the commission of a felony” which was based on a proffer that Mr. Conn committed sexual
assault in the third degree, is a qualifying offense under the Act that requires Mr. Conn to
register as a sex offender for life.
I.
FACTUAL AND PROCEDURAL HISTORY
This case originated more than twenty years ago, when Mr. Conn was
indicted in January of 1998 on four counts of sexual assault in the third degree. It was
alleged that Mr. Conn, then aged twenty-two, engaged in sexual intercourse with a thirteen-
year-old girl. As part of a later plea agreement, the indictment was dismissed, and Mr.
Conn pleaded guilty to an information, charging him with one count of attempt to commit
a felony, “stating that he unlawfully, feloniously, knowingly and intentionally attempted
1
to commit an assault during the commission of a felony.” As a proffer to support the plea,
the State noted:
The evidence of the State would be that on or about August the
20th, 1997, that [Mr. Conn] did actually have intercourse with
a juvenile, [T.E.], who was under the age of sixteen [ ] and
more than four years difference between their ages, and [Mr.
Conn] being twenty-two[.]
As part of this plea agreement, Mr. Conn was sentenced to not less than one nor more than
three years in prison, to be served consecutively to another sentence he was serving in
another matter. At the time of his conviction and sentence, Mr. Conn was not required to
register as a sex offender.
Afterward, in 1999, the West Virginia Legislature enacted the Sex Offender
Registration Act, West Virginia Code §§ 15-12-1 to -10. Shortly thereafter, in 2000, the
registration requirements for sex offenders were amended. The amendment extended the
registration requirements to perpetrators convicted of attempted offenses. See generally
W. Va. Code § 15-12-2 (eff. 2018). Because the amendment was effective both
retroactively and prospectively, Mr. Conn was required to register as a sex offender. See
W. Va. Code § 15-12-2(a) (eff. 2018) (“The provisions of this article apply both
retroactively and prospectively.”).
Subsequently, in 2003, Mr. Conn filed a petition for writ of habeas corpus in
the Circuit Court of Cabell County alleging (1) unlawfully induced guilty plea;
(2) ineffective assistance of counsel; (3) false declamation of character; and (4) violation
2
of his constitutional rights. According to the appendix record, the petition for writ of
habeas corpus was summarily dismissed. Then, on appeal to this Court, we remanded the
matter for further findings of fact regarding whether Mr. Conn’s crime was sexually
motivated for the purpose of the requirement that he register as a sex offender. Upon
remand, a hearing was held in May of 2006. At the hearing, the State represented that, in
entering his guilty plea to “attempt to commit an assault during the commission of a
felony,” Mr. Conn understood that there would be evidence at trial that the underlying
felony was of a sexual nature. Mr. Conn did not refute that characterization—he merely
pointed out that he entered an Alford/Kennedy plea 1 maintaining his innocence. The circuit
court ultimately found that based on the 2000 change in the statute, Mr. Conn was required
to register as a sex offender because the felony underlying his plea was sexual in nature.
Years later, in 2014, Mr. Conn was indicted on six counts of failure to register
as a sex offender or provide notice of registration changes. He entered an Alford/Kennedy
plea to two counts of the indictment on January 9, 2018. Mr. Conn then filed a “Petition
for Writ of Error Coram Nobis and Motion in Arrest of Judgment and for Dismissal of the
1
See Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987). A Kennedy
plea—sometimes referred to as an Alford/Kennedy plea—is a guilty plea in criminal law
that a defendant can enter without admitting his or her actual participation in the crime. In
Syllabus point one of Kennedy, this Court held: “An accused may voluntarily, knowingly
and understandingly consent to the imposition of a prison sentence even though he is
unwilling to admit participation in the crime, if he intelligently concludes that his interests
require a guilty plea and the record supports the conclusion that a jury could convict him.”
3
Indictment” in March of 2021. 2 In this petition, Mr. Conn claimed that the State Police
mistakenly believed him to be a lifetime registrant 3 when his conviction only required him
2
In Syllabus point 5 of State v. Hutton, 235 W. Va. 724, 776 S.E.2d 621(2015), this Court held:
A claim of legal error may be brought in a petition for a
writ of error coram nobis only in extraordinary circumstances
and if the petitioner shows that (1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the
conviction earlier; (3) there exists a substantial adverse
consequence from the conviction; and (4) the error presents a
denial of a fundamental constitutional right.
