State of West Virginia v. Jeffery Earnest Mollohan, 21-0122

Background

Petitioner Jeffery Mollohan was indicted (Feb 2020) for one count of conspiracy and one count of grand larceny arising from the alleged theft of a Honda side-by-side; an alleged co-conspirator (Kendra Hensley) was not charged.
At an August 2020 jury trial, evidence showed Mollohan drove Hensley to the property, they noticed keys in the vehicle, Hensley drove the side-by-side away while Mollohan followed, and the vehicle was returned the next day; Mollohan was convicted of conspiracy and acquitted of grand larceny.
At sentencing (Oct 2020) the circuit court imposed 1–5 years incarceration, citing the seriousness of the offense, Mollohan’s criminal history, substance-abuse history, bond violations, and perceived lack of remorse.
Mollohan filed post-trial motions (including a motion styled as a motion to reconsider sentence / Rule 35 filing) which the circuit court denied (Jan 26, 2021); he appealed pro se.
On appeal Mollohan argued (1) conspiracy conviction invalid because co-conspirator uncharged; (2) conspiracy cannot stand after acquittal on underlying grand larceny; (3) insufficient evidence of an overt act; (4) ineffective assistance of counsel; and (5) denial of access to legal materials.
The West Virginia Supreme Court affirmed: it held a Rule 35 motion is not a vehicle to challenge the validity of conviction, declined to reach undeveloped ineffective-assistance and conditions claims (direct appeal inappropriate), and noted preservation and appendix deficiencies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of conspiracy conviction because co-conspirator not charged	State: conviction supported by jury verdict; sentencing review not the place to relitigate conviction; Mollohan failed to preserve/append motion	Mollohan: indictment improperly names a co-defendant who was not charged; conviction therefore invalid	Court: affirmed; challenges to conviction are outside scope of Rule 35 and not properly preserved in the record on appeal
Conspiracy conviction despite acquittal on underlying grand larceny	State: conspiracy can be sustained despite acquittal on related substantive charge; not cognizable in Rule 35 proceeding	Mollohan: acquittal of grand larceny shows conspiracy unsupported by evidence	Court: affirmed; argument attacks conviction, not sentence, and was not properly raised for Rule 35 review
Sufficiency of evidence as to overt act in furtherance of conspiracy	State: evidence Mollohan facilitated the plan (drove Hensley, followed vehicle) supports overt act and jury verdict	Mollohan: overt act lacking because Hensley (not Mollohan) drove the side-by-side away	Court: affirmed; sufficiency/contention attacks conviction and were not addressed in Rule 35; preservation problem
Ineffective assistance of counsel & denial of access to legal materials	State: these claims require a developed record (habeas) and rarely resolved on direct appeal	Mollohan: counsel was ineffective (failed to file appeal; filed "motion to reconsider" instead); denied access to research materials while incarcerated	Court: declined to consider on direct appeal; directed Mollohan to develop these claims in a habeas corpus proceeding

Key Cases Cited

State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (W. Va. 1996) (standard of review for Rule 35 motions: abuse of discretion for decision, clearly erroneous for facts, de novo for legal questions)
State v. Berry, 227 W. Va. 221, 707 S.E.2d 831 (W. Va. 2011) (errors not raised below will not be considered on appeal)
State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (W. Va. 1992) (ineffective-assistance claims are rarely resolved on direct appeal; habeas provides better-developed record)
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (W. Va. 1995) (direct appeal often inadequate for ineffective-assistance review due to lack of record on trial counsel’s strategic decisions)
State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (W. Va. 2011) (briefing and record-citation rules—courts need arguments supported by authority and record citations)
Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (W. Va. 1986) (habeas corpus proper vehicle to challenge constitutionality of conditions of confinement)
Blair v. Maynard, 174 W. Va. 247, 324 S.E.2d 391 (W. Va. 1984) (pro se filings should be liberally construed but must still comply with appellate rules)