Carter v. Taylor, 15702
| Decision Date | 14 December 1983 |
| Docket Number | No. 15702,15702 |
| Citation | 310 S.E.2d 213,172 W.Va. 696 |
| Parties | Fred CARTER v. Donald TAYLOR. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syllabus Point 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
2. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syllabus Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
William W. Pepper, Pepper & Nason, Charleston, for appellant.
Carl L. Harris, Asst. Pros. Atty., Fayetteville, for appellee.
The defendant, Fred Carter, appeals his conviction by a jury of criminal contempt. The contempt conviction arose from the defendant violating a court order which had enjoined him from using a strip of land adjacent to his home. Initially, both the defendant and Donald Taylor claimed to own the strip of land that separated their properties. On April 11, 1979, the Circuit Court of Fayette County ruled in favor of Mr. Taylor and ordered that the defendant be "hereby enjoined from any further use of, occupancy of, or interference with" Mr. Taylor's use of the property.
On October 14, 1981, Mr. Taylor filed a petition in the circuit court alleging that the defendant was not complying with the court's April 11, 1979 order. After holding a probable cause hearing, the trial judge ruled on December 23, 1981, that he found probable cause to believe that the defendant had violated the April 11, 1979 order on several different occasions. A trial date was set and the jury found the defendant guilty on February 11, 1982.
Mr. Carter secured new counsel for the appeal and several grounds of error are alleged. However, none of these errors were asserted at the trial court level and we are, therefore, controlled by Syllabus Point 17 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974):
"As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there."
See also Syllabus Point 1, State v. Smith, 169 W.Va. 750, 289 S.E.2d 478 (1982).
Counsel argues in the alternative that the failure of trial counsel to raise the objections at the contempt proceeding constitutes ineffective assistance of counsel and for this reason we should reverse the case. Implicit in a claim of ineffective assistance of counsel is that the errors asserted against the trial counsel resulted in substantial prejudice to the defendant. See State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402, 412 (1982). Customarily, we have followed the standard set in Syllabus Point 19 of State v. Thomas, supra:
"In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error."
See also Syllabus Points 6 & 7, State v. Hatfield, supra; Syllabus Point 2, Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980).
The defendant contends that trial counsel should have...
To continue reading
Request your trial
-
State v. Davis
...Bogard, 173 W.Va. 118, 312 S.E.2d 782 (1984); Syl. pt. 1, State v. Cecil, 173 W.Va. 27, 311 S.E.2d 144 (1983); Syl. pt. 2, Carter v. Taylor, 172 W.Va. 696, 310 S.E.2d 213 (1983); Syl. pt. 1, State v. Bias, 171 W.Va. 687, 301 S.E.2d 776 (1983); Syl. pt. 4, State v. Mullins, 171 W.Va. 542, 30......
-
State v. Manns
...rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal. Syllabus Point 1, Carter v. Taylor, W.Va., 310 S.E.2d 213 (1983); Syllabus Point 1, State v. Smith, W.Va., 289 S.E.2d 478 (1982); Syllabus Point 17, State v. Thomas, 157 W.Va. 640, 203 ......
-
State v. Humphrey
...that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal." See also Syllabus Point 1, Carter v. Taylor, --- W.Va. ---, 310 S.E.2d 213 (1983); Syllabus Point 1, State v. Smith, 169 W.Va. 750, 289 S.E.2d 478 (1982) (per curiam); Syllabus Point 17, State......
-
State v. Linkous
...will not be addressed on appeal." 3 See also State v. Manns, --- W.Va. ---, ---, 329 S.E.2d 865, 871 (1985); Syllabus Point 1, Carter v. Taylor, --- W.Va. ---, 310 S.E.2d 213 (1983); Syllabus Point 1, State v. Smith, 169 W.Va. 750, 289 S.E.2d 478 (1982) (per curiam); Syllabus Point 17, Stat......