                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

Harry G.,

Petitioner Below, Petitioner

                                                                                 FILED
vs) No. 16-0945 (Lewis County 14-C-119)                                     September 5, 2017
                                                                               RORY L. PERRY II, CLERK
Patrick Mirandy, Warden,                                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
St. Marys Correctional Center,
Respondent Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Harry G., by counsel G. Phillip Davis, appeals the Circuit Court of Lewis
County’s September 6, 2016, order denying his petition for writ of habeas corpus.1 Respondent
Patrick Mirandy, Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal,
petitioner argues that the circuit court erred in denying his habeas petition on the grounds of
ineffective assistance of counsel and breached plea agreement.

        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 June of 2011, petitioner was indicted on one count of sexual abuse by a person in a
position of trust and seven counts of incest. Petitioner later entered into a plea agreement
whereby he agreed to plead guilty to four counts of incest in exchange for the State’s dismissal
of one count of incest and its agreement to not re-indict petitioner on the other counts, which had
been previously dismissed without prejudice. The State also agreed that it would not object to
petitioner’s request for home incarceration.

       On April 16, 2012, a sentencing hearing was held. During this hearing, the circuit court
asked the State whether it had anything to say, and the following exchange ensued:

                     MR. MORRIS [Prosecuting attorney]: I do, Your Honor,
               and have – pursuant to the plea agreement, I have some things I

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
                                                1

need to do. There are three victims that would like to address the
Court. Would you like them to go first or would you like me to –

           BY THE COURT: The victims are next.

       MR. MORRIS: Okay. Well, Your Honor, the State’s
recommendation is that Mr. Goldsmith be confined in the
penitentiary, that’s based on the recommendation of the Court’s
Probation Officer, the official statement of Corporal Clark and –

      BY THE COURT: Mr. Morris, didn’t you agree in the plea
agreement to recommend home confinement?

       MR. MORRIS: No, I did not, Your Honor, and the State
would recommend that any and all sentences pronounced –

           BY THE COURT: Well, that’s what I read.

           MS. WILLIAMS [Defense counsel]: Your Honor, I –

           MR. MORRIS: - by the Court run concurrently.

       MS. WILLIAMS: I believe the State has agreed not to
object to our motion to home confinement within the plea
agreement.

           BY THE COURT: I don’t want to get into anything here
that’s –

       MS. WILLIAMS: I believe that that would be paragraph
six, number eight.

       MR. MORRIS: I did not object to that motion for home
confinement, Your Honor. My recommendation – I have the plea
agreement right here.

        BY THE COURT: Well, wait just a minute, let’s just see
what it says here, just a second. Because maybe my recollection is
wrong. I’m not trying to embarrass you or anything, I’m just trying
to make sure we’re all right here.

       Well, it says, “The State will not object to Defendant’s
request for home confinement.”, [sic] that’s the exact words.

           MR. MORRIS: I’m not objecting.



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                      BY THE COURT: All right. And you will recommend
               concurrent sentences.

                       MR. MORRIS: I was just about to get to that, Your Honor.

                      BY THE COURT: All right. Well, okay, I see. “The state
               will not object to Defendant’s request for home confinement.”
               Okay. Proceed.

                      MR. MORRIS: Thank you, Your Honor. The State will
               recommend that any and all sentences pronounced by the Court run
               concurrently, and the State will move to nolle pross [sic] Count
               Eight of the indictment, with prejudice.

