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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
SHAWN PETHEL, aka,
Petitioner Below, Appellee
THOMAS McBRIDE, WARDEN,
MOUNT OLIVE CORRECTIONAL CENTER
Respondent Below, Appellant
Appeal from the Circuit Court of Ohio County
The Honorable Arthur M. Recht, Judge
Case Action No. 03-C-506
Submitted: March 1, 2006
Filed: June 8, 2006
| Scott R. Smith
Ohio County Prosecuting Attorney
William J. Ihlenfeld, II
Ohio County Assistant Prosecuting
Wheeling, West Virginia
Attorneys for Appellants
| Mark Panepinto
Wheeling, West Virginia
Attorney for Appellee
JUSTICE BENJAMIN delivered the opinion of the Court.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion
JUSTICES STARCHER and ALBRIGHT dissent and reserve the right to file
SYLLABUS BY THE COURT
1. Any rights created by the provisions of the Interstate Agreement on
, W. Va. Code § 62-14-1, et seq.
(1971), are rights which are statutory in nature
and which clearly do not give rise to the level of right guaranteed by either the Constitution
of West Virginia
or the Constitution of the United States.
2. The Interstate Agreement on Detainers Act
, W. Va. Code § 62-14-1, et
(1971), is not a jurisdictional statute. A violation of the Interstate Agreement on
, W. Va. Code § 62-14-1, et seq.
(1971), does not, under West Virginia law,
deny a trial court jurisdiction over criminal charges.
3. The violation of a provision of the Interstate Agreement on Detainers
, W. Va. Code § 62-14-1, et seq.
(1971), is not cognizable in a post-conviction habeas
corpus action brought pursuant to West Virginia Code § 53-4A-1 (1967).
4. A criminal defendant's voluntary entry of a guilty plea waives all rights
conferred under the Interstate Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), including the right to dismissal of charges upon violation of its provisions.
5. In a case in which West Virginia is a receiving State pursuant to the
Interstate Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), any order of
a court dismissing any indictment, information, or complaint may be with or without
prejudice. In determining whether to dismiss the case with or without prejudice, the court
shall consider, among others, each of the following factors: the seriousness of the offense;
the facts and circumstances of the case which led to the dismissal; and the impact of a
reprosecution on the administration of the agreement on detainers and on the administration
6. It shall not be a violation of the Interstate Agreement on Detainers Act
W. Va. Code § 62-14-1, et seq.
(1971), if, prior to trial, the prisoner is returned to the custody
of the sending State pursuant to an order of the appropriate court issued after reasonable
notice to the prisoner and the State of West Virginia and an opportunity for a hearing.
In the instant appeal of the circuit court's order granting habeas corpus relief,
Appellee, Shawn Pethel, aka, Shawn Pethtel (hereinafter Pethel), urges this Court to affirm
the Circuit Court of Ohio County decision setting aside his conviction on multiple counts of
sexual assault, filming a minor in sexually explicit conduct, possession of a controlled
substance with intent to deliver, nighttime burglary, and conspiracy, together with his
corresponding sentence of 53 to 155 years in the West Virginia State Penitentiary because,
he contends, the State of West Virginia violated the Interstate Agreement on Detainers Act
(hereinafterIAD). (See footnote 1)
After considered review of the record presented to this Court and
pertinent legal authorities, we refuse Pethel's request and reverse the Circuit Court of Ohio
County's September 14, 2004 order.
FACTUAL AND PROCEDURAL HISTORY
On September 13, 1999, Pethel was indicted by the Ohio County Grand Jury
on twenty counts of sexual assault in the third degree (See footnote 2)
, three counts of filming a minor in
sexually explicit conduct (See footnote 3)
, two counts of possession with intent to deliver (See footnote 4)
, one count of
nighttime burglary (See footnote 5)
, five counts of conspiracy (See footnote 6)
and one count of grand larceny (See footnote 7)
. The charges
set forth in the indictment arise from an investigation into a burglary of a home in Wheeling,
Ohio County, West Virginia. The investigation into this burglary led authorities to Pethel,
three of his friends, Eric Gorczyca, Michael McWhorter and David Wayne Morris, Jr., and
evidence relating to drug activity. The evidence obtained during the preliminary
investigation was sufficient to obtain a search warrant for the house shared by Pethel and
During execution of the search warrant, authorities recovered a video tape
depicting various scenes of guns, drugs and sexual activity with young girls. The video
depicted Pethel hiding a video camera under clothes in his bedroom, and, a few moments
later, reentering the bedroom with a blonde girl who was then videotaped, apparently without
her knowledge, performing fellatio on Pethel. The video also depicted Pethel showing
McWhorter where the video camera was hidden and then leading this same girl into the
bedroom where she was videotaped, apparently without her knowledge, performing fellatio
on McWhorter. After these two video depictions, the video shows Pethel commenting that
he had just pimped out some b**ch. It also depicts him holding large bags containing a
substance believed to be marijuana, commenting upon the failure of law enforcement to find
the substance when they picked the girl up, and asking if anyone wanted to party. (See footnote 8)
On December 12, 1998, Ohio County Sheriff deputies retrieved fifteen year old
runaway Stacey S. (See footnote 9)
from Pethel's residence. Stacey was the blonde girl depicted on the
video. On that date, Pethel was twenty-two years old. (See footnote 10)
At trial, Stacey testified that she met
Pethel while she was walking along a road with her ten year old cousin. Pethel, who was
driving by, stopped to talk to the girls. Stacey was thirteen years old at that time. Pethel gave
Stacey his pager number and told her to call him. (See footnote 11)
Stacey testified that she and Pethel
engaged in oral sex and sexual intercourse numerous times prior to the act shown on the
videotape. She testified that she was filmed without her knowledge.
The videotape seized during the execution of the search warrant also contained
a scene wherein a dark haired girl, subsequently identified as Jessica J., (See footnote 12)
on Pethel. Jessica testified at trial that she met Pethel through a friend with whom she was
living while in a group home/juvenile facility located in Wellsburg, West Virginia. She
testified that she and Pethel began having sexual relations, including fellatio and intercourse,
when she was in the eighth grade. (See footnote 13)
Jessica described a primarily sexual relationship
spanning several years and ending shortly after her sixteenth birthday. (See footnote 14)
She testified that she
and Pethel had sexual relations at both his apartment on Wheeling Island and later at his
house in Warwood on those occasions when she was home for visits from the group
home/juvenile facility. She testified that it appeared the videotape was filmed shortly after
her sixteenth birthday, although she did not know she was being recorded. (See footnote 15)
At the time of his September 13, 1999 indictment, Pethel was serving a one-year sentence in the State of Ohio, at the Correctional Reception Center in Orient, Ohio,
following revocation of parole granted in the State of Ohio. (See footnote 16)
On September 18, 1999, the
State admittedly placed a detainer on Pethel. On that same date, Pethel executed a series of
forms initiating a voluntary return and request for final disposition pursuant to Article III of
the IAD. (See footnote 17)
Thereafter, on October 1, 1999, the State initiated the involuntary return of Pethel
through a request for temporary custody pursuant to Article IV of the IAD. (See footnote 18)
Pethel was thereafter returned to the State of West Virginia for his October 12,
1999 arraignment in the Circuit Court of Ohio County before the Honorable Fred Risovich,
II. (See footnote 19)
He was represented by previously appointed counsel. At the October 12, 1999
arraignment, Pethel pleaded not guilty to the charges in the indictment and trial was set for
December 27, 1999. Though not specifically informing the Court that the IAD had been
triggered, the State of West Virginia informed the trial court (See footnote 20)
that Pethel was then currently
serving a prison sentence in Ohio, that he was brought to West Virginia for arraignment and
that the State would make calls after the hearing to make sure he can stay here or do my best
to allow him to stay here. Pethel's counsel indicated that he did not object to Pethel
remaining in West Virginia. (See footnote 21)
After setting a hearing for October 18, 1999, the trial court
remanded Pethel back to the custody of the Sheriff and eventually back to the State of Ohio
to continue serving his prison term.
At the October 18, 1999 hearing, court-appointed counsel moved to withdraw
from Pethel's representation due to the discovery of several conflicts of interest which Pethel
refused to waive. The motion was granted and new counsel was appointed. Prior to the end
of the hearing, original counsel informed the trial court that Ohio had placed a hold on
Pethel. The State then informed the trial court that it had arranged for Pethel to remain in
West Virginia indefinitely, to which the trial court responded [t]he problem is I don't want
him for an indefinite period. I don't want our county to have to pay the costs of keeping him
here. After learning that the location of Pethel's Ohio incarceration was more than an
hour's drive away, the trial court remanded Pethel to the Ohio County Sheriff for three days
to permit Pethel to confer with newly appointed counsel, (See footnote 22)
after which he was to be returned
to Ohio. Pethel was ultimately returned to the State of Ohio on October 27, 1999, after
spending approximately sixteen days in West Virginia.
