                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                    October 17, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-1139 (Ohio County 99-F-72)                                           OF WEST VIRGINIA


Shawn Pethel,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner and defendant below Shawn Pethel, appearing pro se, appeals the order of the
Circuit Court of Ohio County entered June 19, 2013, that denied his Motion for Hearing on
Motion to Dismiss. The State of West Virginia, by counsel Derek A. Knopp, filed a response, to
which petitioner replied.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On September 13, 1999, while serving a one year sentence in the State of Ohio for
violating the conditions of his parole in that state, petitioner was indicted by a grand jury in the
Circuit Court of Ohio County, West Virginia, on twenty counts of sexual assault in the third
degree, three counts of filming a minor engaged in sexually explicit conduct, two counts of
possession with intent to deliver a controlled substance, five counts of conspiracy, one count of
nighttime burglary, one count of conspiracy to commit nighttime burglary, and one count of
grand larceny.1

         On September 18, 1999, the State of West Virginia (“State”) placed a detainer on
petitioner in the State of Ohio and, on that same date, petitioner executed a series of forms
initiating a voluntary return and request for final disposition pursuant to the Interstate Agreement
on Detainers Act (“IAD”), West Virginia Code § 62-14-1 through § 62-14-7. Petitioner was

       1
          The facts giving rise to petitioner’s indictment are set forth in detail in Pethel v.
McBride, 219 W.Va. 578, 638 S.E.2d 727 (2006), wherein this Court reversed a lower court’s
order that, following a hearing on petitioner’s petition for writ of habeas corpus, dismissed the
charges against petitioner. Although the facts underlying petitioner’s indictment are not germane
to the present appeal, it is noted that, given that petitioner appears before this Court pro se, much
of the procedural history set forth herein has been derived from our opinion in Pethel.
                                                 1

returned to West Virginia for arraignment on October 12, 1999, at which time he pled not guilty
to all charges of the indictment. The State informed the circuit court that petitioner was currently
serving a prison sentence in Ohio; that he was transported to West Virginia for arraignment; and
that the State would make efforts to have petitioner to stay in West Virginia.2

       At a hearing held on October 18, 1999, the circuit court was advised that Ohio had placed
a hold on petitioner, but that the State of West Virginia had arranged for petitioner to remain in
West Virginia indefinitely. However, the circuit court responded that it did not want Ohio
County paying the costs of keeping petitioner in West Virginia. Petitioner was permitted to
confer with newly-appointed counsel3 and was returned to Ohio on October 27, 1999.

        On November 18, 1999, petitioner filed a motion to dismiss, with prejudice, the charges
alleging that the IAD’s “anti-shuttling provisions”4 were violated when he was returned to Ohio
before a trial on the merits was conducted in West Virginia. On November 30, 1999, a
suppression hearing was conducted at which petitioner’s counsel and co-defendants appeared.
However, petitioner was not present because he refused to be returned to West Virginia. The



       2
          In his brief to this Court, petitioner contends that he advised the circuit court that he
wished to remain in West Virginia. However, as noted by this Court in Pethel, petitioner’s
counsel specifically stated, “‘We would not oppose [the State’s] objection to him remaining in
the State.’. . . This statement by counsel is the only statement disclosed in the transcript of the
October 12, 1999[,] arraignment to support [petitioner’s] representation” that, at his arraignment,
he expressed a desire to remain in West Virginia pending trial. 219 W.Va. at 584 n.21, 638
S.E.2d at 733 n.21.
       3
         Petitioner was appointed at least seven different counsel prior to the appointment of
counsel who ultimately represented him at trial.
       4
           West Virginia Code § 62-14-1, Article III(d) provides as follows:

               Any request for final disposition made by a prisoner pursuant to paragraph
       (a) hereof shall operate as a request for final disposition of all untried indictments,
       informations or complaints on the basis of which detainers have been lodged
       against the prisoner from the state to whose prosecuting official the request for
       final disposition is specifically directed. The warden, superintendent or other
       official having custody of the prisoner shall forthwith notify all appropriate
       prosecuting officers and courts in the several jurisdictions within the state to
       which the prisoner's request for final disposition is being sent of the proceeding
       being initiated by the prisoner. Any notification sent pursuant to this paragraph
       shall be accompanied by copies of the prisoner's written notice, request, and the
       certificate. If trial is not had on any indictment, information or complaint
       contemplated hereby prior to the return of the prisoner to the original place of
       imprisonment, such indictment, information or complaint shall not be of any
       further force or effect, and the court shall enter an order dismissing the same with
       prejudice.
                                                 2

circuit court did not proceed with the suppression hearing given petitioner’s absence.5

        Thereafter, a status hearing was held on December 7, 1999, in anticipation of petitioner’s
December 27, 1999, trial date. However, petitioner again did not appear because he refused to
return to West Virginia and, further, the State of Ohio refused West Virginia’s request for his
return. The trial date was continued for just cause. Upon completion of his sentence in Ohio,
petitioner was extradited to West Virginia pursuant to a May 1, 2000, order of the Court of
Common Pleas of Noble County, Ohio.

