                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Thomas Eugene Gardner, Jr.,                                                        FILED
Petitioner Below, Petitioner                                                 November 3, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-1301 (Marion County 12-C-449)                                        OF WEST VIRGINIA


David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                              MEMORANDUM DECISION
       Petitioner Thomas Eugene Gardner, Jr., by counsel Brandon L. Christopher, appeals the
order of the Circuit Court of Marion County, entered November 26, 2013, that denied his petition
for post-conviction habeas corpus relief. The State of West Virginia, in the name of David
Ballard, Warden, by counsel Derek Knopp, responds in support of the circuit court’s order.

        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 the underlying criminal case, petitioner was indicted on one count of distribution or
exhibition of obscene material to a minor in violation of West Virginia Code § 61-8A-2(a). That
case arose when petitioner telephoned a girl he knew to be thirteen years old, engaged her in a
sexually explicit conversation, and then played a recording depicting the rape of a child. Defense
counsel moved to dismiss the indictment on the ground that the telephone call did not fit the
definition of “distribute” found in West Virginia Code § 61-8A-1. Petitioner pled guilty to the
charge on January 19, 2011, but reserved the right to appeal. Petitioner’s plea agreement reads,
in relevant part, as follows.

       The State will agree to allow [petitioner] to enter a plea of guilty to the offense of
       DISTRIBUTION AND DISPLAY TO MINOR OF OBSCENE MATTER, a
       felony, the penalty for which, under the provisions of West Virginia Code §
       61-8A-2(a) [includes a fine of] not more than Twenty Five Thousand
       ($25,000.00) Dollars or [confinement] in a state correctional facility for not more
       than Five years, or both.


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        On the same day that petitioner entered his guilty plea, the State filed a recidivist
information against petitioner based on his guilty plea and his prior felony convictions for
statutory rape, involuntary deviate sexual intercourse, kidnapping, and failure to register as a
sexual offender. The circuit court scheduled the matter for trial on March 15, 2011. However,
prior to trial, petitioner opted to plead guilty to the recidivist information despite the circuit
court’s warning that “[a]n admission that you were convicted of three or more prior felonies
prior to the alleged felony will result in you being sentenced to the penitentiary for the remainder
of your natural life.”

         At his sentencing hearing, petitioner argued that his prior convictions were too remote in
time to be used as the basis for a life sentence and that his conduct related to his conviction for
distribution or exhibition of obscene material to a minor was not violent and did not contain the
threat of violence. Thus, he claimed that it was unconstitutional to sentence him to life in prison
under the recidivist statute. The circuit court rejected these arguments, and sentenced petitioner
to a life in prison pursuant to the recidivist statute. This Court affirmed petitioner’s conviction on
February 13, 2012. See State v. Gardner, No. 11-0714 (W.Va. Supreme Court, February 13,
2012) (memorandum decision).

        Petitioner filed a petition for writ of habeas corpus, pro se, on December 10, 2012. On
February 15, 2013, the circuit court appointed habeas counsel who filed an amended habeas
petition on June 14, 2013. That amended petition raised the following claims: (1) the court
lacked jurisdiction to impose a life sentence because the recidivist information was procedurally
defective, (2) the prosecutor made prejudicial statements during the sentencing hearing and in the
recidivist information, (3) ineffective assistance of counsel, (4) the underlying felony guilty plea
was not voluntarily, (5) the plea bargain was unfulfilled, (6) the circuit court imposed a more
severe sentence than expected, (7) the sentence was excessive, and (8) petitioner was given
insufficient credit for time served.

         On October 25, 2013, the circuit court held an omnibus hearing on petitioner’s amended
habeas petition. Petitioner’s trial counsel from his case for distribution or exhibition of obscene
material to a minor testified at the hearing. By order entered November 26, 2013, the trial court
addressed each of the issues raised in petitioner’s amended habeas petition and then denied
relief. Petitioner now appeals that order.

       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).

