                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                          FILED
Plaintiff Below, Respondent                                                 February 17, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0125 (Hancock County 14-F-99)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Karl Halstead,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Karl Halstead, by counsel Matthew C. Brock, appeals the Circuit Court of
Hancock County’s January 26, 2016, order sentencing him to a cumulative sentence of 75 to 300
years of incarceration following his convictions for three counts of aiding and abetting the felony
offense of sexual assault in the first degree. Respondent the State of West Virginia, by counsel
Benjamin F. Yancey, III and Josiah M. Kollmeyer, filed a response in support of the circuit
court’s order.1

        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.

        In July of 2014, petitioner and his son, Kevin Halstead, asked three boys, including nine­
year-old B.C., to perform some work in their yard. When the boys requested the promised
payment, Kevin grabbed B.C. and pulled him into the home he shared with petitioner. According
to Kevin, petitioner held B.C. down while Kevin forcibly sodomized the child. In addition,
petitioner touched the boy’s buttocks. Petitioner and Kevin both threatened B.C. that if he told
anyone about the incident they would shoot someone that the victim knew. B.C. told a child
friend about the incident, and that child’s mother told B.C.’s mother.

       Petitioner was indicted during the September of 2014 term of the Hancock County grand
jury but failed to appear on docket day. The circuit court issued a capias for petitioner’s arrest,
and he was arrested in Indiana on October 28, 2014. He was served with a fugitive warrant but
refused extradition to West Virginia; he was returned toward the end of the term of court. The

       1
         Josiah M. Kollmeyer is participating in this matter pursuant to Rule 10(b) of the West
Virginia Rules for Admission to the Practice of Law.



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circuit court inquired of petitioner whether he wished to have a trial during the current term of
court, but after he consulted his counsel and was advised of his rights, he waived that right.

         By order entered on April 1, 2015, the circuit court granted petitioner’s motion to dismiss
one count of conspiracy without prejudice. Shortly thereafter, the circuit court set a trial date of
September 1, 2015. However, on August 21, 2015, the circuit court entered an order continuing
the trial. In that order, the circuit court set forth the following relevant findings: counsel advised
that they had been negotiating the terms of a plea agreement but that petitioner decided not to
accept the proposed plea that had been reduced to writing and presented to petitioner; the State
advised that it needed additional time to obtain additional records to review and provide to
petitioner that may contain exculpatory evidence so that the State could identify expert witnesses
who would testify at trial; the State advised that there were motions it needed to file and have
considered prior to trial; the assistant prosecutor had a scheduling conflict with the trial date;
petitioner was not willing to waive his right to a trial during that term of court; and petitioner
indicated he had filed a motion in limine which had not been responded to by the State, though
the State indicated it could not locate such motion and did not know at that time if they intended
to use the videotaped interviews of the child at trial and the circuit clerk searched her file but was
unable to verify that petitioner had filed such motion in limine. The circuit court then continued
the trial from September 1, 2015, to September 15, 2015, and set a pretrial conference for August
31, 2015. In its order, the circuit court also ordered the provision of medical, psychological,
and/or psychiatric records concerning B.C. from B.C.’s medical treatment providers to the State,
which the State would then provide to petitioner’s counsel.

        On August 27, 2015, petitioner filed a motion for a continuance, stating that his counsel
needed additional time to address the State’s motions and pleadings, in addition to the
opportunity to retain an expert psychologist or psychiatrist to render an opinion regarding certain
issues. The circuit court granted that motion by order entered on September 4, 2015, and the trial
was moved to December 14, 2015.

        Petitioner was tried before a jury from December 14 to 16, 2015, for three counts of
aiding and abetting the felony offense of sexual assault in the first degree. He was found guilty of
all three charges, and by order entered on January 26, 2016, he was sentenced to 25 to 100 years
of incarceration for each of the three counts, said sentences to run consecutively for a cumulative
sentence of not less than 75 nor more than 300 years. Petitioner was also required to register as a
sex offender for life. The court further ordered that if petitioner is released from the Division of
Corrections, he shall be placed upon supervised release for fifty years.2

