State v. Valentine
| Decision Date | 22 June 2021 |
| Docket Number | No. 19-1158,19-1158 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Michael Eugene Valentine, Defendant Below, Petitioner |
Petitioner Michael Eugene Valentine, by counsel Jeremy B. Cooper, appeals the December 6, 2019, order of the Circuit Court of Preston County resentencing petitioner for the purpose of allowing him to exercise his right to appeal following his convictions for attempted voluntary manslaughter and unlawful assault.1 Respondent State of West Virginia, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court's order.
The 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.
According to the indictment in this case, on February 14, 2018, petitioner "repeatedly beat Kenneth Harrison with a baseball bat and also threatened to kill him[,] causing serious injuries to his head and a broken arm which required hospitalization[.]" Petitioner was arrested on February14, 2018, and has been incarcerated since that time. Petitioner was indicted in the Circuit Court of Preston County for attempted first-degree murder and malicious assault on October 15, 2018. Petitioner was arraigned on October 22, 2018, and pled not guilty to both counts of the indictment. The circuit court appointed new trial counsel for petitioner following the withdrawal of his original trial counsel "due to a conflict with [petitioner]." While petitioner's trial was set for June 18, 2019, after successful plea negotiations, a change of plea hearing was scheduled for June 3, 2019. Relevant here, the parties' plea agreement provided that petitioner would plead guilty to attempted voluntary manslaughter, as a lesser included offense of attempted first-degree murder, and to unlawful assault, as a lesser included offense of malicious assault. In exchange, the State agreed not to file a recidivist information notwithstanding his "prior felony convictions."2 The parties further agreed that "[s]entencing will . . . be determined by the [c]ourt."
At the June 3, 2019, change of plea hearing, the parties informed the circuit court that, as a self-represented litigant, petitioner filed a motion to dismiss the indictment, arguing that his right to a speedy trial pursuant to West Virginia Code § 62-3-21 had been violated.3 Petitioner requested that the circuit court rule on his motion before proceeding with the change of plea. The circuit court denied the motion, ruling that, pursuant to West Virginia Code § 62-3-21, "you do not ever count the term of court in which a person is indicted, . . . so basically the three-term rule does not apply here[.]" Following a recess, petitioner proceeded with the change of plea, but the parties agreed that petitioner would be allowed to enter Alford/Kennedy pleas to the lesser included charges and reserve his right to appeal the denial of his motion to dismiss the indictment.4 Following a colloquy with petitioner, the circuit court accepted the parties' amended plea agreement; found that petitioner was freely and voluntarily surrendering his rights, other than his right to appeal the denial of his motion to dismiss the indictment; and allowed petitioner to enter Alford/Kennedy pleas to attempted voluntary manslaughter and unlawful assault. After an August 8, 2019, sentencing hearing, by order entered on August 16, 2019, the circuit court imposed consecutive sentences of one to three years of incarceration for attempted voluntary manslaughter and one to five years of incarceration for unlawful assault with 540 days of credit for time served. Subsequently, by order entered on December 6, 2019, the circuit court resentenced petitioner for purposes of appeal.
Petitioner now appeals the circuit court's denial of his motion to dismiss the indictment. "This Court's standard of review concerning a motion to dismiss an indictment is . . . de novo." Syl. Pt. 1, in part, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009). In Syllabus Points 2, 3, and 4 of State v. Carrico, 189 W. Va. 40, 427 S.E.2d 474 (1993), we held that:
On appeal, petitioner argues that the three-term rule begins to run at the time of a defendant's arrest or presentment before a magistrate following his or her arrest. The State counters that petitioner's argument is without merit. We agree with the State.
We find that petitioner's argument that a defendant's arrest or presentment before a magistrate triggers the three-term rule is contrary to Syllabus Point 4 of Carrico where we held, in pertinent part, that the three-term rule begins to run "subsequent to the ending of the term at which the indictment against [a defendant] is found" and that "[t]he term at which the indictment is returned is not to be counted in favor of the discharge of a defendant." (emphasis added). 189 W.Va. at 42, 427 S.E.2d at 476. In addition, in State v. Drachman, 178 W. Va. 207, 358 S.E.2d 603 (1987), we found that the defendant therein did not rely "upon the three-term rule . . . because its provisions were not triggered until his indictment[.]" Id. at 209, 358 S.E.2d at 605. In State ex rel. Webb v. Wilson, 182 W. Va. 538, 390 S.E.2d 9 (1990), we relied upon State v. Adkins, 182 W. Va. 443, 388 S.E.2d 316 (1989), to find that "the three-term rule . . . is activated by an indictment." Id. at 541, 390 S.E.2d at 12.8 Finally, in State v. Carter, 204 W. Va. 491, 513 S.E.2d 718 (1998), we clarified that it is not the return of the indictment—but the defendant's arraignment on the indictment—that triggers the three-term rule. Id. at 495, 513 S.E.2d at 722.9
West Virginia Trial Court Rule 218 provides that, "[f]or the county of Preston," terms of court begin "on the first Tuesday in March and June, and on the third Tuesday in October." Here, petitioner's October 22, 2018, arraignment occurred after the third Tuesday in October of 2018; accordingly, petitioner was arraigned on the indictment during the October term of court, which does not count in petitioner's favor pursuant to Syllabus Point 4 of Carrico. Because the change of plea hearing occurred on June 3, 2019, which was the day before the first Tuesday in June of 2019, petitioner was convicted during the March term of court, which was the first term of court to have counted under the three-term rule pursuant to Syllabus Point 4 of Carrico. Therefore, we conclude that the circuit court did not err in denying petitioner's motion to dismiss the indictment as there was no violation of the three-term rule set forth in West Virginia Code § 62-3-21.10
For the foregoing reasons, we affirm the circuit court's December 6, 2019, resentencing order.
1. On March 27, 2020, along with petitioner's counsel's brief, petitioner filed a motion pursuant to Rule 10(c)(10)(b) of the West Virginia Rules of Appellate Procedure to allow petitioner to file a supplemental brief as a self-represented litigant with the supplemental brief attached to counsel's brief. By order entered on May 29, 2020, this Court granted petitioner's motion and has reviewed each of the briefs filed on his behalf.
2. In 2007, petitioner pled guilty to grand larceny and to conspiracy to commit grand larceny in two separate cases.
3. The date on which petitioner filed his motion to dismiss the indictment is not in the appellate record because, although the circuit court docket sheet is listed in petitioner's appendix's table of contents, the appendix does not contain the docket sheet.
4. Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in Syllabus Point 1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that "[a]n accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and...
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