1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 19

- 0 584 (Monroe County CC

- 32

- 2015

- F

- 53 )

Joseph C

. , Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Joseph C

. , 1 by counsel Matthew A. Victor , appeals the Circuit Court of Monroe County’s June 1 9 , 2019, order denying petitioner’s “ Motion to Resentence for Direct Appeal Purposes .” The State of West Virginia, by counsel Scott E. Johnson, filed a response asserting that because the circuit court’s order is insufficient as a matter of law, this Court should remand this

case to the circuit court w ith directions to enter an order containing appropriate findings of fact

and conclusions of law.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process woul d not be significantly aided by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the

Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed belo w, the decision of the circuit court is vacated, and this case is remanded to the circuit court for specific findings of fact and conclusions of law regarding petitioner’s “ Motion to Resentence for Direct Appeal Purposes .”

Petitioner was indicted by a Mon roe County grand jury on or about September 9, 2015

, on one count of first

- degree sexual assault; one count of sexual abuse by a parent, custodian or guardian; and in cest. Petitioner entered a plea agreement, agreeing to plead guilty to sexual abuse by a parent, custodian or guardian and incest, in exchange for the State’s dismissal of the first

degree sexual assault count. Petitioner’s plea agreement provided that he could be sentenced to ten

to twenty years in the penitentiary and fined between $500 to $ 5,000 for the conviction of sexual

1 Consistent with our long

- standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L. , 190 W. Va. 24, 435 S.E.2d 162 (1993) ; State v.

Edward Charles L. , 183 W. Va. 641, 398 S.E.2d 123 (1990). 

### FILED
September 4, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

abuse by parent, custodian or guardian, and that he could be sentenced to between five to fifteen

years in the penitentiary and be fined between $500 to $5,000

, on the incest conviction. The circuit court sentenced petitio ner to ten to twenty years in prison for the count of sexual abuse by a parent,

custodian

, or guardian and five to fifteen years in prison for the count of incest

, with the sentences to run consecutively.

On October 5, 2017, petitioner sent a letter to t he circuit court stating that after his sentencing he had repeatedly asked his trial counsel to file a motion for reconsideration of his sentence. Petitioner further stated that his trial counsel had not answered any of his calls or letters. Thereafter, o n October 10, 2017, the circuit court entered an order appointing Attorney E. Lavoyd Morgan, Jr.

, for the purpose of representing petitioner on appeal. On April 9, 2019, petitioner sent Mr. Morgan a letter asking for a copy of his case file “to get the ball rolling on [his] habeas.” Petitioner sent Mr. Morgan another letter on May 4, 2019, asking for a copy of his case file

. The docket sheet does not reflect that Mr. Morgan filed any motions on behalf of petitioner.

On June 19, 2019, p etitioner , a self

- represented litigant, filed a “ Motion to Resentence for Direct Appeal Purposes. ” Petitioner ’s motion noted that he told his trial counsel that he desired to file an appeal challenging the proportionality of his sentence among other things. Petitioner further contended that his appointed counsel, Mr. Morgan, failed to file an appeal. In his motion, petiti oner asserted that : (1) he had a right to appeal his conviction from a guilty plea; (2) appellate rights cannot be destroyed by counsel’s inactions or a defendant’s delay in notifying the court of such inaction; (3) trial counsel should have known that pet itioner desired to file an a appeal, as a rational defendant would want to appeal a disproportionate sentence; and (4) petitioner cannot reasonably demonstrate to counsel a desire to appeal if counsel d o es not consult with petitioner on that issue

.

Witho ut holding a hearing, and on the same day that the motion was filed, the circuit court

denied petitioner’s motion by order entered on June 1 9 , 2019 , without making any findings of fact

or conclusions of law . The entirety of that order provide d as follows: “ Motion to Resentence for Direct Appeal Purposes filed by Clerk is hereby DENIED

. ” Petitioner appeals from that June 1 9

, 2019, order. 2

Our standard of review has been stated as follows:

“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 clear ly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 1, State v. Meadows , 231 W. Va. 10, 743 S.E.2d 318 (2013).

2 Petitioner filed a notice of intent to appeal the circuit court’s denial of his motion for resentence. Following this filing, the circuit court appointed Mr. Victor t o represent petitioner for appellate purposes in this matter.3

On appeal, petitioner argues that the circuit court abused its discretion in denying his

motion to resentence for purposes of pursuing a direct appeal

. The State concedes that the circuit court’s order lacks appropriate findings of fact and conclusions of law supporting its decision “to permit meaningful appellate review” by this Court

. State v. Redman, 213 W. Va. 175, 178, 578 S.E.2d 369, 372 (2003). As this Court has found,

[w]ithout findings of fact and conclusions of law, this Court is unable to deter mine the basis for the court’s decision and whether any error has occurred. Consequently,

in cases where there is an absence of adequate factual findings, it is necessary to remand the matter to the lower court to state or, at a minimum, amplify its findings so that meaningful appellate review may occur.

Mullins v. Mullins , 226 W. Va. 656, 662, 704 S.E.2d 656, 662 (2010).

We, therefore , vacate the circuit court’s June 1 9 , 2019, order denying petitioner’s “Motion to Resentence for Direct Appeal Purposes .” Upon remand, the circuit court shall set
forth findings of fact and conclusions of law sufficient to allow meaningful appellate review in the

event that petitioner elects to file an appeal.

Vacated and remanded.

ISSUED: September 4, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison