State v. George K.

• Decision Date: 13 June 2014
• Docket Number: No. 12–0433.,12–0433.
• Citation: 760 S.E.2d 512,233 W.Va. 698
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. GEORGE K., Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

233 W.Va. 698

760 S.E.2d 512

STATE of West Virginia, Plaintiff Below, Respondent

v.GEORGE K., Defendant Below, Petitioner.

No. 12–0433.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 2014.

Decided June 13, 2014.

Syllabus by the Court

1. In determining whether a misdemeanor or felony involves an “act of violence against a person” pursuant to W. Va.Code § 27–6A–3 (2007), a court's analysis is not limited by whether an “act of violence against a person” is an element of the offense.

2. An “act of violence against a person” within the meaning of W. Va.Code § 27–6A–3 (2007) encompasses acts that indicate the incompetent defendant poses a risk of physical harm, severe emotional harm, or severe psychological harm to children.

3. Third degree sexual assault pursuant to W. Va.Code § 61–8B–5(a)(2) (2000) is a crime that involves an “act of violence against a person” within the meaning of W. Va.Code § 27–6A–3 because it causes physical harm and severe emotional and psychological harm to children.

4. Sexual abuse by a parent, guardian, custodian, or a person in a position of trust to a child pursuant to W. Va.Code § 61–8D–5 (2005) is a crime that involves an “act of violence against a person” within the meaning of W. Va.Code § 27–6A–3 because it causes physical harm and severe emotional and psychological harm to children.

Cheryl L. Warman, Esq., Morgantown, WV, for the Petitioner.

Patrick Morrisey, Attorney General, Laura Young, Esq., Assistant Attorney General, Charleston, WV, for the Respondent.

BENJAMIN, Justice:

This case is before the Court on appeal by the petitioner, George K., of the February 21, 2012, order of the Circuit Court of Taylor County which found pursuant to W. Va.Code § 27–6A–3(h) (2007) that George K. is not competent to stand trial, that he is not substantially likely to attain competency, and that the charges against him—two counts of third degree sexual assault pursuant to W. Va.Code § 61–8B–5(a)(2) (2000) and two counts of sexual abuse by a custodian pursuant to W. Va.Code § 61–8D–5 (2005)—involve an “act of violence against a person.” The circuit court further found that it would maintain jurisdiction over George K. for fifty years, which is the maximum possible sentence he would have received if he had been convicted of the crimes with which he was charged, or until he attains competency and the criminal charges reach resolution. In accordance with these findings, the circuit court ordered that George K. be committed to a mental health facility.

In this appeal, George K. raises one assignment of error: The circuit court erred by finding that the crimes with which he was charged involve an act of violence and therefore by proceeding pursuant to W. Va.Code § 27–6A–3(h). He asserts that the crimes with which he was charged do not involve an act of violence, and that the circuit court should instead have applied W. Va.Code § 27–6A–3(g), thereby dismissing the charges against him and releasing him from custody unless he was subsequently civilly committed. The State argues that the crimes charged involve an act of violence and that the circuit court correctly applied W. Va.Code § 27–6A–3(h).

After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of George K. and the State, we conclude that third degree sexual assault under W. Va.Code § 61–8B–5(a)(2) and sexual abuse by a custodian under W. Va.Code § 61–8D–5 are crimes that involve an act of violence within the meaning of W. Va.Code § 27–6A–3. Therefore, the circuit court properly applied W. Va.Code § 27–6A–3(h), and we affirm the circuit court's order.

I.FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2011, the petitioner, George K., was indicted on two counts of third degree sexual assault pursuant to W. Va.Code § 61–8B–5(a)(2) and two counts of sexual abuse by a custodian pursuant to W. Va.Code § 61–8D–5. The acts giving rise to the indictment allegedly occurred in April or May of 2011, and at that time, George K. was thirty nine years old. According to the indictment, George K. had sexual intercourse with the fifteen-year-old daughter of his live-in girlfriend on two separate occasions. George K. counters by asserting that the child was within six weeks of the age of consent at the time of the purported offenses and that she willingly engaged in sexual intercourse with him.¹

Following George K.'s indictment, his counsel sought to have him evaluated for competency to stand trial. The circuit court ordered a psychiatric evaluation on June 28, 2011. In his report dated July 21, 2011, Dr. William Fremouw determined that George K. had an IQ of 60 and was not at that time competent to stand trial, but that

Mr. [K.] potentially could learn the basics of the criminal justice system with educational classes with frequent repetition. His ability to make informed choice, however, would be limited by his intelligence. Therefore, even if he could better explain the charges and penalties, his ability to decide strategies would remain very questionable. The Court may wish to send him to Sharpe Hospital ² for a competency restoration program to determine whether his competence level could be raised to above the threshold to allow his case to proceed forward.

