State v. H.D.
| Decision Date | 26 May 2022 |
| Docket Number | 20-0399 |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. H.D., Defendant Below, Petitioner |
| Court | West Virginia Supreme Court |
Petitioner H.D., by counsel Graham B. Platz, appeals from the Circuit Court of Jefferson County's June 23, 2021, [1] "Order Granting Restitution." The State of West Virginia, by counsel Patrick Morrisey and Andrea Nease Proper, filed a response in support of the circuit court's order. Petitioner filed a reply.
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 affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
This cases arises from petitioner's sexual abuse of his daughter, S.D.[2] Petitioner was indicted on ten counts: two counts of first-degree sexual assault; four counts of incest and four counts of sexual abuse by a parent, guardian, or custodian. Petitioner initially pled not guilty.[3]
At a hearing on January 3, 2020, petitioner pled no contest to the indictment. He then accepted a binding plea agreement, whereby the State agreed to dismiss two counts of first-degree sexual assault and petitioner agreed to plead guilty to the remaining eight counts of the indictment. Per the plea agreement, petitioner was to receive an aggregate term of ten-to-twenty years of incarceration. The circuit court conducted a lengthy colloquy before accepting the plea. The State proffered that it could prove that petitioner sexually abused S.D. in various ways including inserting his finger into her vagina and performing oral sex on her. If the case went to trial, the State advised it would present evidence that petitioner had rubbed his penis against S.D. and that he penetrated her vagina with his penis on more than one occasion.
S.D.'s mother testified that petitioner had groomed S.D., telling her that her mother did not want her and wished to send her back to the foster care system. After the mother divorced petitioner, the mother noted that petitioner's abuse of S.D. increased. Further, the mother testified that although S.D. went to college, she had to take a break due to the pending criminal case and her depression. Per the mother, S.D. needed treatment, but was not yet ready to begin treatment. The mother further testified that she feared that S.D. would have troublesome relationships as a result of the abuse that she suffered from petitioner. K.D. also testified at the sentencing hearing that she began drinking at age twelve to dull the pain from petitioner's physical and sexual abuse. Per K.D., she then progressed to full blown drug addiction, but noted that she had been clean for three years prior to the hearing. Per K.D., she felt betrayed by her father for not only failing to protect her but also hurting her. K.D. testified that after significant mental health treatment, her mental health from the abuse was improving. The court's March 27, 2020, sentencing order noted that "[t]he victim, her mother, and K.D. provided statements to the court that detailed the considerable social, psychological, emotional, academic and developmental trauma suffered by the victim as a direct result of the egregious sexual acts of the [d]efendant against the victim."
Petitioner did not make any statements or call any witnesses at the sentencing hearing. The circuit court sentenced him to five to fifteen years of incarceration in the penitentiary on each of the four felony counts of incest. He was also sentenced to ten to twenty years of incarceration in a correctional facility for each sexual abuse by a parent, guardian, or custodian count. Pursuant to the plea agreement, all counts were to run concurrently. At the sentencing hearing, petitioner was asked by the court about his military pension. The court noted that the plea agreement included an obligation by petitioner to make restitution to S.D., and the court sought to begin restitution. The court found that S.D. had suffered irreparable harm that "manifested itself in addiction; manifested itself in depression; [and] ha[d] interfered with her education." Accordingly, the court ordered petitioner to pay S.D. $1, 200 per month for the remainder of his sentence, plus an additional five years pursuant to West Virginia Code § 61-11A-4. The total amount of restitution ordered by the court was approximately $201, 600. The court also ordered that should petitioner's child support obligations be reduced, then his restitution payments would be increased by an equal amount.
In December of 2020, petitioner moved to correct an illegal sentence, arguing that the amount of restitution that he was ordered to pay created an illegal sentence as it was "arbitrary" and not supported by the evidence. He also argued that the amount was not equal to the cost of necessary care. The court granted petitioner's request for a hearing on his motion and the propriety of the restitution award, and held a hearing in May of 2021. During this hearing, S.D.'s[4] counselor, Dr. Jennifer Myers, testified extensively. She indicated that S.D.'s counseling sessions were recommended to occur weekly at an out-of-pocket cost of $160 per session. Dr. Myers testified that she diagnosed S.D. with complex posttraumatic stress disorder ("PTSD"), major depressive disorder, and generalized anxiety disorder, which caused her significant impairment in daily functioning. Dr. Myers attributed all of these conditions to the abuse perpetrated on her by petitioner. Per Dr. Myers, the PTSD causes S.D. to have limited perspective, be hypervigilant, live in a constant state of fear, and distrust others. She noted that S.D. would be treated with multifaceted therapy; medications including sleep medication; alternative treatment such as exercise, massage, yoga, and acupuncture; and neurofeedback or biofeedback for several years. Due to S.D.'s hypervigilance and an inability to relax and sleep, Dr. Myers recommended alternative therapies such as massage, acupuncture, exercise, and yoga. Dr. Myers also testified that S.D. has trouble with her current office job, due to a lack of concentration and her struggles to attend work daily, and she had trouble following through with her college attempts.
Petitioner testified at the restitution hearing as to his military pension and financial obligations. Per his testimony, he receives a monthly pension of $1, 750. After deductions from his pension to satisfy his financial obligations, petitioner testified that his net pay was $38.28 for April 2021, which he indicated was typical.[5] Ultimately, the court entered an extensive order following petitioner's motion which addressed restitution on June 23, 2021. The court found Dr. Myers' report and testimony persuasive and noted that S.D. quit counseling and college due to the stress of petitioner's ongoing criminal case. Importantly, the court considered petitioner's monthly military pension and noted that he would not need to pay for medical insurance, dental insurance, or vision care during his incarceration. Further, the court noted that petitioner had two life insurance policies, for which he pays $247.60 and $500 per month. However, the life insurance beneficiary is petitioner's friend who allowed petitioner to hide out on his boat when he absconded to Florida during the pendency of these proceedings, and the friend has no insurable interest in petitioner's life.
The court found S.D. suffered significant harm as a result of the sexual abuse by petitioner. The court calculated that petitioner has $1, 210.21 of potential disposable income from which $508 is taken per month for child support, leaving $702.21. The court also found that petitioner's claim that he had only $39.28 in income was the result of petitioner "diverting his funds in an effort to avoid paying this restitution."
The court found that the State provided estimates for restitution costs and had met its burden of proving the victim's expenses. Specifically, the court found:
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