On November 18, 1999, Pethel filed a motion to dismiss, with prejudice, the
charges against him alleging that the IAD's anti-shuttling provisions contained in W. Va.
Code § 62-14-1, Article IV(e), (See footnote 23)
had been violated when he was returned to the State of Ohio
prior to a trial on the merits of the charges asserted against him. On November 30, 1999, a
combined suppression hearing was scheduled with respect to each of the four defendants
charged in the September 13, 1999 indictment. Counsel for Pethel appeared, but Pethel did
not. He had refused to return to West Virginia from Ohio. At that hearing the trial court
noted that Pethel was sent back to Ohio to facilitate straightening up certain probationary
matters he had pending in Ohio and that dismissal was not required pursuant to West
Virginia case law. (See footnote 24)
Mr. Pethal's counsel objected to proceeding with the suppression
hearing in Pethel's absence. The trial court agreed not to proceed with the suppression
hearing with respect to Pethel. Another hearing was held on December 7, 1999, in
anticipation of the upcoming December 27, 1999 trial date. Again, Pethel objected to
returning to West Virginia and did not appear. The State of Ohio refused West Virginia's
request for return. The trial court indicated that he had previously ruled Pethel's return to
Ohio prior to trial was in Pethel's best interest. (See footnote 25)
Ultimately, the trial court found just cause
to continue the December 27, 1999, trial due to Pethel's refusal to return to West Virginia. (See footnote 26)
Upon completion of his sentence in Ohio, Pethel was ordered to be extradited to the State of
West Virginia pursuant to a May 1, 2000 Order of the Court of Common Pleas of Noble
Trial counsel argued the previously filed Motion to Dismiss at hearings held
on July 13, 2000, and July 26, 2000. At the hearing held on July 13, 2000, argument was
focused upon whether dismissal was mandated for failing to bring Pethel to trial within 120
days of his being brought to West Virginia in October, 1999. (See footnote 27)
At the hearing held on July
26, 2000, extensive argument was presented regarding whether the IAD's anti-shuttling
provisions had been violated, whether Pethel was returned to Ohio for his own benefit and
whether he waived the anti-shuttling provisions by failing to object to his return to Ohio. The
trial court ultimately held, as reflected in its order dated August 10, 2000, that dismissal was
not required as Pethel's return to the State of Ohio was in furtherance of efforts to
rehabilitate him, that he did not languish in the West Virginia court system, and that there
was no objection to his return.
After a jury trial on November 16 and 17, 2000, Pethel was convicted of twenty
counts of sexual assault in the third degree, three counts of filming a minor in sexually
explicit conduct and one count of conspiracy. (See footnote 28)
Pursuant to a plea agreement, on November
28, 2000, Pethel pleaded guilty to one count of possession with intent to deliver a Schedule
I controlled substance and nighttime burglary. The remaining counts of the indictment were
dismissed pursuant to the plea agreement. At the plea hearing on November 28, 2000, Pethel
agreed, when questioned by the trial court, that he was waiving all pretrial defects with
regard to [his] arrest, the gathering of evidence, prior confessions; and . . . all non-
jurisdictional defects in the criminal proceedings against him. On December 5, 2000, Pethel
was sentenced to serve not less than 53 nor more than 155 years in the West Virginia State
Penitentiary. (See footnote 29)
On December 18, 2003, Pethel filed a petition for appeal of his guilty verdict
to this Court. (See footnote 30)
In that appeal, Pethal argued that his rights under the IAD had been violated,
and that this violation mandated dismissal of the charges against him, that he had received
ineffective assistance of counsel and that his sentence was so disproportionate to the crimes
committed that it violated both the United States Constitution
and the West Virginia
. With respect to the IAD, Pethel argued that his return to the State of Ohio prior
to being tried on the charges in West Virginia violated the anti-shuttling provisions of the
IAD. (See footnote 31)
Relying upon Alabama v. Bozeman
, 533 U.S. 146, 121 S. Ct. 2079, 150 L.Ed.2d 188
(2001). Pethel asserted that the IAD violation mandated dismissal of the charges against
him. (See footnote 32)
This Court unanimously refused Pethel's petition for appeal on April 1, 2004. Pethel
did not seek further appeal of his convictions.
On March 4, 2004, while his petition for appeal was still pending before this
Court, Pethel filed a Petition for Writ of Prohibition with this Court, arguing that he was
being wrongfully imprisoned based upon a clearly erroneous conviction and that his
sentences were of no legal effect. He based the Petition on the alleged violation of the IAD,
arguing that the IAD stripped the trial court of jurisdiction to proceed on the charges asserted
against him. He again raised Bozeman
in support of his writ petition. This Court
unanimously denied Pethel's writ petition on May 6, 2004.
Prior to filing his petitions for appeal and prohibition with the Court, Pethel
also filed a Petition for Writ of Habeas Corpus in the Circuit Court of Ohio County on
September 25, 2003. Pethel did not pursue this habeas petition until after this Court denied
him relief on his petition for appeal and on his writ petition. After this Court denied Pethel
relief on these petitions, he proceeded with the habeas corpus petition in the Circuit Court
of Ohio County. As with his prior filings in this Court, Pethel argued that violation of the
IAD's anti-shuttling provisions required that his convictions, including the drug charge and
nighttime burglary charge for which he had pleaded guilty, be vacated and that all charges
against him be dismissed. Again, he relied upon Bozeman
. During a hearing on September
14, 2004, the circuit court found that Pethel's acknowledged failure to object to his return to
Ohio did not constitute a knowing and intelligent waiver of the anti-shuttling provisions of
the IAD. The circuit court further found Bozeman
to be controlling and that Bozeman
required dismissal of the charges against Pethel. On November 16, 2004, the circuit court
entered a written order memorializing its findings from the September 14, 2004 hearing. In
the order, the circuit court found that the violation of the IAD removed jurisdiction from the
State of West Virginia to try Pethel on the charges contained in the indictment. The circuit
court stayed execution of the order until December 15, 2004 to permit the State time to
appeal the same to this Court.
On November 18, 2004, the State filed its petition for appeal with this Court.
Simultaneously therewith, the State filed a motion to stay execution of the circuit court's
November 14, 2004 order. By order dated December 2, 2004, this Court stayed execution
of the circuit court order pending resolution of the State's petition for appeal. This Court
granted the State's petition on July 5, 2005.
STANDARD OF REVIEW
At the heart of this appeal is the circuit court's interpretation of the IAD and
its application of a United States Supreme Court decision. The IAD is an interstate compact
to which the State is a party by statutory enactment. State ex rel. Modie v. Hill, 191 W. Va.
100, 102, 443 S.E.2d 257, 259 (1994). As previously noted, our review of circuit court
decisions interpreting the IAD is plenary and de novo as they present questions of law and
statutory interpretation. State v. Somerlot, 209 W. Va. 125, 128, 544 S.E.2d 52, 55 (2000),
quoting, State v. Smith, 198 W. Va. 702, 707, 482 S.E.2d 687, 690 (1996)(To the extent this
issue presents a question of law and statutory interpretation, our review is plenary and de
novo.). Further, as the federal government is a party to the IAD, it constitutes federal law,
subject to federal construction. Somerlot, 209 W. Va. at 128, 544 S.E.2d at 55, quoting, Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985) ([t]he
Agreement is a congressionally sanctioned interstate compact within the Compact Clause,
U.S. Const. Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction.); see
also, New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 145 L.E.2d 560 (2000), quoting, Carchman; State v. Gamble, 211 W. Va. 125, 130, 563 S.E.2d 790, 795 (2001). With these
standards in mind, we turn to the issues presented herein.
In its order granting habeas corpus relief, the circuit court relied upon the
United States Supreme Court's decision in Alabama v. Bozeman, 533 U.S. 146, 121 S. Ct.
2079, 150 L.Ed.2d 188 (2001), to find that the trial court did not have jurisdiction to try
Pethel relative to charges contained in the September 1999, indictment. In Bozeman, the
Supreme Court held that a violation of the anti-shuttling provision contained in Article IV
(e) of the IAD mandated dismissal of firearms charges brought against Bozeman by the State
of Alabama. Bozeman, 533 U.S. at 149. Bozeman had been serving a federal prison
sentence in Florida when he was transported to Covington County, Alabama for arraignment.
