State v. Cook

• Decision Date: 28 October 2010
• Docket Number: No. 35465.,35465.
• Citation: 228 W.Va. 563,723 S.E.2d 388
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellant v. Sandy Martin COOK, Defendant Below, Appellee.

228 W.Va. 563

723 S.E.2d 388

STATE of West Virginia, Plaintiff Below, Appellant

v.Sandy Martin COOK, Defendant Below, Appellee.

No. 35465.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 2010.Decided Oct. 28, 2010.

Syllabus by the Court

1. “To maintain a claim 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, the defendant must show actual prejudice. To the extent our prior decisions in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va.1980), Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and their progeny are inconsistent with this holding, they are expressly overruled.” Syl. Pt. 2, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

2. “In determining whether 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, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled.” Syl. Pt. 3, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

3. “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 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).

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).” Syl. Pt. 6, State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009).

5. “In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.” Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

James M. Cagle, Charleston, WV, for Appellant.

Barbara H. Allen, Scott E. Johnson, Attorney General's Office, Charleston, WV, for Appellee.

PER CURIAM:

Appellant Sandy Cook seeks a reversal of his conviction on sixteen counts of sex-related offenses.¹ As grounds for the reversal, Appellant asserts due process violations stemming from both pre- and post-accusatory delay; improper application of case law; cumulative error; and disproportionate sentencing. Upon our careful consideration of the assignments of error raised by Appellant, we do not find that the trial court committed error. Accordingly, we affirm.

I. Factual and Procedural Background

In the September 2008 term of court, Appellant was charged with twenty-two sexual offenses against four victims who were each minors at the time of the alleged crimes.² All of the offenses were alleged to have occurred fifteen to seventeen years before the issuance of the indictment.³ The four male victims came to know and have contact with appellant, who was the pastor of the Shrewsbury Church of God,⁴ when they were twelve or thirteen years of age.⁵ The alleged crimes took place either in the church van or in the parsonage. One of the victims, Michael L., actually lived in the church parsonage with Appellant and his mother beginning in March 1995.

The allegations at issue were first reported when Jose S. contacted Trooper Malcolm Napier on August 3, 2007. Two days later, Trooper Napier contacted Michael L. to inquire about Appellant's past behavior. On August 19, 2007, Trooper Napier contacted Michael B. to speak with him about Appellant's behavior. Trooper Napier obtained a warrant for Appellant's arrest on September 3, 2007. After learning of Appellant's arrest, David M. contacted Trooper Napier on September 4, 2007.

The case was tried over a five-day period beginning on February 23, 2009, and culminated with Appellant being convicted on all sixteen counts of sexual abuse that went to the jury on February 27, 2009. By entry of the trial court's final order on May 21, 2009, Appellant was sentenced to a term of not less than twenty and up to sixty years in prison.⁶ Through this appeal, Appellant seeks a reversal of his conviction.

II. Standard of Review

Because the issues Appellant raises concern matters of law rather than matters typically left to the discretion of the trial judge, our review is plenary. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“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.”). With this standard in mind, we proceed to determine whether the trial court committed error.

III. Discussion

A. Preindictment Delay

The primary error that Appellant asserts stems from the lengthy period of time between the incidents underlying his conviction and the prosecution of those offenses. He asserts that “gross and extreme” delay between the incidents and the indictment impaired his ability to defend against those charges and thereby violated his right to due process. Appellant argues that he is entitled to have the trial court reconsider its ruling on his motion to dismiss for gross preindictment delay based on our issuance of a decision shortly after his conviction that clarified the standard for demonstrating a due process violation predicated on preindictment delay.⁷

In State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009), this Court revisited its earlier rulings in State ex rel. Leonard v. Hey⁸ and Hundley v. Ashworth⁹ on the issue of preindictment delay. Upon a review of those rulings, we determined that our precedent of recognizing a lengthy preindictment delay as presumptively prejudicial for purposes of establishing a due process violation was “contrary to the clear weight of authority throughout this country.” Facemire, 223 W.Va. at 601, 678 S.E.2d at 854. As a result, we held in syllabus point two of Facemire:

To maintain a claim 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, the defendant must show actual prejudice. To the extent our prior decisions in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va.1980), Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and their progeny are inconsistent with this holding, they are expressly overruled.223 W.Va. at 595, 678 S.E.2d at 848.

In Facemire, we also addressed the requirement imposed on a defendant under Hundley to “prove that the State's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense.” 181 W.Va. at 380, 382 S.E.2d at 574, syl. pt. 2, in part. After considering the alternative approach employed by the Fourth Circuit Court of Appeals for analyzing preindictment delay, we determined that fundamental fairness concerns at the heart of the Due Process Clause compelled the elimination of a defendant's burden to demonstrate that the state gained an advantage through preindictment delay. See Facemire, 223 W.Va. at 603, 678 S.E.2d at 856. Adopting the balancing test used by the Fourth Circuit, we held in syllabus point three of Facemire:

In determining whether 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, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled.

223 W.Va. at 595–96, 678 S.E.2d at 848–49.

Appellant argues that the trial court should be required to reconsider his motion to dismiss for preaccusation delay in light of this Court's decision in Facemire.¹⁰ As support for his position, Appellant relies upon our decision in Facemire to eliminate a defendant's burden of establishing that the prosecutorial delay in issue was tactical in nature as part of establishing a due process violation based on preindictment delay. 223...