                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Eric P. Minda,                                                                      FILED
Petitioner Below, Petitioner                                                     March 16, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0334 (Ohio County 06-C-92)                                            OF WEST VIRGINIA


David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Eric P. Minda, by counsel Justin M. Hershberger, appeals the Circuit Court of
Ohio County’s February 24, 2014, order denying his petition for writ of habeas corpus.
Respondent David Ballard, Warden, by counsel Shannon Frederick Kiser, filed a response and a
supplemental appendix. On appeal, petitioner alleges that the circuit court erred in denying
habeas relief on his claims of a disproportionate sentence and ineffective assistance of counsel.1

        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.

        Following a jury trial in March of 2003, petitioner was found guilty of one count of first
degree robbery and one count of felon in possession of a firearm. Thereafter, the circuit court
sentenced petitioner to a term of incarceration of ninety years for first degree robbery and a term
of incarceration of five years for felon in possession of a firearm, said sentences to run
consecutively. Petitioner appealed the decision to this Court, which unanimously refused the
same by order entered on February 9, 2005. In December of 2005, petitioner filed an application
for petition of writ of habeas corpus and a motion for appointment of counsel, among other
motions, in the circuit court. In March of 2006, the circuit court entered a memorandum of
opinion and order summarily denying petitioner habeas relief.

     Petitioner thereafter appealed the circuit court’s summary denial to this Court. On
December 6, 2006, this Court granted the petition and remanded the matter back to the circuit

       1
         In the circuit court, petitioner also alleged as grounds for habeas relief that he lacked the
mental capacity to form the requisite intent for first degree robbery. However, on appeal,
petitioner alleges no error in the circuit court’s denial of habeas relief on this ground.
Accordingly, the Court does not further address this allegation herein.
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court for the holding of an omnibus evidentiary hearing. The circuit court then appointed Scott S.
Blass to represent petitioner. Thereafter, in July of 2007, petitioner, by counsel, filed his
amended petition below. Prior to the holding of an omnibus evidentiary hearing, the circuit court
dismissed count one of the amended petition regarding a challenge to petitioner’s sentence as
disproportionate without the taking of evidence. In February of 2010, the circuit court held an
omnibus evidentiary hearing on the remaining grounds alleged in the amended petition and
ultimately denied petitioner habeas relief by order entered in January of 2012.

        Petitioner again appealed the denial, and in April of 2013, this Court issued a
memorandum decision remanding the matter so that the circuit court could hold an omnibus
evidentiary hearing in regard to all issues raised in the amended petition and to reexamine
petitioner’s claim of ineffective assistance of counsel in light of the Supreme Court of the United
States’ decision in Lafler v. Cooper, 132 S.Ct. 1376 (2012). Minda v. Ballard, No. 12-0284
(W.Va. Supreme Court, April 16, 2013) (memorandum decision). On remand, the circuit court
held a second omnibus evidentiary hearing in December of 2013, after which it denied petitioner
habeas relief. It is from the resulting order that petitioner appeals.

       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 reasserts the same claims that were rejected by the circuit court.
First, petitioner reasserts that his sentence was disproportionate to the character and degree of the
offenses. He further reasserts that his trial counsel was ineffective because (1) he failed to engage
in proper motions practice, including challenging the legality of petitioner’s stop and search; (2)
he failed to present a counter-plea offer to the State; (3) he provided ineffective advice regarding
the State’s plea offer; and (4) he failed to inform petitioner that the State’s plea offer was still
available after he allegedly countered the plea offer`.

        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
February 24, 2014, “Order Denying Petitioner’s Amended Petition Following Omnibus Hearing”

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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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