Kevin E. E. v. Seifert

• Decision Date: 01 October 2013
• Docket Number: No. 12-1285,12-1285
• Parties: Kevin E. E., Petitioner, Petitioner v. Evelyn Seifert, Warden, Northern Correctional Facility, Respondent, Respondent
• Court: West Virginia Supreme Court

Kevin E. E., Petitioner, Petitioner v. Evelyn Seifert, Warden,Northern Correctional Facility, Respondent, Respondent

No. 12-1285

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

FILED: October 18, 2012

ENTERED: September 18, 2012

ISSUED: October 1, 2013

(Hampshire County 10-C-15)

MEMORANDUM DECISION

Petitioner Kevin E. E.'s¹ appeal, filed by counsel Brain Vance, arises from the Circuit Court of Hampshire County, wherein petitioner's amended petition for writ of habeas corpus was denied by order entered on October 18, 2012. Respondent Warden Evelyn Seifert,² by counsel Marland Turner, filed a summary response in support of the circuit court's decision. On appeal, petitioner alleges that the circuit court erred in denying his amended petition for writ of habeas corpus because he received ineffective assistance of counsel, his confession was coerced, and he did not knowingly and voluntarily enter into an Alford plea.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

On September 7, 2004, petitioner was indicted on six counts of sexual abuse by a parent, one count of first degree sexual assault, and five counts of first degree sexual abuse against his six-year-old daughter. Following petitioner's Alford³ plea to one count of sexual abuse by a parent and five counts of first degree sexual abuse, the circuit court sentenced petitioner to a term of incarceration of ten to twenty years for sexual abuse by a parent and one to five years for eachof the five counts of first degree sexual abuse. Petitioner's sentences were ordered to run consecutively, which resulted in a cumulative term of incarceration of fifteen to forty-five years. Petitioner filed his pro se petition for writ of habeas corpus in the circuit court on February 5, 2010. After being appointed counsel, petitioner filed his amended petition for writ of habeas corpus on June 23, 2011, alleging eight counts of ineffective assistance of counsel and twenty-two individual grounds for relief. Without holding an evidentiary hearing, the circuit court entered its order denying petitioner habeas corpus relief. This appeal followed.

On appeal, petitioner reasserts assignments of error that he raised in circuit court. Petitioner argues that the circuit court erred in denying his petition for writ of habeas corpus because (1) he received ineffective assistance of counsel, (2) his confession was coerced, and (3) he did not knowingly and voluntarily enter into an Alford plea. Respondent argues that that petitioner's brief fails to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure in that it is devoid of any specific citations to the appendix. Respondent argues that petitioner's counsel was not ineffective and that petitioner failed to prove that there was a reasonable probability that, but-for counsel's alleged errors, he would not have pleaded guilty. Additionally, respondent argues that the circuit court conducted a proper colloquy with petitioner pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), prior to accepting petitioner's Alford plea. Finally, respondent argues that a review of the record fails to show that a State agent coerced petitioner into making a confession and the circuit court excluded any portion of petitioner's statement that was made prior to the reading of his Miranda⁴ rights.

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).

Based on our review of the record, we find no error in the circuit court's decision to deny petitioner's habeas corpus relief. The circuit court's order reflects its thorough findings of fact and conclusions of law concerning petitioner's arguments, the same arguments petitioner now raises on appeal. The record on appeal reveals no support for any of petitioner's assignments of error. Having reviewed the circuit court's "Order Denying Petitioner's Petition for Writ Of Habeas Corpus" entered on October 18, 2012, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in thisappeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.⁵

For the foregoing reasons, we affirm.

Affirmed.

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II

IN THE CIRCUIT COURT OF HAMPSHIRE COUNTY, WEST VIRGINIA

KEVIN E.E Petitioner,

v.

