State ex rel. Repass v. Hoke, No. 11-0663 Mercer County 10-C-254

CourtSupreme Court of West Virginia
Writing for the CourtMenis E. Ketchum
PartiesState of West Virginia ex rel. Roger Repass, Petitioner Below, Petitioner v. Adrian Hoke, Warden, Huttonsville Correctional Center, Respondent Below, Respondent
Decision Date09 March 2012
Docket NumberNo. 11-0663 Mercer County 10-C-254

State of West Virginia ex rel.
Roger Repass, Petitioner Below, Petitioner
v.
Adrian Hoke, Warden, Huttonsville
Correctional Center, Respondent Below, Respondent

No. 11-0663 Mercer County 10-C-254

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Dated: April 7, 2012
Dated: March 9, 2012


MEMORANDUM DECISION

Petitioner Roger Repass, by counsel, Joseph T. Harvey, appeals from the circuit court's order denying his petition for post-conviction habeas corpus relief. The State of West Virginia, by counsel, Laura Young, has filed its response on behalf of respondent, Adrian Hoke, Warden.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties' written briefs and the record on appeal, 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 Revised Rules of Appellate Procedure.

In February of 2004, petitioner was indicted on three counts of Delivery of Oxycontin, a Schedule II Control Substance containing Oxycodone, in violation of West Virginia Code §60A-4-401, and one count of Conspiracy in violation of West Virginia Code §61-10-31. On November 16, 2004, a hearing was held before the circuit court during which petitioner pled guilty to Count 3 of the Indictment, delivery of a Schedule II Controlled Substance, to wit, Oxycodone, pursuant to a plea agreement with the State. In return for petitioner's guilty plea, the State dismissed the other counts against petitioner in the Indictment.

On April 12, 2005, following a sentencing hearing, the circuit court entered an order first sentencing petitioner to one to fifteen years in prison for his conviction and then suspending that sentence and placing petitioner on five years of supervised probation. On August 9, 2005, a petition to revoke petitioner's probation was filed on the basis that petitioner had been arrested for grand larceny; had failed to report the arrest to his probation officer; and had failed to report to the probation department as directed. On August 22, 2005, following a hearing on that petition, the

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circuit court entered an order revoking petitioner's probation and reinstating his original sentence of one to fifteen years in prison.

Thereafter, petitioner challenged his conviction through a petition for a writ of habeas corpus in which he raised several issues, including whether his various court-appointed counsel were effective and whether his guilty plea was voluntary. On September 17, 2010, an omnibus evidentiary hearing was held before the circuit court on the petition for habeas relief. On April 7, 2011, the circuit court entered a fifty-five-page order denying habeas relief.

"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." Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

The Court has carefully considered the merits of each of petitioner's arguments as set forth in his petition for appeal, and it has reviewed the appendix record designated on appeal. Finding no error in the denial of habeas corpus relief, the Court affirms the decision of the circuit court and fully incorporates and adopts herein the lower court's detailed and well-reasoned "Order Denying the Petitioner's Petition for Writ of Habeas Corpus and Removing It from the Docket of this Court"entered on April 7, 2011. The Clerk of Court is directed to attach a copy of the same hereto.

Affirmed.

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Thomas E. McHugh

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STATE OF WEST VIRGINIA EX REL., ROGER REPASS Petitioner,

v.

ADRIAN HOKE, Warden, HUTTONSVILLE CORRECTIONAL CENTER. Respondent.

Civil Action No. 10-C-254

ORDER DENYING THE PETITIONER 'S PETITION FOR WRIT
OF HABEAS CORPUS AND REMOVING IT FROM THE DOCKET OP THIS COURT

On September 17, 2010, this matter came before the Court, the Honorable Judge Derek C. Swope presiding, for a hearing on the Petitioner's Petition for Post Conviction Habeas Corpus Relief, brought pursuant to the provisions of Chapter 53, Article 4 A, of the West Virginia Code, as amended, which was filed on his behalf by and through his court-appointed counsel, Joseph T. Harvey, Esq., on the Petitioner's Petition for Writ of Habeas Corpus Ad Subjiciendum and Memorandum in Support. The Petitioner and his counsel appeared. Scott Ash, Esq., Assistant Prosecuting Attorney for Mercer County, appeared on behalf of the State of West Virginia.

