                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Henry Keith Wykle,                                                                 FILED
Petitioner Below, Petitioner                                                     February 18, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0621 (Fayette County 06-C-274)                                       OF WEST VIRGINIA



David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Henry Keith Wykle’s appeal, filed by counsel Thomas A. Rist, arises from the
Circuit Court of Fayette County, which denied petitioner post-conviction habeas corpus relief by
order entered on May 16, 2013. Respondent David Ballard, Warden, by counsel Benjamin F.
Yancey III, filed a response. On appeal, petitioner argues that the circuit court erred in failing to
find that petitioner received ineffective assistance of counsel at his plea hearing.

        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 1993, petitioner was indicted on one count of first degree murder and one count of
first degree sexual assault. Following a plea agreement with the State, petitioner pled guilty to
first degree murder. The plea agreement provided that the State would dismiss the sexual assault
charge and recommend mercy at petitioner’s sentencing. At sentencing, the circuit court ordered
petitioner to serve life in prison without mercy. Petitioner first filed for post-conviction habeas
corpus relief in 1997, which the circuit court denied and this Court refused on appeal.

        In July of 2006, petitioner filed the instant petition for habeas corpus relief and argued
that certain serology evidence warranted review in light of In re Renewed Investigation of the
State Police Crime Lab., Serology Div., 219 W.Va. 408, 633 S.E.2d 762 (2006). Petitioner
argued that he was not provided with the serology test results in his criminal proceedings below
and that, had he known of these results, he would not have pled guilty to first degree murder. The
circuit court denied relief and, on appeal, this Court reversed and remanded to the circuit court
for an evidentiary hearing on the serology test results. In February of 2013, the circuit court held
a hearing on this matter and, subsequently, denied petitioner habeas corpus relief. From this
order, petitioner now appeals.

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

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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).

        Petitioner’s argument on appeal is that his trial counsel was ineffective because he did not
provide the serology test results to him prior to his plea. Petitioner reiterates his argument below
that, had he known of these results, he would not have pled guilty.

       Upon our review of the record and the briefs on appeal, we find that the circuit court did
not abuse its discretion in not finding petitioner’s trial counsel to have been ineffective. In so
finding, we bear in mind the following:

              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, 459 S.E.2d 114 (1995). Moreover, “‘[o]ne who charges
on appeal that his trial counsel was ineffective and that such resulted in his conviction, must
prove the allegation by a preponderance of the evidence.’ Syllabus, Point 22, State v. Thomas,
157 W.Va. 640, 203 S.E.2d 445 (1974).” Syl. Pt. 2, Carrico v. Griffith, 165 W.Va. 812, 272
S.E.2d 235 (1980). Petitioner has not met his burden in showing that there would be a reasonable
probability that, but for his trial counsel’s alleged error in not providing the serology test results,
the result of his criminal proceedings would have been different. He asserts that any criminal
defendant should be provided all discovery prior to evaluating pleading guilty, but fails to
discuss how this information would have changed petitioner’s case. The circuit court’s order
reflects its thorough analysis of petitioner’s same argument presented in circuit court. Having
reviewed the circuit court’s “Order” entered on May 16, 2013, we hereby adopt and incorporate
the circuit court’s well-reasoned findings and conclusions as to the assignment of error raised in
this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this
memorandum decision.

       For the foregoing reasons, we affirm.


                                                                                            Affirmed.




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ISSUED: February 18, 2014

CONCURRED IN BY:

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




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