He was returned within one day to the federal prison. 533 U.S. at 151. Upon return to
Alabama one month later, Bozeman moved to dismiss the charges alleging a violation of the
IAD's anti-shuttling provisions. Id. The trial court denied the motion finding Bozeman's
interest in rehabilitation received in federal prison was facilitated by his return pending trial. Id. at 152. Upon appeal, Bozeman's conviction was upheld by an intermediate court of
appeals. On further appeal of his conviction, the Alabama Supreme Court reversed
Bozeman's conviction, finding that the literal language of the IAD required dismissal of the
charges. Id. The United States Supreme Court affirmed the Alabama Supreme Court and
rejected Alabama's argument, which was supported by the United States Solicitor General,
that the violation was de minimus, technical and harmless and that the return was helpful to
Bozeman's rehabilitation. Id. at 152-156.
While it appears, at first blush, that Bozeman would control this matter, we find
that it does not. Given the current procedural posture of this case -- the appeal by the State
of a final order in a habeas proceeding -- we must first determine whether alleged violations
of the IAD may be remedied in a habeas proceeding. As discussed in Section A, infra, we
find that they may not. This Court finally disposed of all state court review of Pethel's IAD
arguments when we rejected both his direct petition for appeal and his petition for writ of
prohibition in 2004. He did not seek further appeal after the rejection by this Court of his
direct petition for appeal. Secondly, we find, as discussed in Section B, infra, that Pethel
waived at least a portion of his IAD claims when he pleaded guilty to certain charges
contained in the September 13, 1999 indictment. The IAD is not a jurisdictional statute, the
violation of which strips a trial court of jurisdiction over pending charges or precludes waiver
by guilty plea. Finally, we conclude that our Legislature intended our adoption of the IAD
to be consistent with the federal IAD enactment. Thus, as explained in Section C, infra, we
adopt herein the federal amendments to the IAD which provide that any dismissal for
violation of the IAD may be with or without prejudice.
Availability of Habeas Corpus Arising
From Violation of the IAD
The right to habeas relief is, by necessity, limited. If it were not, criminal
convictions would never be final and would be subject to endless review. Pursuant to W. Va.
Code § 53-4A-1 (a) (1967):
Any person convicted of a crime and incarcerated under
sentence of imprisonment therefor who contends that there was
such a denial or infringement of his rights as to render the
conviction or sentence void under the Constitution of the United
States or the Constitution of this State, or both, or that the court
was without jurisdiction to impose the sentence, or that the
sentence exceeds the maximum authorized by law, or that the
conviction or sentence is otherwise subject to collateral attack
upon any ground of alleged error heretofore available under the
common-law or any statutory provision of this State, may,
without paying a filing fee, file a petition for a writ of habeas
corpus ad subjiciendum, and prosecute the same, seeking release
from such illegal imprisonment, correction of the sentence, the
setting aside of the pleas, conviction and sentence, or other
relief, if and only if such contention or contentions and the
grounds in fact or law relied upon in support thereof have not
been previously and finally adjudicated or waived in the
proceedings which resulted in the conviction and sentence, or in
a proceeding or proceedings on a prior petition or petitions filed
under the provisions of this article, or in any other proceeding or
proceedings which the petitioner has instituted to secure relief
from such conviction or sentence. . . .
Accordingly, habeas relief is available only where: (1) there is a denial or infringement upon
a person's constitutional rights; (2) the court was without jurisdiction to impose the sentence;
(3) the sentence exceeds the legal maximum; or (4) the conviction would have been subject
to collateral attack by statute or at common-law prior to the adoption of W. Va. Code § 53-
4A-1. At issue herein is whether the pre-trial violation of the IAD's anti-shuttling provision
provides a basis for habeas relief. As the IAD does not pre-date W. Va. Code § 53-4A-1 and
does not involve illegal sentencing, habeas relief would only be available for IAD violations
if the IAD involves constitutional protections or jurisdictional matters. We find that it
Violation of the IAD does not constitute a
deprivation or infringement of constitutional rights
Both the Constitution of the United States and the Constitution of West Virginia bestow certain rights to citizens, such as the rights for citizens accused of crimes to due
process, a fair and speedy trial, and protection from cruel and unusual punishment. It is the
violation of such constitutional rights that the writ of habeas corpus is designed to remedy.
As stated by the United States Court of Appeals for the Ninth Circuit [t]he protections of
the IAD are not founded on constitutional rights, or the preservation of a fair trial, but are
designed to facilitate a defendant's rehabilitation in prison and to avoid disruptions caused
when charges are outstanding against the prisoner in another jurisdiction. United States v.
Black, 609 F.2d 1330, 1334 (9th Cir. 1979).
Various courts which have addressed the issue have uniformly found that the
procedural mechanisms set forth in the IAD do not rise to the level of constitutional rights. See, e.g., Reed v. Farley, 512 U.S. 339, 352-354, 114 S.Ct. 2291, 2299-2300, 129 L.Ed.2d
277 (1994) (discussing IAD violation in context of non-constitutional claims); Cross v.
Cunningham, 87 F.3d 586, 588-9 (1st Cir. 1996), cert. denied, 513 U.S. 1111, 115 S.Ct. 901,
130 L.Ed.2d 785 (1995), (violation of IAD by failing to return prisoner to sending state
immediately after trial did not constitute violation of due process or equal protection rights); Diggs v. Owens, 833 F.2d 439, 442 (3rd Cir. 1987) cert. denied, 485 U.S. 979, 108 S.Ct.
1277, 99 L.Ed.2d 488 (1988), (IAD is set of procedural rules, the violation of which does not
infringe upon a constitution right); Reed v. Clark, 984 F.2d 209, 210 (7th Cir. 1993), aff'd sub
nom, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994), (IAD procedures are not
constitutional rights); Camp v. United States, 587 F.2d 397, 400 (8th Cir. 1978) (the IAD
amounts to nothing more than a statutory set of procedural rules which clearly do not give
rise to the level of constitutionally guaranteed rights.); Greathouse v. United States, 655
F.2d 1032, 1034 (10th Cir.1981) (per curiam), cert. denied, 455 U.S. 926, 102 S.Ct. 1289,
71 L.Ed.2d 469 (1982) ([t]he rights created by the IADA are statutory, not fundamental or
constitutional in nature.); Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987) (same); Seymore
v. Alabama, 846 F.2d 1355, 1359 (11th Cir. 1988), cert. denied, 488 U.S. 1018, 109 S.Ct.
816, 102 L.Ed.2d 806 (1989), (addressing IAD violation as non-constitutional claim); State
v. Vinson, 182 S.W.3d 709, 711 (Mo. Ct. App. 2006) (IAD rights are statutory, not
constitutional); Finley v. State, 748 S.W.2d 643, 647 (Ark. 1988) (IAD provisions do not rise
to level of constitutionally protected rights); State v. Nonahal, 626 N.W.2d 1, 4 (Wis. Ct.
App. 2001) (rights under IAD are statutory, not constitutional, in nature). As noted by the
United States Court of Appeals for the Third Circuit, [t]he IAD, . . ., constitutes nothing
more than a set of procedural rules. The statutory right to dismissal due to an administrative
violation of these rules is therefore not 'fundamental', even though its impact on a defendant
may be great. United States v. Palmer, 574 F.2d 164, 167 (3rd Cir. 1978), cert. denied, 437
U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978). Accordingly, rights which are statutory
in nature and which clearly do not give rise to the level of right guaranteed by either the Constitution of West Virginia or the Constitution of the United States.
With respect to the IAD, our review of the Constitution of West Virginia reveals no protections greater than those bestowed by the Constitution of the United States.
Simply put, any statutory rights created by the Legislature's adoption of the multi-state IAD
are statutory rights. Thus, we hold that any rights created by the provisions of the Interstate
Agreement on Detainers Act, W. Va. Code § 62-14-1, et seq. (1971), are rights which are
statutory in nature and which clearly do not give rise to the level of right guaranteed by either
the Constitution of West Virginia or the Constitution of the United States.