3
West Virginia Code § 15-12-4(a) (eff. 2018) states that “[a] person required
to register under the terms of this article shall continue to comply with this section, except
during ensuing periods of incarceration or confinement[.]” The statute continues, and
specifies two timeframes for registration:
(1) Ten years have elapsed since the person was released from
prison, jail, or a mental health facility or 10 years have elapsed
since the person was placed on probation, parole, or supervised
or conditional release. The 10-year registration period may not
be reduced by the sex offender’s release from probation,
parole, or supervised or conditional release; or
(2) For the life of that person, if that person: (A) Has one or
more prior convictions or has previously been found not guilty
by reason of mental illness, mental retardation, or addiction for
any qualifying offense referred to in this article; (B) has been
convicted or has been found not guilty by reason of mental
illness, mental retardation, or addiction of a qualifying offense
as referred to in this article, and upon motion of the prosecuting
attorney, the court finds by clear and convincing evidence that
the qualifying offense involved multiple victims or multiple
violations of the qualifying offense; (C) has been convicted or
has been found not guilty by reason of mental illness, mental
retardation, or addiction of a sexually violent offense; (D) has
been determined pursuant to §15-12-2a of this code to be a
sexually violent predator; or (E) has been convicted or has been
found not guilty by reason of mental illness, mental retardation,
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to register for ten years because he did not commit a “qualifying offense” or “sexually
violent offense” and he was not determined to be a “sexually violent predator.”
The State responded that the underlying felony—sexual assault in the third
degree—of Mr. Conn’s conviction of attempt to commit assault during the commission of
a felony is a qualifying offense for lifetime registration. After a hearing, the circuit court
certified the following question 4 to this Court:
Is [Mr. Conn’s] 1998 conviction for “Attempt to
Commit an Assault during the Commission of a Felony,” under
W. Va. Code [§] 61-2-10, which was found by the Circuit
Court to be a sexually motivated crime against a minor, a
or addiction of a qualifying offense as referred to in this article,
involving a minor or a person believed or perceived by the
registrant to be a minor.
Pursuant to Rule 17(a)(1) of the West Virginia Rules of Appellate
4
Procedure, when questions are certified by a circuit court or administrative tribunal,
the order of certification complying with statutory
requirements must further contain a concise statement of each
question of law, the answer to each question of law by the
circuit court or administrative tribunal, a notation of the extent
to which the action is stayed pending resolution of the certified
questions, and a directive to the parties to prepare a joint
appendix of the record sufficient to permit review of the
certified questions.
Here, the Circuit Court of Cabell County failed to answer the certified question. However,
in accordance with the authority given to this Court by Rule 2 of the West Virginia Rules
of Appellate Procedure, we suspend the procedure in this matter for judicial efficiency.
See W. Va. R. App. P. 2 (“In the interest of expediting decision, or for other good cause
shown, the Supreme Court may suspend the requirements or provisions of any of these
Rules in a particular case on application of a party or on its own motion and may order
proceedings in accordance with its direction. These Rules shall be construed to allow the
Supreme Court to do substantial justice.”).
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qualifying offense under the West Virginia Sexual Offender
Registration Act, W. Va. Code [§] 15-12-1 et seq., which
would require [Mr. Conn] to become a registered sex offender
for life?
II.
STANDARD OF REVIEW
This Court’s review of questions certified by a circuit court is plenary. “The
appellate standard of review of questions of law answered and certified by a circuit court
is de novo.” Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172(1996). Additionally, to the extent that the resolution of the certified question requires us
to engage in statutory interpretation, we apply the same level of review. “Where the issue
on an appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we now
address the arguments presented.
III.
DISCUSSION
In the case sub judice, we first acknowledge this Court’s authority to
reformulate certified questions:
When a certified question is not framed so that this
Court is able to fully address the law which is involved in the
question, then this Court retains the power to reformulate
6
questions certified to it under both the Uniform Certification of
Questions of Law Act found in W. Va. Code, 51-1A-1, et seq.
and W. Va. Code, 58-5-2 [(1998)], the statute relating to
certified questions from a circuit court of this State to this
Court.
