Darrell V. McGraw
I. Franklin Hartman, III
Attorney General
Hartman & Hartman, PLLC
Dawn E. Warfield
Buckhannon, West Virginia
Assistant Attorney General
Attorney for the Appellant
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
2. “In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition 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. 2, Walker v. West Virginia Ethics Comm'n, 201 W.
Va. 108, 492 S.E.2d 167 (1997).
3. “In those situations where there has been no arrest or indictment, the Sixth
Amendment right to a speedy trial is not implicated. Yet, the prosecution may have
substantially delayed the institution of criminal proceedings causing prejudice to the
defendant by way of loss of witnesses or other evidence. In this situation, the Fifth
Amendment due process standard is utilized.” Syl. Pt. 2, State v. Drachman, 178 W. Va.
207, 358 S.E.2d 603 (1987).
4. “The Sixth Amendment speedy trial right begins with the actual arrest of
the defendant and will also be initiated where there has been no arrest, but formal charges
have been brought by way of an indictment or information.” Syl. Pt. 1, State v. Drachman,
178 W. Va. 207, 358 S.E.2d 603 (1987).
5. “'It is the three-term rule, W.Va.Code, 62-3-21 [1959], which constitutes the
legislative pronouncement of our speedy trial standard under Article III, Section 14 of the
West Virginia Constitution.' Syl. Pt. 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111
(1986).” Syl. Pt. 2, State v. Carrico, 189 W. Va. 40, 427 S.E.2d 474 (1993).
6. “A determination of whether a defendant has been denied a trial without
unreasonable delay requires consideration of four factors: (1) the length of the delay; (2)
the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the
defendant. The balancing of the conduct of the defendant against the conduct of the State
should be made on a case-by-case basis and no one factor is either necessary or sufficient
to support a finding that the defendant has been denied a speedy trial.” Syl. Pt. 2, State v.
Foddrell, 171 W. Va. 54, 297 S.E.2d 829 (1982).
7. “The Due Process Clause of the Fifth Amendment to the United States
Constitution and Article III, Section 10 of the West Virginia Constitution require the
dismissal of an indictment, even if it is brought within the statute of limitations, if the
defendant can prove that the State's delay in bringing the indictment was a deliberate device
to gain an advantage over him and that it caused him actual prejudice in presenting his
defense.”
Syl. pt. 2, Hundley v. Ashworth, 181 W. Va. 379, 382 S.E.2d 573 (1989).
8. “A delay of eleven years between the commission of a crime and the arrest
or indictment of a defendant, his location and identification having been known throughout
the period, is presumptively prejudicial to the defendant and violates his right to due process
of law, U.S. Const. Amend. XIV, and W.Va. Const. art. 3, § 10. The presumption is
rebuttable by the government.” Syl. Pt. 1, State ex rel. Leonard v. Hey, 269 S.E.2d 394
(1980).
9. “The general rule is that where there is a delay between the commission of
the crime and the return of the indictment or the arrest of the defendant, the burden rests
initially upon the defendant to demonstrate how such delay has prejudiced his case if such
delay is not prima facie excessive.” Syl. Pt. 1, State v. Richey, 171 W. Va. 342, 298 S.E.2d
879 (1982).
10. “The
effects of less gross delays upon a defendant's due process rights
must be determined by a trial court by weighing the reasons for delay against the impact of
the delay upon the defendant's ability to defend himself.” Syl. Pt. 2, State ex rel. Leonard
v. Hey, 269 S.E.2d 394 (1980).
11. “In the West Virginia courts, claims of ineffective assistance of counsel
are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient
under an objective standard of reasonableness; and (2) there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceedings would have been
different.” Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
12. “In reviewing counsel's performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts or
omissions were outside the broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or second-guessing of trial counsel's
strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the case at issue.” Syl. Pt. 6,
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
13. “In determining whether counsel's conduct falls within the broad range
of professionally acceptable conduct, this Court will not view counsel's conduct through the
lens of hindsight. Courts are to avoid the use of hindsight to elevate a possible mistake into
a deficiency of constitutional proportion. Rather, under the rule of contemporary
assessment, an attorney's actions must be examined according to what was known and
reasonable at the time the attorney made his or her choices.” Syl. Pt. 4, State ex rel. Daniel
v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). Per Curiam:
This is an appeal by Jack W. Hinchman (hereinafter “Appellant”) from an
April 24, 2002, order of the Circuit Court of Upshur County sentencing the Appellant to two
consecutive terms of one to five years each for obtaining money by a worthless check. On
appeal, the Appellant contends that he was denied his right to a speedy trial and that trial
counsel was ineffective. Based upon a thorough examination of the arguments of counsel,
the briefs, and the record in this matter, we affirm in part, reverse in part, and remand for
entry of an order based upon the agreement between the State and the Appellant regarding
credit for time served.
