State v. Conn

247 W.Va. 256

879 S.E.2d 74

STATE of West Virginia, Plaintiff Below, Respondent,

v.Michael Paul CONN, Defendant Below, Petitioner.

No. 21-0382

Supreme Court of Appeals of West Virginia.

Submitted: February 15, 2022

Filed: March 21, 2022

Dissenting Opinion of Justice Wooton April 11, 2022

Jeremy B. Cooper, Blackwater Law PLLC, Aspinwall, Pennsylvania, Attorney for the Petitioner.

Patrick Morrisey, Attorney General, Lara K. Bissett, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.

Moats, Justice:

The Circuit Court of Cabell County certifies one question to this Court pertaining to whether an "attempt to commit an assault during the commission of a felony"—when the underlying felony is sexual assault in the third degree—is a qualifying offense under the Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to - 10 (hereinafter sometimes referred to as "the Act"), which would require Petitioner Michael Paul Conn ("Mr. Conn") to register as a sex offender for life. After considering the parties’ briefs and oral arguments, the appendix record submitted, and the applicable legal authority, we conclude that Mr. Conn's conviction for "attempt to commit an assault during the commission of a felony" which was based on a proffer that Mr. Conn committed sexual assault in the third degree, is a qualifying offense under the Act that requires Mr. Conn to register as a sex offender for life.

I.FACTUAL AND PROCEDURAL HISTORY

This case originated more than twenty years ago, when Mr. Conn was indicted in January of 1998 on four counts of sexual assault in the third degree. It was alleged that Mr. Conn, then aged twenty-two, engaged in sexual intercourse with a thirteen-year-old girl. As part of a later plea agreement, the indictment was dismissed, and Mr. Conn pleaded guilty to an information, charging him with one count of attempt to commit a felony, "stating that he unlawfully, feloniously, knowingly and intentionally attempted to commit an assault during the commission of a felony." As a proffer to support the plea, the State noted:

The evidence of the State would be that on or about August the 20th, 1997, that [Mr. Conn] did actually have intercourse with a juvenile, [T.E.], who was under the age of sixteen [ ] and more than four years difference between their ages, and [Mr. Conn] being twenty-two[.]

As part of this plea agreement, Mr. Conn was sentenced to not less than one nor more than three years in prison, to be served consecutively to another sentence he was serving in another matter. At the time of his conviction and sentence, Mr. Conn was not required to register as a sex offender.

Afterward, in 1999, the West Virginia Legislature enacted the Sex Offender Registration Act, West Virginia Code §§ 15-12-1 to - 10. Shortly thereafter, in 2000, the registration requirements for sex offenders were amended. The amendment extended the registration requirements to perpetrators convicted of attempted offenses. See generally W. Va. Code § 15-12-2 (eff. 2018). Because the amendment was effective both retroactively and prospectively, Mr. Conn was required to register as a sex offender. See W. Va. Code § 15-12-2(a) (eff. 2018) ("The provisions of this article apply both retroactively and prospectively.").

Subsequently, in 2003, Mr. Conn filed a petition for writ of habeas corpus in the Circuit Court of Cabell County alleging (1) unlawfully induced guilty plea; (2) ineffective assistance of counsel; (3) false declamation of character; and (4) violation of his constitutional rights. According to the appendix record, the petition for writ of habeas corpus was summarily dismissed. Then, on appeal to this Court, we remanded the matter for further findings of fact regarding whether Mr. Conn's crime was sexually motivated for the purpose of the requirement that he register as a sex offender. Upon remand, a hearing was held in May of 2006. At the hearing, the State represented that, in entering his guilty plea to "attempt to commit an assault during the commission of a felony," Mr. Conn understood that there would be evidence at trial that the underlying felony was of a sexual nature. Mr. Conn did not refute that characterization—he merely pointed out that he entered an Alford/ Kennedy plea¹ maintaining his innocence. The circuit court ultimately found that based on the 2000 change in the statute, Mr. Conn was required to register as a sex offender because the felony underlying his plea was sexual in nature.