        The circuit court denied petitioner’s request for home incarceration, and it proceeded to
sentence petitioner. On one count, petitioner was sentenced to an indeterminate term of
incarceration of five to fifteen years. He was sentenced to an indeterminate term of imprisonment
of five to ten years on the remaining three counts. The first two counts on which petitioner was
sentenced were ordered to run consecutively to one another, and the remaining two counts were
ordered to run consecutively to the first count and concurrently to the second count on which
petitioner was sentenced. This resulted in an effective sentence of ten to twenty-five years of
incarceration.2

        On September 3, 2014, petitioner filed a pro se petition for writ of habeas corpus.
Counsel was appointed to represent him in his habeas proceeding, and petitioner filed a
“Supplemental Petition for Habeas Corpus.” In this filing, petitioner raised thirteen distinct
grounds for habeas corpus relief; on appeal to this court, however, petitioner only challenges the
circuit court’s ruling on two of the grounds raised: ineffective assistance of counsel and breached
plea agreement. Petitioner asserts that his counsel was ineffective because she pressured him into
accepting a plea agreement.3 Petitioner asserts that the State breached the parties’ plea agreement
by recommending incarceration at sentencing in spite of the agreement to not oppose petitioner’s
request for home incarceration.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

       2
         Although petitioner’s convictions were obtained pursuant to the statute criminalizing
incest, the dates of petitioner’s incestuous conduct differed, which resulted in different sentences
attaching to the convictions.
       3
         Petitioner also asserts generally that the circuit court erred in denying all of his grounds
for habeas corpus relief. However, he fails to address any of these grounds specifically, except
for ineffective assistance of counsel and breached plea agreement. Because petitioner’s broad
assertion of error in denying all of his claims fails to comport with West Virginia Rule of
Appellate Procedure 10(c)(7), which requires “argument exhibiting clearly the points of fact and
law presented, the standard of review applicable, and cit[ation to] the authorities relied on,” it
will not be considered on appeal.
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                       “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 the West Virginia courts, claims of ineffective assistance
               of counsel are to be governed by the two-pronged test established
               in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
               L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient
               under an objective standard of reasonableness; and (2) there is a
               reasonable probability that, but for counsel’s unprofessional errors,
               the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995).

       Petitioner first contends that his counsel instructed him to come to her office every day
for a week and “coerced” him into accepting the plea. Petitioner asserts that, if not for this
coercion, he would have taken his case to trial. During petitioner’s plea colloquy, however, he
was asked about the voluntariness of his plea:

                      Q [the court]: Is your plea of guilty voluntary?

                      A [petitioner]: Yes, sir.

                      Q: Is your plea of guilty of your own free will and accord?

                      A: Yes, sir.

                      Q: Is it your decision to plead guilty?

                      A: Yes, sir.

                     Q: Has anyone used any force, pressure or threats against
               you or anyone else to induce you to plead guilty in this case?

                      A: No, sir, that I know of.

Petitioner did not indicate that his guilty plea was the result of any coercion, and he also
indicated that he was happy with his representation and that there was nothing he wanted his
counsel to do that she failed to do.

                                                  4

        At petitioner’s omnibus hearing, despite testifying that he believed he was pressured into
entering the plea agreement, he testified that his counsel did not make any threats against him.
Petitioner also testified that his counsel made no promise that he would receive a certain
sentence if he entered into the plea agreement. Petitioner’s trial counsel testified to informing
petitioner that the decision of whether or not to accept the plea agreement rested entirely with
petitioner. Petitioner’s trial counsel further testified that petitioner agreed to the plea agreement,
changed his mind about entering a plea, and then returned to her office, unprompted, to inform
counsel that he did, in fact, wish to enter into the plea agreement. The circuit court, therefore,
concluded that petitioner’s plea was voluntary, that he understood his plea agreement, and that he
had expressed his satisfaction with his counsel’s representation. The circuit court’s findings on
this ground were not clearly erroneous.

       Petitioner also asserts that the State breached the parties’ plea agreement by initially
recommending incarceration when it agreed not to oppose petitioner’s request for home
incarceration.

