Jack J. v. Pszczolkowski

• Decision Date: 08 June 2018
• Docket Number: No. 17-0014,17-0014
• Court: West Virginia Supreme Court
• Parties: Jack J., Petitioner Below, Petitioner v. Karen Pszczolkowski, Warden, Northern Correctional Facility, Respondent Below, Respondent

Jack J., Petitioner Below, Petitioner v. Karen Pszczolkowski, Warden, Northern Correctional Facility, Respondent Below, Respondent

No. 17-0014

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 8, 2018

(Ohio County 13-C-167)

MEMORANDUM DECISION

Petitioner Jack J., by counsel John M. Jurco, appeals two orders of the Circuit Court of Ohio County related to his petition for a writ of habeas corpus: (1) the October 7, 2016, order granting the motion to dismiss filed by Respondent Karen Pszczolkowski, Warden, Northern Correctional Facility, in response to petitioner's request for habeas relief, and (2) the December 8, 2016, order denying his "Notification of Remaining Claim and Request for Evidentiary Hearing." Respondent, by counsel Gordon L. Mowen, II, filed a response in support of the circuit court's orders.

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.

In January 2008, petitioner was indicted on six counts of sexual assault in the first degree, seven counts of sexual abuse by a custodian or parent, and conspiracy. These counts charged petitioner with a wide variety of acts of sexual misconduct against R.M., his girlfriend's daughter. The evidence at trial showed that petitioner began sexually abusing R.M. when she was three or four years old.¹ Though petitioner's first trial resulted in a mistrial, he was subsequently convicted of all counts charged in the indictment as a result of a second trial. He was sentenced to an aggregate term of incarceration of 161 to 355 years.

Petitioner appealed his convictions to this Court. This Court affirmed his convictions. See State v. Jack[ J.], 230 W. Va. 692, 742 S.E.2d 108 (2013).

Petitioner subsequently filed a pro se petition for habeas relief in the Circuit Court of Ohio County and, after the appointment of counsel, filed two amended petitions. Respondent filed a motion to dismiss the petition. By order entered on October 7, 2016, the circuit court granted respondent's motion to dismiss. Petitioner subsequently filed a "Notification of Remaining Claim and Request for Evidentiary Hearing," relating to his claims of ineffective assistance of counsel, cruel and unusual punishment, and juror bias. The circuit court denied the same by order entered on December 8, 2016. It is from the October 7, 2016, and December 8, 2016, orders that petitioner now appeals.

Our review of the circuit court's order denying petitioner's request for habeas relief is governed by 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).

In this appeal, petitioner raises the same arguments that he presented in the habeas proceeding before the circuit court. As he did below, petitioner argues that the trial court erred in denying numerous claims: (1) prejudicial pretrial publicity; (2) denial of the right to a speedy trial; (3) incompetency to be sentenced; (4) suppression of helpful evidence; (5) knowing use of perjured testimony; (6) erroneous information in pre-sentence investigation report; (7) ineffective assistance of counsel; (8) imposition of consecutive sentences for the same transaction, violation of the prohibition against double jeopardy, severer sentences than expected, and excessive sentences; (9) bail was excessive and then wrongfully denied; (10) denial of a preliminary hearing; (11) challenges to composition of Grand Jury, its procedures, and nondisclosure of Grand Jury minutes; (12) defective indictment; (13) pre-indictment delay; (14) refusal to turn over witness notes after the witness testified; (15) unconstitutionality of West Virginia's rape shield law and the State v. Quinn² falsity exception as applied to petitioner and denial of petitioner's motion for discovery regarding these issues; (16) prejudicial statements made by prosecutor and improper communications between prosecutor, witnesses, and jurors; (17) insufficiency of the evidence; (18) juror's failure to disclose the fact that she knew petitioner; (19) denial of petitioner's motion to interview the jury; and (20) denial of petitioner's request for an evidentiary omnibus hearing. Each of petitioner's claims were addressed at length in the circuit court's orders.

We find no error or abuse of discretion by the circuit court. Our review of the recordsupports the circuit court's decision to grant respondent's motion to dismiss and deny petitioner's requests for post-conviction habeas corpus relief, including the relief sought in his "Notification of Remaining Claim and Request for Evidentiary Hearing" based on these alleged errors, which were also argued below. Indeed, the circuit court's orders include well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court's orders 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 the assignments of error raised herein and direct the Clerk to attach a copy of the circuit court's October 7, 2016, and December 8, 2016, orders to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 8, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Allen H. Loughry II

Justice Elizabeth D. Walker

IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA

JACK J , Petitioner,

v.

GREG YAHNKY, Warden, Respondent.

CASE NO. 13-C-167

ORDER

Currently pending before the Court is Respondent's Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus³. Also pending is Petitioner's Motion to Interview the Jury. Petitioner's counsel has advised that both motions are ripe for decision. Consequently, the Court has reviewed the above-noted motions, the responses in opposition, the applicable law and the Court file. After having reviewed the aforementioned documents, the Court is satisfied that the decisional process would not be significantly aided by oral argument vis-à-vis either motion. Further, the Court notes that a hearing has not been requested with regard to Petitioner's Petition for Writ of Habeas Corpus. Notwithstanding, the Court is again satisfied that the decisional process would not be significantly aided by additional evidence or oral argument regarding thesame. As a result, the Court is prepared to issue its decisions.

I.FACTUAL/PROCEDURAL HISTORY

Petitioner was convicted of six (6) felony counts of sexual assault in the first degree; seven (7) felony counts of sexual abuse by a custodian; and one (1) felony count of conspiracy to commit sexual assault in the first degree. As a result of the above-noted convictions, Petitioner was sentenced to serve not less than 161 years and no more than 355 years in the state penitentiary.

Following his conviction, Petitioner filed an appeal which was accepted by the Supreme Court. On or about April 11, 2013 the Supreme Court issued an opinion denying Petitioner's appeal petition. A review of the Supreme Court's opinion reveals that the following arguments were addressed on appeal: (1) whether Petitioner's confrontation and due process rights were violated because he was not permitted to let the jury know that the complaining witness, R.M., made various statements that sexual misconduct had been perpetrated against her by individuals other than Petitioner⁴; (2) State's violation of Petitioner's right to discovery of exculpatory evidence by failing to provide the identity (Lori Glover) of the author of a September 14, 2009 report prepared by the WV DHHR; (3) error by the circuit court when it denied a motion for mistrial when the State's expert witness, Maureen Runyon, testified that, in her opinion, Petitioner had sexuallyabused R.M.; and (4) error regarding the denial of his post-trial motions concerning certain comments made by the State to the jury during closing arguments. The Supreme Court found these arguments to be without merit.

In his Petition for Writ of Habeas Corpus, Petitioner has asserted approximately twenty-three (23) assignments of error. Included in those assignments of error are the bases previously decided by the Supreme Court in its April 11, 2013 opinion. Petitioner includes a number of other bases in his Petition; however and for the sake of brevity, the Court will refrain from delineating each one of them here.⁵ Notwithstanding, the Court will now address Respondent's Motion to Dismiss.

II.APPLICABLE LAW

West Virginia Code § 53-4A-1 provides those persons convicted and incarcerated pursuant to said conviction the ability to file a Petition for Writ of Habeas Corpus if they believe that:

there was such a denial or infringement of [their] rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the

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