                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                  March 23, 2020
vs) No. 19-0071 (Hancock County 17-F-21)                                         EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Ethan S.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner Ethan S., by counsel Matthew Brummond, appeals the order entered on
December 28, 2018, in the Circuit Court of Hancock County, in which he was sentenced as a
recidivist. The State of West Virginia, by counsel Elizabeth Grant and Andrea Nease-Proper, filed
a response in support of the circuit court’s order. Petitioner submitted a reply.

       This 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. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

       On June 5, 2018, petitioner was convicted on one count of first-degree sexual abuse and
one count of sexual abuse by a parent, guardian, or custodian. The victim was his six-year old
daughter. Thereafter, on June 21, 2018, the Hancock County Prosecutor’s Office filed a recidivist
information alleging that petitioner was previously convicted of attempted arson in Brooke
County, West Virginia, in 2008.

        At a July 9, 2018, status hearing, Assistant Prosecuting Attorney Allison Cowden
represented to the circuit court that the parties had discussed the possibility of entering into a
sentencing agreement whereby petitioner’s sentences for his sexual abuse convictions would run
concurrently, for a cumulative sentence of ten to twenty-five years in prison, and the State would
forego trying petitioner as a recidivist. In exchange, petitioner would forego the filing of a direct
appeal of his convictions, register for life as a sex offender, and be subject to a period of supervised
release in the court’s discretion.

         A subsequent status hearing was conducted on July 12, 2018, at which it was disclosed that
petitioner was unwilling to admit identity for purposes of proving that he was a recidivist. As a
result, the parties did not enter into the proposed sentencing agreement and the matter was set to
proceed to a recidivist trial.

                                                   1
        On July 24, 2018, petitioner filed a motion to disqualify the Hancock County Prosecutor’s
Office from conducting the recidivist trial on the ground that an assistant prosecuting attorney in
that office, Jack Wood, while previously employed as an assistant public defender, represented
petitioner in the attempted arson proceedings, which was the predicate offense for the recidivist
information and upcoming trial. Though Attorney Wood had been screened from any involvement
or information in the recidivist matter, petitioner alleged that, prior to the July 12, 2018, status
hearing, Assistant Prosecuting Attorney Cowden discussed, or attempted to discuss, with Wood
that “waiving an appeal right is tantamount to admitting to the crime[,]” and, according to
petitioner’s motion, that “[d]iscussing or attempting to discuss the above-referenced case with the
lawyer who represented the Defendant on the very case the State wishes to use to enhance a
criminal penalty, causes great concern to Defense Counsel.”1 Petitioner requested that the circuit
court appoint another attorney to act in the prosecution of the recidivist matter, pursuant to West
Virginia Code § 7-7-8. See id. (stating, in part, that “[i]f, in any case, the prosecuting attorney and
his assistants are unable to act, or if in the opinion of the court it would be improper for him or his
assistants to act, the court shall appoint some competent practicing attorney to act in that case.”).
The State filed a response to petitioner’s motion, to which petitioner submitted a reply.

        By order entered on July 30, 2018, the circuit court denied petitioner’s motion to disqualify.
A jury trial was conducted on September 7, 2018, and, upon its conclusion, petitioner was
convicted of being a recidivist. The circuit court thereafter entered a sentencing order in which it
determined that the recidivist conviction shall apply to the conviction of sexual abuse by a parent,
guardian, or custodian and sentenced petitioner to twenty years in prison on that charge. The court
further sentenced petitioner to a consecutive sentence of five to twenty-five years on the first-
degree sexual abuse conviction and ordered that he be placed on fifty years of supervised release
and register as a sex offender for life. Petitioner now appeals.2



       1
           Petitioner’s trial counsel and Attorney Wood discussed the proposed sentencing
agreement and, in particular, the question of whether it was “ethically appropriate” for petitioner
to waive his right to appeal his conviction while also maintaining his innocence. According to the
State, petitioner’s trial counsel and Attorney Wood are “personal friends” and they discussed the
matter during a “personal encounter.” It was after this conversation that Attorney Cowden and
Attorney Wood discussed the matter.
       2
          The State contends that this appeal should be dismissed on the procedural ground that
petitioner was required to seek relief by way of a petition for a writ of prohibition following entry
of the order denying his motion to disqualify. We disagree, as the cases relied upon by the State in
support of this argument do not hold that the filing of such a petition is the exclusive means of
seeking relief. See State ex rel. Keenan v. Hatcher, 210 W. Va. 307, 312, 557 S.E.2d 361, 366
(2001) (stating that “since petitioner’s motion to dismiss the pending recidivist information was
predicated upon an assertion that the prosecutor’s office was disqualified, prohibition is a proper
means to challenge the circuit court’s ruling on this issue.” (Emphasis added)); Syl. Pt. 1, State ex
rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 697 S.E.2d 740 (2010) (holding that “[a]
party aggrieved by a lower court’s decision on a motion to disqualify an attorney may properly
challenge the lower’s court’s decision by way of a petition for a writ of prohibition.” (Emphasis
added)).
                                                  2
       We review the circuit court’s order denying petitioner’s motion to disqualify under the
following standard:

               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).

        The sole issue on appeal is whether the circuit court erred in denying petitioner’s motion
to disqualify the Hancock County Prosecutor’s Office, in its entirety, from prosecuting the
recidivist action based upon Attorney Wood’s representation of petitioner on the predicate felony.
Petitioner argues that the circuit court should have applied this Court’s holding in syllabus points
1 and 2 of Keenan, which instructed as follows:

               Under West Virginia Rule of Professional Responsibility 1.9(a), a current
       matter is deemed to be substantially related to an earlier matter in which a lawyer
       acted as counsel if (1) the current matter involves the work the lawyer performed
       for the former client; or (2) there is a substantial risk that representation of the
       present client will involve the use of information acquired in the course of
       representing the former client, unless that information has become generally
       known.