Syl. pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993). In accordance with
this authority, we reformulate the question as follows:
Is Mr. Conn’s 1998 conviction—“Attempt to Commit
an Assault during the Commission of a Felony,” under West
Virginia Code § 61-2-10, the underlying felony being a
violation of West Virginia Code § 61-8B-5(2), third degree
sexual assault, when he had intercourse with a juvenile under
the age of sixteen when he was twenty-two years of age—a
qualifying offense under the West Virginia Sex Offender
Registration Act, West Virginia Code § 15-12-1 et seq., which
would require Mr. Conn to become a registered sex offender
for life?
To begin our analysis, we look to the issue presented to this Court in the
reformulated certified question, i.e., is a conviction for “attempt to commit an assault
during the commission of a felony”—when the underlying felony committed was sexual
assault in the third degree—a qualifying offense that requires lifetime sexual offender
registration? Mr. Conn argues that “qualifying offense” is clearly and unambiguously
defined by the Act as any crime listed in West Virginia Code § 15-12-2(b)(2) (eff. 2018), 5
5
West Virginia Code § 15-2-2 has been amended many times since its
enactment in 1999. However, the changes have mostly been for readability and stylistic
purposes. Furthermore, due to the Legislature’s express intent for the Act to apply
retroactively, we cite to the most current version, which became effective in 2018.
7
and because “attempt to commit an assault during the commission of a felony” is not
explicitly listed, he is not required to register as a sex offender for life.
Because the resolution of this matter requires us to examine various statutory
provisions, we set forth the proper framework for our analysis.
When this Court endeavors to construe a statutory
provision, our primary aim is to give effect to the intent of the
Legislature. “The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature.” Syl.
pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va.
108, 219 S.E.2d 361 (1975). Accordingly, “When a statute is
clear and unambiguous and the legislative intent is plain, the
statute should not be interpreted by the courts, and in such
case[,] it is the duty of the courts not to construe but to apply
the statute.” Syl. pt. 5, State v. Gen. Daniel Morgan Post No.
548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d
353 (1959). On the other hand, “[a] statute that is ambiguous
must be construed before it can be applied.” Syl. pt. 1, Farley
v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
Bradford v. W. Va. Solid Waste Mgmt. Bd., ___ W. Va. ___, ___, 866 S.E.2d 82, 87 (2021).
At the outset of our analysis, we examine the Sex Offender Registration Act.
In West Virginia Code § 15-12-1a(b), the Legislature made clear its intent by “declar[ing]
that there is a compelling and necessary public interest that the public have information
concerning persons convicted of sexual offenses in order to allow members of the public
to adequately protect themselves and their children from these persons.” To that end, the
Act provides that “[a]ny person who has been convicted of an offense or an attempted
8
offense” enumerated in the Act shall be made to register as a sex offender. W. Va. Code
§ 15-12-2(b). The Act enumerates the following offenses:
(1) §61-8A-1 et seq. of this code;
(2) §61-8B-1 et seq. of this code, including the
provisions of former §61-8B-6 of this code, relating to the
offense of sexual assault of a spouse, which was repealed by
an act of the Legislature during the 2000 legislative session;
(3) §61-8C-1 et seq. of this code;
(4) §61-8D-5 and §61-8D-6 of this code;
(5) §61-2-14(a) of this code;
(6) §61-8-6, §61-8-7, §61-8-12, and §61-8-13 of this
code;
(7) §61-3C-14b of this code, as it relates to violations of
those provisions of chapter 61 listed in this subsection; or
(8) §61-14-2, §61-14-5, and §61-14-6 of this code:
Provided, That as to §61-14-2 of this code only those violations
involving human trafficking for purposes of sexual servitude
require registration pursuant to this subdivision.6
6
Each of these statutes refer to various sexual offenses. See, e.g.,
W. Va. Code § 61-8A-1 to -7 (preparation, distribution or exhibition of obscene matter to
