State v. Plymail, 14-0016

Decision Date20 November 2015
Docket NumberNo. 14-0016,14-0016
CourtSupreme Court of West Virginia
PartiesState of West Virginia Plaintiff below, Respondent v. Charles Franklin Plymail Defendant below, Petitioner

(Cabell County 93-F-50)


Petitioner Charles Franklin Plymail, pro se,1 appeals his August 20, 1993, conviction for second degree sexual assault and subsequent sentencing, under West Virginia Code § 61-11-19, to a term of life imprisonment. Respondent State of West Virginia ("State"), by counsel Benjamin F. Yancey, III, filed a response in support of the circuit court's order. Petitioner filed a reply and a supplemental appendix.

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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On September 12, 1992, petitioner met K.Y. at a bar near the campus of Marshall University.2 At the end of the evening, K.Y. offered petitioner a ride from the bar to his nearby apartment. K.Y. drove petitioner to his apartment and entered the apartment with petitioner. While there, petitioner and K.Y. twice engaged in consensual sexual intercourse. After these consensual sexual encounters, K.Y. told petitioner she needed to go home. Petitioner asked K.Y. to stay, but she insisted on leaving. As K.Y. began picking up her clothing, petitioner came toward her and again asked her not to leave. In response, K.Y. backed away from petitioner.

Petitioner then struck K.Y. in the face, grabbed her by her hair, and pulled her face toward his penis. With K.Y. attempting to resist, petitioner forced K.Y. to perform oral sex on him. Following this sex act, petitioner dragged K.Y. back to his bedroom. Once in the bedroom,petitioner pushed K.Y. down on the bed, then made a move toward her. K.Y. got up from the bed and ran toward the door of the apartment. As she reached the door of the apartment, she was tackled by petitioner. After a struggle, she was able to free herself and run naked from the apartment. Once outside, K.Y. began screaming and banging on petitioner's neighbor's doors. Petitioner (also naked) then came from his apartment and grabbed her by her hair. K.Y. began hitting and kicking at petitioner. Eventually, her cries for help were overheard by petitioner's downstairs neighbor, who took K.Y. into her apartment and called police.3

K.Y. was transported to the hospital for examination. Petitioner was placed under arrest and given a Miranda4 warning. K.Y. told law enforcement officers that she had engaged in consensual sex with petitioner, but when she tried to leave petitioner's apartment, he insisted she stay. The argument between petitioner and K.Y. escalated and petitioner slapped K.Y., grabbed her hair and allegedly forced her to perform oral sex upon him. K.Y. refused to allow the preparation of a rape kit and was, initially, unwilling to pursue a sexual assault charge against petitioner.5

On September 18, 1992, K.Y. had a change of heart and decided to pursue charges against petitioner for sexual assault. Petitioner was again arrested. Unable to post bond, petitioner remained incarcerated while awaiting trial. On January 7, 1993, petitioner was indicted by the Cabell County Grand Jury on six felony charges.6 Petitioner's trial was set for August 18, 1993. On August 4, 1993, the State advised petitioner that it would proceed to trial on count I of the indictment only (the only criminal charge relating to the assault of K.Y.), as it was still awaiting laboratory results necessary to proceed on the trial of counts II-VI of the indictment.

Petitioner's trial began on Wednesday, August 18, 1993, and testimony concluded the following day. After instructions and closing arguments, at 3:36 p.m., the jury began deliberations. At 6:08 p.m., after sending the court a note, the jury returned to the courtroom and informed the court and the parties that they were hung, at a vote of 6-4-2. The court addressed the jurors as follows:

Okay. Do any of the jury - just hold up your hand if you feel this way. Do any of you feel like continued deliberations would help you in arriving at a unanimous verdict in this case? Is there anybody who feels like continued deliberations may help? Somebody is saying yes. One person. Two people. Three. Let's get this straight. Just don't say anything. Do the rest of you not feel that - you know, I have given you instructions and tell you not to use pride or stubbornness and to consider all of the evidence and change your mind if you feel like you are wrong.
. . . .
Let me have you all go back in and see - let you discuss it again and see whether or not you all feel as a group that you can continue to deliberate and possibly arrive at a verdict and when you have agreed on something, knock on the door - ring the bell and we will bring you back out here again. Because we talked about this in orientation, you recall. But the court has no way to force you all into making a decision. That's improper for me to do so.
. . . .
Just go back in and discuss it a little bit and then buzz me and we will bring you back out.

After this exchange, at 6:16 p.m., the jury returned to the jury room. At 6:40 p.m., the court instructed the bailiff to bring the jury back into the courtroom. The bailiff went to the jury room, knocked on the door, and was advised by the jurors that they wanted to be left alone because they were working. Thereafter, at 7:00 p.m., the jury returned to the courtroom and announced they had reached a unanimous verdict. The jury found petitioner guilty of second-degree sexual assault.

On August 30, 1993, the State filed recidivist information against petitioner alleging that he had been convicted of a felony on at least two prior occasions.7 The information stated that a copy of the indictment and conviction order related to petitioner's 1984 burglary conviction wereattached to the information; however, the copy of the information that was served upon petitioner did not include a copy of the indictment and conviction order for the burglary charge.8

On September 9, 1993, petitioner again appeared before the circuit court, at which time the court, at petitioner's request, postponed his arraignment on the recidivist information.9 On February 14, 1994, petitioner was arraigned on the information, and admitted to his two prior felony convictions (armed robbery and sexual assault). On February 22, 1994, petitioner was sentenced to life in prison, with parole eligibility after serving 15 years.

On November 13, 2013, in order to preserve petitioner's appeal rights, the trial court entered an order resentencing petitioner. It is from the November 13, 2013, order that petitioner now appeals. On appeal, petitioner raises seven assignments of error involving various legal principles.

Generally, we have held that,

[i]n reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Other relevant standards of review will be set forth in the discussion of each assignment of error.

In his first assignment of error, petitioner argues that the extraordinary delay in his right to appeal is cause for his immediate release from prison, along with an injunction to spare him from further prosecution. It is undisputed that petitioner was convicted of the charge of second-degree sexual assault on August 19, 1993, and was sentenced on February 14, 1994, to a term of life imprisonment. However, the appeal of his conviction was not filed until January 8, 2014.

In Rhodes v. Leverette, 160 W.Va. 781, 786, 239 S.E.2d 136, 140 (1977), we recognized the right to appeal a criminal conviction, and ruled the denial of the right of appeal constitutes a violation of due process which renders the sentence imposed by reason of the conviction void and unenforceable. We further held, in Carter v. Bordenkircher, 159 W.Va. 717, 226 S.E.2d 711 (1976), that, except in cases of extraordinary dereliction on the part of the State, the appropriate remedy for denial of a timely appeal was not unconditional release, but such remedial steps as will permit the effective prosecution of the appeal.

In syllabus point six of Leverette, we identified the factors to be considered in determining whether there has been extraordinary dereliction, which include:

the clarity and diligence with which the relator has moved to assert his right of appeal; the length of time that has been served on the underlying sentence measured against the time remaining to be served; whether prior writs have been filed or granted involving the right of appeal; and the related question of whether resentencing has occurred in order to extend the appeal period. While extraordinary dereliction on the part of the State does not require a showing of malice or ill will, certainly if such is shown it would be a significant factor.

In applying the above factors to the facts in the case now before us, we conclude that the State has not been so extraordinarily derelict as to justify the setting aside of petitioner's conviction. Petitioner argues that, through no fault of his own, his appeal has taken more than twenty years to perfect. He contends that he has made constant, repeated attempts at appeal but he has been denied his right to...

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