The Appellant entered into a plea agreement on March 29, 1996, pleading nolo
contendere to two counts of obtaining money by a worthless check, in violation of West
Virginia Code § 61-3-39 (1994) (Repl. Vol. 2000). On April 4, 1996, the Appellant was
sentenced to two consecutive terms of one to five years. The lower court suspended that
sentence, and the Appellant was placed on probation for five years and ordered to pay
restitution in the amount of $1,281.00.
On June 24, 1998, a petition to revoke probation was filed against the
Appellant, based upon violations of probation including failure to appear, failure to pay
assessed court costs and restitution, a driving under the influence charge, and a driving on
a suspended license charge. Probation was revoked on June 15, 1999, and the Appellant
was resentenced on June 25, 1999, to one to five years on each count, to run consecutively.
This Court refused the Appellant's petition for a writ of habeas corpus
(See footnote 2)
but directed the
lower court to resentence the Appellant to renew the appeal period on the underlying felony
convictions. Thus, on April 24, 2002, the lower court resentenced the Appellant to one to
five years on each count, to run consecutively. It is from that order that the Appellant now
appeals, contending that he was denied the right to a speedy trial, that he was denied credit
for time served, and that his trial counsel was ineffective.
Guiding our inquiry into speedy trial violations, we explained in syllabus point
two of State v. Carrico, 189 W. Va. 40, 427 S.E.2d 474 (1993), that once the indictment has
been returned, “'[i]t is the three-term rule, W. Va. Code, 62-3-21 [1959], which constitutes
the legislative pronouncement of our speedy trial standard under Article III, Section 14 of
the West Virginia Constitution.' Syl. Pt. 1, Good v. Handlan, 176 W. Va. 145, 342 S.E.2d
111 (1986).” West Virginia Code § 62-3-21 (1959) (Repl. Vol. 2000) essentially provides
that an individual indicted for a crime must be tried within three terms of the indictment.
(See footnote 3)
As recognized by this Court in Carrico, however, the statutory three-term rule
is not the only mechanism for assessing speedy trial standards. As Carrico explained,
[I]n
A determination of whether a defendant has been
denied a trial without unreasonable delay requires
consideration of four factors: (1) the length of the
delay; (2) the reasons for the delay; (3) the
defendant's assertion of his rights; and (4)
prejudice to the defendant. The balancing of the
conduct of the defendant against the conduct of
the State should be made on a case-by-case basis
and no one factor is either necessary or sufficient
to support a finding that the defendant has been
denied a speedy trial.
Syl. pt. 2, State v. Foddrell, 171 W. Va. 54, 297 S.E.2d 829 (1982).
189 W. Va. at 44, 427 S.E.2d at 478. The Carrico Court acknowledged that West Virginia's
three term rule provides standards which “meet or exceed the Barker standards” Id., 427
S.E.2d at 478. The Carrico Court concluded that “if a conviction is validly obtained within
the three-term rule, W.Va.Code 62-3-21 [1959], then that conviction is presumptively
constitutional under the speedy trial right guaranteed by the Constitution of the United States,
Amendment VI, and W.Va. Constitution, Article III, § 14.” Id., 427 S.E.2d at 478.
In the present case, as recited above, warrants for the Appellant's arrest were
issued in February 1992, but he was not arrested until November 2, 1995, after which he was
bound over to await the action of the grand jury. He was thereafter indicted in January 1996
and convicted during that same term of court. We consequently find no violation of the
statutory measuring stick for speedy trial issues, West Virginia Code § 62-3-21, based upon
the fact that the delay in this matter occurred between the crime and the arrest. Further, we
likewise find no violation of the speedy trial standards enumerated by the syllabus point two
of Foddrell.
In evaluating a Fifth Amendment pre-indictment delay claim, this Court has
observed that extreme delays may be presumed prejudicial to the defendant. In syllabus point
one of State ex rel. Leonard v. Hey, 269 S.E.2d 394 (1980), for instance, this Court stated:
A delay of eleven years between the commission of a
crime and the arrest or indictment of a defendant, his location
and identification having been known throughout the period, is
presumptively prejudicial to the defendant and violates his right
to due process of law, U.S. Const.Amend. XIV, and W.Va.
Const. art. 3, § 10. The presumption is rebuttable by the
government.
269 S.E.2d at 394. Where the delay is not prima facie excessive, however, the burden of
demonstrating prejudice is upon the defendant, as this Court explained in syllabus point one
of State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982): “The general rule is that where
there is a delay between the commission of the crime and the return of the indictment or the
arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such
delay has prejudiced his case if such delay is not prima facie excessive.”