minors); W. Va. Code § 61-8B-1 to -18 (sexual offenses); W. Va. Code § 61-8C-1 to -11
(filming of sexually explicit conduct of minors); W. Va. Code § 61-8D-5 (sexual abuse by
a parent, guardian, custodian or person in a position of trust to a child; parent, guardian,
custodian or person in a position of trust allowing sexual abuse to be inflicted upon a child;
displaying of sex organs by a parent, guardian, or custodian); W. Va. Code § 61-8D-6
(sending, distributing, exhibiting, possessing, displaying or transporting material by a
parent, guardian or custodian, depicting a child engaged in sexually explicit conduct);
W. Va. Code § 61-2-14(a) (abduction of person; kidnapping or concealing child);
W. Va. Code § 61-8-6 (detention of person in place or prostitution); W. Va. Code § 61-8-
7 (procuring for house of prostitution); W. Va. Code § 61-8-12 (incest); W. Va. Code § 61-
8-13 (incest; limits on interviews of children eleven years old or less); W. Va. Code § 61-
3C-14b (soliciting, etc. a minor via computer; soliciting a minor and traveling to engage
the minor in prohibited sexual activity); W. Va. Code § 61-14-2 (human trafficking of an
9
Additionally, West Virginia Code §15-12-2(c) (eff. 2018) provides that “[a]ny person who
has been convicted of a criminal offense where the sentencing judge made a written finding
that the offense was sexually motivated shall also register as set forth in this article.”
Mr. Conn contends that the certified question can be answered by simply
applying the plain language of the Act. According to Mr. Conn, the Act explicitly defines
“qualifying offense” as any of the crimes listed in West Virginia Code § 15-12-2(b). See
supra W. Va. Code §15-12-2(b). He argues that, because there is no reference to his
crime—attempt to commit assault during the commission of a felony, located at West
Virginia Code § 61-2-10—then he has not committed a “qualifying offense” under the Act.
Mr. Conn maintains that he was required to register as a sex offender not because he
committed a “qualifying offense,” but because of the circuit court’s written findings that
his offense was sexually motivated. He contends that, by definition, a registration
requirement predicated on a written finding arises under West Virginia Code § 15-12-2(c),
and not under West Virginia Code § 15-12-2(b), the latter of which enumerates the
“qualifying offenses.”
The State acknowledges that “attempt to commit an assault during the
commission of a felony,” as proscribed in West Virginia Code § 61-2-10 (eff. 1882), is not
individual; aiding and abetting human trafficking); W. Va. Code § 61-14-5 (sexual
servitude); and W. Va. Code § 61-14-6 (patronizing a victim of sexual servitude).
10
a “qualifying offense” specified in the Act. However, the State contends that the
underlying felony—third degree sexual assault—needs to be examined because Mr.
Conn’s statutory offense of attempt does not exist in a vacuum. In that regard, the State
argues that because Mr. Conn’s conviction of attempt to commit an assault during the
commission of a felony is inextricably linked to one of the qualifying offenses under the
Act, he must be required to register as a sex offender for life. The State maintains that
requiring Mr. Conn to register as a sex offender for life under these circumstances comports
with the Legislature’s intent when it enacted the registration requirements. We agree.
This Court has recognized that “[t]he crime of attempt does not exist in the
abstract but rather exists only in relation to other offenses.” State v. Starkey, 161 W. Va.
517, 522 n.2, 244 S.E.2d 219, 223, n.2 (1978), overruled on other grounds by State v.
Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (citing W. LaFave & A. Scott, Handbook
on Criminal Law 49 (1972)). See also United States v. Dozier, 848 F.3d 180, 185 (4th Cir.
2017) (“However, we note a unique complexity of general attempt statutes: they do not set
forth a standalone crime. . . . It would therefore be imprudent to analyze the statutory
language . . . in complete isolation.”); State v. James F., No. 15-0194, 2016 WL 2905508,
at *3 (W. Va. May 18, 2016) (memorandum decision) (“[T]he [attempt] statute establishes
the punishment for attempting, unsuccessfully, to commit some crime specified elsewhere
in the code[.] . . . An ‘attempt crime’ is inextricably linked to the offense that was
attempted.”).
