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For The Public > Advisory Opinions > ADVISORY OPINION 2012-001

ADVISORY OPINION 2012-001

ADVISORY OPINION 12-001
CRIMINAL COUNSEL; PLEA AGREEMENTS

To a criminal defendant nothing is more sacred than the protections afford ed him under
the Constitution of the United States and the Constitution of the State ofWest Virginia. The
framers ofthe Constitution of the United States and the Constitution ofthe State of West
Virginia deemed the protections afforded in these documents superior to that of an overreaching government. Specifically contained in these protections is the right of a criminal defendant to be represented by counsel. The United States Supreme Court stated the importance of this right in Powell v. Alabama, 287 U.S. 45, 68-69; 53 S.Ct. 55, 64; 77 L.Ed. 158 (1932). In Powell, the Court stated:

” The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science oflaw. If charged with crime, he is incapable, generally, of detennining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence it irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.  Emphasis added) ”

Further, the United States Supreme Court believed the right of representation was so
important that it declared that those who could not afford counsel in most criminal cases would be appointed counsel. See, inter alia, Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct. 792; 9 L.Ed.2d 799 (1963). Thus, when one is charged with a criminal offense he must be assured that {R071 260 l .l} his constitutional rights are protected – this only can be done through the proper representation of counsel.

In addition to protections pointed out by the Powell Court, counsel must ensure that a
criminal defendant has not been subjected to unlawful searches and seizures; that he is not made to be a witness against himself; that he is not placed twice in jeopardy for the same offense; and that he has a fair, speedy and public trial.

Likewise, however, there arise instances when criminal defendants choose to voluntarily
give up these rights. Due to circumstances, these criminal defendants choose, through the plea bargaining process, to plead guilty to a charge or charges. When this occurs, it is imperative that a criminal defendant understand that by pleading guilty, he is giving up and waving those fundamental rights and protections afforded under the United States Constitution and the Constitution of the State of West Virginia. Thus, it is imperative that these rights and protections be thoroughly explained to him, by counsel, to ensure that he is making the proper legal decision.

Accordingly, it is the opinion of the Unlawful Practice of Law Committee of the West
Virginia State Bar that entry of a plea agreement and the waiver of these constitutional
protections is so important that it must be personally explained to a criminal defendant by his counsel and not undertaken by a paralegal, legal secretary, investigator or other non-attorney.

Further, the Unlawful Practice of Law Committee of the West Virginia State Bar deems these actions by non-lawyers to be the unauthorized practice of law.

Mark H. Hayes, Chair
West Virginia State Bar
Unlawful Practice of Law Committee

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The West Virginia State Bar

2 weeks ago

The West Virginia State Bar

This month's MoreThanALawyer is our Valentine's couple Bo Sweeney and Patty Jennings, Huntington attorneys who founded the annual Huntington Turkey Trot. Bo (Robert H Sweeney Jr.) is a member of Jenkins Fenstermaker, PLLC and Patty (Patricia A. Jennings) is an Appellate Judge on the Workers' Compensation Board of Review. Keep reading to learn how this month's couple raises awareness for the health and well-being of our students and our pets.

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"To whom much is given, much is expected. These are words we live by." In 2005, Bo and Patty visited family in St. Louis for Thanksgiving and participated in a Turkey Trot. The following year, they searched for a local race in the Huntington area but found none. One week before Thanksgiving they organized the first Huntington Turkey Trot with fifty participants and donated the proceeds to Little Victories Animal Rescue Shelter. Deciding the community needed an annual Turkey Trot, Bo and Patty vowed to get to work on this annual event for the benefit of the local animal shelter. Almost 10 years later, in 2015, the event boomed with over 1,000 entrants and raised $25,000.00 for Little Victories Animal Shelter. Later, they raised $30.000.00 for the shelter, and, even in the midst of the pandemic and with a virtual fundraiser, the Turkey Trot was able to raise $8,000.00 this past year. Bo and Patty, along with their son, Chip, and a slew of volunteers, make this wonderful event happen every year.

"The Turkey Trot taught us that when you happen onto something great, make the most of it. We had no idea how popular a Thanksgiving race would become, but we soon capitalized on the trend. Now thousands of participants in our community enjoy gathering on Thanksgiving morning for fellowship and health and to benefit animals in need." Bo and Patty are proud that the Turkey Trot is now a family tradition, not only within their own family, but with so many in their community. Bo and Patty's family replaces Thanksgiving preparation the evening prior with packet pick-up and handing out t-shirts and numbers. Thanksgiving morning is spent excitedly preparing for the event and preparing for what feels like a party and a reunion for those attending. Following each race, awards are given which normally consist of Butterball turkeys and pumpkin pies. Donated bags of pet food are then delivered to the shelter.

Bo and Patty also have a soft spot for the students in their community. Long before COVID and school closures, Patty and Bo recognized that many students depend on schools for the two meals each day when school is in session. Starting with a grassroots food drive effort with area law firms in stocking pantries at Huntington High School and its feeder schools, they later merged efforts with Jenkins Fenstermaker and the Cabell County Bar Association. The CCBA and its members had regularly donated $4,000 in non-perishable food and hygiene products to the Huntington High School food pantry before the students would leave for the holiday break. Patty and Bo hope to increase efforts to combat food insecurity by expanding the food drive to the Spring and Summer breaks.

We absolutely LOVE our Valentine's Day Couple! Thank you for for being MORE Than A Lawyer. Your community and your Bar are grateful! Bo and Patty reside in Huntington with their 5 dogs and 2 cats. They were nominated by @Sarah Walling who is an attorney with Jenkins Fenstermaker and is now co-director of the Turkey Trot.

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What is our MoreThanALawyer campaign all about? It highlights all the ways West Virginia’s attorneys impact lives within and outside of their profession. West Virginia's lawyers are service members, volunteers, mentors, coaches, musicians and committed advocates. In all of these roles, they make a difference in their community. Each month we share a MoreThanALawyer story on West Virginia State Bar’s Facebook and Twitter pages.
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