IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

No. 21-0382

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

V. 

MICHAEL PAUL CONN,

Defendant Below, Petitioner.

_________________________________________________________

Certified Question from the Circuit Court of Cabell County

The Honorable Paul T. Farrell, Judge

Indictment No. 14-F-512

CERTIFIED QUESTION ANSWERED

_________________________________________________________

Submitted: February 15, 2022

Filed: March 21, 2022

Jeremy B. Cooper

Blackwater Law PLLC

Aspinwall, Pennsylvania

Attorney for the Petitioner

Patrick Morrisey

Attorney General

Lara K. Bissett

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent 

JUSTICE MOATS delivered the Opinion of the Court.

JUSTICE ALAN D. MOATS, sitting by temporary assignment.

FILED

March 21, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion. 
i 

SYLLABUS BY THE COURT

1. “The appellate standard of review of questions of law answered 

and certified by a circuit court is de novo.” Syllabus point 1, Gallapoo v. Wal-Mart Stores,

Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996).

2. “When a certified question is not framed so that this Court is able 

to fully address the law which is involved in the question, then this Court retains the power 

to reformulate questions certified to it under both the Uniform Certification of Questions 

of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 [(1998)], the 

statute relating to certified questions from a circuit court of this State to this Court.” 

Syllabus point 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).
1 

Moats, Justice:

 The Circuit Court of Cabell County certifies one question to this Court 

pertaining to whether an “attempt to commit an assault during the commission of a 

felony”—when the underlying felony is sexual assault in the third degree—is a qualifying 

offense under the Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to -10

(hereinafter sometimes referred to as “the Act”), which would require Petitioner Michael 

Paul Conn (“Mr. Conn”) to register as a sex offender for life. After considering the parties’

briefs and oral arguments, the appendix record submitted, and the applicable legal 

authority, we conclude that Mr. Conn’s conviction for “attempt to commit an assault during 

the commission of a felony” which was based on a proffer that Mr. Conn committed sexual 

assault in the third degree, is a qualifying offense under the Act that requires Mr. Conn to 

register as a sex offender for life. 

I.

FACTUAL AND PROCEDURAL HISTORY

This case originated more than twenty years ago, when Mr. Conn was 

indicted in January of 1998 on four counts of sexual assault in the third degree. It was 

alleged that Mr. Conn, then aged twenty-two, engaged in sexual intercourse with a thirteenyear-old girl. As part of a later plea agreement, the indictment was dismissed, and Mr. 

Conn pleaded guilty to an information, charging him with one count of attempt to commit 

a felony, “stating that he unlawfully, feloniously, knowingly and intentionally attempted 
2 

to commit an assault during the commission of a felony.” As a proffer to support the plea, 

the State noted:

The evidence of the State would be that on or about August the 

20th, 1997, that [Mr. Conn] did actually have intercourse with 

a juvenile, [T.E.], who was under the age of sixteen [ ] and 

more than four years difference between their ages, and [Mr. 

Conn] being twenty-two[.] 

As part of this plea agreement, Mr. Conn was sentenced to not less than one nor more than 

three years in prison, to be served consecutively to another sentence he was serving in 

another matter. At the time of his conviction and sentence, Mr. Conn was not required to 

register as a sex offender. 

 Afterward, in 1999, the West Virginia Legislature enacted the Sex Offender 

Registration Act, West Virginia Code §§ 15-12-1 to -10. Shortly thereafter, in 2000, the

registration requirements for sex offenders were amended. The amendment extended the 

registration requirements to perpetrators convicted of attempted offenses. See generally 

W. Va. Code § 15-12-2 (eff. 2018). Because the amendment was effective both 

retroactively and prospectively, Mr. Conn was required to register as a sex offender. See 

W. Va. Code § 15-12-2(a) (eff. 2018) (“The provisions of this article apply both 

retroactively and prospectively.”). 

