Pethel v. McBride

• Decision Date: 08 June 2006
• Docket Number: No. 32784.,32784.
• Citation: 638 S.E.2d 727
• Parties: Shawn PETHEL, aka, Shawn Pethtel, Petitioner Below, Appellee v. Thomas McBRIDE, Warden, Mount Olive Correctional Center Respondent Below, Appellant.
• Court: West Virginia Supreme Court

Page 727

638 S.E.2d 727

Shawn PETHEL, aka, Shawn Pethtel, Petitioner Below, Appellee v. Thomas McBRIDE, Warden, Mount Olive Correctional Center Respondent Below, Appellant.

No. 32784.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 2006.

Decided June 8, 2006.

Dissenting Opinion of Justice Starcher July 12, 2006.

Concurring Opinion of Justice Maynard July 18, 2006.

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Syllabus by the Court

1. Any rights created by the provisions of the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), are rights which are statutory in nature and which clearly do not give rise to the level of right guaranteed by either the Constitution of West Virginia or the Constitution of the United States.

2. The Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), is not a jurisdictional statute. A violation of the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), does not, under West Virginia law, deny a trial court jurisdiction over criminal charges.

3. The violation of a provision of the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), is not cognizable in a post-conviction habeas corpus action brought pursuant to West Virginia Code § 53-4A-1 (1967).

4. A criminal defendant's voluntary entry of a guilty plea waives all rights conferred under the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), including the right to dismissal of charges upon violation of its provisions.

5. In a case in which West Virginia is a receiving State pursuant to the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), any order of a court dismissing any indictment, information, or complaint may be with or without prejudice. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the agreement on detainers and on the administration of justice.

6. It shall not be a violation of the Interstate Agreement on Detainers Act, W. Va.Code § 62-14-1, et seq. (1971), if, prior to trial, the prisoner is returned to the custody of the sending State pursuant to an order of the appropriate court issued after reasonable notice to the prisoner and the State of West Virginia and an opportunity for a hearing.

Scott R. Smith, Ohio County Prosecuting Attorney, William J. Ihlenfeld, II, Ohio County Assistant Prosecuting Attorney, Wheeling, for Appellants.

Mark Panepinto, Wheeling, for Appellee.

BENJAMIN, Justice:

In the instant appeal of the circuit court's order granting habeas corpus relief, Appellee, Shawn Pethel, aka, Shawn Pethtel (hereinafter "Pethel"), urges this Court to affirm the Circuit Court of Ohio County decision setting aside his conviction on multiple counts of sexual assault, filming a minor in sexually explicit conduct, possession of a controlled substance with intent to deliver, nighttime burglary, and conspiracy, together with his corresponding sentence of 53 to 155 years in the West Virginia State Penitentiary because, he contends, the State of West Virginia violated the Interstate Agreement on Detainers Act (hereinafter"IAD").¹ After considered review of the record presented to this Court and pertinent legal authorities, we refuse Pethel's request and reverse the Circuit Court of Ohio County's September 14, 2004 order.

I. FACTUAL AND PROCEDURAL HISTORY

On September 13, 1999, Pethel was indicted by the Ohio County Grand Jury on twenty counts of sexual assault in the third degree², three counts of filming a minor in sexually explicit conduct³, two counts of possession with intent to deliver⁴, one count of nighttime burglary⁵, five counts of conspiracy⁶ and one count of grand larceny⁷. The charges set forth in the indictment arise from an investigation into a burglary of a home in Wheeling, Ohio County, West Virginia. The investigation into this burglary led authorities to Pethel, three of his friends, Eric Gorczyca, Michael McWhorter and David Wayne Morris, Jr., and evidence relating to drug activity. The evidence obtained during the preliminary investigation was sufficient to obtain a search warrant for the house shared by Pethel and Gorczyca.