Violation of the IAD does not deprive
a trial court of jurisdiction
The circuit court granted Pethel habeas relief finding that he was tried without
jurisdiction due to a pre-trial violation of the IAD's anti-shuttling provision. The circuit
court, however, cited no authority to support its finding that a violation of the IAD's anti-
shuttling provision removes a trial court's jurisdiction to proceed to trial on the underlying
criminal charges. Finding significant contrary authority, we reverse the finding of the circuit
court. Courts addressing this jurisdictional issue have consistently found that the IAD is a
non-jurisdictional statute, the violation of which does not deny a court jurisdiction over the
criminal proceedings. See, Camp
, 587 F.2d at 400 (violation of IAD is a non-jurisdictional
, 574 F.2d at 167 (violation of IAD is not sufficiently important to deny a
court jurisdiction to entertain a guilty plea); Kowalak v. United States
, 645 F.2d 534, 537
Cir. 1981) (IAD rights are non-jurisdictional); United States v. Hach
, 615 F.2d 1203,
Cir. 1980), cert. denied
, 446 U.S. 912, 100 S.Ct. 18437, 64 L.Ed.2d 266 (1980)
(violation of IAD is non-jurisdictional error); Caniff v. Moore
, 269 F.3d 1245, 1247 (11th
2001) (violation of IAD does not remove trial court's jurisdiction as IAD does not contain
jurisdictional element); United States v. Paige
, 332 F.Supp.2d 467, 471 (D.R.I. 2004) (IAD
violations are non-jurisdictional); Finley
, 748 S.W.2d at 646 (violation of IAD provisions is
non-jurisdictional error); Belcher v. State
, 112 S.W.3d 118, 120 (Mo. Ct. App. 2003)
(compliance with the IAD is not jurisdictional requirement). See also
, 512 U.S. at 358,
114 S.Ct. at 2302 (Scalia, J. and Thomas, J., concurring in part and concurring in judgment)
(violation of IAD technicality neither produces nor is analogous to (1) lack of jurisdiction
of the convicting court, (2) constitutional violation, or (3) miscarriage of justice or denial of
As the Court explained in Camp,
the IAD does not go to the power of the
court to try a case; but, rather, it deals with the power of the prosecution to proceed against
a person charged with a criminal offense. Paige
, 332 F.Supp.2d at 471, citing, Camp
F.2d at 399 n. 4. While the violation of the IAD may have restricted the State's power to
proceed against Mr. Pethel, it did not impact the trial court's jurisdiction over the charges. (See footnote 33)
Persuaded by the reasoning of our sister courts, cited above, we now hold that
the Interstate Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), is not a
jurisdictional statute. A violation of the Interstate Agreement on Detainers Act
, W. Va. Code
§ 62-14-1, et seq.
(1971), does not, under West Virginia law, deny a trial court jurisdiction
over criminal charges.
Distinction between the availability of
habeas relief under federal and West Virginia law
Pethal brought the instant action seeking habeas relief under West Virginia law.
Thus, West Virginia law will control the outcome of this matter. However, because the IAD
is also federal law, we find it necessary to address the scope of habeas relief available for
alleged IAD violations under federal law in order to note both the similarities and distinctions
between the relief available under West Virginia and federal law.
The availability of habeas relief under federal law and West Virginia law is not
identical. As noted above, habeas relief is available in West Virginia where there has been
a constitutional violation, the court lacked jurisdiction to impose the sentence, the sentence
imposed was excessive or the conviction would have been subject to collateral attack
pursuant to prior common or statutory law. Under federal law, a state prisoner, such as
Pethel, may seek habeas relief only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254 (a) (1996). (See footnote 34)
Prior to the United States Supreme Court decision in Reed
, federal courts
presented numerous, often conflicting, positions on the availability of habeas relief to remedy
violations of the IAD. Focusing upon the IAD's status as a federal law, the various
jurisdictions concentrated their analysis upon whether the violation constituted a fundamental
defect and/or whether prejudice resulted. (See footnote 35)
The Fourth Circuit Court of Appeals, whose
jurisdiction includes West Virginia, found that violations of the IAD do not constitute
fundamental defects which would entitle a state prisoner to seek federal habeas relief absent
a showing of prejudice. Bush v. Muncy
, 659 F.2d 402, 408 (4th
Cir. 1981), cert. denied
U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 449 (1982) (violation of IAD's anti-shuttling
provision); Kerr v. Finkbeiner
, 757 F.2d 604, 607 (4th
Cir. 1985), cert. denied
, 474 U.S. 929,
106 S.Ct. 263, 88 L.Ed.2d 269 (1985) (violation of 180 day rule). Similarly, the Eighth and
Eleventh Circuits concurred with the Fourth Circuit's finding that an IAD violation did not
constitute a fundamental defect, but left the door open for habeas relief upon a showing of
prejudice. See Huff v. United States
, 599 F.2d 860, 863 (8th
Cir. 1979), cert. denied
, 444 U.S.
952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979) (mere violation of IAD anti-shuttling provisions,
without more, does not justify habeas relief); Seymore
, 846 F.2d at 1359 (violation of IAD
is not fundamental defect cognizable in federal habeas proceeding absent showing of
The Third and Ninth Circuits, however, have found that the prisoner must
demonstrate the IAD violation constituted a fundamental defect in the proceedings before
federal habeas relief would be considered. See, Casper v. Ryan
, 822 F.2d 1283, 1289-90 (3rd
Cir. 1987), cert. denied
, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988), (claim for
violation of IAD cognizable in federal habeas action only upon showing of fundamental
defect); Tinghitella v. California
, 718 F.2d 308, 310-11 (9th
Cir. 1983) (habeas relief
available for violation of IAD, a federal law, where violation constitutes fundamental defect).
The First, Second and Sixth Circuits preclude federal habeas review for IAD
violations altogether. See
, Fasano v. Hall
, 615 F.2d 555, 558 (1st
Cir. 1980), cert. denied
449 U.S. 867, 101 S.Ct. 201, 66 L.Ed. 2d 86 (1980) (violations of IAD are not fundamental
defects indicating a miscarriage of justice so as to be cognizable in federal habeas
proceeding); Reilly v. Warden, FCI Petersburg
, 947 F.2d 43, 44 (2nd
Cir. 1991) (per curiam),
, 502 U.S. 1115, 112 S.Ct. 1227, 117 L.Ed.2d 462 (1992), (violation of IAD not
basis for federal habeas relief); Browning v. Foltz
, 837 F.2d 276, 283 (6th
Cir. 1988), cert.
, 488 U.S. 1018, 109 S.Ct. 816, 102 L.E.2d 805 (1989) (violation of IAD does not give
rise to federal habeas relief). Conversely, the Fifth and Seventh Circuits simply recognized
the availability of federal review. See
, Birdwell v. Skeen
, 983 F.2d 1332 (5th
(affirming grant of writ of habeas based upon IAD violation); Webb v. Koehane
, 804 F.2d
413, 414 (7th
Cir. 1986) (finding violation of federal law cognizable in a federal habeas
Recognizing the split in authority among the various federal courts of appeals
regarding the availability of federal habeas review for IAD claims, the United States granted certiorari
to address the issue in the context of the IAD's speedy trial provisions. Reed
, 512 U.S. at 346. In Reed
, a plurality opinion, the United States Supreme Court
affirmed the Seventh Circuit Court of Appeals' denial of federal habeas relief to an Indiana
prisoner where the prisoner's arguments relating to violation of the IAD's speedy trial
provisions had been considered and rejected by Indiana courts. Id.
at 342. It did not,
however, provide clear guidance as to the availability of federal habeas relief to remedy IAD
Justice Ginsberg, writing for the majority, found that the IAD's speedy trial
provision does not implicate the constitutional right to a speedy trial. Id
. at 352-3, at 2299.
Further, the majority concluded that federal habeas review may be available to both federal
and state prisoners to address federal statutory violations where the prisoner has not raised
the claim on direct review if the prisoner can establish both cause for the waiver and actual
prejudice arising from the violation. Id
. at 354, quoting
, Wainwright v. Sykes
, 433 U.S. 72,
84, 97 S.Ct. 2497, 2505, 53 L.Ed. 2d 594 (1977).
In light of the IAD's status as a federal law, Justice Ginsberg, joined by then -
Chief Justice Rehnquist and then-Justice O'Connor, noted that the Hill
habeas review of non-constitutional questions would be applicable to address IAD violations
in the appropriate circumstance. Id.
at 348-9. However, these Justices found, in light of the
defendant's clear failure to object to the trial date prior to the expiration of the 120 day time
limit, that [a]n unwitting judicial slip of the kind involved [there] ranks with the
nonconstitutional lapses [they] have held not cognizable in a post-conviction proceeding. Id.
at 349. These three Justices concluded that the state court's failure to observe the IAD's
120 day rule was not cognizable in a federal habeas proceeding where the defendant
registered no objection to the trial date at the time it was set, and suffered no prejudice
attributable to the delayed commencement. Id.
