Frank A. v. Ames, No. 20-0024

CourtSupreme Court of West Virginia
Writing for the CourtWOOTON, Justice
Citation866 S.E.2d 210
Parties FRANK A., Petitioner Below, Petitioner v. Donnie AMES, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
Docket NumberNo. 20-0024
Decision Date19 November 2021

866 S.E.2d 210

FRANK A., Petitioner Below, Petitioner
v.
Donnie AMES, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 20-0024

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2021
Filed: November 19, 2021


Matthew D. Brummond, Esq., Public Defender Services, Appellate Advocacy Division, Charleston, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, William E. Longwell, Esq., Assistant Attorney General, Holly M. Flanigan, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

WOOTON, Justice:

866 S.E.2d 220

The petitioner, Frank A. ("the petitioner"), appeals from the judgment of the Circuit Court of Harrison County, West Virginia, which denied habeas corpus relief from the petitioner's 2013 conviction on four counts of first-degree sexual abuse and related offenses against his daughter, A.A.1 The underlying proceedings were commenced on February 22, 2016, with the filing of a 200-page pro se petition for a writ of habeas corpus, then came to a virtual standstill for more than two years as the petitioner refused to cooperate with a succession of appointed counsel and ultimately forbade the filing of an amended petition on his behalf until certain of his demands were met.2 Ultimately, the circuit court ordered counsel to file an amended petition, over the petitioner's objection and without his approval, raising all issues that counsel deemed to be viable. At the same time, the court held that no Losh3 grounds would be deemed waived by counsel's failure to raise them in the amended petition, and granted the petitioner leave to argue and provide evidentiary support for any such issues on his own behalf. The court then set an omnibus hearing at which both

866 S.E.2d 221

the petitioner and counsel were to argue their respective issues and present any relevant evidence in support of such issues.

At the omnibus hearing, neither the petitioner nor counsel presented any witnesses or offered any evidence to supplement the court file in the underlying criminal case and the court file in a related 2004 criminal case. See text infra. Thereafter, by order entered on December 20, 2019, the court entered a thirty-four-page order denying relief on all grounds. This appeal followed.

I. FACTS AND PROCEDURAL BACKGROUND

In order to understand many of the petitioner's arguments, it is necessary to review the historical antecedents of this case. The petitioner and his then-wife, Juanita W., had four children: two sons, J.A. and S.A., and two daughters, A.A. and C.A.4 On or about August 3, 2003, A.A. disclosed that the petitioner had sexually abused her on multiple occasions, leading to his arrest on or about August 10, 2003, and his indictment on January 6, 2004. All acts of abuse set forth in the 2004 indictment were alleged to have occurred between February and March, 2002. While the case was pending, A.A. recanted her allegations, and the indictment was ultimately dismissed on the State's motion, without prejudice.5 The petitioner alleges that A.A. recanted because she had made the allegations in order to please her mother and her mother's boyfriend (later her stepfather), despite the fact that the petitioner was innocent of any wrongdoing. At the petitioner's trial in 2013, however, A.A. testified that she had recanted the 2002 allegations because "I just didn't want to face him." In this regard, although the petitioner called Terry Walker of the West Virginia Department of Health and Human Resources ("DHHR"), Child Protective Services ("CPS"), as a witness at trial to hammer home the fact of the recantation – a ploy which was not very successful, as Ms. Walker was aware of the recantation but had not been present when it happened – Ms. Walker testified on cross-examination that in her experience, children recant for very different reasons and that a recantation does not mean the sexual assault or abuse never occurred.

