                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                               FILED
                                                                                   February 11, 2013
Plaintiff Below, Respondent                                                     RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

vs) No. 11-1346 (Fayette County 11-F-19)                                          OF WEST VIRGINIA




Robert D. England,
Defendant Below, Petitioner

                                  MEMORANDUM DECISION

        Petitioner England filed this appeal, by counsel Gina M. Stanley, from the Circuit Court
of Fayette County’s August 15, 2011 order that sentenced petitioner to serve one to three years in
prison. This sentence followed his jury conviction for third offense driving on a revoked license
for driving under the influence. The State of West Virginia, by its counsel Jacob Morgenstern,
has filed a response in support of affirming petitioner’s conviction.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In July of 2010, petitioner was arrested after two police officers observed him obtaining
fuel and driving away without paying. Upon investigating, the police officers discovered that
petitioner had a revoked license due to driving under the influence. Police subsequently stopped
petitioner and asked to see his license, to which petitioner replied that he did not have one. In
March of 2011, petitioner was tried before a jury on third offense of driving while his license
was revoked for driving under the influence.1 At the close of trial, the jury returned a guilty
verdict for this charge. The circuit court subsequently sentenced petitioner to serve one to five
years in prison, in addition to paying fines and costs. Petitioner appeals his conviction, arguing
two assignments of error.

        In petitioner’s first assignment of error, he argues that the circuit court erred in refusing
to conduct a pre-trial hearing on whether his statement to police had been voluntary. In response,
the State argues that petitioner was not in custody when he made the statement at issue and that
the circuit court did not err admitting this evidence without a hearing. Upon our review of the
record and evidence presented at trial, we find no error by the circuit court with regard to this
assignment of error.
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  Petitioner’s trial was bifurcated for a different jury to decide whether this was petitioner’s third
offense.

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        In petitioner’s second assignment of error, he argues that the conduct of the circuit court
prejudiced his right to have a trial by an impartial jury. He argues that the circuit court behaved
improperly when it ordered the arrest of one of petitioner’s witnesses following the witness’s
testimony. In response, the State contends that the circuit court acted within its discretion and
committed no errors at trial. It raises that a trial judge’s control over the orderly process of a trial
is within its sound discretion and only subject to review when the discretion is clearly abused.
See Payne v. Kinder, 147 W.Va. 352, 362, 127 S.E.2d 726, 733 (1962). Upon our review of the
evidence presented at trial, we find no clear abuse of discretion by the circuit court’s conduct.
Our review of the record also shows that petitioner did not make any objections during trial
concerning the circuit court judge’s behavior. Finally, even if there was error, it was harmless in
light of the evidence of guilt.

       For the foregoing reasons, petitioner’s conviction of third offense of driving on a
revoked license due to driving under the influence is hereby affirmed.


                                                                                             Affirmed.


ISSUED: February 11, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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