 Subsequently, in 2003, Mr. Conn filed a petition for writ of habeas corpus in 

the Circuit Court of Cabell County alleging (1) unlawfully induced guilty plea; 

(2) ineffective assistance of counsel; (3) false declamation of character; and (4) violation 
3 

of his constitutional rights. According to the appendix record, the petition for writ of 

habeas corpus was summarily dismissed. Then, on appeal to this Court, we remanded the 

matter for further findings of fact regarding whether Mr. Conn’s crime was sexually 

motivated for the purpose of the requirement that he register as a sex offender. Upon 

remand, a hearing was held in May of 2006. At the hearing, the State represented that, in 

entering his guilty plea to “attempt to commit an assault during the commission of a 

felony,” Mr. Conn understood that there would be evidence at trial that the underlying 

felony was of a sexual nature. Mr. Conn did not refute that characterization—he merely 

pointed out that he entered an Alford/Kennedy plea1 maintaining his innocence. The circuit 

court ultimately found that based on the 2000 change in the statute, Mr. Conn was required 

to register as a sex offender because the felony underlying his plea was sexual in nature. 

 Years later, in 2014, Mr. Conn was indicted on six counts of failure to register 

as a sex offender or provide notice of registration changes. He entered an Alford/Kennedy

plea to two counts of the indictment on January 9, 2018. Mr. Conn then filed a “Petition 

for Writ of Error Coram Nobis and Motion in Arrest of Judgment and for Dismissal of the 

1 See Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987). A Kennedy

plea—sometimes referred to as an Alford/Kennedy plea—is a guilty plea in criminal law 

that a defendant can enter without admitting his or her actual participation in the crime. In 

Syllabus point one of Kennedy, this Court held: “An 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 the record supports the conclusion that a jury could convict him.” 
4 

Indictment” in March of 2021.2 In this petition, Mr. Conn claimed that the State Police 

mistakenly believed him to be a lifetime registrant3 when his conviction only required him 

2 In Syllabus point 5 of State v. Hutton, 235 W. Va. 724, 776 S.E.2d 621 

(2015), this Court held: 

A claim of legal error may be brought in a petition for a 

writ of error coram nobis only in extraordinary circumstances 

and if the petitioner shows that (1) a more usual remedy is not 

available; (2) valid reasons exist for not attacking the 

conviction earlier; (3) there exists a substantial adverse 

consequence from the conviction; and (4) the error presents a 

denial of a fundamental constitutional right.

3 West Virginia Code § 15-12-4(a) (eff. 2018) states that “[a] person required 

to register under the terms of this article shall continue to comply with this section, except 

during ensuing periods of incarceration or confinement[.]” The statute continues, and 

specifies two timeframes for registration: 

(1) Ten years have elapsed since the person was released from 

prison, jail, or a mental health facility or 10 years have elapsed 

since the person was placed on probation, parole, or supervised 

or conditional release. The 10-year registration period may not 

be reduced by the sex offender’s release from probation, 

parole, or supervised or conditional release; or

(2) For the life of that person, if that person: (A) Has one or 

more prior convictions or has previously been found not guilty 

by reason of mental illness, mental retardation, or addiction for 

any qualifying offense referred to in this article; (B) has been 

convicted or has been found not guilty by reason of mental 

illness, mental retardation, or addiction of a qualifying offense 

as referred to in this article, and upon motion of the prosecuting 

attorney, the court finds by clear and convincing evidence that 

the qualifying offense involved multiple victims or multiple 

violations of the qualifying offense; (C) has been convicted or 

has been found not guilty by reason of mental illness, mental 

retardation, or addiction of a sexually violent offense; (D) has 

been determined pursuant to §15-12-2a of this code to be a 

sexually violent predator; or (E) has been convicted or has been 

found not guilty by reason of mental illness, mental retardation, 
5 

to register for ten years because he did not commit a “qualifying offense” or “sexually 

violent offense” and he was not determined to be a “sexually violent predator.” 