       2
         In a separate proceeding (Case No. 15-F-18), Kevin Halstead pled guilty to abduction
with the intent to defile, for which he was sentenced to a term of incarceration of three to ten
years; conspiracy, for which he was sentenced to one to five years of incarceration; and child
abuse creating a risk of serious bodily injury, for which he was sentenced to one to five years of
incarceration. The sentences for child abuse creating a risk of serious bodily injury and abduction
with the intent to defile were to run consecutively. However, the sentence was to be run “in part
concurrent with the sentence imposed . . . charging the offense of ‘Conspiracy.’” Therefore, the
“actual sentence for these three (3) crimes for the purposes of parole is a cumulative prison
(continued . . .)
                                                  2

        On appeal, petitioner asserts two assignments of error. First, he contends that the circuit
court erred by granting the State’s motion to continue his trial beyond the term of court absent
good cause to do so in violation of West Virginia Code § 62-3-1. Petitioner admits that he
waived his right to a trial to be commenced during the term of court in March of 2015 but asserts
that he did not waive his right to a speedy trial pursuant to that statute. Petitioner argues that the
State’s motion to continue was based upon petitioner’s previous flight from the jurisdiction of
the trial court, the State’s need to obtain medical records and designate an expert witness, the
State’s need to serve petitioner with potential evidence not previously provided, and an alleged
scheduling conflict on the part of the assistant prosecutor. He further admits that he fled the
jurisdiction in late 2014 but asserts that the fact that he fled did not delay his trial following his
February of 2015 arraignment. As part of his argument, petitioner contends that the State’s
inability to obtain evidence appears disingenuous, is a product of the lack of due diligence, and
amounts to an abuse of discretion by the circuit court. In essence, he asserts that the State lacked
good cause for a continuance.

       West Virginia Code § 62-3-1 provides that “[w]hen an indictment is found in any county,
against a person for a felony or misdemeanor, the accused, if in custody, or if he appear in
discharge of his recognizance, or voluntarily, shall, unless good cause be shown for a
continuance, be tried at the same term. . . .” With regard to speedy trials, this Court has stated as
follows:

       [T]his Court is of the opinion that whereas W.Va.Code, 62–3–1, provides a
       defendant with a statutory right to a trial in the term of his indictment, it is
       W.Va.Code, 62–3–21, rather than W.Va.Code, 62–3–1, which is the legislative
       adoption or declaration of what ordinarily constitutes a speedy trial within the
       meaning of U.S.Const., amend. VI and W.Va.Const., art. III, § 14. State v. Lacy,
       232 S.E.2d 519, 522 (W.Va.1977); State ex rel. Stines v. Locke, 159 W.Va. 292,
       220 S.E.2d 443, 446 (1975); State ex rel. Wren v. Wood, 156 W.Va. 32, 36, 190
       S.E.2d 479, 482 (1972); Town of Star City v. Trovato, 155 W.Va. 253, 257, 183
       S.E.2d 560, 562 (1971); State ex rel. Farley v. Kramer, 153 W.Va. 159, 170, 169
       S.E.2d 106, 113 (1969); State ex rel. Smith v. DeBerry, 146 W.Va. 534, 538, 120
       S.E.2d 504, 506 (1961); State v. Underwood, 130 W.Va. 166, 169, 43 S.E.2d 61,
       63 (1947); Hollandsworth v. Godby, 93 W.Va. 543, 546, 117 S.E. 369, 370
       (1923); Ex Parte Bracey, 82 W.Va. 69, 72, 95 S.E. 593, 595 (1918); Ex Parte
       Chalfant, 81 W.Va. 93, 96, 93 S.E. 1032, 1033 (1917); Denham v. Robinson, 72
       W.Va. 243, 254, 77 S.E. 970, 975 (1913); Cooper v. King, 303 F.Supp. 876, 878
       (N.D.W.Va.1969), and Raleigh v. Coiner, 302 F.Supp. 1151, 1154


sentence of not less than four (4) years nor more than nineteen (19) years and three hundred sixty
four (364) days.” Kevin was to be eligible for an initial parole hearing upon completion of four
years in the Division of Corrections. He also pled guilty to sexual assault in the first degree, for
which he was sentenced to 25 to 100 years of incarceration, though that sentence was suspended
while he served his time for the other convictions. Kevin was also ordered to serve fifty years of
supervised release.