In a separate opinion authored by Justice Scalia and joined by Justice Thomas,
Justice Scalia agreed that the Hill
fundamental defect test was the appropriate standard to
apply in habeas actions brought by both federal and state prisoners alleging a statutory
. at 355-6. However, Justice Scalia disagreed with Justice Ginsberg's reliance
upon the prisoner's failure to object to the trial delay and waiver analysis. Id.
at 356-7, at
2301. Justice Scalia noted that
[t]he class of procedural rights that are not guaranteed by the
Constitution (which includes the Due Process Clauses), but that
nonetheless are inherently necessary to avoid a complete
miscarriage of justice, or numbered among the rudimentary
demands of fair procedure, is no doubt a small one, if it indeed
not a null set.
Id. at 357 (emphasis in original). Justice Scalia proceeded to affirmatively conclude:
If there was ever a technical rule, the IAD's 120-day limit is
one. I think we produce confusion by declining to state the
obvious: that violation of that technicality, intentional or
unintentional, neither produces nor is analogous to (1) lack of
jurisdiction of the convicting court, (2) constitutional violation,
or (3) miscarriage of justice or denial of rudimentary procedures. It is no basis for federal habeas relief.
Id. at 358 (emphasis added).
Conversely, a dissenting opinion authored by then-Justice Blackman and joined
by Justices Stevens, Kennedy and Souter, disagreed completely with the plurality decision.
The dissenters found distinctions between the scope of relief available in habeas proceedings,
arguing the importance of broader federal oversight of state proceedings to promote
uniformity. Id. at 361-6. Likewise, the dissenters opined that non-constitutional claims
should be treated no differently than constitutional claims in habeas proceedings. Id. at 364-
6. Stressing the statutory dismissal provisions for IAD violations, the dissenters concluded
federal habeas relief should be available to address violations where the state has failed to
act. Id. at 367-70.
Analyzing the impact of Reed's plurality opinion, the United States Court of
Appeals for the Sixth Circuit has stated:
The standard, then, appears to be that nonconstitutional claims
not raised at trial or on direct appeal are waived for collateral
review except where the errors amount to something akin to a
denial of due process. . . . Hence, when a federal statute, but not
the Constitution, is the basis for post-conviction attack,
collateral relief from a defaulted claim of error is appropriate
only where there has been fundamental unfairness, or what
amounts to a breakdown of the trial process.
Grant v. United States, 72 F.3d 503 (6th Cir. 1996), cert. denied, 517 U.S. 1200, 116 S.Ct.
1701, 134 L.Ed.2d 800 (1996) citing Reed. See also, Medellin v. Dretke, 544 U.S. 660, 125
S.Ct. 2088, 161 L.Ed.2d 982 (2005) (per curiam) (noting violation of federal statutory rights
constitute non-constitutional lapses not cognizable in habeas action unless they meet the Hill fundamental defect test). Post-Reed, federal courts require a showing of exceptional
circumstances demonstrating prejudice amounting to a miscarriage of justice before deeming
an IAD violation cognizable in a federal habeas action. Cross, 87 F.3d at 587-8 (claim of
IAD violation not cognizable in habeas action as IAD provision at issue has nothing to do
with securing a fair trial and there has been no allegation that violation impaired defense or
appeal); Lara v. Johnson, 141 F.3d 239, 242 (5th Cir. 1998) (must show exceptional
circumstance that violation of IAD constitutes fundamental defect causing a miscarriage of
justice to the prejudice of the defendant before claim is cognizable under federal habeas
statutes); Remeta v. Singletary, 85 F.3d 513, 519 (11th Cir. 1996), cert. denied, 520 U.S.
1225, 117 S.Ct. 1727, 137 L.Ed.2d 848 (1997) (IAD violations are not cognizable in habeas
proceedings absent a showing that the violation prejudiced the rights of the accused by
affecting or impugning the integrity of the fact-finding process); Maggard v. Gammon, 197
F.Supp.2d 1321, 1330-31 (D.Kan. 2002) (technical violation of IAD does not present special
circumstances warranting federal habeas relief as where there is no allegation that delay in
trial rendered trial unfair, prevented presentation of defense or led to conviction of an
Thus, it appears that the availability of federal habeas relief for a violation of
the IAD is extremely narrow and is limited to those rare circumstances where the violation
results in a fundamental miscarriage of justice, such as the incarceration of an innocent man.
As noted in Fasano:
the fact that the violations of the IAD alleged by appellant had
no bearing on the determination of his guilt or innocence is
particularly important, although not necessarily dispositive, in
determining cognizability in a habeas proceeding. The central
purpose of the habeas writ is to provide a collateral means of
redressing the wrong inherent in the incarceration of one who is
not guilty. Schneckloth v. Bustamonte
, 412 U.S. 218, 256-58, 93
S.Ct. 2041, 2062-63, 36 L.Ed.2d 854 (1973) (Powell, J.
, 615 F.2d at 558. Where habeas relief is sought based upon an alleged violation of
federal law, such as a violation of the IAD instead of a constitutional or jurisdictional error,
federal courts wisely limit the scope of available relief to those errors constituting a
fundamental miscarriage of justice impinging upon the underlying question of guilt.
Unlike federal habeas relief, which may be available where a violation of
federal statutory law rises to the level of a fundamental defect in the proceedings, habeas
relief is not available in West Virginia solely on the basis of a violation of statutory law. (See footnote 36)
West Virginia limits the availability of habeas relief to constitutional violations, jurisdictional
errors, illegal sentences and those convictions which would have been subject to collateral
attack by statute or at common-law prior to the adoption of our post-conviction habeas
statute. W. Va. Code § 53-4A-1 (a). By so restricting the availability of habeas relief, our
jurisprudence is concerned with remedying defects in the proceeding which constitute a
fundamental miscarriage of justice or which result in the imprisonment of a innocent man
and which were not adjudicated on direct appeal.
Under West Virginia law, the provisions of the IAD do not rise to the level of
constitutionally protected rights nor do they control a trial court's jurisdiction over criminal
proceedings. They are procedural technicalities which do not affect a trial court's power. (See footnote 37)
As such, they do not fall within the parameters of our habeas statute. The violation of the
IAD alleged herein did not impact the fairness of Pethel's trial or lead to the incarceration
of an innocent man. Habeas relief is simply not available, under West Virginia law, to
remedy a violation of a procedural technicality, such as the violation of a statutory IAD
provision. (See footnote 38)
Accordingly, we now hold that the violation of a provision of the Interstate
Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), is not cognizable in a
post-conviction habeas corpus action brought pursuant to West Virginia Code § 53-4A-1
(1967). Therefore, we reverse the circuit court's grant of habeas relief to Pethel because the
same was based upon a violation of the IAD's anti-shuttling provision.
Waiver by Guilty Plea
Following his conviction on all charges relating to illegal sexual conduct, with
minors May 22, 2006, Pethel pleaded guilty to possession of a controlled substance and
nighttime burglary in exchange for the dismissal of the remaining charges contained in the
September 1999 indictment. This plea necessarily affects his claims arising from a violation
of the IAD. As this Court stated in State v. Green
, 196 W. Va. 500, 505, 473 S.E.2d 921, 926
(1996), [i]f any principle is well settled in this State, it is that, in the absence of special
circumstances, a guilty plea waives all antecedent constitutional and statutory violations save
those with jurisdictional consequences. See also
, State v. Bennett
, 179 W. Va. 464, 475, 370
S.E.2d 120, 131 (1988) (the defendant waives all procedural objections except the
jurisdiction of the court and the voluntariness of his plea when he pleads guilty.).
Numerous courts addressing the issue have found that a defendant's rights
under IAD may be waived, including by entry of a guilty plea, so long as the waiver is
voluntary. New York v. Hill
, 528 U.S. 110, 114, 120 S.Ct. 359, 145 L.Ed.2d 560 (2000); Palmer
, 574 F.2d at 167; United States v. Oldaker
, 823 F.2d 778, 780 (4th
, 804 F.2d 413, 414 (7th
Cir.1986); United States v. Eaddy
, 595 F.2d 341, 344 (6th
, 587 F.2d at 400; Black
, 609 F.2d at 1334; Gray v. Benson
, 608 F.2d 825,
, 332 F.Supp.2d at 471; Finley
, 748 S.W.2d at 646-7; Vinson
S.W.3d at 712 (defendant may waive his or her protections under the IAD's anti-shuttling
provision even where they do not do so knowingly or intelligently); Nonahal
We have previously held, herein, that the IAD is not a jurisdictional statute the
violation of which impacts a circuit court's jurisdiction over criminal proceedings. Our law
is well established that non-jurisdictional errors are waived by the entry of a voluntary guilty
plea. Thus, consistent with jurisdictions addressing the issue of a guilty plea's effect on
violations of the IAD and our law established in other contexts, we now hold that a
defendant's voluntary entry of a guilty plea waives all rights conferred under the Interstate
Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), including the right to
dismissal of charges upon violation of its provisions.
