1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent 

vs.) No. 19-0584 (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 19, 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 with 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 would 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 below, 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 Monroe 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 incest. 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 firstdegree 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 VIRGINIA
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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 petitioner 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 the 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, on 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, petitioner, 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, petitioner 

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 petitioner 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 does not consult with petitioner on that issue.

Without 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 19, 2019, without making any findings of fact 

or conclusions of law. The entirety of that order provided as follows: “Motion to Resentence for 

Direct Appeal Purposes filed by Clerk is hereby DENIED.” Petitioner appeals from that June 19, 

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 clearly 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 to 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 determine 

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 19, 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