 The State responded that the underlying felony—sexual assault in the third 

degree—of Mr. Conn’s conviction of attempt to commit assault during the commission of 

a felony is a qualifying offense for lifetime registration. After a hearing, the circuit court 

certified the following question4 to this Court:

Is [Mr. Conn’s] 1998 conviction for “Attempt to 

Commit an Assault during the Commission of a Felony,” under 

W. Va. Code [§] 61-2-10, which was found by the Circuit 

Court to be a sexually motivated crime against a minor, a 

or addiction of a qualifying offense as referred to in this article, 

involving a minor or a person believed or perceived by the 

registrant to be a minor.

4 Pursuant to Rule 17(a)(1) of the West Virginia Rules of Appellate 

Procedure, when questions are certified by a circuit court or administrative tribunal, 

the order of certification complying with statutory 

requirements must further contain a concise statement of each 

question of law, the answer to each question of law by the 

circuit court or administrative tribunal, a notation of the extent 

to which the action is stayed pending resolution of the certified 

questions, and a directive to the parties to prepare a joint 

appendix of the record sufficient to permit review of the 

certified questions.

Here, the Circuit Court of Cabell County failed to answer the certified question. However, 

in accordance with the authority given to this Court by Rule 2 of the West Virginia Rules 

of Appellate Procedure, we suspend the procedure in this matter for judicial efficiency. 

See W. Va. R. App. P. 2 (“In the interest of expediting decision, or for other good cause 

shown, the Supreme Court may suspend the requirements or provisions of any of these 

Rules in a particular case on application of a party or on its own motion and may order 

proceedings in accordance with its direction. These Rules shall be construed to allow the 

Supreme Court to do substantial justice.”). 
6

qualifying offense under the West Virginia Sexual Offender 

Registration Act, W. Va. Code [§] 15-12-1 et seq., which 

would require [Mr. Conn] to become a registered sex offender 

for life?

II. 

STANDARD OF REVIEW

This Court’s review of questions certified by a circuit court is plenary. “The 

appellate standard of review of questions of law answered and certified by a circuit court 

is de novo.” Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 

(1996). Additionally, to the extent that the resolution of the certified question requires us 

to engage in statutory interpretation, we apply the same level of review. “Where the issue 

on an appeal from the circuit court is clearly a question of law or involving an interpretation 

of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie 

A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we now 

address the arguments presented. 

III.

DISCUSSION

In the case sub judice, we first acknowledge this Court’s authority to 

reformulate certified questions:

When a certified question is not framed so that this 

Court is able to fully address the law which is involved in the 

question, then this Court retains the power to reformulate 
7 

questions certified to it under both the Uniform Certification of 

Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. 

and W. Va. Code, 58-5-2 [(1998)], the statute relating to 

certified questions from a circuit court of this State to this 

Court. 

Syl. pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993). In accordance with 

this authority, we reformulate the question as follows:

Is Mr. Conn’s 1998 conviction—“Attempt to Commit 

an Assault during the Commission of a Felony,” under West 

Virginia Code § 61-2-10, the underlying felony being a 

violation of West Virginia Code § 61-8B-5(2), third degree 

sexual assault, when he had intercourse with a juvenile under 

the age of sixteen when he was twenty-two years of age—a 

qualifying offense under the West Virginia Sex Offender 

Registration Act, West Virginia Code § 15-12-1 et seq., which 

would require Mr. Conn to become a registered sex offender 

for life?

 To begin our analysis, we look to the issue presented to this Court in the 

reformulated certified question, i.e., is a conviction for “attempt to commit an assault 

during the commission of a felony”—when the underlying felony committed was sexual 

assault in the third degree—a qualifying offense that requires lifetime sexual offender 

registration? Mr. Conn argues that “qualifying offense” is clearly and unambiguously 

defined by the Act as any crime listed in West Virginia Code § 15-12-2(b)(2) (eff. 2018),5

5 West Virginia Code § 15-2-2 has been amended many times since its 

enactment in 1999. However, the changes have mostly been for readability and stylistic 

purposes. Furthermore, due to the Legislature’s express intent for the Act to apply 

retroactively, we cite to the most current version, which became effective in 2018. 
8 

and because “attempt to commit an assault during the commission of a felony” is not 

explicitly listed, he is not required to register as a sex offender for life. 