The Petitioner is seeking post-conviction habeas corpus relief from his indeterminate sentence of one (1) to fifteen (15) years for one count of unlawful and felonious delivery of Oxycodone to a cooperating individual. The Petitioner's sentence was suspended and he was

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placed on probation for a period of five (5) years. A Petition for Probation Revocation was filed on the Probation Department on August 9,2005, charging the Petitioner with violating his probationary contract. On August 22, 2005, the Court revoked and rescinded the Petitioner's probation and reimposed his sentence.

Whereupon, the Court, having retired and considered the Petitions, the State's response, the Court files, the transcripts, the arguments of counsel, and the pertinent legal authorities, does hereby deny the Petitioner's Petition for Habeas Corpus relief.

In support of the aforementioned denial, the Court makes the following General Findings of Fact and Conclusions of Law:

I. FACTUAL/PROCEDURAL HISTORY

Case No. 04-F-73: The Indictment/Counts Specific to Each Offense

A. The Indictment

By a True Bill returned in the February 2004 Term by the Mercer County Grand Jury, the Petitioner, Roger Repass, was indicted in four counts of a five (5) count Indictment for three offenses of Delivery of Oxycontin, a Schedule II Controlled Substance, containing oxycodone, and one count of Conspiracy. Roger Repass and Leslie Byrd allegedly delivered oxycontin to a confidential informant on or about July 31, 2002 and August 5,6, and 8,2002.

B. Counts Specific to Each Offense

Out of the four (4) count indictment, Counts 1, 2, 3,were for Delivery of Oxycontin, Schedule II Controlled Substance, containing Oxycodone and Count 5 was for Conspiracy. All counts in the indictment arise from events which allegedly occurred in July and August, 2002.

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C. Pre-Trial Proceedings

On May 8,2003, the Petitioner filed a Complaint for Writ of Prohibition in Civil Action Number 03-C-231, Roger Repass v, William J. Sadler. Prosecuting Attorney for Mercer County, and T.A, Bailev. Princeton Police Officer and David Rasnake v. William J. Sadler. Prosecuting Attorney for Mercer County, and T.A.Bailev. Princeton Police Officer, alleging that he was charged by a warrant in Magistrate Court, case number 03-F-100 and arraigned on February 19, 2003 on a charge of delivery of a controlled substance which allegedly occurred on July 31, 2002. The Petitioner demanded a preliminary hearing. Prior to that hearing, Janet Williamson, Esq., Assistant Prosecuting Attorney moved to dismiss the charge on the grounds that the "State will seek indictment", which was granted ex parte by Magistrate Jim Dent on April 8,2003. The Petitioner was not given notice of this motion. In his Writ of Prohibition, the Petitioner argued that he was entitled to a preliminary hearing as a matter of right (emphasis in original text) if a hearing can be held prior to the return of an indictment. See Peyott v. Kopp. 428 S.E.2d 535, 537 (W.Va. 1993).

On June 10, 2003, the Court dismissed the Complaint for Writ of Prohibition with prejudice. The Court further Ordered that it would allow reinstatement of these actions if a) either plaintiff is not presented for indictment by the October term of the Grand Jury; and/or b) the plaintiffs bonds previously posted are not reinstated if either are indicted by the October term of the Grand Jury.

On February 11, 2004, the Petitioner was indicted for three counts of Delivery of Oxycontin, a Schedule II Controlled Substance, To-Wit: Oxycodone and one count of Conspiracy. The Petitioner appeared with his counsel, Tom Czarnik, Esq., for his arraignment

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before the Honorable Derek C. Swope on February 17, 2004 where he pled not guilty. The Court placed the Petitioner on a $5,000.00 personal recognizance bond with general conditions. The Petitioner's trial was set for May 6, 2004.

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