        Following a jury trial on November 16 and 17, 2000, petitioner was convicted of twenty
counts of sexual assault in the third degree, three counts of filming a minor in sexually explicit
conduct, and one count of conspiracy. He subsequently entered a plea agreement pursuant to
which he pled guilty to one count of possession with intent to deliver a controlled substance and
nighttime burglary and the remaining counts of the indictment were dismissed, with prejudice.
He was sentenced to not less than 53 nor more than 155 years of incarceration.

        Petitioner filed a post-trial motion to dismiss the charges on August 18, 2003.6 He
subsequently filed a direct appeal of his convictions with this Court on December 18, 2003, in
which he argued, inter alia, that “his rights under the IAD had been violated, and that this
violation mandated dismissal of the charges against him . . . .” Pethel, 219 W.Va. at 586, 638
S.E.2d at 735. “With respect to the IAD, [petitioner] argued that his return to the State of Ohio
prior to being tried on the charges in West Virginia violated the anti-shuttling provisions of the
IAD.” 219 W.Va. at 587, 638 S.E.2d at 736 (footnote omitted). Petitioner relied on the United
States Supreme Court’s decision in Alabama v. Bozeman, 533 U.S. 146 (2001), in asserting that
“the IAD violation mandated dismissal of the charges against him.” Id. This Court unanimously
refused the petition for appeal on April 1, 2004. Petitioner did not seek any further appeal of his
conviction. While his petition for appeal was pending, petitioner filed a petition for writ of
prohibition.7 The writ was unanimously refused by this Court on May 6, 2004.



       5
          Likewise, although petitioner’s motion to dismiss was briefly addressed by the circuit
court at the November 30, 1999, hearing, the circuit court indicated that it would not rule on the
motion in petitioner’s absence. Hearings on petitioner’s November 18, 1999, motion to dismiss
were held on July 13 and 26, 2000. Pethel, 219 W.Va. at 586, 638 S.E.2d at 735. The circuit
court denied the motion by order entered August 10, 2000, holding that “dismissal was not
required as [petitioner’s] return to the State of Ohio was in furtherance of efforts to rehabilitate
him, that he did not languish in the West Virginia court system, and that there was no objection
to his return.” Id.
       6
          Petitioner’s August 18, 2003, motion to dismiss was not ruled upon until the circuit
court denied petitioner’s subsequent motion for a hearing thereon by order entered June 19,
2013. It is the circuit court’s denial of this motion that is the subject of the instant appeal. See
discussion, infra.
       7
           In his petition for writ of prohibition, petitioner argued that


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        Prior to the filing of his direct appeal and petition for writ of prohibition, petitioner filed a
petition for writ of habeas corpus.8 By order entered November 16, 2004, the circuit court
granted habeas relief, concluding that Bozeman was controlling and required dismissal of the
charges. The circuit court determined that “the violation of the IAD removed jurisdiction from
the State of West Virginia to try [petitioner] on the charges contained in the indictment.” Pethel,
219 W.Va. at 587, 638 S.E.2d at 736. The State appealed the circuit court’s order and this Court
reversed. In Pethel, this Court held, inter alia, that the rights created under the IAD are statutory
in nature and do not give rise to the level of rights guaranteed under either the federal or our state
constitutions; that the IAD is not a jurisdictional statute and, thus, a violation of the IAD does not
deny a trial court jurisdiction over criminal charges; and that a violation of the IAD is not
cognizable in a post-conviction habeas proceeding in state court. 219 W.Va. at 589-94, 638
S.E.2d at 737-43.9

        Petitioner subsequently filed a federal habeas petition in which he raised the same IAD
issues addressed by this Court in the state habeas matter. The federal habeas petition was
dismissed, with prejudice, and, on appeal to the United States Court of Appeals for the Fourth
Circuit, the dismissal was affirmed by order entered August 18, 2010. See Pethtel v. Ballard,10
617 F.3d 299 (4th Cir. 2010). Petitioner’s petition for writ of certiorari was denied by the United




        he was being wrongfully imprisoned based upon a clearly erroneous conviction
        and that his sentences were of no legal effect. He based the Petition on the alleged
        violation of the IAD, arguing that the IAD stripped the trial court of jurisdiction to
        proceed on the charges asserted against him. He again raised Bozeman in support
        of his writ petition.