 Because the resolution of this matter requires us to examine various statutory 

provisions, we set forth the proper framework for our analysis. 

When this Court endeavors to construe a statutory 

provision, our primary aim is to give effect to the intent of the 

Legislature. “The primary object in construing a statute is to 

ascertain and give effect to the intent of the Legislature.” Syl. 

pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 

108, 219 S.E.2d 361 (1975). Accordingly, “When a statute is 

clear and unambiguous and the legislative intent is plain, the 

statute should not be interpreted by the courts, and in such 

case[,] it is the duty of the courts not to construe but to apply 

the statute.” Syl. pt. 5, State v. Gen. Daniel Morgan Post No. 

548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 

353 (1959). On the other hand, “[a] statute that is ambiguous 

must be construed before it can be applied.” Syl. pt. 1, Farley 

v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

Bradford v. W. Va. Solid Waste Mgmt. Bd., ___ W. Va. ___, ___, 866 S.E.2d 82, 87 (2021). 

At the outset of our analysis, we examine the Sex Offender Registration Act. 

In West Virginia Code § 15-12-1a(b), the Legislature made clear its intent by “declar[ing] 

that there is a compelling and necessary public interest that the public have information 

concerning persons convicted of sexual offenses in order to allow members of the public 

to adequately protect themselves and their children from these persons.” To that end, the 

Act provides that “[a]ny person who has been convicted of an offense or an attempted 
9

offense” enumerated in the Act shall be made to register as a sex offender. W. Va. Code 

§ 15-12-2(b). The Act enumerates the following offenses:

(1) §61-8A-1 et seq. of this code;

(2) §61-8B-1 et seq. of this code, including the 

provisions of former §61-8B-6 of this code, relating to the 

offense of sexual assault of a spouse, which was repealed by 

an act of the Legislature during the 2000 legislative session;

(3) §61-8C-1 et seq. of this code;

(4) §61-8D-5 and §61-8D-6 of this code;

(5) §61-2-14(a) of this code;

(6) §61-8-6, §61-8-7, §61-8-12, and §61-8-13 of this 

code;

(7) §61-3C-14b of this code, as it relates to violations of 

those provisions of chapter 61 listed in this subsection; or

(8) §61-14-2, §61-14-5, and §61-14-6 of this code: 

Provided, That as to §61-14-2 of this code only those violations 

involving human trafficking for purposes of sexual servitude 

require registration pursuant to this subdivision.6

6 Each of these statutes refer to various sexual offenses. See, e.g., 

W. Va. Code § 61-8A-1 to -7 (preparation, distribution or exhibition of obscene matter to 

minors); W. Va. Code § 61-8B-1 to -18 (sexual offenses); W. Va. Code § 61-8C-1 to -11 

(filming of sexually explicit conduct of minors); W. Va. Code § 61-8D-5 (sexual abuse by 

a parent, guardian, custodian or person in a position of trust to a child; parent, guardian, 

custodian or person in a position of trust allowing sexual abuse to be inflicted upon a child; 

displaying of sex organs by a parent, guardian, or custodian); W. Va. Code § 61-8D-6 

(sending, distributing, exhibiting, possessing, displaying or transporting material by a 

parent, guardian or custodian, depicting a child engaged in sexually explicit conduct); 

W. Va. Code § 61-2-14(a) (abduction of person; kidnapping or concealing child); 

W. Va. Code § 61-8-6 (detention of person in place or prostitution); W. Va. Code § 61-8-

7 (procuring for house of prostitution); W. Va. Code § 61-8-12 (incest); W. Va. Code § 61-