During execution of the search warrant, authorities recovered a video tape depicting various scenes of guns, drugs and sexual activity with young girls. The video depicted Pethel hiding a video camera under clothes in his bedroom, and, a few moments later, reentering the bedroom with a blonde girl who was then videotaped, apparently without her knowledge, performing fellatio on Pethel. The video also depicted Pethel showing McWhorter where the video camera was hidden and then leading this same girl into the bedroom where she was videotaped, apparently without her knowledge, performing fellatio on McWhorter. After these two video depictions, the video shows Pethel commenting that he had just "pimped out some b* *ch." It also depicts him holding large bags containing a substance believed to be marijuana, commenting upon the failure of law enforcement to find the substance when they picked the girl up, and asking if anyone wanted to party.⁸

On December 12, 1998, Ohio County Sheriff deputies retrieved fifteen year old runaway Stacey S.⁹ from Pethel's residence. Stacey was the blonde girl depicted on the video. On that date, Pethel was twenty-two years old.¹⁰ At trial, Stacey testified that she met Pethel while she was walking along a road with her ten year old cousin. Pethel, who was driving by, stopped to talk to the girls. Stacey was thirteen years old at that time. Pethel gave Stacey his pager number and told her to call him.¹¹ Stacey testified that she and Pethel engaged in oral sex and sexual intercourse numerous times prior to the act shown on the videotape. She testified that she was filmed without her knowledge.

The videotape seized during the execution of the search warrant also contained a scene wherein a dark haired girl, subsequently identified as Jessica J.,¹² performed fellatio on Pethel. Jessica testified at trial that she met Pethel through a friend with whom she was living while in a group home/juvenile facility located in Wellsburg, West Virginia. She testified that she and Pethel began having sexual relations, including fellatio and intercourse, when she was in the eighth grade.¹³ Jessica described a primarily sexual relationship spanning several years and ending shortly after her sixteenth birthday.¹⁴ She testified that she and Pethel had sexual relations at both his apartment on Wheeling Island and later at his house in Warwood on those occasions when she was home for visits from the group home/juvenile facility. She testified that it appeared the videotape was filmed shortly after her sixteenth birthday, although she did not know she was being recorded.¹⁵

At the time of his September 13, 1999 indictment, Pethel was serving a one-year sentence in the State of Ohio, at the Correctional Reception Center in Orient, Ohio, following revocation of parole granted in the State of Ohio.¹⁶ On September 18, 1999, the State admittedly placed a detainer on Pethel. On that same date, Pethel executed a series of forms initiating a voluntary return and request for final disposition pursuant to Article III of the IAD.¹⁷ Thereafter, on October 1, 1999, the State initiated the involuntary return of Pethel through a request for temporary custody pursuant to Article IV of the IAD.¹⁸

Pethel was thereafter returned to the State of West Virginia for his October 12, 1999 arraignment in the Circuit Court of Ohio County before the Honorable Fred Risovich, II.¹⁹ He was represented by previously appointed counsel. At the October 12, 1999 arraignment, Pethel pleaded not guilty to the charges in the indictment and trial was set for December 27, 1999. Though not specifically informing the Court that the IAD had been triggered, the State of West Virginia informed the trial court²⁰ that Pethel was then currently serving a prison sentence in Ohio, that he was brought to West Virginia for arraignment and that the State would make calls after the hearing to "make sure he can stay here or do my best to allow him to stay here." Pethel's counsel indicated that he did not object to Pethel remaining in West Virginia.²¹ After setting a hearing for October 18, 1999, the trial court remanded Pethel "back to the custody of the Sheriff and eventually back to the State of Ohio to continue serving his prison term."

At the October 18, 1999 hearing, court-appointed counsel moved to withdraw from Pethel's representation due to the discovery of several conflicts of interest which Pethel refused to waive. The motion was granted and new counsel was appointed. Prior to the end of the hearing, original counsel informed the trial court that Ohio had placed a hold on Pethel. The State then informed the trial court that it had arranged for Pethel to remain in West Virginia indefinitely, to which the trial court responded "[t]he problem is I don't want him for an indefinite period. I don't want our county to have to pay the costs of keeping him here." After learning that the location of Pethel's Ohio incarceration was more than an hour's drive away, the trial court remanded Pethel to the Ohio County Sheriff for three days to permit Pethel to confer with newly appointed counsel,²² after which he was to be returned to Ohio. Pethel was ultimately returned to the State of Ohio on October 27, 1999, after spending approximately sixteen days in West Virginia.

On November 18, 1999, Pethel filed a motion to dismiss, with prejudice, the charges against him alleging that the IAD's anti-shuttling provisions contained in W. Va.Code § 62-14-1, Article IV(e),²³ had been violated when he was returned...