According to A.A.’s undisputed testimony, by 2004 Juanita W. was living with her long-term boyfriend, Paul W., and all of the children were living with the pair. During this time frame Juanita W. filed a petition for divorce from the petitioner, which she subsequently dismissed for reasons not relevant to this case. Thereafter, in 2005, the petitioner filed a petition for divorce. This case became a prolonged custody battle which went on for years, finally concluding in 2008. Significantly, during the pendency of the divorce proceedings Juanita W. alleged that the petitioner had sexually assaulted or abused his son J.A. and his daughter C.A. Both children were interviewed twice in February, 2005, at a Child Advocacy Center ("CAC") in Braxton County. In the initial interviews, neither child disclosed any sexual abuse. During the second interviews, which were performed by a law enforcement officer, the children did disclose sexual abuse; however, both indicated that their mother and Paul W. had coached them in what to say. These interviews were taped, and the videos were made part of the record in the divorce/custody proceeding.

Several aspects of these taped interviews are critical to the petitioner's claims in this proceeding. First, the petitioner alleges that the videos were not turned over to him as discovery in the 2013 criminal proceedings, despite specific discovery requests by him that would have encompassed this evidence. Second, the petitioner claims that the videos were exculpatory and/or favorable, in that

866 S.E.2d 222

evidence showing J.A. and C.A. were coerced and coached by Juanita W. and Paul W. in 2005 would bolster the petitioner's trial defense that A.A. had been similarly coerced and coached in 2003 and then again a decade later. Third, the petitioner claims that the videos were significant impeachment evidence to rebut A.A.’s claim that she had recanted because "I just didn't want to face him." Fourth, the petitioner claims that the videos were significant to his claim of newly discovered evidence, see text infra , specifically, that Paul W. was found guilty in 2014 of sexually abusing another one of the children. Petitioner posits that for many years Paul W. had coached all of the children, including A.A., to accuse the petitioner of sexual abuse, all in order to deflect blame from himself.

In or about May, 2010, Juanita W. filed an incorrigibility petition alleging that her son J.A., then thirteen years old, was beyond her parental control. Attorney Heidi Sturm was appointed to represent J.A., who expressed concern to his counsel that whatever the outcome of the incorrigibility proceedings, he did not want to go home because "he was afraid he [would] do something to his sister."6 On February 14, 2012, Detective David Wygal, then a member of the Clarksburg Police Department, was contacted by Juanita W., who had been asked by J.A. to notify the police of his allegations that the petitioner had sexually assaulted and abused him on numerous occasions. During the course of his investigation, Detective Wygal learned of the earlier allegations concerning A.A. and expanded the scope of his investigation to include her as well. Thereafter, on May 7, 2013, the petitioner was indicted on two counts of first-degree sexual assault and two counts of sexual abuse by a parent, guardian, or custodian against a minor child, his son J.A.; two counts of second-degree sexual assault and two counts of sexual abuse by a parent, guardian, or custodian against a minor child, his son S.A.; and two counts of first-degree sexual abuse7 and two counts of sexual abuse by a parent, guardian, or custodian8 against a minor child, his daughter, A.A. All offenses set forth in the indictment were alleged to have occurred between January ___, 2003 and December ___, 2004.

On December 9, 2013, the case proceeded to trial. At trial, the State called five witnesses and the defense called three, including the petitioner – who testified on his own behalf at length, largely untethered to the questions propounded on either direct or cross-examination.9 A.A. testified to several incidents in which the petitioner had sexually abused her. She testified that when she was thirteen,10 "I'd be asleep in a room and he would come in and grab me by my hair and pull me through a hallway into the kitchen to a laundry room and then he'd start fondling me[,]" putting his hand underneath her clothing and touching her "crotch" and "boobs." This happened when the family was living in a trailer in Enterprise, West Virginia. She finally disclosed the abuse to her mother, Juanita W., when she was fifteen, following another incident in the trailer when the petitioner "came up to me and spread my legs apart and told them11 [inaudible] ass." See text infra. After this disclosure, there was no more abuse.

Detective Wygal testified that his investigation began on February 14, 2012, when Juanita W. approached him at the request of J.A. As noted previously, upon learning of the earlier accusations made by A.A. against the petitioner, Detective Wygal broadened his investigation to include not only J.A. but also A.A. and ultimately S.A, as well. Significantly, for purposes of this appeal, Detective Wygal testified that petitioner and his family were living in Maple View Apartments in

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