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       (N.D.W.Va.1969). As each of the above cases indicates, W.Va. Code, 62–3–21, is
       this State's declaration of a criminal defendant’s constitutional right to a speedy
       trial. At no time prior to [State ex rel. Holstein v. Casey, 164 W.Va. 460, 265
       S.E.2d 530 (1980)] has this Court held that W.Va.Code, 62–3–1, defines the right
       to speedy trial. . . . Accordingly, the importance of the term of indictment is
       lessened under W.Va.Code, 62–3–21, in terms of speedy trial. Therefore, it would
       not be justifiable to associate the one-term rule under W.Va.Code, 62–3–1, with a
       constitutional right to speedy trial, particularly in an instance where indictments
       are returned near the end of a term. With like reasoning, if a criminal case is
       continued pursuant to W.Va.Code, 62–3–1, for good cause from the term of
       indictment to the next term, and during that latter term the defendant is not tried
       because of a continuance by the State, nothing in the provisions of W.Va.Code,
       62–3–1, would entitled the defendant to discharge from prosecution. Rather, the
       outer boundary of prosecution in such a case, in terms of speedy trial, is
       established by W.Va.Code, 62–3–21. . . We hold, therefore, that a defendant,
       pursuant to W.Va.Code, 62–3–1, has a statutory right to trial in the term of his
       indictment, subject to a possible continuance for good cause. Further, a defendant,
       pursuant to W.Va.Code, 62–3–21, has a constitutional right to trial within three
       terms from the term of his indictment, subject to certain enumerated exceptions.
       Where these two statutes are violated, it is only W.Va.Code, 62–3–21, which
       specifically provides that the defendant shall be discharged from prosecution. The
       Legislature did not provide in W.Va.Code, 62–3–1, the remedy of discharge from
       prosecution that it expressly provided in W.Va.Code, 62–3–21. If the Legislature
       had intended discharge from prosecution under W.Va.Code, 62–3–1, it could have
       so provided. The right of the defendant is somewhat limited under W.Va.Code,
       62–3–1, compared to W.Va.Code, 62–3–21, and the remedy likewise should be
       limited.

State ex rel. Shorter v. Hey, 170 W. Va. 249, 254-57, 294 S.E.2d 51, 56-59 (1981).

         The grant of a continuance beyond the original term of court was granted for good cause
without objection by either party. While petitioner complains of the grant of a two-week
continuance on behalf of the State, he fails to acknowledge that he requested a three-month
continuance shortly thereafter. The State requested its continuance to obtain medical records for
the minor victim of the crimes alleged against petitioner; these crimes were clearly related to
crimes for which petitioner’s son had previously pled guilty, including first degree sexual assault
of B.C. The circuit court stated its belief that the State needed to obtain those records prior to
trial, and petitioner was entitled to additional time to review and evaluate such records.

        Pursuant to West Virginia Trial Court Rule 2.01, the terms of court for the Circuit Court
of Hancock County shall commence on the second Tuesday of January, April, and September.
Therefore, the circuit court’s grant of a mere two-week continuance moved the trial to the next
term of court. As a general rule, “[a] motion for continuance is addressed to the sound discretion
of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that
there has been an abuse of discretion.” Syl. Pt. 2, State v. Bush, 163 W. Va. 168, 255 S.E.2d 539
(1979). In syllabus point two of State ex rel. Shorter, this Court explained that:

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       The determination of what is good cause, pursuant to W. Va.Code, 62–3–1, for a
       continuance of a trial beyond the term of indictment is in the sound discretion of
       the trial court, and when good cause is determined a trial court may, pursuant to
       W. Va.Code, 62–3–1, grant a continuance of a trial beyond the term of indictment
       at the request of either the prosecutor or defense, or upon the court’s own motion.

Although the circuit court continued the trial to a later term of court by a matter of a week, the
circuit court found good cause to do so, particularly in light of the fact that this matter involved a
child victim who had received relevant medical treatment. The State informed the circuit court
that it often experienced difficulty obtaining medical records from at least one of the treatment
facilities, which was why it requested a court order to obtain the same. Therefore, based on the
facts and record before this Court, we find that the circuit court did not abuse its discretion in
granting the State’s motion for a short continuance of the trial date beyond that term of court.

