                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
Gerald S.,                                                                      March 16, 2015
Petitioner Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 14-0156 (Mercer County 12-C-655)

David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Gerald S., by counsel Paul R. Cassell, appeals the Circuit Court of Mercer
County’s January 24, 2014, order denying his petition for writ of habeas corpus.1 Respondent
David Ballard, Warden, by counsel Janet Williamson, filed a response. On appeal, petitioner
argues that the circuit court erred in denying habeas relief on the ground of ineffective assistance
of counsel due to counsel’s alleged failure to investigate the availability of witnesses, whether
the guilty plea was knowingly, intelligently, and voluntarily made, and whether the indictment
was sufficient.
        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 February 2008, a Mercer County Grand Jury indicted petitioner on one count of first-
degree sexual abuse pursuant to West Virginia Code § 61-8B-7, ten counts of first-degree sexual
assault pursuant to West Virginia Code § 61-8B-3, two counts of sexual abuse by a parent,
guardian, custodian, or person in position of trust pursuant to West Virginia Code § 61-8D-5, and
two counts of incest pursuant to West Virginia Code § 61-8-12. In April of 2009, a plea hearing
was held and petitioner pled guilty to one count of first-degree sexual abuse, one count of first-
degree sexual assault, and one count of sexual abuse by a parent, guardian, custodian, or person
in position of trust. The court took the plea under advisement until it received a pre-sentence
investigation report and a sex offender evaluation. After receiving the reports in July 2009, the
circuit court accepted the plea agreement and sentenced petitioner to incarceration in the
penitentiary for indeterminate terms of not less than one nor more than five years for first-degree

       1
         In keeping with the Court’s policy of protecting the identities of minors, the Court will
refer to petitioner by his last initial throughout the memorandum decision. See W.Va. App. P.
40(e)(1).
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sexual assault, not less than fifteen nor more than thirty-five years for first-degree sexual assault,
and not less than ten nor more than twenty years for sexual abuse by a parent. The circuit court
ordered that these sentences run consecutively, and that petitioner be given 197 days credit on his
sentence for the time served in jail, and that petitioner pay court costs and restitution. In October
of 2009, petitioner’s counsel made a motion for a reduction of sentence. The circuit court denied
the motion for sentence reduction by order on December 09, 2009.
        In November of 2012, petitioner filed a petition for habeas relief asserting the following
grounds: (1) ineffective assistance of counsel; (2) that the guilty plea was not knowingly,
intelligently, and voluntarily made; (3) trial counsel was ineffective with regard to petitioner’s
mental state; (4) petitioner’s state and federal constitutional rights were violated by his
disproportionate sentence. Petitioner further filed the Losh checklist, waiving several of the
grounds claimed in his Losh checklist. In February of 2013, petitioner filed a supplemental
petition for habeas relief, asserting as an additional ground that the indictment violated his
federal and state constitutional rights.
       In May of 2013, the circuit court held an omnibus evidentiary hearing. Following the
hearing, the circuit court entered an order denying the petition for writ of habeas corpus. This
appeal followed.
       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).

        On appeal, petitioner re-asserts the same claims that were rejected by the circuit court.
Petitioner re-asserts (1) ineffective assistance of counsel; (2) that the guilty plea was not
knowingly, intelligently, and voluntarily made; (3) trial counsel was ineffective with regard to
petitioner’s mental state; (4) petitioner’s state and federal constitutional rights were violated by
his disproportionate sentence. Petitioner did not re-assert any of the grounds or present any
evidence on the grounds claimed in the Losh checklist.
        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our
review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on the errors he assigns on appeal, which were also argued below.
Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to all of the
assignments of error raised herein. Given our conclusion that the circuit court’s order 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 and direct the Clerk to attach a copy of the circuit court’s
January 24, 2014, “Order Denying the Petitioner’s Petition for Writ of Habeas Corpus Ad
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Subjiciendum And Removing It From The Court’s Active Docket” to this memorandum
decision.

      For the foregoing reasons, we affirm.

                                                                      Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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