Southern v. Ballard, 14-0356
| Decision Date | 21 November 2014 |
| Docket Number | No. 14-0356,14-0356 |
| Court | West Virginia Supreme Court |
| Parties | Clarence S., Petitioner Below, Petitioner v. David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent |
Petitioner Clarence S.,1 appearing pro se, appeals the order of the Circuit Court of Fayette County, entered March 4, 2014, that summarily denied his petition for writ of habeas corpus. Respondent warden, by counsel Laura Young, filed a response, and petitioner filed a reply.
The 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.
On May 8, 2007, petitioner was indicted on five counts of sexual assault in the second degree in violation of West Virginia Code § 61-8B-4, and five counts of sexual abuse by a parent, guardian, or custodian in violation of West Virginia Code § 61-8D-5. The charges concerned K.W., the twelve-year-old daughter of petitioner's girlfriend. At a November 2, 2007, plea hearing, petitioner admitted that he was K.W.'s custodian at the time of his offenses. Petitioner entered a guilty plea to three counts of sexual abuse by a parent, guardian, or custodian. In exchange, the State dismissed the remaining counts of the indictment. In offering his plea to the circuit court, petitioner admitted that he had engaged in sexual relations with K.W. by (1) performing oral sex on K.W.; (2) having K.W. perform oral sex on him; and (3) engaging in vaginal intercourse with K.W. Petitioner testified that, although he understood that K.W. was not old enough to consent to the acts, he did not forcibly compel her to participate in them. Petitioner also indicated that he was satisfied with the performance of his trial counsel. Petitioner did not object when counsel informed the circuit court that counsel had received the State's discovery and had discussed it with petitioner.
On December 19, 2007, the circuit court sentenced petitioner to three consecutive terms of ten to twenty years in prison. The circuit court noted that, while petitioner expressed remorse at his plea hearing and his intake interview with his probation officer, he stated to the evaluator at his psychological evaluation that the charges against him were false and that K.W.'s mother had made up the story. Also, the evaluator felt that petitioner deliberately attempted to deceive the evaluator by withholding or distorting information. (Petitioner failed to disclose that he was living with a brother, who was a registered sex offender.) The circuit court noted that the final recommendation of the evaluation was that petitioner's behavior led to a very poor prognosis for change or for treatment to be effective in any meaningful way. Accordingly, the circuit court denied petitioner's motion to be placed on probation in lieu of his prison sentences, finding that it was not a viable option under the circumstances.
In his direct appeal of his conviction to this Court, petitioner argued that his three consecutive prison terms were unconstitutionally disproportionate to the severity of his offenses. On June 22, 2010, this Court refused petitioner's appeal.
On December 2, 2013, petitioner filed a petition for writ of habeas corpus raising the following issues: (1) counsel provided ineffective assistance because counsel (a) failed to adequately investigate petitioner's case, and (b) gave erroneous advice as to whether petitioner should accept a plea agreement; (2) medical records that were part of the State's discovery constituted "newly discovered evidence" because, contrary to what was stated at the plea hearing, counsel did not discuss these records with petitioner;2 (3) K.W. was improperly coached by her mother; (4) the circuit court erred in giving petitioner a harsher sentence merely because his brother was a registered sex offender; and (5) the indictment contained illegal counts because petitioner was not K.W.'s custodian at the time of the offenses. On March 4, 2014, the circuit court summarily denied habeas relief in a comprehensive forty-four page order that refuted every issue petitioner raised in the petition. In denying relief, the circuit court specifically found that the petition, as filed, "and the record in this matter, are sufficient for the Court to conduct a fair and thorough adjudication of the matters raised without an evidentiary hearing and without the appointment of counsel[.]"
Petitioner now appeals the circuit court's March 4, 2014, order that summarily denied his habeas petition. We review such an order petition under the following standard:
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
On appeal, petitioner asserts that, without an evidentiary hearing and appointment of counsel, the circuit court was not capable of adequately adjudicating his petition because he raised the following issues: (1) ineffective assistance of counsel; (2) "newly discovered evidence" in the form of medical records that, according to petitioner, he did not learn about until after his guilty pleas; (3) the coaching of K.W. by her mother; (4) the impermissible factor that, according to petitioner, the circuit court utilized during petitioner's sentencing;3 and (5) the illegality of the indictment counts because petitioner was not K.W.'s custodian at the time of the offenses. Respondent warden counters that, pursuant to Syllabus Point 1 of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), "[a] court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief." We agree and conclude that the circuit court did not abuse its discretion in summarily denying the petition.
Having reviewed the circuit court's "Order Summarily Denying and Dismissing Petition," entered March 4, 2014, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.4
For the foregoing reasons, we affirm.
v.
This matter is before the Court on a Petition for Writ of Habeas Corpus Ad Subjiciendum filed by Petitioner, Clarence pro se, on December 2, 2013. The Court has carefully reviewed the relevant portions of the record, the filings in this matter, and the relevant legal authority. Based upon the following findings of fact and conclusions of law, the Court is of the opinion that the Petitioner is entitled to no relief and the Petition for Writ of Habeas Corpus Ad Subjiciendum should be, and hereby is, SUMMARILY DENIED and DISMISSED. Pursuant to Section 53-4A-7(c) of the West Virginia Code and Rule 9(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings, the Court enters this comprehensive order summarily dismissing the matter and removing it from the Court's active docket.
On December 10, 2006, Trooper K.D. Horrocks responded to Plateau Medical Center on a reported sexual assault to a twelve (12) year old juvenile. Upon arrival the trooper spoke to the victim's mother who advised that her (12) year old daughter, had disclosed to her that Clarence forty-two year old boyfriend, hadsexually assaulted her. A sex crime kit was completed and an investigation into the allegation was conducted.
On May 8, 2007, a Fayette County Grand Jury returned an indictment charging Petitioner with five (5) counts of sexual assault in the second degree and five (5) counts of sexual abuse-by a parent, guardian, or custodian. Trial was scheduled to begin on August 14, 2007. On August 8, 2007, based upon good cause and the agreement of the parties, a Continuance Order was entered continuing the matter to November 2, 2007, to permit the completion of DNA forensic analysis and comparison on semen that was discovered in the sex crime kit that was conducted on the victim. On October 17, 2007, a copy of the West Virginia State Police Forensic Lab report dated October 16, 2007, was provided to the Petitioner.
On November 2, 2007, the Petitioner, entered into a plea agreement with the State, wherein the Petitioner pled guilty to three (3) counts of sexual abuse by a parent, guardian, or custodian and the remaining seven (7) charges were dismissed pursuant to the plea. After the Court conducted an extensive Rule 11 colloquy and the Petitioner provided a factual foundation for the guilty plea, the Court accepted and entered the plea. The Court ordered that a pre-sentence investigation and sex offender evaluation be completed prior to sentencing in...
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