In Hundley, this Court examined the due process rights of the defendant and
held that an eight-year delay between the report of alleged child abuse and the defendant's
indictment did not violate due process. 181 W. Va. at 383, 382 S.E.2d at 577. The Hundley
Court examined the reasoning employed by this Court in Leonard, noting that the Leonard
Court utilized a
“burden-shifting mechanism by finding the delay to be presumptively
prejudicial and requiring the State to rebut the presumption of prejudice.” 181 W. Va. at 382,
382 S.E.2d at 576. The Hundley Court specified, however, that such an analysis was “limited
to the situation where the prosecutor knew of the defendant's 'location and identification . . .
throughout the period.'” Id., 382 S.E.2d at 576, quoting Syl. Pt. 1, Leonard, 269 S.E.2d at
394. The Hundley Court explained: 181 W. Va. at 383, 382 S.E.2d at 576-77; see also State v. Davis
Furthermore, even in those limited situations where
Leonard does apply, the State in rebutting the prejudice need
only show that the delay was not deliberately designed to gain
a tactical advantage over the defendant. Once this is shown, the
defendant is not entitled to prevail on a motion to dismiss the
indictment under a due process claim for delay.
In the present case, this Court does not believe that
the delay between the
issuance of the warrants and the Appellant's arrest gives rise to the presumption of prejudice,
based upon a prima facie excessive delay, as referenced in Leonard. As this Court stated in
syllabus point two of Leonard, “[t]he effects of less gross delays upon a defendant's due
process rights must be determined by a trial court by weighing the reasons for delay against
the impact of the delay upon the defendant's ability to defend himself.” 269 S.E.2d at 394.
In
examining the reasons for the delay, (See
footnote 4) the record reveals that the Appellant
was incarcerated on other worthless check charges during part of the period
of delay. Subsequent to his release from the Barbour County Jail, it appears
that the Appellant was in three different counties and at least two other
states. When the Appellant returned to Upshur County, the State arrested
him and presented the indictment to the grand jury. The record is devoid
of any evidence that the State's delay in bringing the indictment was a deliberate
device designed to gain advantage over the Appellant. Moreover, the Appellant has not
presented convincing evidence indicating that the delay actually prejudiced his defense.
(See footnote 5)
See
State ex rel. Henderson v. Hey, 188 W. Va. 396, 424 S.E.2d 741 (1992) ( holding that delay
of twenty-three months was not presumptively prejudicial and defendant had not
demonstrated prejudice); State v. Petrice, 183 W. Va. 695, 398 S.E.2d 521 (1990) (finding
that two and one-half year delay did not require dismissal of indictment).
(See footnote 6)
Accordingly, we
conclude that the Appellant has not demonstrated a violation of his due process rights
occasioned by the delay between the original accusation of criminal conduct and his trial in
this cause.
In the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance
was deficient under an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
been different.
Syllabus point six of Miller continued:
In reviewing counsel's performance, courts must apply
an objective standard and determine whether, in light of all the
circumstances, the identified acts or omissions were outside the
broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or
second-guessing of trial counsel's strategic decisions. Thus, a
reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the
case at issue.
The Appellant's assertions of ineffective assistance of counsel in the present case are almost identical to the claims he asserted in a prior habeas corpus proceeding. We find that such issues were fully developed in the prior habeas proceeding, and we found no merit in his claims at that time.
We further note that although the Appellant's brief contains an assignment of error regarding alleged ineffective assistance of counsel at the trial court level, the Appellant's counsel on appeal did not strenuously assert such contention during oral argument before this Court and, in fact, appeared to concede that the Appellant received fair and adequate legal counsel regarding the distinction between concurrent and consecutive sentencing, as well as the effect of failure to comply with the requirements of probation. Even in the absence of counsel's concession of that issue, this Court concludes that the issues raised by the Appellant regarding any defects in the performance of trial counsel are not meritorious. The record clearly reveals the Appellant's complete understanding of the terms of his plea, the distinction between concurrent and consecutive sentencing, and the penalty for failure to comply with the terms of his probation.
Affirmed in part, reversed in part, and remanded.
Every person charged by presentment or indictment with
a felony or misdemeanor, and remanded to a court of competent
jurisdiction for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of
such court, after the presentment is made or the indictment is
found against him, without a trial, unless the failure to try him
was caused by his insanity; or by the witnesses for the State
being enticed or kept away, or prevented from attending by
sickness or inevitable accident; or by a continuance granted on
the motion of the accused; or by reason of his escaping from
jail, or failing to appear according to his recognizance, or of the
inability of the jury to agree in their verdict; and every person
charged with a misdemeanor before a justice of the peace
[magistrate], city police judge, or any other inferior tribunal, and
who has therein been found guilty and has appealed his
conviction of guilt and sentence to a court of record, shall be
forever discharged from further prosecution for the offense set
forth in the warrant against him, if after his having appealed
such conviction and sentence, there be three regular terms of
such court without a trial, unless the failure to try him was for
one of the causes hereinabove set forth relating to proceedings
on indictment.
Footnote:
4