                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                    FILED

Larry C.,
                                                                            February 19, 2016
                                                                               RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 15-0197 (Fayette County 14-C-337)

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent.




                               MEMORANDUM DECISION
       Petitioner Larry C.,1 pro se, appeals the February 24, 2015, order of the Circuit Court of
Fayette County denying his petition for a writ of habeas corpus. Respondent, by counsel Laura
Young, filed a summary response.

        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 January 5, 2013, H.G.C., a thirteen-year-old girl, reported to her mother that
petitioner, who was the girl’s stepfather, sexually assaulted her. As a result of an investigation
into the matter, petitioner was charged with one count of sexual abuse by a parent, guardian,
custodian, or other person in a position of trust pursuant to West Virginia Code § 61-8D-5, three
counts of sexual assault in the second degree pursuant to West Virginia Code § 61-8B-4, and
four counts of sexual abuse in the first degree pursuant to West Virginia Code § 61-8B-7. On
May 24, 2013, petitioner entered into a plea agreement under which he pled guilty to one count
of sexual abuse by a parent, guardian, custodian, or other person in a position of trust in
exchange for the State’s dismissal of the remaining counts. After engaging in a colloquy with


       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
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petitioner, the circuit court accepted petitioner’s plea and convicted him of the offense to which
he pled guilty.

        At petitioner’s sentencing hearing on September 25, 2013, the circuit court explained to
petitioner his right to appeal its judgment to this Court and gave him written notice of the same.
The circuit court sentenced petitioner to ten to twenty years of incarceration and to twenty-five
years of supervised release. Following his sentencing, petitioner filed two motions for
reconsideration of sentence in which petitioner acknowledged his guilt and expressed his sorrow
for the impact that his conduct had upon the victim and her family. Petitioner’s motions were
denied.

        On December 10, 2014, petitioner filed a petition for a writ of habeas corpus raising a
single ground of relief, which was, as follows: “Petitioner believes that counsel should have filed
an appeal. Petitioner believes he has justifiable constitutional grounds for appeal, although he
realizes he has waived many of his constitutional rights by signing a plea agreement.” On the
same day, in his criminal case, petitioner filed a motion to be resentenced and to appoint counsel
for purposes of appeal. The circuit court never acted on petitioner’s motion, but denied his
habeas petition by an order entered on February 24, 2015. In its order, the circuit court
determined that trial counsel was not ineffective in not filing an appeal in petitioner’s criminal
case for reasons that will be discussed infra.

        Petitioner appeals the circuit court’s February 24, 2015, order denying his habeas
petition. We review a circuit court’s order denying a habeas petition pursuant to 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). In West
Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (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).

         On appeal, petitioner argues that a criminal defendant has a right to appeal his conviction.
Syl., State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). However, we find
that a critical allegation is missing both from petitioner’s appellate brief and his habeas petition.
Petitioner never alleges that he requested counsel to file an appeal. The lack of such an allegation
is fatal to petitioner’s single habeas claim for the reasons the circuit court set forth in its order:
(1) petitioner never contested his guilt and admitted to it in his post-plea motions; (2) counsel
negotiated a very favorable plea bargain on petitioner’s behalf because petitioner pled guilty to
one charge and obtained the benefit of having seven remaining charges dismissed, and because

                                                  2

“[petitioner] was potentially facing significantly more time than he ultimately faced by entering
the plea”; (3) the sentence that petitioner received was within the limits set forth in West Virginia
Code § 61-8D-5;2 and (4) ethical rules restrained counsel from filing a frivolous appeal. As we
concur with these findings, we conclude that the circuit court did not abuse its discretion in
denying habeas relief.

        Notwithstanding the fact that his habeas petition lacks merit, petitioner asks us to order
that he be resentenced and appointed counsel for purposes of appeal. Respondent counters that
those requests are not currently before us. “This Court will not pass on a nonjurisdictional
question which has not been decided by the trial court in the first instance.” Syl. Pt. 2, Sands v.
Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733, 734 (1958). We note that while petitioner
has filed a motion to be resentenced and appointed counsel for purposes of appeal in his criminal
case, the circuit court has not yet acted on it. Therefore, we decline to address the issues raised
by the motion.

        For the foregoing reasons, we affirm the circuit court’s February 24, 2015, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                          Affirmed.

ISSUED: February 19, 2016

CONCURRED IN BY:

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




       2
        See Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504, 505 (1982)
(“Sentences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.”).
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