Years later, in 2014, Mr. Conn was indicted on six counts of failure to register as a sex offender or provide notice of registration changes. He entered an Alford/ Kennedy plea to two counts of the indictment on January 9, 2018. Mr. Conn then filed a "Petition for Writ of Error Coram Nobis and Motion in Arrest of Judgment and for Dismissal of the Indictment" in March of 2021.² In this petition, Mr. Conn claimed that the State Police mistakenly believed him to be a lifetime registrant³ when his conviction only required him to register for ten years because he did not commit a "qualifying offense" or "sexually violent offense" and he was not determined to be a "sexually violent predator."

The State responded that the underlying felony—sexual assault in the third degree—of Mr. Conn's conviction of attempt to commit assault during the commission of a felony is a qualifying offense for lifetime registration. After a hearing, the circuit court certified the following question⁴ to this Court:

Is [Mr. Conn's] 1998 conviction for "Attempt to Commit an Assault during the Commission of a Felony," under W. Va. Code [§] 61-2-10, which was found by the Circuit Court to be a sexually motivated crime against a minor, a qualifying offense under the West Virginia Sexual Offender Registration Act, W. Va. Code [§] 15-12-1 et seq. , which would require [Mr. Conn] to become a registered sex offender for life?

II.STANDARD OF REVIEW

This Court's review of questions certified by a circuit court is plenary. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo. " Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc. , 197 W. Va. 172, 475 S.E.2d 172 (1996). Additionally, to the extent that the resolution of the certified question requires us to engage in statutory interpretation, we apply the same level of review. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we now address the arguments presented.

III.DISCUSSION

In the case sub judice, we first acknowledge this Court's authority to reformulate certified questions:

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va. Code , 51-1A-1, et seq. and W. Va. Code , 58-5-2 [(1998)], the statute relating to certified questions from a circuit court of this State to this Court.

Syl. pt. 3, Kincaid v. Mangum , 189 W. Va. 404, 432 S.E.2d 74 (1993). In accordance with this authority, we reformulate the question as follows:

Is Mr. Conn's 1998 conviction—"Attempt to Commit an Assault during the Commission of a Felony," under West Virginia Code § 61-2-10, the underlying felony being a violation of West Virginia Code § 61-8B-5(2), third degree sexual assault, when he had intercourse with a juvenile under the age of sixteen when he was twenty-two years of age—a qualifying offense under the West Virginia Sex Offender Registration Act, West Virginia Code § 15-12-1 et seq., which would require Mr. Conn to become a registered sex offender for life?

To begin our analysis, we look to the issue presented to this Court in the reformulated certified question, i.e., is a conviction for "attempt to commit an assault during the commission of a felony"—when the underlying felony committed was sexual assault in the third degree—a qualifying offense that requires lifetime sexual offender registration? Mr. Conn argues that "qualifying offense" is clearly and unambiguously defined by the Act as any crime listed in West Virginia Code § 15-12-2(b)(2) (eff. 2018),⁵ and because "attempt to commit an assault during the commission of a felony" is not explicitly listed, he is not required to register as a sex offender for life.

Because the resolution of this matter requires us to examine various statutory provisions, we set forth the proper framework for our analysis.

When this Court endeavors to construe a statutory provision, our primary aim is to give effect to the intent of the Legislature. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W. Va. 108, 219 S.E.2d 361 (1975). Accordingly, "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case[,] it is the duty of the courts not to construe but to apply the statute." Syl. pt. 5, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars , 144 W. Va. 137, 107 S.E.2d 353 (1959). On the other hand, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew , 186 W. Va. 693, 414 S.E.2d 454 (1992).

Bradford v. W. Va. Solid Waste Mgmt. Bd. , ––– W. Va. ––––, ––––, 866 S.E.2d 82, 87 (2021).

At the outset of our analysis, we examine the Sex Offender Registration Act. In West Virginia Code § 15-12-1a(b), the Legislature made clear its intent by "declar[ing] that there is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses in order to allow members of the public...