Pethel, 219 W.Va. at 587, 638 S.E.2d at 736.
        8
         Petitioner did not proceed with the habeas petition until after the aforementioned direct
appeal and writ of prohibition were both denied.
        9
          The Court also held in Pethel that voluntary entry of a guilty plea waives all rights
conferred under the IAD including the right to the dismissal of charges upon a violation thereof;
that where West Virginia is a receiving state pursuant to the IAD, dismissal of a case may be
with or without prejudice, which shall be determined by considering, inter alia, the seriousness of
the offense, the facts and circumstances leading to the dismissal, and the impact of a
reprosecution on the administration of the agreement on detainers and the administration of
justice; and that the IAD is not violated if, prior to trial, a defendant is returned to the custody of
the sending State by appropriate court order issued after reasonable notice to the prisoner and the
State of West Virginia and an opportunity for hearing. 219 W.Va. at 595-98, 638 S.E.2d at 745­
47.
        10
           The Court acknowledges the slight (though unexplained) variation in the spelling of
petitioner’s name in the federal habeas matter.


                                                   4

States Supreme Court on May 2, 2011.11 See Pethtel v. Ballard, 131 S.Ct. 2873 (2011).

       On May 20, 2013, petitioner moved the circuit court for a hearing on his previously-filed
August 18, 2003, post-trial motion to dismiss, which, as indicated above, had not heretofore been
decided. By order entered June 19, 2013, the circuit court concluded that petitioner’s motion was
without merit, denied the motion, and dismissed the matter from the active docket of the court.
This appeal followed.

        “Our standard of review of a motion to dismiss an indictment is generally de novo.” State
v. Davis, 205 W.Va. 569, 578, 519 S.E.2d 852, 861 (1999). As recounted above, throughout this
case, petitioner has argued on innumerable occasions and in various pleadings in both state and
federal courts that the circuit court violated the IAD by returning him to the State of Ohio
following his arraignment and before final disposition of the West Virginia charges. Petitioner
argues that, under Bozeman, such a violation of the IAD requires that the charges against him be
dismissed, with prejudice.

        In Pethel, in which this Court reversed the circuit court’s order that granted petitioner
habeas relief, we held, inter alia, that a violation of the IAD “is not cognizable in a post-
conviction habeas corpus action brought pursuant to West Virginia Code § 53-4A-1 (1967).” 219
W.Va. at 581, 638 S.E.2d at 730, syl. pt. 3, in part. We explained that, rather, “any challenge to
the State’s power to proceed on charges [is] properly brought either in a pre-trial petition for writ
of prohibition or on direct appeal.” 219 W.Va. at 591 n.33, 638 S.E.2d at 740 n.33. We also
observed that at least one federal court has suggested “that a defendant alleging a violation of the
IAD may seek injunctive relief, pursuant to 28 U.S.C. § 1983, to compel a state to comply with
the IAD.” Id. (citing Cross v. Cunningham, 87 F.3d 586, 588 (1st Cir. 1996), cert. denied, 513
U.S. 1111 (1995).). Petitioner’s direct appeal and post-trial petition for writ of prohibition—in
which petitioner argued, as he does here, that the violation of the IAD required dismissal of the
charges against him under Bozeman—were both rejected by this Court in 2004. Petitioner again
raised the IAD issue in his May 20, 2013, motion for hearing on his post-trial motion to dismiss,
the denial of which he now seeks to appeal. The issue is clearly not cognizable in such a motion
under Pethel. Furthermore, we note that a post-trial motion to dismiss—initially filed almost
three years after the jury verdict and then not pursued for another ten years—is, likewise, not a
cognizable motion under the West Virginia Rules of Criminal Procedure. See W.Va.R.Crim.P.
33 (providing that motion for new trial based on grounds other than newly discovered evidence
“shall be made within ten days after verdict or finding of guilty or within such further time as the
court may fix during the ten-day period”); W.Va.R.Crim.P. 34 (providing that motion for arrest
of judgment “shall be made within ten days after verdict or finding of guilty, or after plea of
guilty or nolo contendere, or within such further time as the court may fix during the ten-day

       11
          Subsequently, on March 12, 2012, petitioner filed a motion to correct an illegal
sentence in the circuit court pursuant to Rule 35(a) of the West Virginia Rules of Criminal
Procedure, arguing that his sentences for filming a minor engaged in sexually explicit conduct
were illegal because the statute under which he was convicted prohibited only the filming of
such material using analog technology, not the filming of such material using digital technology.
The circuit court denied the motion and, in a memorandum decision, this Court affirmed. State v.
Pethel, No. 12-0838 (W.Va. Supreme Court, June 28, 2013).
                                                 5

period”); and W.Va.R.Crim.P. 35(b) (providing that “motion to reduce a sentence may be made .
. . within 120 days . . . .”). We, therefore, find that the circuit court did not err in denying
petitioner’s motion for hearing on his motion to dismiss, or in denying his motion to dismiss.

       For the foregoing reasons, we affirm.

                                                                                      Affirmed.

ISSUED: October 17, 2014

CONCURRED IN BY:

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




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