11
Based upon our examination of the Act and this Court’s body of caselaw, we
conclude that Mr. Conn did commit a “qualifying offense” that requires him to register as
a sex offender for life. As the State correctly stated, there is an inextricable link between
the crime of “attempt to commit an assault during the commission of a felony” and the
underlying felony committed. While we acknowledge that “attempt to commit an assault
during the commission of a felony” under West Virginia Code § 61-2-10 is not specifically
enumerated as a “qualifying offense” under the Act, the analysis cannot stop there. Rather,
the inquiry is twofold, and we must take the next step in the analysis: What felony was Mr.
Conn in the process of committing when he was attempting to commit an assault?
Basic criminal law says that no conviction is possible unless every element
is proved beyond a reasonable doubt. See Syl. pt. 1, in part, Jones v. Warden, W. Va.
Penitentiary, 161 W. Va. 168, 241 S.E.2d 914 (1978) (“In a criminal prosecution, the State
is required to prove beyond a reasonable doubt every material element of the crime with
which the defendant is charged[.]”). Under West Virginia Code § 61-2-10, the actus reus
of “assault during the commission of a felony” is to “shoot, stab, cut or wound another
person,” and the attendant circumstance is that the assault occur during “the commission
of, or attempt to commit[,] a felony.” See W. Va. Code § 61-2-10. Both the actus reus and
the attendant circumstances are elements of the crime.
Accordingly, Mr. Conn entered an Alford/Kennedy plea to attempted assault
during the commission of a felony. See W. Va. Code § 61-2-10. The underlying felony
12
offense to which Mr. Conn’s conviction of attempted assault is inextricably intertwined is
third degree sexual assault pursuant to West Virginia Code § 61-8B-5 (eff. 2000). The
State’s proffer at Mr. Conn’s plea hearing made clear that, had the matter gone to trial, the
State would have produced evidence to show “that on or about August the 20th,
1997, . . . the defendant, Michael Conn, did actually have intercourse with a juvenile,
[T.E.], who was under the age of sixteen . . . [, that there was] more than four years
difference between their ages, and Mr. Conn being twenty-two[.]” 7 A review of the Act
clearly shows that convictions pursuant to West Virginia Code § 61-8B-5 are explicitly
enumerated as “qualifying offenses.” See supra W. Va. Code § 15-12-2(b)(2). See, e.g.,
State v. Penwell, 199 W. Va. 111, 116, 483 S.E.2d 240, 245 (1996) (“[I]t is readily apparent
that it would not be possible under W. Va. Code § 61-2-10 to prove an assault in the
commission of, or attempt to commit, the felony of aggravated robbery without proving
each and every element of the commission of, or attempt to commit, the crime of
aggravated robbery.”).
From this, it must be concluded that Mr. Conn could not have been convicted
of “attempt to commit assault during the commission of a felony” unless he was also guilty
of committing, or attempting to commit, a felony. In this case, the felony referenced by
“during the commission of a felony” was determined to be sexual assault in the third
degree, which is explicitly enumerated as a “qualifying offense” in West Virginia Code
7
This proffer, made by the State at the 2006 hearing, “was not objected to or
contested in any way by [Mr. Conn.]”
13
§ 15-12-2(b)(2). Therefore, based on the foregoing, we conclude that Mr. Conn is required
to be a lifetime registrant because he was convicted of a qualifying offense.
IV.
CONCLUSION
For the reasons set forth above and based upon all of the foregoing, we
answer the reformulated certified question from the Circuit Court of Cabell County as
follows:
Is Mr. Conn’s 1998 conviction—“Attempt to Commit
an Assault during the Commission of a Felony,” under West
Virginia Code § 61-2-10, the underlying felony being a
violation of West Virginia Code § 61-8B-5(2), third degree
sexual assault, when he had intercourse with a juvenile under
the age of sixteen when he was twenty-two years of age—a
qualifying offense under the West Virginia Sex Offender
Registration Act, West Virginia Code § 15-12-1 et seq., which
would require Mr. Conn to become a registered sex offender
for life?
Answer: Yes.
The certified question having been reformulated and answered, this case is
dismissed from the docket of this Court and remanded to the circuit court for proceedings
consistent with this opinion.
Certified question answered.
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