In a unanimous decision handed down on November 16, 2012, the West Virginia Supreme Court of Appeals has upheld the Second Degree Sexual Assault and Incest convictions of Roger D. Simmons, age 54, formerly of Webster County.
Simmons, who remains incarcerated at the Huttonsville Correctional Center, was originally indicted by a Webster County Grand Jury in May, 2001 for 11 counts of First Degree Sexual Assault, 10 counts of Sexual Abuse by a Parent, Guardian, or Custodian, nine counts of Incest, and two counts of Second Degree Sexual Assault. Simmons accepted a plea offer made by Prosecutor Dwayne Vandevender which allowed Simmons to plead guilty to one count of Second Degree Sexual Assault and one count of Incest, with all other counts of the indictment dismissed.
In September of 2001, Simmons entered his guilty pleas. In February of 2002, Circuit Judge Jack Alsop sentenced Simmons to 10 to 25 years in the penitentiary on the Second Degree Sexual Assault charge and to 5 to 15 years on the Incest charge, with the sentences to run consecutively, for a total effective sentence in prison of not less than 15 years but not more than 40 years.
On January 4, 2001, Simmons was arrested by former Deputy Sheriff Nellie Knight for sexually assaulting his step-daughter, who was age 12 at the time. Both a criminal case and a related child abuse and neglect case were instituted at nearly the same time.
Although he pleaded guilty to the two felony charges, Simmons challenged his continued incarceration by a post-conviction proceeding known as a "habeas corpus petition." The petition was eventually heard by Judge Alsop, who issued a 33 page opinion denying the grounds alleged by Simmons. He claimed that the child victim made inconsistent statements in the criminal and child abuse and neglect cases. He also alleged that the child recanted the allegations against Simmons, but then later said she was pressured to recant by her mother to help get Simmons out of jail. Simmons also claimed it was error for the Court to consider an apparently incriminating statement he gave to police after he was arrested.
Specifically, he claimed the following errors: "ineffective assistance of counsel; irregularities in arrest; illegal detention prior to arraignment; excessiveness or denial of bail; sufficiency of the evidence; prosecutorial misconduct; constitutional errors in evidentiary rulings; trial court’s refusal of a continuance; the question of actual guilt upon an acceptable guilty plea; the falsification of the transcript of petitioner’s statement to law enforcement following his arrest; involuntary guilty plea; mental competency at the time of the crime; ability to understand the proceedings due to educational level and reading ability; coerced confession; challenges to the composition of the grand jury or its procedure; defects in the indictment; and incompetence at the time of the offense, as opposed to at the time of trial."
In its brief opinion denying Simmons' petition, the Supreme Court found that no substantial questions of law were presented and that no prejudicial error occurred. The Supreme Court adopted Judge Alsop's 33 page opinion as its own opinion in rejecting Simmons' attempt to overturn his guilty plea convictions.
The entire Supreme Court opinion, along with Judge Alsop's 33 page opinion, can be found at this link:
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