Banks v. Trent, 26499.

• Decision Date: 22 November 1999
• Docket Number: No. 26499.,26499.
• Citation: 206 W.Va. 255,523 S.E.2d 846
• Parties: Emmanuel BANKS, Plaintiff Below, Appellant, v. George TRENT, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

523 S.E.2d 846

206 W.Va. 255

Emmanuel BANKS, Plaintiff Below, Appellant, v. George TRENT, Defendant Below, Appellee.

No. 26499.

Supreme Court of Appeals of West Virginia.

Submitted November 3, 1999.

Decided November 22, 1999.

Wendelyn A. Campbell, Esquire, Assistant Public Defender, Gregory L. Ayers, Esquire, Deputy Public Defender, Charleston, West Virginia, Attorneys for the Appellant.

Darrell V. McGraw, Jr., Attorney General, David P. Cleek, Esquire, Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

PER CURIAM:

In this appeal, Emmanuel Banks, who is confined in the state penitentiary, claims that the Circuit Court of Ohio County erred in denying him habeas corpus relief without granting him a hearing to develop the evidence on his claims and without making appropriate findings of fact and conclusions of law. In his habeas corpus petition, the appellant had claimed that he had been denied effective assistance of counsel during his criminal trial and that the trial judge had made prejudicial comments to the jury.

I. FACTS

The documents filed in this case show that, after an extensive jury trial, the Circuit Court of Ohio County sentenced the appellant to 36 years in the state penitentiary for aggravated robbery, and to from one to ten years for unlawful assault. The two sentences were set to run consecutively. The appellant appealed his conviction to this Court, and on October 28, 1995, this Court refused to grant the appeal.

On November 17, 1997, the appellant filed a habeas corpus petition instituting the present proceeding in the Circuit Court of Ohio County. In the petition, the appellant claimed that he had not received effective assistance of counsel during his criminal trial and that the trial judge had made prejudicial comments to the jury. In addition to filing the petition, the appellant moved that the judge of the Circuit Court of Ohio County, who was scheduled to hear the habeas corpus petition, be recused. On May 11, 1998, this Court refused to grant the recusal motion.

Subsequently, on July 8, 1998, without conducting an evidentiary hearing, the judge of the Circuit Court of Ohio County summarily denied the appellant's habeas corpus claim. In the order denying habeas corpus relief, the judge stated:

It appearing to the Court that a cognizable claim has not been stated within the Petition, it is hereby

ORDERED that the Writ of Habeas Corpus be and the same is hereby denied.

In the present proceeding, the appellant claims that he should be allowed to develop the evidence on his habeas corpus claims and that the circuit court erred in failing to make appropriate findings of fact and conclusions of law.

II. DISCUSSION

The West Virginia act dealing with post-conviction habeas corpus relief, W. Va.Code 53-4A-1, et seq., details the procedures which should be followed by a court in handling a post-conviction habeas corpus matter. The act does not require that the judge considering the petition always grant a full hearing. Instead, it provides:

If the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or the record in the proceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall enter an order denying the relief sought.

W. Va.Code 53-4A-7(a).

The portion of the act dealing with resolution of the case does, however, contemplate that specific findings of fact and conclusions of law be made by the presiding judge. The statute specifically states:

(c) When the court determines to deny or grant relief, as the case may be, the court shall enter an appropriate order with respect to the conviction or sentence in the former criminal proceedings and such supplementary matters as are deemed necessary and proper to the findings in the case.... In any order entered in accordance with the provisions of this section, the court shall make specific findings of fact and conclusions of law relating to each contention or contentions and...