Davis, J., dissenting:
Accordingly, the majority opinion should have simply denied the writ. Instead
of denying the writ, however, the majority opinion sua sponte determined that the writ should
be issued commanding the trial court to resentence Mr. Crupe for appeal purposes.
In this proceeding, Mr. Crupe did not ask this Court to issue a writ directing
the trial court to resentence him. Our cases have indicated that “a defendant who fails to
raise any issue . . . proceeds at his or her peril even when the issue is of a constitutional
dimension.” State v. Greene, 196 W. Va. 500, 505, 473 S.E.2d 921, 926 (1996) (Cleckley,
J., concurring). See also State v. Lockhart, 208 W. Va. 622, 627 n.4, 542 S.E.2d 443, 448
n.4 (2000) (“Assignments of error that are not briefed are deemed waived.”); State v. LaRock,
196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs
in determining issues presented for review, issues which are not raised . . . are not
considered[.]”). The majority opinion violates our time honored rule that prohibits review
of and relief for matters that have not been properly raised.
In my review of the record in this case, it has become quite obvious why Mr.
Crupe did not ask this Court to issue the writ requiring resentencing. Mr. Crupe initially filed
a petition for habeas relief in the trial court. By order entered November 28, 2001, the trial
court granted Mr. Crupe habeas relief in part. The relief granted in the habeas proceeding
by the trial court was as follows: “Accordingly, the Court shall schedule a hearing to re-
sentence the Petitioner, if he so desires, so as to give him an additional four months for
appeal.”
For this reason, then, I respectfully dissent.
Correctional Center
In this proceeding the majority opinion granted the petitioner, William Crupe,
habeas corpus relief for the purpose of resentencing. For the reasons stated below, I dissent.
The majority opinion concluded
that Mr. Crupe presented “essentially four issues for our assessment: failure
to obtain a transcript in a timely fashion; the State's failure to disclose
evidence regarding a witness; allegedly insufficient evidence of the crime of
sexual assault; and improper selection of the petit jury.”
(See footnote 1) The
majority opinion correctly found that none of these issues were properly before
the Court in a habeas proceeding, therefore no relief could be granted on the
issues raised in the petition.
The habeas relief granted by the trial court is the exact same relief the majority
opinion purports to award Mr. Crupe. It is simply illogical to issue the writ purporting to
grant the same relief that has already been granted by the trial court.
Footnote: 1