State v. Angle

• Decision Date: 12 April 2016
• Docket Number: No. 15-0373,15-0373
• Parties: State of West Virginia, Plaintiff below, Respondent v. Carlos Angle, Defendant below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff below, Respondent
v.
Carlos Angle, Defendant below, Petitioner

No. 15-0373

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 12, 2016

(Marion County 14-F-182)

MEMORANDUM DECISION

Petitioner Carlos Angle, by counsel Lance E. Rollo, appeals the Circuit Court of Marion County's April 2, 2015, sentencing order following his guilty plea to attempted unlawful assault. The State of West Virginia, by counsel Zachary A. Viglianco, filed its response and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in finding that the crime was "sexually motivated," resulting in petitioner being required to register as a sex offender for ten years.

This 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. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2009, a Marion County grand jury indicted petitioner on charges of burglary and second-degree sexual assault. Following a jury trial in July of 2011, petitioner was convicted of sexual abuse in the first degree (a lesser included offense of sexual assault in the second degree) and was acquitted of the burglary charge. Following this conviction, the State filed a recidivist information that resulted in a second jury conviction. Thereafter, petitioner filed a direct appeal with this Court asserting five assignments of error. Specifically, petitioner argued that the circuit court failed to make the requisite findings necessary for a determination that the evidence offered by the State at his trial was admissible pursuant to Rule 404(b) of the West Virginia Rules of Evidence. By decision entered June 5, 2014, this Court reversed petitioner's conviction for first-degree sexual abuse, and remanded the case to the circuit court for a new trial. See State v. Angle, 233 W.Va. 555, 759 S.E.2d 786 (2014). This Court also vacated petitioner's recidivist conviction.

In November of 2014, petitioner agreed to waive indictment and be charged by information with one count of attempted unlawful assault. Petitioner entered into an Alford plea

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with the State of West Virginia to resolve this charge.¹ Pursuant to the agreement, the State agreed not to pursue a recidivist information against petitioner. Furthermore, the parties agreed to argue whether the offense was "sexually motivated" pursuant to West Virginia Code § 15-2-2(c). On March 16, 2015, the circuit court held a sentencing hearing during which the victim testified that "she was sleeping on her stomach and that the defendant was on top of her with his pants pulled down." According to the victim, she "felt [petitioner's] penis touch her legs between her legs and her vaginal area." The circuit court explicitly found that the witness was credible and petitioner did not call any rebuttal witnesses or introduce any evidence. The circuit court concluded that "[b]ased upon the testimony of the victim, [] the offense of attempted unlawful assault was sexually motivated as defined in W.Va. Code §§ 15-12-2(c) and (j)." As such, the circuit court sentenced petitioner to a term of incarceration of one to three years by order entered April 2, 2015. Because the circuit court found that petitioner's crime was "sexually motivated," petitioner was ordered to register as a sexual offender for ten years after his release from incarceration. It is from this order that petitioner appeals.

On appeal, petitioner argues that the circuit court erred when it found that petitioner's crime was sexually motivated requiring him to register as a sex offender, pursuant to West Virginia Code §§ 15-12-2(c) and 15-2-4(a), because the State failed to present sufficient evidence in support of this finding. Petitioner contends that the victim's testimony during the March 16, 2015, hearing...