(Footnote added). Relying on this report, the court found, by order dated August 18, 2011, that George K. was not competent to stand trial. The court ordered that he be committed to Sharpe Hospital so that the doctors could attempt to raise his competency level.

On November 18, 2011, George K. was evaluated again, this time by Dr. Bridgette G. Balasko. In her report dated November 20, 2011, Dr. Balasko opined that “[i]f information can be presented in a way that allows him to make informed choices about his legal issues, he could be restored to competence in the foreseeable future.” She also reevaluated his IQ, determining that his IQ was 57. Following this report, by letter dated November 30, 2011, Dr. John King, Associate Clinical Director of Sharpe Hospital, requested that the court extend George K.'s commitment for up to nine months to allow time to help him gain competency. By order dated December 1, 2011, the court granted the request and extended George K.'s commitment to June 19, 2012.

A third psychiatric evaluation of George K. was conducted on February 10, 2012, by Dr. Natalie Wallace. By report of the same date, Dr. Wallace found that George K. “is not likely to attain competency in the foreseeable future,” stating, “[I]t has become apparent to me that Mr. [K.] does not have the ability to follow the proceedings because of problems with retention, and is not able to participate in his defense because of cognitive limitations.” Dr. Cheryl Franc, Clinical Director of Sharpe Hospital, notified the court of Dr. Wallace's findings via letter dated February 16, 2012.

On February 21, 2012, the circuit court held a hearing on George K.'s competency to stand trial. Both counsel for the State and counsel for George K. agreed that he was incompetent to stand trial. The parties disagreed on the proper course of action following a finding of incompetency. George K. argued that the court should proceed pursuant to W. Va.Code § 27–6A–3(g)³ and dismiss the charges against him. The State argued that W. Va.Code § 27–6A–3(h)⁴ should apply, that George K. should be committed, and that the court should retain jurisdiction over him for the length of time specified by the statute. In deciding which subsection to apply, the circuit court answered the threshold question presented by the subsections: Did the charged crimes involve an “act of violence against a person?” The court found

that Mr. [K.] is charged with four felonies which do involve acts of violence against a person. The court finds that all four of these offenses do involve acts of violence against a person.

The court believes that the case cited [State ex rel. Spaulding v. Watt, 188 W.Va. 124, 423 S.E.2d 217 (1992) ] not only talks about physical violence but also talks about emotional harm.

In an order dated February 21, 2012, the circuit court found that George K. was incompetent to stand trial and that he was not likely to gain competency. The court ordered that he be committed to a mental health facility pursuant to W. Va.Code § 27–6A–3(h), finding

that the Defendant would have been convicted of the following offenses but for the determination that he/she was not competent to stand trial ... [:]

Sexual Assault in the Third Degree, 2 counts

Sexual Abuse by a Parent, Guardian, or Custodian, 2 counts

This Court further FINDS that it maintains jurisdiction over the defendant for fifty (50) years, the maximum possible sentence defendant would have received if he/she had been convicted of the crime(s) charges [sic], or until the defendant regains competency....

George K. now appeals the circuit court's February 21, 2012, order committing him under W. Va.Code § 27–6A–3(h).

II.STANDARD OF REVIEW

In this appeal, George K. asks the Court to decide whether W. Va.Code § 61–8B–5(a)(2), which defines third degree sexual assault, and W. Va.Code § 61–8D–5, which defines sexual abuse by a custodian, involve “an act of violence against a person” within the meaning of W. Va.Code § 27–6A–3(h). We have held that “[w]here 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.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Therefore, we proceed in analyzing the petitioner's assignment of error under a de novo standard of review.

III.ANALYSIS

In 1974, the West Virginia Legislature enacted Chapter 27, Article 6A of the West Virginia Code. That article, titled “Competency and Criminal Responsibility of Persons Charged or Convicted of a Crime,” sets forth the means by which West Virginia courts should evaluate and proceed with cases involving...