                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Ferris M.,
Petitioner Below, Petitioner                                                       FILED
                                                                                 November 12, 2013
                                                                              RORY L. PERRY II, CLERK
vs) No. 13-0224 (Kanawha County 13-MISC-21)                                 SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

       Petitioner Ferris M.,1 appearing pro se, appeals the order of the Circuit Court of Kanawha
County, entered February 11, 2013, that dismissed without prejudice his petition for writ of habeas
corpus. Respondent Warden, by counsel Laura Young, filed a summary response. 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         In 2009, petitioner was charged by an information on three counts: (1) third degree sexual
assault; (2) sexual abuse by a parent, guardian, or custodian; and (3) nighttime burglary. The first
two counts related to an incident occurring in 2005,2 while the nighttime burglary charge arose out
of an incident occurring in 2009. Petitioner waived his right to be indicted.

       Petitioner also entered into a plea agreement with the State. The plea agreement provided
that petitioner would plead guilty to all three charges and that the State would recommend
incarceration, but also stand silent as to whether petitioner’s sentences should be run consecutively
or concurrently. The plea agreement allowed petitioner to enter his guilty pleas pursuant to

Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987), and stated that the State would provide
the factual basis for petitioner’s pleas.

       1
         Because of sensitive facts, we protect the identities of those involved. See State ex rel.
West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182
n.1 (1987).
       2
         According to petitioner, the charges out of the 2005 incident were originally dismissed
without prejudice in 2007.
                                                 1
       The parties appeared for a plea hearing on November 19, 2009. The circuit court asked
each of the parties how the plea agreement served their interests. The State indicated the plea
agreement served its interests because, inter alia, “[petitioner] is entering into a Plea Agreement
which causes him pretty significant [prison] time, up to [twelve] to [forty] years.” Petitioner’s
counsel stated that the plea agreement was clearly in petitioner’s interests because he was facing
the possibility of being indicted on thirty-seven counts.

        Thereafter, the circuit court entered into a plea colloquy with petitioner. The circuit court
inquired into petitioner’s educational background and whether he had any difficulty with reading
and writing. Petitioner indicated that he had no such difficulties. The circuit court also asked if
petitioner was under a doctor’s care. Petitioner responded that he was not, but that he suffered from
bouts of epilepsy. The circuit court queried whether petitioner took any medication for the
condition or had ever seen a physician for it. Petitioner answered, “No, sir.” Petitioner stated that
he was acting of his own free will at the plea hearing. Petitioner subsequently answered “no, sir” to
the question regarding whether he had been threatened or promised anything in exchange for his
guilty pleas. The circuit court confirmed whether “you are acting voluntarily?” Petitioner
responded, “Yes, sir.” Petitioner also indicated that he understood the consequences of his pleas.

        The circuit court inquired of petitioner’s counsel whether counsel had discussed with
petitioner the rights he would be surrendering by pleading guilty. Petitioner’s counsel answered
affirmatively and described the rights he had discussed with petitioner. The circuit court then
reviewed with petitioner those rights he would waive by pleading guilty. The circuit court next
inquired of petitioner whether he was happy with his counsel and whether he was satisfied with
counsel’s representation. Petitioner answered “yes, sir” to both questions. The circuit court
specifically discussed petitioner’s right to have any statements improperly obtained by the police
suppressed. Petitioner indicated that he understood. The circuit court found that petitioner was
acting voluntarily and intelligently, and asked petitioner whether he was willing to relinquish his
rights. Petitioner stated, “Yes, sir.” The circuit court inquired whether petitioner was prepared to
enter his guilty pleas. Petitioner responded affirmatively. Petitioner then pled guilty to the three
counts of the information.

        The circuit court then queried the State for the factual basis for petitioner’s pleas. As to the
first two counts, the State indicated that on June 14, 2005, petitioner was found in the company of
a fourteen-year-old female and that during an interview, “[petitioner] confessed to having sexual
intercourse with her that day . . . and being a parent, guardian, or custodian, or person entrusted
with her care on that day.”3 Count Three, the nighttime burglary charge, was based on petitioner’s
breaking and entering, in the summer of 2009, into “the home of his ex-wife . . ., during the
nighttime, with the intent to commit a crime therein.” The circuit court found that the State would

have been able to satisfy its burden of proving all the charges against petitioner. Accordingly, the
circuit court accepted petitioner’s pleas.

       3
           At the time of the 2005 offenses, petitioner was either twenty-five or twenty-six years
old.
                                                   2
        On November 18, 2009, the circuit court entered an order that adjudged petitioner guilty of
all three counts. The circuit court’s order specifically noted that petitioner “waive[d] all pre-trial
defects with regard to, among others, his arrest, the gathering of evidence and prior confessions, as
well as, all non-jurisdictional defects in this criminal proceeding.”

        The circuit court held petitioner’s sentencing hearing on February 1, 2010. Petitioner’s
counsel argued for leniency because of the environment in which petitioner was living, where
there “was a very dysfunctional family that actually encouraged this relationship with the
[fourteen]-year-old.” Consistent with the plea agreement, the State indicated that it was standing
silent as to whether petitioner should be sentenced consecutively or concurrently. The State did
point out that petitioner pled guilty to two other charges in addition to the charge of third degree
sexual assault. Petitioner stated for himself that he would like to be sentenced concurrently so that
he could get the charges behind him and then be able to get on with his life. Following petitioner’s
statement, the State stated that although it was standing silent as to the issue of consecutive
sentences, it was recommending incarceration based on the presentence report in which the
probation officer pointed out that “[petitioner] claims that he bought [the victim] from her parents
in exchange for crack and beer money” and that “[petitioner] did not understand why he never
received his adoption papers, because he believed he could purchase a human being.”

