State v. White, 15-0344

• Court: Supreme Court of West Virginia
• Writing for the Court: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II
• Docket Number: No. 15-0344,15-0344
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Marvin L. White, Defendant Below, Petitioner
• Decision Date: 23 May 2016

State of West Virginia, Plaintiff Below, Respondent
v.
Marvin L. White, Defendant Below, Petitioner

No. 15-0344

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

May 23, 2016

(Fayette County 14-F-234)

MEMORANDUM DECISION

Petitioner Marvin L. White, by counsel Matthew D. Brummond, appeals the Circuit Court of Fayette County's March 11, 2015, order sentencing him to consecutive prison terms of one to five years for one count of felony conspiracy and one to fifteen years for one count of burglary. The State, by counsel Lara Kay Omps-Botteicher, filed a response. Petitioner filed a reply and a notice of additional authorities. On appeal, petitioner alleges two assignments of error: (1) that the circuit court erred in denying his motion to strike a prospective juror for cause, and (2) that the circuit court violated his constitutional right to self-representation.

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.

In September of 2014, the Fayette County Grand Jury indicted petitioner and a co-defendant on two felony charges: (1) conspiracy to commit burglary in violation of West Virginia Code § 61-10-31, and (2) burglary in violation of West Virginia Code § 61-3-11. The charges related to the unlawful breaking and entering of a home in Fayette County that occurred in April of 2014. Thereafter, petitioner was arraigned in the Circuit Court of Fayette County. By that time, E. Scott Stanton had been appointed as petitioner's counsel.¹ Following the indictment, Mr. Stanton engaged in discovery with the State and filed several motions on his client's behalf.

In October of 2014, petitioner, pro se, filed four hand-written motions and a hand-written petition for his attorney to provide him with discovery. One of the four pro se motions was a "request to be appointed as co-counsel[.]"A few days after those documents were filed, Mr. Stanton moved to withdraw as petitioner's counsel.

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In November of 2014, the circuit court held a pre-trial motions hearing. At that hearing, Mr. Stanton argued that he should be relieved as petitioner's counsel due to (1) an ethical complaint petitioner filed against him² and (2) petitioner's motion to serve as co-counsel, which Mr. Stanton interpreted as a motion for self-representation.³ However, when the circuit court asked petitioner directly whether it was his "desire to have other counsel in this matter[,]" petitioner replied, "No, sir. I'm happy with [Mr. Stanton]. I just wanted him to file some motions for me[.]" The circuit court further asked petitioner, "So[,] you're going to have to have an appointed counsel; is that right?" Petitioner answered, "Yes, sir." The circuit court then engaged in a colloquy with petitioner on the issue of self-representation, which focused on petitioner's lack of legal training, experience, and education as well as the dangers of self-representation. At the conclusion of that colloquy, the circuit court denied Mr. Stanton's motion to withdraw. In so doing, the circuit court found that the attorney-client relationship had not been irretrievably broken.

In December of 2014, the circuit court held a second pre-trial motions hearing. At that hearing, petitioner's counsel argued several pre-trial motions not previously decided, none of which concerned a request by petitioner to represent himself.

In January of 2015, petitioner's jury trial commenced. Petitioner made no request to represent himself at that time. During jury voir dire, the circuit court asked the jury panel whether the immediate family of any of the prospective jurors were members of law enforcement "or in any prosecutor's office at all[.]" Prospective Juror Workman indicated that his nephew, Larry Harrah, was Fayette County's prosecuting attorney. In response to that answer, the circuit court asked Prospective Juror Workman whether his relationship with Mr. Harrah would "in any way bias or prejudice [him] for or against the State or for or against this defendant[.]" Prospective Juror Workman answered, "No, sir, it would not." Petitioner objected to Prospective Juror Workman remaining on the jury panel, and the State countered that Prospective Juror Workman was expressly unbiased and that Mr. Harrah was not personally prosecuting this case. The circuit court ultimately ruled that Prospective Juror Workman could remain on the jury panel. However, petitioner thereafter employed a peremptory strike to remove Prospective Juror Workman. The trial ensued. Following deliberations, the jury returned a verdict of guilty on both counts.

Thereafter, petitioner moved for judgment notwithstanding the verdict and a new trial. In March of 2015, the circuit court held hearings on petitioner's post-trial motions, which were denied, and on the issue of sentencing. At the conclusion of the sentencing hearing, and by order

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entered on March 11, 2015, the circuit court sentenced petitioner to a cumulative prison term of two to twenty years. This appeal followed.

This Court reviews challenges made to a circuit court's findings and rulings as follows:

In 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

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