866 S.E.2d 210
W. Va.2021Background
- Petitioner Frank A. was convicted in 2013 of four counts of first‑degree sexual abuse involving his daughter A.A.; jury acquitted or charges dismissed as to other children. He received 20–40 years imprisonment plus a 25‑year supervised‑release term under W. Va. Code § 62‑12‑26.
- A prior 2004 indictment alleging similar conduct was dismissed after the victim recanted; later investigations led to the 2013 indictment. Trial evidence turned largely on A.A.’s testimony and limited investigative testimony.
- Defense argued the State withheld exculpatory Child Advocacy Center (CAC) video interviews of other children (J.A., C.A.) showing alleged coaching by the mother/stepfather; petitioner claimed Brady violation and newly discovered evidence after stepfather’s later conviction.
- Habeas proceedings (filed 2016) were prolonged and hampered by petitioner’s repeated firing/refusal to cooperate with appointed counsel; an amended habeas petition was filed over petitioner’s objection and an omnibus hearing was held where petitioner presented no documentary or witness evidence.
- The circuit court denied habeas relief in a 34‑page order. On appeal, the Supreme Court of Appeals affirmed all habeas denials except it reversed the imposition of supervised release as an ex post facto violation and remanded for resentencing.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Brady (withheld CAC videos) | Videos of J.A./C.A. were favorable impeachment/exculpatory evidence and were not produced | State says videos were provided or at least available to defense; even if not, they were not material to A.A. counts | Denied — petitioner failed to prove suppression or material prejudice; no evidence presented at omnibus hearing and petitioner obstructed counsel |
| Newly discovered evidence (stepfather’s conviction) | Step‑father Paul W.’s later conviction shows a pattern and suggests he, not petitioner, abused A.A. | Evidence is temporally remote, not shown to involve A.A., and petitioner offered no affidavits/witnesses at hearing | Denied — evidence would not likely produce opposite result and was unsupported at hearing |
| Speedy trial / pre‑indictment delay | 2004 dismissal and later 2013 indictment violated speedy‑trial rights or caused prejudicial delay | Three‑term rule doesn’t extend that way; petitioner produced no specific proof of actual prejudice | Denied — claim legally unsupported and petitioner failed to show actual prejudice |
| Access to counsel / counsel forced on petitioner | Trial counsel was untrusted/ineffective; court coerced him to accept counsel under threat of self‑representation | Petitioner repeatedly discharged lawyers and refused cooperation; counsel’s performance was reasonable given record | Denied — counsel’s performance not shown deficient; petitioner’s conduct impeded representation |
| Ineffective assistance of trial counsel | Counsel made multiple strategic errors and failed to investigate/use evidence | No specifics proved at habeas; no testimony from trial counsel; many complaints speculative | Denied — Strickland/Miller burden not met; no evidentiary support at omnibus hearing |
| Sufficiency of evidence | Convictions unsupported by the record | A.A.’s testimony was credible and sufficient; jury determinations stand | Affirmed — A.A.’s uncorroborated testimony permissible and was not inherently incredible |
| Sentencing: supervised release (W. Va. Code § 62‑12‑26) | Statute applied though some charged acts occurred before statute’s effective date — violates ex post facto | State argued proof supported offenses after statute effective date or burden rested on petitioner | Reversed in part — supervised release vacated; imposition violated ex post facto because evidence did not show offenses occurred after statute effective date; remand for resentencing without § 62‑12‑26 term |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s suppression of favorable evidence violates due process)
- State v. Youngblood, 221 W. Va. 20 (2007) (three‑part Brady test: favorable, suppressed, material)
- State v. Deel, 237 W. Va. 600 (2016) (supervised‑release statute punitive; retroactive application violates ex post facto)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
- Mathena v. Haines, 219 W. Va. 417 (2006) (standard of review for habeas decisions)
- State v. Miller, 194 W. Va. 3 (1995) (adopts Strickland standard; deference to counsel’s strategic choices)
- State v. Beck, 167 W. Va. 830 (1981) (victim’s uncorroborated testimony can sustain sexual‑offense conviction unless inherently incredible)
- State ex rel. Knotts v. Facemire, 223 W. Va. 594 (2009) (pre‑indictment delay requires proof of actual prejudice)