State v. Vaughn

• Decision Date: 29 October 2021
• Docket Number: 20-0333
• Court: Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. William Shane Vaughn, Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. William Shane Vaughn, Defendant Below, Petitioner

No. 20-0333

Supreme Court of Appeals of West Virginia

October 29, 2021

(Mercer County 18-F-282-DS)

MEMORANDUM DECISION

Petitioner William Shane Vaughn, by counsel Kenneth E. Chittum, appeals the Circuit Court of Mercer County's March 17, 2020 order denying his petition for writ of error coram nobis. Respondent the State of West Virginia, by counsel Patrick Morrisey and Andrea Nease Proper, filed a response in support of the circuit court's order.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

On July 7, 2018, law enforcement filed a criminal complaint against petitioner alleging that he violated West Virginia Code § 61-8C-3, distribution of child pornography. According to that complaint, the investigating officer received a referral from the National Center for Missing & Exploited Children that traced access to a digital picture file containing pornography back to petitioner's Facebook account. Law enforcement obtained and executed a search warrant of petitioner's home; they also alleged that petitioner admitted sending the incriminating photograph. On October 30, 2018, the State filed a single-count information against petitioner for distribution of child pornography.

In October of 2018, petitioner entered, and the circuit court accepted, petitioner's guilty plea to distribution of child pornography. The plea agreement provided, in relevant part, as follows:

2. [Petitioner] will tender a plea of guilty, by information, to [one count of distribution of child pornography] . . .

3.The State will remain silent as to sentencing and will not oppose any motions made by [petitioner].

4. Pursuant to the provisions of West Virginia Code [s]ection 61-8C-3(a)(b) for the offense of Distribution of Child Pornography is confinement in the penitentiary for not more than two (2) years, or find not exceeding Two Thousand Dollars ($2, 000), or both.

5. [Petitioner] acknowledges the fact that for the offense of Distribution of Child Pornography, he may be sentenced to the penitentiary for not more than two (2) years or fined not more than Two Thousand Dollars ($2, 000) or both.

6. [Petitioner] fully understands that sentencing is within the sole discretion of the [c]ourt. Further, [petitioner] understands that any unpleasant or unanticipated sentence does not give [petitioner] the right to withdraw from this Agreement.

During petitioner's May 30, 2019, sentencing hearing, petitioner moved for probation and deferred adjudication, and the State stood silent as to sentencing. The circuit court denied petitioner's motion for deferred adjudication, instead sentencing petitioner to a determinate term of two years of incarceration, suspended the sentence, placed petitioner on probation for three years, ordered petitioner to pay all court costs within one year, ordered that petitioner be placed on extended supervision for five years, and ordered petitioner to register as a sex offender.

On August 9, 2019, petitioner filed a motion for reconsideration of that sentence, asserting that "from the very beginning of this case, the defendant has been very remorseful for the crime that led to the entrance of his plea." He also asserted that he would like to work and not be required to register as a sex offender, citing his sex offender evaluation that concluded that he is "in the low range of re-offending." The circuit court denied that motion by order entered on August 26, 2019.

Thereafter, petitioner filed a motion to withdraw his plea. In support of that motion, petitioner asserted that "at no time was [he] informed or advised that the registry was a possible consequence;" his counsel "failed to advise [petitioner] that he would be subject to life-time placement on the [s]exual [o]ffender [r]egistry-a fact that would have impacted [petitioner's] decision to plead guilty;" and that had petitioner "been properly advised by his counsel that he was subject to life-time registration . . . he would not have pled guilty." The circuit court held a hearing on that motion on November 21, 2019, and denied the motion.

Petitioner then filed a petition for writ of error coram nobis, by counsel, on January 21, 2020, applying this Court's factors set forth in State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015) ("Hutton I").^[1] He argued that the lifetime registration requirement is an extraordinary circumstance; no other remedy is available to petitioner to challenge his plea; petitioner had no reason to attack his plea earlier because he was not made aware of the lifetime registration requirement until he met with his probation officer following sentencing; and he was denied effective assistance of counsel because trial counsel failed to properly inform him of the registration consequences for the conviction of distribution of child pornography. During the evidentiary hearing, petitioner, petitioner's mother, and petitioner's trial counsel testified. Counsel testified that at the time of sentencing she believed that lifetime registration was discretionary but later learned that it is mandatory when a minor is involved. Trial counsel testified that she discussed registration with petitioner and informed him that there was a possibility that he would have to register for life; however, she was uncertain as to how long petitioner would have to register. She further testified that petitioner's decision to accept the plea was due to the possibility of deferred adjudication. The circuit court took the matter under advisement. It then entered its March 17, 2020, order denying petitioner's petition for writ of error coram nobis.

In its order, the circuit court focused on the fourth Hutton I factor: "the error presents a denial of a fundamental constitutional right." Id. at Syl. Pt. 5, in part. According to the circuit court's order, petitioner asserted that trial counsel failed to inform him that if he pled guilty, State law required that he register as a sex offender for the rest of his life, contending that "the error presents a denial of a fundamental constitutional right to his personal liberty" and that he was "denied effective assistance of counsel in that he was not advised of the life-time registration requirement." The circuit court concluded that the fundamental right at issue here is the right to effective assistance of counsel. Therefore, it looked to the Strickland/Miller test^[2] for ineffective assistance of counsel. It recognized that petitioner was convicted of a qualifying offense that involved a minor so petitioner is subject to the lifetime registration requirement.

The circuit court found that

it is clear that trial counsel committed an error by failing to inform [petitioner] that life time registration would be mandatory if he pled guilty to the crime of Distribution of Child Pornography . . . However, in determining whether trial counsel's performance was constitutionally deficient, it is not enough to merely find that trial counsel committed an error. Instead, the [c]ourt must determine whether "[c]ounsel's performance was deficient under an objective standard of reasonableness."

In so doing, the circuit court determined that the question hinges on whether a reasonable attorney, acting under the circumstances of trial counsel, would have gleaned such registration requirement from the relevant code section when advising their client of the consequences of entering a plea of guilty. The circuit court set forth that

[g]iven the unambiguous nature of the registration requirement as set forth in the Sex Offender Registration Act, the [c]ourt finds that a reasonable attorney would have discovered such registration requirement. Further, given the drastic nature of the requirement (i.e., a lifetime) the [c]ourt further finds that a reasonable attorney would have disclosed such mandatory lifetime requirement to [petitioner] prior to pleading guilty.

It, therefore, concluded that trial counsel's performance was constitutionally deficient.

The circuit court next addressed the prejudice requirement of the Strickland/Miller test and this Court's adoption of the modified prejudice requirement in post-conviction habeas proceedings "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Syl. Pt. 6, in part, Vernatter v. Warden W.Va. Penitentiary, 207 W.Va. 11, 528 S.E.2d 207 (1999). The Vernatter standard was applied by this Court in Hutton II. Here, the circuit court addressed the State's evidence, which was a single photograph depicting a minor engaging in undisputedly sexually explicit conduct. The State intended to offer the testimony of the investigating officer who received the referral regarding petitioner. The circuit court also noted that petitioner did not dispute that he saw and transmitted the photograph. However, he alleged that he did not know that the person engaging in the sexually explicit conduct in the photograph was a minor. The circuit court found, upon consideration of the evidence presented, "the State demonstrated a strong, though not invincible, case against [petitioner]." With regard to potential penalties if petitioner proceeded to trial, rather than entering into the plea agreement, the circuit court...