Larry B. v. David Ballard, Warden ( 2017 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Larry B.,
    Petitioner Below, Petitioner                                                       FILED
    September 5, 2017
    vs) No. 16-0720 (Mercer County 15-C-370-DS)                                       RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    David Ballard, Warden,
    Mount Olive Correctional Complex,
    Respondent Below, Respondent
    MEMORANDUM DECISION
    Petitioner Larry B., by counsel Paul Cassell, appeals the Circuit Court of Mercer
    County’s June 22, 2016, order denying his petition for writ of habeas corpus.1 Respondent David
    Ballard, Warden, by counsel Julie A. Warren, filed a response. On appeal, petitioner argues that
    the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of
    trial counsel and that his guilty plea was not knowingly, intelligently, and voluntarily made.
    This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these
    reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
    of the Rules of Appellate Procedure.
    During the October of 2003 term of court, a grand jury indicted petitioner on fourteen
    counts of first-degree sexual assault, eight counts of incest, and sixteen counts of sexual abuse by
    a custodian. According to the indictment, petitioner was alleged to have engaged in sexual
    misconduct with three minor children in his care.
    In March of 2004, petitioner pled guilty, pursuant to a plea agreement, to three counts of
    first-degree sexual assault, three counts of incest, and two counts of sexual abuse by a custodian.
    In exchange, the State agreed to dismiss the remaining counts from the indictment. Thereafter,
    the circuit court held a sentencing hearing and imposed the following sentence: not less than
    fifteen nor more than thirty-five years for the offense of first-degree sexual assault as set forth in
    1
    Consistent with our long-standing practice in cases with sensitive facts, we use initials
    where necessary to protect the identities of those involved in this case. See In re K.H., 
    235 W.Va. 254
    , 
    773 S.E.2d 20
     (2015); Melinda H. v. William R. II, 
    230 W.Va. 731
    , 
    742 S.E.2d 419
     (2013);
    State v. Brandon B., 
    218 W.Va. 324
    , 
    624 S.E.2d 761
     (2005); State v. Edward Charles L., 
    183 W.Va. 641
    , 
    398 S.E.2d 123
     (1990).
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    counts one, nine, and thirty-five of the indictment; not less than five nor more than fifteen years
    for the offense of incest as set forth in counts eleven, seventeen, and thirty-six of the indictment;
    and not less than ten nor more than twenty years for the offense of sexual abuse by a custodian as
    set forth in counts twenty-one and thirty-three of the indictment. The sentences were ordered to
    run consecutively to one another. Additionally, the circuit court suspended the sentences
    imposed for counts nine, seventeen, twenty-one, thirty-three, thirty-five, and thirty-six and
    ordered that petitioner be placed on probation for five years following the completion of his term
    of incarceration. Petitioner did not appeal this order.
    In May of 2013, petitioner filed a pro se petition for writ of habeas corpus and a motion
    to be resentenced for purposes of appeal. After the circuit court appointed him counsel, petitioner
    filed a renewed motion to be resentenced for purposes of appeal. The circuit court thereafter
    entered two orders resentencing petitioner, although he eventually decided not to pursue a direct
    criminal appeal in light of his pending habeas action in circuit court.
    In November of 2015, petitioner, by counsel, filed his petition for writ of habeas corpus.
    The petition raised the following grounds: ineffective assistance of counsel, involuntary guilty
    plea, disproportionate sentence, and deficient indictment. After respondent filed a brief, the
    circuit court held an omnibus evidentiary hearing in February of 2016. Following the hearing, the
    circuit court entered an order in June of 2016 denying the petition for writ of habeas corpus. It is
    from this order that petitioner appeals.
    This Court reviews appeals of circuit court orders denying habeas corpus relief under the
    following standard:
    “In reviewing challenges to the findings and conclusions of the circuit
    court in a habeas corpus action, we apply a three-prong standard of review. We
    review the final order and the ultimate disposition under an abuse of discretion
    standard; the underlying factual findings under a clearly erroneous standard; and
    questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.
    Haines, 
    219 W.Va. 417
    , 
    633 S.E.2d 771
     (2006).
    Syl. Pt. 1, State ex rel. Franklin v. McBride, 
    226 W.Va. 375
    , 
    701 S.E.2d 97
     (2009).
    On appeal to this Court, petitioner argues that he was entitled to habeas relief due to trial
    counsel’s ineffective representation and his allegation that his guilty plea was not knowingly,
    intelligently, and voluntarily made. The Court, however, does not agree. Upon our review and
    consideration of the circuit court’s order, the parties’ arguments, and the record submitted on
    appeal, we find no error or abuse of discretion by the circuit court. Our review of the record
    supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based
    on these alleged errors, which were also argued below. Indeed, the circuit court’s order includes
    well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given
    our conclusion that the circuit court’s order and the record before us reflect no clear error or
    abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions
    as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a
    copy of the circuit court’s June 22, 2016, “Order Denying The Petitioner’s Petition For Writ of
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    Habeas Corpus Ad Subjiciendum And Removing This Action From the Active Docket Of This
    Court” to this memorandum decision.
    For the foregoing reasons, we affirm.
    Affirmed.
    ISSUED: September 5, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    3