         Petitioner’s second assignment of error is that the circuit court erred by using improper
sentencing factors and facts not established at trial. As part of that assignment of error, petitioner
argues that his sentence was disproportionate to his son’s sentence of incarceration. Petitioner
faults the circuit court judge for stating that the evidence was “extremely disturbing” and that if it
“was authorized by the state legislature to impose the death penalty” that it would do so. He
argues that the circuit court improperly imposed its personal views and failed to apply objective
standards.

        This Court has repeatedly held that “‘[s]entences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor, are not subject to appellate
review.’ Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 9, State
v. Hays, 185 W. Va. 664, 408 S.E.2d 614 (1991). West Virginia Code § 61-8B-3(c) sets forth the
following related to sexual assault in the first degree:

       Notwithstanding the provisions of subsection (b) of this section, the penalty for
       any person violating the provisions of subsection (a) of this section who is
       eighteen years of age or older and whose victim is younger than twelve years of
       age, shall be imprisonment in a state correctional facility for not less than twenty-
       five nor more than one hundred years and a fine of not less than five thousand
       dollars nor more than twenty-five thousand dollars.

West Virginia Code § 61-11-6(a) provides, in relevant part, that “[i]n the case of every felony,
every principal in the second degree and every accessory before the fact shall be punishable as if
he or she were the principal in the first degree . . . .” As we previously stated, “[a] person who is
the absolute perpetrator of a crime is a principal in the first degree, and a person who is present,
aiding and abetting the fact to be done, is a principal in the second degree.” Syl. Pt. 5, State v.
Fortner, 182 W. Va. 345, 397 S.E.2d 812 (1989). While petitioner points to the circuit court
judge’s comments regarding the crime committed, the record shows that the circuit court simply
imposed the maximum sentence under the statute for each count for which petitioner was
convicted, regardless of any personal feelings expressed. Based upon the specific facts of this
case and the record before this Court, we find that the circuit court did not err in sentencing
petitioner pursuant to statute.


                                                  5

        With regard to the proportionality argument, petitioner points to the fact that his son was
convicted of the felony offenses of sexual assault in the first degree, abduction with intent to
defile, conspiracy, and child abuse creating a risk of serious bodily injury. However, Kevin
received an effective sentence of four to nineteen years of incarceration because the circuit court
suspended the 25 to 100 year sentence for sexual assault in the first degree. Petitioner also looks
to the victim’s testimony that Kevin was the person who removed B.C.’s clothing and performed
the actual sexual assault. Petitioner ignores the victim’s testimony that petitioner held B.C. down
to prevent his escape, put his finger into B.C.’s buttocks, and threatened B.C. with violence if the
victim told anyone about the crimes. While petitioner fled the jurisdiction before appearing at
trial, Kevin timely appeared and entered pleas of guilt to four of the charges against him.

       We have previously held as follows:

               Disparate sentences for codefendants are not per se unconstitutional.
       Courts consider many factors such as each codefendant’s respective involvement
       in the criminal transaction (including who was the prime mover), prior records,
       rehabilitative potential (including post-arrest conduct, age and maturity), and lack
       of remorse. If codefendants are similarly situated, some courts will reverse on
       disparity of sentence alone.

Syl. Pt. 2, State v. Buck, 173 W. Va. 243, 314 S.E.2d 406 (1984). While it appears to be
undisputed that Kevin was the one who committed the primary sexual assault upon the victim,
the record before this Court does not contain sufficient information regarding Kevin’s
rehabilitative potential or remorse to properly compare the same to the circuit court’s judgment
of petitioner in terms of sentencing. Thus, we are unable to determine whether the two
defendants are similarly situated. However, the record is clear that the two behaved quite
differently following indictment and petitioner continues to minimize his role in the victim’s
sexual assault while Kevin pled guilty and testified against petitioner. Because petitioner’s
sentence was within statutory limits and this Court lacks sufficient information to determine
whether petitioner and his son were similarly situated, we do not find error on this basis.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: February 17, 2017

CONCURRED IN BY:

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




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