        In sentencing petitioner, the circuit court indicated that it gave due to consideration to
petitioner’s request, his counsel’s comments about his case, and the presentence report. The circuit
court sentenced petitioner to ten to twenty years in prison for sexual abuse by a parent, guardian, or
custodian and gave petitioner 306 days of credit for time served. The circuit court sentenced
petitioner to one to fifteen years in prison for nighttime burglary, to be served consecutive to the
sentence for sexual abuse by a parent, guardian, or custodian. The circuit court sentenced
petitioner to one to five years for third degree sexual assault, to be served consecutive to the
sentence for third degree sexual assault. After petitioner’s prison terms, the circuit court ordered
that petitioner be on extended supervision for twenty years pursuant to West Virginia Code §
62-12-26.

        Petitioner filed a direct appeal challenging the imposition of consecutive sentences and
alleging that the circuit court did not give sufficient reasons for why it sentenced petitioner to
consecutive terms. On June 22, 2010, this Court refused petitioner’s appeal.

        Petitioner filed a petition for a writ of habeas corpus on December 9, 2011, raising (1)
ineffective assistance of counsel; (2) whether the imposition of consecutive sentences constituted
cruel and unusual punishment; and (3) whether the police coerced a confession. On February 7,
2012, the circuit court dismissed the petition without prejudice pursuant to Rule 4(c) of the West
Virginia Rules Governing Post-Conviction Habeas Corpus Procedures, which provides, in
pertinent part, as follows: “If the petition contains a mere recitation of grounds without adequate
factual support, the court may enter an order dismissing the petition, without prejudice, with
directions that the petition be refiled containing adequate factual support. The court shall cause the

petitioner to be notified of any summary dismissal.” The circuit directed that a copy of its order be
                                                  3
served on petitioner.

          Petitioner re-filed his habeas petition on January 11, 2013, and attached a six-page
narrative rather than putting his “supporting facts” in the body of the petition. The narrative
expanded petitioner’s factual allegations, but also contained many of the same allegations
contained in his first petition. Petitioner also changed one of his grounds for relief. However, the
same substantive arguments are found in both petitions; there was just a change in emphasis.4 On
February 11, 2013, the circuit court once again dismissed the petition without prejudice pursuant
to Rule 4(c) directing that a copy of its order be served on petitioner. Petitioner now appeals the
circuit court’s February 11, 2013 order.

       We review the circuit court’s order dismissing a habeas petition 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In addition, “[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.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657
(1973).

         On appeal, petitioner argues that the circuit court erred in (1) not affording him, as a pro se
litigant, some leniency in judging the adequacy of his petition; (2) not appointing competent
counsel who could have corrected and perfected the petition; and (3) not making findings of fact
and conclusions of law sufficient to support the dismissal. Petitioner asserts that the circuit court
utilized a standardized order that was virtually identical in both dismissals of his petition.5
         As an appellate court, we concern ourselves not with how the circuit court prepared its

        4
          The two arguments petitioner rearranged in his second petition were (1) the imposition of
consecutive sentences constituted cruel and unusual punishment; and (2) the prosecutor committed
misconduct by telling the circuit court at the November 18, 2009 plea hearing that the plea
agreement served the State’s interests by still subjecting petitioner to significant prison time.
Under this second argument, petitioner specifically alleges that the prosecutor breached the State’s
promise to stand silent and planted the idea of consecutive sentences in the circuit court’s mind by
stating the maximum possible aggregate term petitioner was facing.
        5
          Respondent argues that the circuit court committed no error and that its dismissal of the
petition should be affirmed.
                                                   4
order, but with whether the circuit court’s conclusions accurately reflect the record. See State ex rel
Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). In the case at bar, the
circuit court’s February 11, 2013 dismissal order is adequately supported by the record. As the
circuit court found when petitioner pled guilty, petitioner “waive[d] all pre-trial defects with
regard to, among others, his arrest, the gathering of evidence and prior confessions, as well as, all
non-jurisdictional defects in this criminal proceeding.” The transcript of the November 18, 2009
plea hearing reflects that the circuit court specifically discussed with petitioner the fact that he
would be waiving his right to have improperly obtained statements suppressed. Also at the plea
hearing, petitioner stated that he was satisfied with counsel’s representation. At the end of the
colloquy, petitioner indicated that he was willing to relinquish his rights by pleading guilty. As
reflected by the transcript of the February 1, 2010 sentencing hearing, the presentence report
clearly supported the circuit court’s decision to sentence petitioner to consecutive terms.

         Finally, contrary to petitioner’s allegation, the State did not breach the plea agreement by
simply informing the circuit court at the plea hearing of the maximum possible aggregate term
petitioner was facing. This statement did not in any way violate the State’s promise to stand silent
on the issue of consecutively sentencing. Furthermore, at the sentencing hearing, the State told the
circuit court twice that it was standing silent as to whether petitioner should be sentenced
consecutively or concurrently. Therefore, this Court concludes that the circuit court did not abuse
its discretion in dismissing the petition without prejudice pursuant to Rule 4(c).

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: November 12, 2013

CONCURRED IN BY:

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




                                                  5