The September 1999 indictment included both the charges for which Pethel
was convicted and those for which he pleaded guilty. The IAD speaks to dismissal of the
indictment when there is a violation of the anti-shuttling procedures. In the instant action,
we are presented with a situation where there was an IAD violation, and where Pethel was
convicted on certain charges contained in the indictment and pleaded guilty to others.
Neither the IAD nor any court decision discovered by this Court addresses this situation. An
argument can be made that by pleading guilty to some charges contained in the indictment,
Pethel waived his IAD claims relative to all charges contained in the indictment. However,
this Court is unwilling to find the guilty plea waived the violation as to all charges contained
in the indictment under the circumstances presented herein where the guilty plea did not
come until after Pethel was convicted on the more serious charges. We leave open for
another day the extent to which a guilty plea as to some charges in an indictment waives the
rights contained in the IAD as to all charges in the indictment. Instead, we find that Pethel's
guilty plea relative to the drug and burglary charges in the indictment waived his claims
based upon violation of the IAD as to the indictment's drug and burglary related charges. (See footnote 39)
Dismissal for violation of the IAD
may be with or without prejudice
Assuming, for the sake of argument, that this Court had found that an IAD
violation could be brought in a habeas proceeding, we would have reversed the lower court's
dismissal with prejudice and ordered the case dismissed without prejudice.
West Virginia became a signatory to the IAD in 1971 when it was enacted into
law by our Legislature. One year earlier, in 1970, the United States Congress adopted the
IAD on behalf of the federal government. 18 U.S.C. App. 2 § 1, et seq. (1970). The United
States and its territories are defined as a State in both the federal and West Virginia
enactment. 18 U.S.C. App. 2 § 2, Art. II (a); W. Va. Code § 62-14-1, Art. II (a). In the
introductory paragraph of our statute, the Legislature stated that the IAD was hereby enacted
into law and entered into by this State with all other jurisdictions legally joining therein in
the form substantially as follows[.] W. Va. Code § 62-14-1. The same language is included
in the federal statute. 18 U.S.C. App. 2 § 2, Art. I.
In 1988, Congress amended the federal IAD to include a new provision
affecting dismissals for violation of the IAD. This provision, codified at 18 U.S.C. App. 2
§ 9, provides:
Notwithstanding any provision of the agreement on detainers to
the contrary, in a case in which the United States is a receiving
(1) any order of a court dismissing any
indictment, information, or complaint may be with
or without prejudice
. In determining whether to
dismiss the case with or without prejudice, the
court shall consider, among others, each of the
following factors: The seriousness of the offense;
the facts and circumstances of the case which led
to the dismissal; and the impact of a
reprosecution on the administration of the
agreement on detainers and on the administration
of justice; and
(2) it shall not be a violation of the agreement on
detainers if prior to trial the prisoner is returned to
the custody of the sending State pursuant to an
order of the appropriate court issued after
reasonable notice to the prisoner and the United
States and an opportunity for a hearing.
[Emphasis added.] This provision, by its terms, alters the IAD mandatory dismissal
provisions, by providing that a dismissal may be with or without prejudice and by setting
forth the factors to consider in considering the prejudice determination.
The state's IAD does not provide for dismissal without prejudice. This Court held in
Syllabus Point 4 of Moore v. Whyte
, 164 W. Va. 718, 266 S.E.2d 137 (1980), that pursuant
to our IAD statute, [i]f West Virginia obtains custody of a prisoner against whom a detainer
has been lodged and returns him to the original place of confinement before trying him, the
charges must be dismissed with prejudice. (See footnote 40)
The decision in Moore
was decided prior to
the amendment of the federal IAD, which now permits dismissal without prejudice. In light
of the amendment to the federal IAD and for the reasons set out below, the decision in Moore
is hereby overruled.
To begin, under our rule-making authority ... rules promulgated by this Court
have the force and effect of law and will supersede procedural statutes that conflict with
them. State v. Davis
, 178 W. Va. 87, 90, 357 S.E.2d 769, 772 (1987), overruled on other
grounds, State ex rel. R.L. v. Bedell
, 192 W. Va. 435, 452 S.E.2d 893 (1994)). See
Const. Art. VIII, § 3 (The court shall have power to promulgate rules for all cases and
proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants,
process practice and procedure, which shall have the force and effect of law.). The issue
of dismissing an indictment is a procedural matter that this Court has the exclusive
constitutional authority to address. See, State v. Arbaugh
, 215 W. Va. 132, 138, 595 S.E.2d
289, 295 (2004) (Davis, J., dissenting) (a statute governing procedural matters in [civil or]
criminal cases which conflicts with a rule promulgated by the Supreme Court would be a
legislative invasion of the court's rule-making powers.) (Internal citations omitted). For
example, Rule 48(b) of our Rules of Criminal Procedure provides that if there is unnecessary
delay in prosecuting a defendant, a trial court should dismiss the indictment without
prejudice. (See footnote 41)
Although Rule 48(b) addresses a specific type of delay in prosecuting a
defendant, it articulates the position of this Court that [n]ormally . . . when a trial court
dismisses a case ... the dismissal [should be] without prejudice. State ex rel. Brum v.
, 214 W. Va. 493, 497, 590 S.E.2d 686, 690 (2003). See e.g.
, State ex rel. Pinson v.
, 181 W. Va. 662, 383 S.E.2d 844 (1989) (requiring dismissal without prejudice for
witness misconduct). (See footnote 42)
Insofar as the mandatory dismissal provision of our state IAD is
inconsistent with Rule 48(b) and the general dismissal principles of this Court, such
provision is of no force or effect in IAD proceedings. See
, Syl. Pt. 5, State v. Wallace
W. Va. 155, 517 S.E.2d 20 (1999) (The West Virginia Rules of Criminal Procedure are the
paramount authority controlling criminal proceedings before the circuit courts of this
jurisdiction; any statutory or common-law procedural rule that conflicts with these Rules is
presumptively without force or effect.).
Accordingly, we find it necessary to adopt the 1988 federal amendments to the
IAD into the laws of this State and hold that in a case in which West Virginia is a receiving
State pursuant to the Interstate Agreement on Detainers Act
, W. Va. Code § 62-14-1, et seq.
(1971), any order of a court dismissing any indictment, information, or complaint may be
with or without prejudice. In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of the following factors: the
seriousness of the offense; the facts and circumstances of the case which led to the dismissal;
and the impact of a reprosecution on the administration of the agreement on detainers and
on the administration of justice. It shall not be a violation of the agreement on detainers if,
prior to trial, the prisoner is returned to the custody of the sending State pursuant to an order
of the appropriate court issued after reasonable notice to the prisoner and the State of West
Virginia and an opportunity for a hearing.
Applying the amendments to Pethel's case, the factors for determining whether
the dismissal should be with or without prejudice indicate that any dismissal should have
been without prejudice. Mr. Pethel was charged with very serious crimes involving the
sexual abuse and exploitation of children. His return to Ohio, while a technical violation of
the IAD, did not prejudice his ability to prepare a defense and was effected without his clear
objection or mention of the IAD. Finally, the administration of justice would have been
severely harmed by dismissing the charges against him with prejudice.
As we previously indicated, we need not reverse the circuit court's dismissal
with prejudice and order dismissal without prejudice because we have found that an IAD
claim may not be brought in a habeas proceeding. (See footnote 43)
The decision of the Circuit Court of Ohio County, West Virginia, granting
habeas relief to Pethel is hereby reversed. Contrary to the circuit court's conclusion, a
violation of the IAD does not remove the trial court's jurisdiction over criminal charges.
Further, because the IAD does not implicate constitutional or jurisdictional matters, a claim
arising from a violation of the IAD's anti-shuttling provisions is not cognizable in a post-
conviction habeas proceeding under West Virginia law. Pethel's failure to appeal this
Court's refusal of his appeal petition and his guilty plea to certain charges waived any IAD
claim he may have had with respect to those charges.
The IAD is an interstate compact joined by 48 states and the federal government
relating to the transfer of prisoners serving sentences in one jurisdiction to another
jurisdiction for trial on pending charges. The IAD is discussed more fully infra
Specifically, the indictment charged Pethel with twenty counts of violating W. Va.
Code § 61-8B-5(a)(2) (1984) which provided:
(a) A person is guilty of sexual assault in the third degree when:
(2) The person, being sixteen years old or more, engages in sexual intercourse
or sexual intrusion with another person who is less than sixteen years old and
who is at least four years younger than the defendant.
Prior to Pethel's trial, this statute was amended effective June 7, 2000, to add the phrase and
is not married to the defendant to the end of subsection 2.