8-13 (incest; limits on interviews of children eleven years old or less); W. Va. Code § 61-

3C-14b (soliciting, etc. a minor via computer; soliciting a minor and traveling to engage 

the minor in prohibited sexual activity); W. Va. Code § 61-14-2 (human trafficking of an 
10

Additionally, West Virginia Code §15-12-2(c) (eff. 2018) provides that “[a]ny person who 

has been convicted of a criminal offense where the sentencing judge made a written finding 

that the offense was sexually motivated shall also register as set forth in this article.”

Mr. Conn contends that the certified question can be answered by simply 

applying the plain language of the Act. According to Mr. Conn, the Act explicitly defines 

“qualifying offense” as any of the crimes listed in West Virginia Code § 15-12-2(b). See 

supra W. Va. Code §15-12-2(b). He argues that, because there is no reference to his 

crime—attempt to commit assault during the commission of a felony, located at West 

Virginia Code § 61-2-10—then he has not committed a “qualifying offense” under the Act. 

Mr. Conn maintains that he was required to register as a sex offender not because he 

committed a “qualifying offense,” but because of the circuit court’s written findings that 

his offense was sexually motivated. He contends that, by definition, a registration 

requirement predicated on a written finding arises under West Virginia Code § 15-12-2(c), 

and not under West Virginia Code § 15-12-2(b), the latter of which enumerates the 

“qualifying offenses.”

The State acknowledges that “attempt to commit an assault during the 

commission of a felony,” as proscribed in West Virginia Code § 61-2-10 (eff. 1882), is not 

individual; aiding and abetting human trafficking); W. Va. Code § 61-14-5 (sexual 

servitude); and W. Va. Code § 61-14-6 (patronizing a victim of sexual servitude). 
11

a “qualifying offense” specified in the Act. However, the State contends that the 

underlying felony—third degree sexual assault—needs to be examined because Mr. 

Conn’s statutory offense of attempt does not exist in a vacuum. In that regard, the State 

argues that because Mr. Conn’s conviction of attempt to commit an assault during the 

commission of a felony is inextricably linked to one of the qualifying offenses under the 

Act, he must be required to register as a sex offender for life. The State maintains that 

requiring Mr. Conn to register as a sex offender for life under these circumstances comports 

with the Legislature’s intent when it enacted the registration requirements. We agree. 

This Court has recognized that “[t]he crime of attempt does not exist in the 

abstract but rather exists only in relation to other offenses.” State v. Starkey, 161 W. Va. 

517, 522 n.2, 244 S.E.2d 219, 223, n.2 (1978), overruled on other grounds by State v. 

Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (citing W. LaFave & A. Scott, Handbook 

on Criminal Law 49 (1972)). See also United States v. Dozier, 848 F.3d 180, 185 (4th Cir. 

2017) (“However, we note a unique complexity of general attempt statutes: they do not set 

forth a standalone crime. . . . It would therefore be imprudent to analyze the statutory 

language . . . in complete isolation.”); State v. James F., No. 15-0194, 2016 WL 2905508, 

at *3 (W. Va. May 18, 2016) (memorandum decision) (“[T]he [attempt] statute establishes 

the punishment for attempting, unsuccessfully, to commit some crime specified elsewhere 

in the code[.] . . . An ‘attempt crime’ is inextricably linked to the offense that was 

attempted.”). 
12

Based upon our examination of the Act and this Court’s body of caselaw, we 

conclude that Mr. Conn did commit a “qualifying offense” that requires him to register as 

a sex offender for life. As the State correctly stated, there is an inextricable link between 

the crime of “attempt to commit an assault during the commission of a felony” and the 

underlying felony committed. While we acknowledge that “attempt to commit an assault

during the commission of a felony” under West Virginia Code § 61-2-10 is not specifically 

enumerated as a “qualifying offense” under the Act, the analysis cannot stop there. Rather, 

the inquiry is twofold, and we must take the next step in the analysis: What felony was Mr. 