DAVID BALLARD, WARDEN,

Mt. Olive Correctional Center, Respondent

Case No. 10-C-15

Honorable Donald H. Cookman

ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

This matter came before the Court upon Petitioner's Petition for Writ of Habeas Corpus filed February 5, 2010; upon an Order Granting Leave to Proceed in Forma Pauperis, Appointing Counsel to File Amended Petition, and Directing Respondent to File an Answer entered February 17, 2010; upon an Agreed Order entered March 5, 2010, granting Petitioner and Respondent additional time to file an Amended Petition and Answer, respectively; upon a Checklist of Grounds Asserted or Waived in Post-Conviction Habeas Corpus Proceeding ("Losh List") filed on April 14, 2010; upon Agreed Orders entered June 11, 2010, August 30, 2010, January 19, 2011, February 11, 2011, and April 21, 2011, granting Petitioner and Respondent additional time to file an Amended Petition and Answer, respectively; upon an-Amended Petition fded by Royce B. Saville, counsel for Petitioner, on June 23, 2011; upon a Checklist of Grounds Asserted or Waived in Post-Conviction Habeas Corpus Proceeding ("Losh List") filed on June 23, 2011; upon an Order entered August 16, 2011, granting Respondent additional time to file an Answer; upon a Motion for Ruling on Petition for Writ of Habeas Corpus, or, In the Alternative, Setting This Matter for an Evidentiary Hearing filed by Petitioner on February 6, 2012; upon an Order Directing Respondent to File Answer entered May 9, 2012; upon an Order entered June 1, 2012,granting Respondent additional time to file an Answer; and upon Respondent's Response to Amended Petition for Writ of Habeas Corpus filed June 4, 2012.

FINDINGS OF FACT

1. Petitioner was indicted on September 7, 2004, and charged with (Counts One, Two, Three, Four, Five, and Six) Sexual Abuse by a Parent in violation of West Virginia Code § 61-8D-5(a); (Count Seven) Sexual Assault in the First Degree in violation of West Virginia Code 61-8B-3(a)(2); and (Counts Eight, Nine, Ten, Eleven, and Twelve) Sexual Abuse in the First Degree in violation of West Virginia Code § 61-8B-7(a)(3). Petitioner's initial defense counsel was Christopher A. Davis. (Ord. July 30, 2004.) The trial court granted Mr. Davis' Motion to Withdraw and appointed Karen L. Garrett to represent Petitioner. (Ord. Jan. 5, 2005.)

2. On January 19, 2005, Dr. Thomas C. Stein conducted a forensic psychological examination on Petitioner. (Rep. Jan. 28, 2005.) On January 28, 2005, the trial court conducted a competency hearing and found Petitioner, "competent to stand trial, that [Petitioner] was criminally responsible at the time of the alleged offenses, and was competent to waive his Miranda rights at the time that he made a written statement to the state police..." (Ord. Feb. 7, 2005.) On the same date, the trial court also conducted a suppression hearing during which Petitioner testified. The trial court ordered that Petitioner's written statement would be "admissible in the State's case in chief at trial, but that the State would be limited to using only the 'Q's' and 'A's' as they appear in the written statement, and that the officer would not be permitted to testify as to any other inculpatory statements which were not so recorded in writing at that time." (Id.)

3. On February 4, 2005, the Petitioner entered into a written plea agreement whereby he entered an Alford plea to the First Count of the Indictment, Sexual Abuse by a Parent, and toCounts Eight, Nine, Ten, Eleven, and Twelve of the Indictment, Sexual Abuse in the First Degree. The State agreed to move to dismiss the remaining counts of the Indictment.

4. On July 7, 2005, Petitioner was sentenced as follows: An indeterminate term of not less than ten nor more than twenty years in the penitentiary for Count One and an indeterminate term of not less than one nor more than five years in the penitentiary for Counts Eight through Twelve. The sentences were ordered to run consecutively, with an effective date of July 7, 2005, with credit given for 344 days of confinement. (Ord. July 11, 2005.)

5. The trial court appointed Mrs. Garrett to represent Petitioner for his appeal. (Ord. July 21, 2005.) On February 16, 2006, the Supreme Court of Appeals of West Virginia ("Supreme Court") refused the petition for appeal. (Feb. 24, 2006.)

6. On May 25, 2006, Dr. Christie Cooper-Lehki conducted a forensic psychiatry evaluation: sex offender risk assessment on Petitioner. (Rep. July 17, 2006.) On or about December 22, 2007, Dr. Paul F. Kradel conducted a...