                        Cases involving plea agreements allegedly breached by
               either the prosecution or the circuit court present two separate
               issues for appellate consideration: one factual and the other legal.
               First, the factual findings that undergird a circuit court’s ultimate
               determination are reviewed only for clear error. These are the
               factual questions as to what the terms of the agreement were and
               what was the conduct of the defendant, prosecution, and the circuit
               court. If disputed, the factual questions are to be resolved initially
               by the circuit court, and these factual determinations are reviewed
               under the clearly erroneous standard. Second, in contrast, the
               circuit court’s articulation and application of legal principles is
               scrutinized under a less deferential standard. It is a legal question
               whether specific conduct complained about breached the plea
               agreement. Therefore, whether the disputed conduct constitutes a
               breach is a question of law that is reviewed de novo.

Syl. Pt. 1, State v. Wilson, 237 W.Va. 288, 288, 787 S.E.2d 559, 560 (2016) (internal quotations
and citations omitted).

        As set forth above, the State did initially recommend incarceration. Following inquiry by
the circuit court and direction to the relevant paragraph of the plea agreement by counsel for
petitioner, the State clarified its position and asserted that it did not object to home incarceration
for petitioner. The circuit court was knowledgeable about the plea agreement’s terms. This
factual scenario is markedly different from the cases in which we have found a plea agreement to
have been breached. For instance, in State v. Martin, 225 W.Va. 408, 411, 693 S.E.2d 482, 485
(2010), the State recommended that probation be denied in spite of a provision in the plea
agreement requiring the State to recommend probation. Id. at 411, 693 S.E.2d at 485. The
defendant’s attorney failed to object to the State’s recommendation that probation be denied. Id.
The circuit court proceeded to deny the defendant’s motion for probation or an alternative

                                                  5

sentence and sentenced him to incarceration in the state penitentiary. Id. On appeal, this Court
concluded that the State’s violation of the plea agreement was plain error. Id. at 415, 693 S.E.2d
at 489.

        In State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998), contrary to the terms of the
plea agreement, the State argued at sentencing that the defendant should be sentenced to life
imprisonment without the possibility of parole and that the crime defendant agreed to plead
guilty to was committed with the use of a firearm. Id. at 455, 513 S.E.2d at 682. The defendant
was sentenced to life in prison without the possibility of parole. Id. Thus, we again found that
plain error resulted from the State’s violation of the plea agreement. Id. at 464, 513 S.E.2d at
691.

        In the instant matter, both the circuit court and defense counsel took issue with the State’s
recommendation of confinement to the penitentiary as being contrary to the plea agreement. The
plea agreement was reviewed on the record, and the State ultimately upheld its end of the bargain
and did not object to home incarceration for petitioner. In short, to the extent any breach
occurred, it was quickly remedied on the record, and the State’s initial recommendation did not
factor into the circuit court’s sentencing decision. Although the circuit court denied petitioner’s
request for home incarceration, it did so because “the investigating officer does not recommend
any kind of home confinement or alternative sentencing, the Probation Officer does not
recommend any kind of alternative sentence or home confinement or probation and the Court
believes that that would all be inappropriate in a case such as this.”

        Moreover, we conclude that “there is ‘no reasonable possibility that the [alleged]
violation contributed to the [sentence imposed by the court.]” Wilson, 237 W.Va. at 294, 787
S.E.2d at 565 (citing syl. pt. 2, in part, State v. Frazier, 229 W.Va. 724, 725, 735 S.E.2d 727, 728
(2012) (“Errors involving deprivation of constitutional rights will be regarded as harmless only if
there is no reasonable possibility that the violation contributed to the conviction.”). The circuit
court was well aware of the terms of the parties’ agreement and corrected the State’s initial
recommendation of incarceration. Plus, the circuit court disregarded the State’s sentencing
recommendation, at least in part, by ordering certain of petitioner’s sentences to run
consecutively when the State recommended concurrent sentences. Finally, the basis of the circuit
court’s denial of petitioner’s request for home incarceration was the findings in the presentence
investigation report.

       For the foregoing reasons, we affirm.
                                                                                          Affirmed.
ISSUED: September 5, 2017

CONCURRED IN BY:

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

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