Conn in the process of committing when he was attempting to commit an assault? 

Basic criminal law says that no conviction is possible unless every element 

is proved beyond a reasonable doubt. See Syl. pt. 1, in part, Jones v. Warden, W. Va.

Penitentiary, 161 W. Va. 168, 241 S.E.2d 914 (1978) (“In a criminal prosecution, the State

is required to prove beyond a reasonable doubt every material element of the crime with 

which the defendant is charged[.]”). Under West Virginia Code § 61-2-10, the actus reus 

of “assault during the commission of a felony” is to “shoot, stab, cut or wound another 

person,” and the attendant circumstance is that the assault occur during “the commission 

of, or attempt to commit[,] a felony.” See W. Va. Code § 61-2-10. Both the actus reus and 

the attendant circumstances are elements of the crime. 

Accordingly, Mr. Conn entered an Alford/Kennedy plea to attempted assault 

during the commission of a felony. See W. Va. Code § 61-2-10. The underlying felony 
13

offense to which Mr. Conn’s conviction of attempted assault is inextricably intertwined is 

third degree sexual assault pursuant to West Virginia Code § 61-8B-5 (eff. 2000). The 

State’s proffer at Mr. Conn’s plea hearing made clear that, had the matter gone to trial, the 

State would have produced evidence to show “that on or about August the 20th, 

1997, . . . the defendant, Michael Conn, did actually have intercourse with a juvenile, 

[T.E.], who was under the age of sixteen . . . [, that there was] more than four years 

difference between their ages, and Mr. Conn being twenty-two[.]”7

 A review of the Act 

clearly shows that convictions pursuant to West Virginia Code § 61-8B-5 are explicitly 

enumerated as “qualifying offenses.” See supra W. Va. Code § 15-12-2(b)(2). See, e.g.,

State v. Penwell, 199 W. Va. 111, 116, 483 S.E.2d 240, 245 (1996) (“[I]t is readily apparent

that it would not be possible under W. Va. Code § 61-2-10 to prove an assault in the

commission of, or attempt to commit, the felony of aggravated robbery without proving

each and every element of the commission of, or attempt to commit, the crime of

aggravated robbery.”).

From this, it must be concluded that Mr. Conn could not have been convicted 

of “attempt to commit assault during the commission of a felony” unless he was also guilty 

of committing, or attempting to commit, a felony. In this case, the felony referenced by 

“during the commission of a felony” was determined to be sexual assault in the third 

degree, which is explicitly enumerated as a “qualifying offense” in West Virginia Code 

7 This proffer, made by the State at the 2006 hearing, “was not objected to or 

contested in any way by [Mr. Conn.]”
14

§ 15-12-2(b)(2). Therefore, based on the foregoing, we conclude that Mr. Conn is required 

to be a lifetime registrant because he was convicted of a qualifying offense. 

IV.

CONCLUSION

 For the reasons set forth above and based upon all of the foregoing, we 

answer the reformulated certified question from the Circuit Court of Cabell County as 

follows:

Is Mr. Conn’s 1998 conviction—“Attempt to Commit 

an Assault during the Commission of a Felony,” under West 

Virginia Code § 61-2-10, the underlying felony being a 

violation of West Virginia Code § 61-8B-5(2), third degree 

sexual assault, when he had intercourse with a juvenile under 

the age of sixteen when he was twenty-two years of age—a 

qualifying offense under the West Virginia Sex Offender 

Registration Act, West Virginia Code § 15-12-1 et seq., which 

would require Mr. Conn to become a registered sex offender 

for life?

Answer: Yes.

 

 The certified question having been reformulated and answered, this case is 

dismissed from the docket of this Court and remanded to the circuit court for proceedings 

consistent with this opinion. 

 Certified question answered.