               A prosecutor is disqualified from representing the State in a recidivist
       proceeding conducted pursuant to W. Va. Code §§ 61-11-18 & -19, where such
       lawyer acted as defense counsel in connection with the prior felony convictions that
       are the basis for such proceeding.

       According to petitioner, Wood’s representation of him on the predicate felony was
“substantially related” to the recidivist proceeding. Therefore, his employment as an assistant
prosecuting attorney, per se, tainted the entire prosecuting attorney’s office and disqualified it from
prosecuting the recidivist action. Petitioner argues that the recidivist case against him should have
been dismissed.

        We find that Keenan does not apply and that the circuit court committed no error in denying
petitioner’s motion to disqualify the Hancock County Prosecutor’s Office from prosecuting the
recidivist action against petitioner. At issue in Keenan was whether the Fayette County
Prosecutor’s Office was disqualified from prosecuting the defendant as a recidivist based upon the
fact that the elected prosecuting attorney and one of his assistants had previously represented the
defendant in two of the predicate offenses giving rise to the recidivist proceeding. 210 W. Va. at
312, 557 S.E.2d at 366. We observed that “the primary focus of the substantial relationship test is
on the potential danger that an adverse relationship with a former client may jeopardize the
confidentiality of information communicated during the prior representation.” Id. at 313, 557



                                                  3
S.E.2d at 367. Further, we were disinclined to credit the argument that the defendant’s former
convictions were a matter of public record, explaining that in recidivist actions,

       it is impossible to completely discount the possibility that confidential information
       derived from a lawyer’s previous representation on the predicate convictions could
       not be used against a former client during recidivist proceedings. This is
       particularly true with respect to the decision to file a recidivist information in the
       first instance. While we do not go so far as to say a prosecutor is forever precluded
       from bringing charges against a former client because of the possibility that
       confidential information may inform the prosecutor’s charging decision, the
       circumstance we face here, where the prosecutor represented the defendant in
       connection with the predicate convictions, simply raises too great a danger that a
       client’s confidences may be betrayed.”

Id. at 315-16, 557 S.E.2d at 369-70. (Emphasis added).

        It is clear that Keenan is distinguishable from the instant matter. In Keenan, the prosecuting
attorney who made the decision to file the recidivist information in the first instance had
represented the defendant in the predicate felony matters. In this case, by contrast, Attorney Wood
was an assistant prosecuting attorney and was not involved in the decision to bring the recidivist
action or in prosecuting it, as he had been screened from his former client’s case. Although, in
Keenan, an assistant prosecuting attorney also represented the defendant in the predicate felony
matters, this Court made a point of reiterating that, even when the issue involves a recidivist action,
elected prosecuting attorneys and their assistants are not to be treated the same on the question of
disqualification:

       The record in this case is not entirely clear as to whether Prosecutor Blake and
       Assistant Prosecutor Harris jointly defended Keenan with respect to both of the
       1986 convictions, or whether their representations were separate. In contrast to
       situations in which an elected prosecutor is disqualified, where “disqualification of
       a prosecuting attorney operates to disqualify his assistants,” syl. pt. 1, in part,
       Moore v. Starcher, 167 W. Va. 848, 280 S.E.2d 693 (1981), the fact that an assistant
       prosecuting attorney is disqualified does not necessarily require disqualification of
       the entire office in which he or she works. See syl. pt. 3, State ex rel. Knotts v Watt,
       186 W. Va. 518, 413 S.E.2d 173 (1991) (holding that indictment need not be
       dismissed where disqualified assistant did not participate in investigation of case or
       presentment to grand jury). Thus, it may be that Assistant Prosecutor Harris’ past
       representation of Keenan is without significance in the present case. This deficiency
       of the record need not detain us, however, as it is undisputed that Prosecutor Blake
       represented petitioner with respect to at least one of the predicate felonies cited in
       the recidivist information.

Id. at 312 n.4, 557 S.E.2d at 366 n.4. See also Syl. Pt. 2, in part, State ex rel. Tyler v. MacQueen,
191 W. Va. 597, 447 S.E.2d 289 (1994). Thus, the circuit court did not err in denying petitioner’s
motion to disqualify the Hancock County Prosecutor’s Office in the recidivist action.



                                                  4
       Petitioner also argues that, in any event, the prosecuting attorney’s office violated the
screening protocol when Attorney Wood discussed petitioner’s case with Assistant Prosecuting
Attorney Cowden, which petitioner claims violated petitioner’s attorney-client relationship with
Wood. We have held that

       [p]rosecutorial disqualification can be divided into two major categories. The first
       is where the prosecutor has had some attorney-client relationship with the parties
       involved whereby he obtained privileged information that may be adverse to the
       defendant’s interest in regard to the pending criminal charges. A second category
       is where the prosecutor has some direct personal interest arising from animosity, a
       financial interest, kinship, or close friendship such that his objectivity and
       impartiality are called into question.

Syl. Pt. 1, Nicholas v. Sammons, 178 W. Va. 631, 363 S.E.2d 516 (1987). Here, Cowden’s
conversation with Wood about the propriety of waiving appeal rights occurred sometime after the
recidivist information had already been filed and also after petitioner’s own trial counsel discussed
the issue with Attorney Wood during a personal encounter. There was no evidence, and, indeed,
no allegation by petitioner, that Assistant Prosecuting Attorney Cowden discussed the matter
further with Wood or obtained any privileged information from him that was derived from his
prior representation of petitioner and that may have been adverse to petitioner’s interest in the
recidivist matter. Thus, we find that prosecutorial disqualification was not warranted in this case
and that the circuit court did not err in denying petitioner’s motion to disqualify.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                 5
