Frank A. v. Ames, 20-0024

Case DateNovember 19, 2021
CourtSupreme Court of Virginia

FRANK A., Petitioner Below, Petitioner

DONNIE AMES, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 20-0024

Supreme Court of Appeals of West Virginia

November 19, 2021

Submitted: September 14, 2021

Appeal from the Circuit Court of Harrison County The Honorable Thomas A. Bedell, Judge Civil Action No. 16-C-82-2

Matthew D. Brummond, Esq. Public Defender Services Appellate Advocacy Division Charleston, West Virginia Counsel for Petitioner

Patrick Morrisey, Esq. Attorney General William E. Longwell, Esq. Assistant Attorney General Holly M. Flanigan, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent


1. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. "There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial." Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

3. "'It is the three-term rule, W.Va. Code, 62-3-21, which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution.' Syllabus point 1, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986)."


Syl. Pt. 2, State ex rel. Porter v. Farrell, 245 W.Va. 272, 858 S.E.2d 897 (2021).

4. "A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial." Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

5. "In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false, and (3) the false testimony had a material effect on the jury verdict." Syl. Pt. 2, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

6. "'A conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the credibility is a question for the jury.' Syl. pt. 5, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981)." Syl. Pt. 1, State v. Haid, 228 W.Va. 510, 721 S.E.2d 529 (2011).


7. "'"An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R. Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy." Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).' Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007)." Syl. Pt. 4, Ballard v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013).

8. "Variances (between indictment and proof) are regarded as material in criminal cases only when they mislead the defendant in making his defense, and may expose him to the danger of being again put in jeopardy for the same offense." Syl. Pt. 2, in part, State v. Nelson, 121 W.Va. 310, 3 S.E.2d 530 (1939).

9. "To demonstrate that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, a defendant must first introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will be likely affected." Syl. Pt. 4, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).


10. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syl. Pt. 3, in part, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

11. "'"The plain error doctrine of W.Va. R. Crim. P. 52(b), whereby the court may take notice of plain errors or defects affecting substantial rights although they were not brought to the attention of the court, is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result." Syllabus Point 2, State v. Hatala, 176 W.Va. 435, 345 S.E.2d 310 (1986).' Syl. Pt. 4, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987)." Syl. Pt. 3, State ex rel. Games-Neely v. Yoder, 237 W.Va. 301, 787 S.E.2d 572 (2016).

12. "'A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases


are inconsistent, they are expressly overruled.' Syllabus point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995)." Syl. Pt. 7, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

13. "The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless." Syl. Pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

14. "'A critical stage of a criminal proceeding is where the defendant's right to a fair trial will be affected.' Syllabus Point 2, State v. Tiller, 168 W.Va. 522, 285 S.E.2d 371 (1981)." Syl. Pt. 5, State v. Brown, 210 W.Va. 14, 552 S.E.2d 390 (2001).

15. "'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syllabus point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)." Syl. Pt. 7, State v. Tyler G., 236 W.Va. 152, 778 S.E.2d 601 (2015).


16. "'"A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his [or her] affidavit that [the defendant] was diligent in ascertaining and securing [the] evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)." Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).' Syllabus point 3, In re Renewed Investigation of State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006)." Syl. Pt. 4, State ex rel. Smith v. McBride, 224 W.Va. 196, 681 S.E.2d 81 (2009).

17. "Before prosecutorial error can occur under the doctrine of suppression of evidence, it must be shown that the evidence suppressed would be relevant to an issue at the criminal trial." Syl. Pt. 4, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).


18. "'"An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).' Syllabus Point 2, State v. Childers, 187 W.Va. 54, 415 S.E.2d 460 (1992)." Syl. Pt. 9, State v. George W.H., 190 W.Va. 558, 439 S.E.2d 423 (1993).

19. "Any retroactive application of the supervised release statute to an individual who committed any of the enumerated sex offenses prior to the effective...

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