The September 13, 1999 indictment charged Pethel with three counts of violating
W. Va. Code § 61-8C-2(b) (1986) which provides:
(b) Any person who photographs or films such minor engaging in any sexually
explicit conduct shall be guilty of a felony, and, upon conviction thereof, shall
be fined not more than ten thousand dollars, or imprisoned in the penitentiary
not more than ten years, or both fined and imprisoned.
The indictment charged Pethel with one count of violating W. Va. Code § 60A-4-
401(a)(i) (1983) and W. Va. Code § 60A-2-206(b)(4) (1998) and one count of violating
W. Va. Code § 60A-4-401(a)(ii) (1983) and W. Va. Code § 60A-2-204(d)(14) (1998).
W. Va. Code § 60A-4-401(a)(i) and (ii) (1983) provide:
(a) Except as authorized by this act, it is unlawful for any person to
manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance. Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II, which is a narcotic
drug, is guilty of a felony and, upon conviction, may be imprisoned in the state
correctional facility for not less than one year nor more than fifteen years, or
fined not more than twenty-five thousand dollars, or both;
(ii) Any other controlled substance classified in Schedule I, II, or III is guilty
of a felony and, upon conviction, may be imprisoned in the state correctional
facility for not less than one year nor more than five years, or fined not more
than fifteen thousand dollars, or both[.]
W. Va. Code § 60A-2-204(d)(14) (1998) defines marijuana, by its chemical name, as
a Schedule I non-narcotic controlled substance.
W. Va. Code § 60A-2-206(b)(4) (1998) defines certain substances derived from coca
leaves, such as cocaine, as a Schedule II substance.
Pethel was indicted by the grand jury with violating W. Va. Code 31-3-11(a) (1993)
(a) Burglary shall be a felony and any person convicted thereof shall be
confined in the penitentiary not less than one nor more than fifteen years. If
any person shall, in the nighttime, break and enter, or enter without breaking,
or shall, in the daytime, break and enter, the dwelling house, or an outhouse
adjoining thereto or occupied therewith, of another with the intent to commit
a crime therein, he shall be deemed guilty of burglary.
The grand jury indicted Pethel on five counts of conspiracy. Two of the conspiracy
counts relate to the two counts of possession of a controlled substance with intent to deliver.
A third relates to one of the charges for filming a minor in sexually explicit conduct. The
fourth and fifth conspiracy counts relate to the charges of night time burglary and grand
larceny. W. Va. Code § 61-10-31 (1971) defines the crime of conspiracy as:
It shall be unlawful for two or more persons to conspire (1) to commit any
offense against the State or (2) to defraud the State, the state or any county
board of education, or any county or municipality of the State, if, in either
case, one or more of such persons does any act to effect the object of the
conspiracy. . .
The grand jury charged Pethel with violation of W. Va. Code § 61-3-13 (a) (1994)
(a) If a person commits simple larceny of goods or chattels of the value of one
thousand dollars or more, such person is guilty of a felony, designated grand
larceny, and, upon conviction thereof, shall be imprisoned in the penitentiary
not less than one nor more than ten years, or, in the discretion of the court, be
confined in jail not more than one year and shall be fined not more than two
thousand five hundred dollars.
The videotape contained images of numerous guns in the house shared by Pethel and
Mr. Gorczyca, including a scene where Pethel pointed a gun to a man's head while
attempting to wake the man from sleep.
Due to the sensitive nature of this matter and the girl's age at the time of the
incidents in question, we follow our longstanding practice of identifying minors by initials. See, e.g., In re Stephen Tyler R.
, 213 W. Va. 725, 729, 584 S.E.2d 585, n. 1 (2003); In re
, 182 W. Va. 303, 387 S.E.2d 537, 538, n.1 (1989).
At trial, Pethel disputed how he met Stacey. According to him, the first time he
spoke to Stacey was when she paged him and he called her back. He claimed he met her a
few days later as she was walking by his apartment on Wheeling Island. He contended that
she stopped and introduced herself. He testified that he did not see her again until she paged
him several months later to pick her up in East Wheeling. He then brought her to his
apartment in Warwood where he videotaped her performing oral sex on both he and
McWhorter. He admitted that he videotaped her without her knowledge, but disputed ever
knowing that she was under the age of eighteen.
Jessica's date of birth is November 11, 1982. Pethel was therefore more than six
years older than Jessica at all times relevant herein. She testified that she believed she was
fourteen the first time she had sexual relations with Pethel. However, during the
investigation, she first told the investigating officer that she was twelve years when she
began having sexual intercourse with Pethel.
Pethel maintained he did not meet Jessica until September 1998, when he was
introduced to her at his residence on Wheeling Island. He testified he thought she was
eighteen years old and denies ever knowing she was in a juvenile facility. He testified he had
sexual relations with her on only one occasion prior to the incident which was videotaped.
Pethel admitted under oath that he did not inform Jessica she was being filmed.
According to the Pre-Sentence Investigation Report in the instant matter, on July
1, 1998, Pethel was found guilty of the trafficking of a controlled substance, specifically
marijuana, in the Court of Common Pleas of Belmont County, Ohio. He was sentenced to
five years of community controlled sanctions including four months in the Belmont County,
Ohio, Jail and six months in the East Ohio Correctional Center. On August 30, 1999, he was
sentenced to serve one year at the Correctional Center in Orient, Ohio, for violating
community controlled sanctions. This sentence was scheduled to expire on April 15, 2000.
Article III of the IAD governs requests by those imprisoned in one state and
charged with crimes in another to be returned to the charging state for final disposition of the
charges, including trial. See
, W. Va. Code § 62-14-1, Article III, (1971); 18 U.S.C.App. §
2, Article III (1970).
Article IV of the IAD governs requests by charging statutes for the temporary return
of persons imprisoned in another state for disposition, including trial, of criminal charges
pending in the charging state. See
, W. Va. Code § 62-14-1, Article IV, (1971); 18
U.S.C.App. § 2, Article IV (1970).
The record is unclear as to whether Pethel was returned to West Virginia on
October 11, 1999 or October 12, 1999.
Because separate judges in the Circuit Court of Ohio County presided over Pethel's
pretrial/trial proceedings and the instant habeas proceeding, we shall refer herein to the trial
court when speaking of rulings and proceedings occurring prior to the filing of the instant
habeas action. Similarly, we shall use the term circuit court to refer to rulings and
proceedings below in the instant habeas proceeding.
Specifically, counsel stated We would not oppose Mr. Smith's objection to him
remaining in the State. Pethel has repeatedly maintained that he expressed a desire to
remain in West Virginia pending trial at the October 12, 1999 arraignment. This statement
by counsel is the only statement disclosed in the transcript of the October 12, 1999
arraignment to support Pethel's representation and is located on the page of the transcript
cited by Pethel.
Newly appointed counsel moved to withdraw on October 20, 1999. This motion
was granted and yet another attorney appointed. Between arraignment and trial, no less than
seven attorneys who were appointed to represent Pethel withdrew from representation prior
to the appointment of his ultimate trial counsel. Pethel sought removal of trial counsel
immediately prior to trial via a letter to the trial court alleging trial counsel had not followed
his instruction regarding his defense. Upon questioning by the trial court, it was discovered
that all matters raised by Pethel had been addressed by trial counsel and Pethel's pro se
motion was denied.
W. Va. Code § 62-14-1, Article IV(e) provides:
Any request for final disposition made by a prisoner pursuant to
paragraph (a) hereof shall also be deemed to be a waiver of
extradition with respect to any charge or proceeding
contemplated thereby or included therein by reason of paragraph
(d) hereof, and a waiver of extradition to the receiving State to
serve any sentence there imposed upon him, after completion of
his term of imprisonment in the sending State. The request for
final disposition shall also constitute a consent by the prisoner
to the production of his body in any court where his presence
may be required in order to effectuate the purposes of this
agreement and a further consent voluntarily to be returned to the
original place of imprisonment in accordance with the
provisions of this agreement. Nothing in this paragraph shall
prevent the imposition of a concurrent sentence if otherwise
permitted by law.
Although Pethel's motion and memorandum in support cite to Article III (e), it appears he
was actually relying upon the anti-shuttling provision contained in Article III (d). W. Va.
Code § 62-14-1 ,
Article III (d) provides, in pertinent part,
[i]f trial is not had on any indictment, information or complaint
contemplated hereby prior to the return of the prisoner to the
original place of imprisonment, such indictment, information or
complaint shall not be of any further force or effect, and the
court shall enter an order dismissing the same with prejudice.
The trial court also noted that Pethel had requested his return to Ohio. However,
that request does not appear in the hearing transcripts.
