                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


State of West Virginia, 
                                                          FILED
Plaintiff Below, Respondent                                                      June 15, 2018 

                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.) No. 17-0677 (Preston County 13-F-65)                                          OF WEST VIRGINIA 


Stephen H., 

Defendant Below, Petitioner 



                              MEMORANDUM DECISION
        Petitioner Stephen H., pro se, appeals the Circuit Court of Preston County’s July 7, 2017,
order denying his motion to resentence for the purpose of appeal. The State, by counsel Scott E.
Johnson, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner alleges that the circuit court erred in denying his motion to resentence for the
purpose of appeal when he was not advised of the dangers of proceeding pro se with his direct
appeal.

        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, this 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 November of 2013, petitioner was indicted on thirteen counts: two counts of sexual
abuse by a parent, custodian, or person in a position of trust; one count of use of obscene matter
with intent to seduce a minor; and ten counts of soliciting a minor via computer.

         The matter proceeded to trial in January of 2015. Petitioner was represented by counsel
throughout the proceedings. The jury returned a verdict in which it found petitioner guilty of one
count of sexual abuse by a parent, custodian, or person in a position of trust; ten counts of
soliciting a minor via computer; and one count of use of obscene matter with intent to seduce a
minor. In May of 2015, the circuit court sentenced petitioner to an effective sentence of four to
twenty years of incarceration, with five years of probation and ten years of extended supervised
release. Petitioner, pro se, appealed his conviction in June of 2015. This Court affirmed the
circuit court’s order in June of 2016. See State v. Stephen H., No. 15-0801, 2016 WL 3165791
(W.Va. June 6, 2016)(memorandum decision). Subsequent to petitioner’s direct appeal, he filed a
Rule 35(b) Motion for Reduction of Sentence, which the circuit court granted in October of
2016, reducing his sentence to two to ten years of incarceration with five years of probation and
ten years of extended supervised release.

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        In May of 2017, petitioner filed a motion to resentence for purpose of appeal and argued
that he should be resentenced for the purpose of “regaining his right of direct appeal under Rule
5 of the West Virginia Rules of Appellate Procedure.” Specifically, petitioner argued that he
never knowingly and intentionally waived his right to counsel in his direct appeal because he
was not informed of the dangers and disadvantages of filing a direct appeal pro se. The circuit
court denied petitioner’s motion, finding that: (1) petitioner was never denied his right to
assistance of counsel because he never requested that he be appointed counsel, (2) petitioner was
represented by counsel throughout his trial proceedings, (3) petitioner had the right to proceed
pro se,1 and (4) petitioner was not entitled to a second chance at a direct appeal as he provided no
legal authority supporting such an argument. Moreover, the circuit court noted that petitioner
was provided a notice of appellate rights and had the notice read to him in open court.2 The
circuit court concluded that petitioner was provided with notice that, if he were unable to pay for
an attorney, one would be appointed to represent him upon his written request. The circuit court
noted that petitioner did not file a written request and proceeded to file his direct appeal, which
was addressed by this Court. It is from the July 7, 2017, order denying his motion for
resentencing that petitioner appeals.

                                                                   
       1
          See Syl. Pt. 2, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977)(“An indigent
criminal defendant who desires to appeal his conviction has a right, under Article III, Sections 10
and 17 of the West Virginia Constitution, to the effective assistance of court-appointed counsel
on his appeal.”); Syl. Pt. 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983)(“The right
of self-representation is a correlative of the right to assistance of counsel guaranteed by article
III, section 14 of the West Virginia Constitution.”).
       2
           The notice of appellate rights provided, in part, as follows:

              Pursuant to Rule 5 of the West Virginia Rules of Appellate Procedure, you
       have the right to appeal your conviction and/or sentence to the West Virginia
       Supreme Court of Appeals in Charleston, West Virginia.

               To appeal, you must file your notice of appeal as required under Rule 5 of
       the West Virginia Rules of Appellate Procedure, in writing, with the Clerk of the
       West Virginia Supreme Court of Appeals in Charleston, West Virginia, within
       thirty (30) days from the date of the entry of this [c]ourt’s final sentencing order.

               Thereafter, you must perfect your appeal within four (4) months of the
       date of entry of this [c]ourt’s final sentencing order in accordance with Rule 5 of
       the West Virginia Rules of Appellate Procedure.

               If you cannot afford to pay for transcripts of the proceedings in your case
       or employ a lawyer to prosecute your appeal, both will be provided to you, at no
       expense, upon proper written request. If you cannot afford to pay the costs of an
       appeal, you may apply for leave to appeal in forma pauperis. 



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       We have previously established the following standard of review:

              “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 Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syllabus, State v. Maisey, 215 W.Va. 582, 600 S.E.2d 294 (2004).

         On appeal, petitioner argues that the circuit court erred in denying his motion to
resentence for the purpose of appeal when he was not advised of the dangers of proceeding pro
se with his direct appeal. We find petitioner’s argument to be without merit. In his brief on
appeal, petitioner fails to cite to any authority demonstrating that the circuit court abused its
discretion in denying his motion to resentence for the purpose of appeal. Moreover, any
argument petitioner sets forth regarding any perceived deficiency in the circuit court’s notice of
appellate rights provided to him in May of 2015 will not be addressed as his time to raise that
issue on appeal has long since passed. Accordingly, we find that petitioner is entitled to no relief
in this regard.

       For the foregoing reasons, the circuit court’s July 7, 2017, order denying petitioner’s
motion to resentence for the purpose of appeal is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 15, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating




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