Pethel's counsel objected to this observation while the prosecutor agreed with the
trial court the findings had been made. The record reveals only the trial court's prior
comments that Pethel was returned to Ohio to deal with probationary matters.
In the January 11, 2000, order reflecting the trial court's findings at the December
7, 1999, hearing and continuing the previously scheduled trial, the trial court found Pethel
had appeared in the trial court for arraignment and had been returned to the State of Ohio
for his own best interest in that he had a probation violation matter in the State of Ohio and
returning [him] to the State of Ohio would assist him in dealing with his probation matters
and his return to the State of Ohio was a benefit to him.
At the time of the hearing held on July 13, 2000, trial was scheduled for July 26,
2000. With Pethel's agreement, the trial was tentatively continued until August 22, 2000.
The previously scheduled August trial was continued upon Pethel's motion. During
the course of the November trial, Pethel's family members attempted to obtain a mistrial on
two occasions. First, Pethel's mother alleged she saw a female juror stopping by the
prosecutor's office on her way to court the morning of the second day of trial. Upon
questioning under oath by the trial court, Pethel's mother admitted she only saw the juror exit
the elevator on the second floor of the court house and turn right. While the prosecutor's
office is located on the second floor, the ladies' rest room is located to the right of the
elevator on the second floor.
Secondly, Pethel's brother alleged to have overheard the assistant prosecutor trying
the case speaking to another attorney in the hall outside the court room after lunch during the
first day of trial. The brother alleged one of the men stated that his cousin was on the jury
and one of the men stated it's a shoe-in or locked in. The trial court questioned both the
brother and the other attorney, who was not a member of the prosecutor's officer, under oath.
The attorney admitted that he informed the assistant prosecutor that his cousin was on the
jury and that he had a good looking jury. It was also noted that the assistant prosecutor did
not know the juror was the attorney's cousin prior to the conversation. After hearing
testimony on this matter, the trial court found no grounds for a mistrial.
At the sentencing hearing, trial counsel was permitted to withdraw as counsel of
record. Current appellate counsel was subsequently appointed by the trial court.
Although December 18, 2003, was well beyond the four month appeal period,
Pethel had received numerous extensions of the period within which to file his appeal due
to problems in obtaining the relevant hearing and trial transcripts.
Pethel argued it was unnecessary to determine if the case proceeded pursuant to
Article III or Article IV of the IAD because each contained nearly identical anti-shuttling
provisions mandating dismissal.
We pause to briefly note that any challenge to the State's power to proceed on
charges are properly brought either in a pre-trial petition for writ of prohibition or on direct
appeal. We rejected Pethel's direct appeal and post-trial petition for writ of prohibition in
2004. We also note the United States Court of Appeals for the First Circuit's suggestion that
a defendant alleging a violation of the IAD may seek injunctive relief, pursuant to 28 U.S.C.
§ 1983, to compel a state to comply with the IAD. Cross
, 87 F.3d at 588.
Federal prisoners may seek habeas relief on the basis that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack[.] 28 U.S.C. § 2255
Federal habeas review is available to check violations of federal laws when the
error qualifies as 'a fundamental defect which inherently results in a complete miscarriage
of justice [or] an omission inconsistent with rudimentary demands of fair procedure.' Reed
512 U.S. at 348, 114 S.Ct. at 2297, quoting
, Hill v. United States
, 368 U.S. 424, 428, 82 S.Ct.
468, 471, 7 L.Ed.2d 417 (1962). The same analysis applies in action brought by state or
federal prisoners under 28 U.S.C. § 2254 and 28 U.S.C. § 2255, respectively, when the relief
is based on non-constitutional claims. Reed
, 512 U.S. at 353-4, 114 S.Ct. at 2299-2300.
Statutory violations may be relevant in habeas actions where the statutory violation
impacts a person's constitutional rights or results in illegal sentencing.
As noted by the California Court of Appeals for the Fifth District, [t]he IAD
amounts to nothing more than a set of procedural rules, and the rights it protects in no way
affect the fairness and accuracy of the fact-finding procedure or other due process or trial
rights. People v. Nintz
, 219 Cal.App.3d 164, 170 (Cal. Ct. App. 1990).
In the instant matter, this Court unanimously rejected Pethel's direct appeal raising
the IAD violation in 2004. In Smith v. Hedrick
, 181 W. Va. 394, 382 S.E.2d 588 (1989), we
held that the rejection of a petition for appeal does not constitute a decision on the merits
precluding all future consideration of the issues raised therein. We must note, however, that
to the extent issues raised in a rejected petition for appeal are later sought to be raised in a
habeas proceeding, the issues must fall within the parameters of W. Va. Code § 53-4A-1
(1967) before they may be considered.
However, remedies do exist outside the context of a habeas proceeding for alleged
violations of the IAD. See
, note 33, supra
A question also exists in this Court's view, as to whether Mr. Pethel waived all
provisions of the IAD when he failed to affirmative object to his return to Ohio after
arraignment. In Reed
, Justice Ginsberg found the violation of the IAD's trial time limit was
not cognizable in a habeas action where the defendant failed to clearly object to the trial date
at the time it was set. Reed
, 512 U.S. at 349, 352. Our review of the relevant hearing
transcripts at issue herein reveals that Pethel did not clearly object to his return to Ohio
before he was returned. The closest this Court can come to finding an objection is counsel's
statement that Pethel did not object to remaining in West Virginia pending trial.
In addressing another aspect of the state's IAD, Syllabus Point 3 of Moore
[i]f West Virginia obtains custody of a prisoner against whom a detainer has been lodged,
the prisoner must be tried within one hundred twenty days of his arrival in the State, absent
a good cause motion for a continuance made in open court, or the charge must be dismissed
Our case law has indicated that it is only when a trial court is of the opinion that
the state has deliberately or oppressively sought to delay a trial . . . and such delay has
resulted in substantial prejudice to the accused, the trial court may . . . dismiss the indictment
with prejudice[.] Syl. pt 4, State ex rel. Shorter v. Hey
, 170 W. Va. 249, 294 S.E.2d 51
We should note that habeas corpus proceedings are civil rather than criminal in
nature[.] Perdue v. Coiner
, 156 W. Va. 467, 468, 194 S.E.2d 657, 659 (1973).
Consequently, Rule 10 of our Rules Governing Post-Conviction Habeas Corpus Proceedings,
provides that the Rules of Civil Procedure . . . may be applied, when appropriate, to
petitions [for habeas relief]. Under our Rules of Civil Procedure, a dismissal for whatever
reason is generally required to be without prejudice. See e.g
, Syl. Pt. 3, in part, Burkes v.
Fas-Chek Food Mart Inc
, 217 W. Va. 291, 617 S.E.2d 838 (2005) (Under Rule 4(k) of the
West Virginia Rules of Civil Procedure, if a plaintiff fails to serve a summons and complaint
upon a defendant within 120 days, then the circuit court should dismiss the action against that
defendant without prejudice.).
Our adoption of the federal amendment to its IAD can be imposed against Mr.
Pethel because this issue is purely procedural and does not affect any substantive rights. See Collins v. Youngblood, 497 U.S. 37, 45, 110 S.Ct. 2715, 2720, 111 L.Ed.2d 30 (1990) ([A]
procedural change may constitute an ex post facto violation if it affect[s] matters of
substance, by depriving a defendant of substantial protections with which the existing law
surrounds the person accused of crime, or arbitrarily infringing upon substantial personal
rights.) (Internal quotations and citations omitted); Dobbert v. Florida, 432 U.S. 282, 293-
294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (Even though it may work to the
disadvantage of a defendant, a procedural change is not ex post facto.... In the case at hand,
the change in the statute was clearly procedural. The new statute simply altered the methods
employed in determining whether the death penalty was to be imposed; there was no change
in the quantum of punishment attached to the crime.); Syl. Pt. 5, Bradley v. Appalachian
Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979) (In determining whether to extend full
retroactivity, the following factors are to be considered: First, the nature of the substantive
issue overruled must be determined. If the issue involves a traditionally settled area of law,
such as contracts or property as distinguished from torts, and the new rule was not clearly
foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals
with procedural law rather than substantive, retroactivity ordinarily will be more readily
accorded. Third, common law decisions, when overruled, may result in the overruling
decision being given retroactive effect, since the substantive issue usually has a narrower
impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial
public issues are involved, arising from statutory or constitutional interpretations that
represent a clear departure from prior precedent, prospective application will ordinarily be
favored. Fifth, the more radically the new decision departs from previous substantive law,
the greater the need for limiting retroactivity. Finally, this Court will also look to the
precedent of other courts which have determined the retroactive/prospective question in the
same area of the law in their overruling decisions.).