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        Petitioner raises four assignments of error on appeal. He first argues that the State
breached the terms of his written plea agreement; or, by its actions, lead petitioner to believe that
it would not file a recidivist plea against him if he pled guilty to distribution or exhibition of
obscene material to a minor. Petitioner also argues that, because his plea agreement stated that
the penalty for his plea would be a maximum of five years in prison, he was justified in believing
that the State had agreed not to file recidivist charges against him.

        Petitioner’s plea agreement clearly provides that the State and petitioner agree to argue
appropriate sentencing to the court following the entry of a pre-sentence report. Hence, the State
did not breach the terms of petitioner’s plea agreement because the State did not agree to be limited
to the five year term of imprisonment found in West Virginia Code § 61-8A-2(a). Nor did the
State’s actions justify petitioner’s claim that the State led him to believe that it would not file a
recidivist information against him. The record on appeal shows that, at petitioner’s omnibus
hearing, his trial counsel testified that he (counsel) asked the State to waive a recidivist action in
exchange for petitioner’s plea, but the State would not agree to do so. Trial counsel also testified
that, “There was certainly no . . . promise or commitment to us that they were not going to
pursue the recidivist. In fact, I think by the time we did this, it was made clear to us that they
would, even though it’s not . . . part of this plea agreement.” Finally, trial counsel testified that at
no time did the State do anything that would give petitioner a justifiable belief that recidivist
charges would not be pursued. On this record, we cannot say that the circuit court erred when it
found that the State did not breach petitioner’s plea agreement or give petitioner reason to
believe that it would not file a recidivist action if petitioner pled guilty to distribution or
exhibition of obscene material to a minor.

      Petitioner also claims that the trial court failed to make him aware of all of the possible
consequences of his guilty plea. In State ex rel. Appleby v. Recht, we said,

               The law is clear that a valid plea of guilty requires that the
               defendant be made aware of all “the direct consequences of his
               plea.” By the same token, it is equally well settled that, before
               pleading, the defendant need not be advised of all collateral
               consequences of his plea, or, as one Court has phrased it, of all
               “possible ancillary or consequential results which are peculiar to
               the individual and which may flow from a conviction of a plea of
               guilty, . . . .”

               ....

               Under West Virginia Code §§ 61–11–18 & 19, the imposition of a life
       sentence is not “definite, immediate and largely automatic.” The State not only
       retains the discretion to decide when to pursue recidivist sentencing (or to decide
       not to so proceed), but the separate nature of the recidivist proceeding requires the
       State to satisfy a number of requirements, such as: (1) filing a written information,
       Syl. pt. 1, State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707 (1961); (2)
       proving “beyond a reasonable doubt that each penitentiary offense, including the

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       principal penitentiary offense, was committed subsequent to each preceding
       conviction and sentence[,]” Syl., State v. McMannis, 161 W.Va. 437, 242 S.E.2d
       571 (1978); and (3) proving beyond a reasonable doubt to the jury the identity of
       the defendant. W.Va. Code § 61–11–19; Syl. pt. 4, State v. Vance, 164 W.Va.
       216, 262 S.E.2d 423 (1980).

213 W.Va. 503, 511, 583 S.E.2d 800, 808 (2002) (emphasis added). Therefore, pursuant to
Appleby, the circuit court had no duty to inform petitioner about a possible recidivist action
because such an action was not a direct consequence of his guilty plea. Thus, we find that the
circuit court did not err.

         Petitioner’s next assignment of error is that the circuit court lacked jurisdiction to impose
a life sentence upon him because it failed to follow the strict procedural requirements set forth in
West Virginia Code § 61-11-19 regarding recidivist proceedings. Specifically, petitioner claims
that the recidivist information filed against him (1) set forth an incorrect sentence for his
conviction of statutory rape —twenty-five years in prison—as opposed to the correct sentence of
four to eight years in prison for that crime; and (2) failed to include the sentences he received for
the crimes of involuntary deviate sexual intercourse and indecent assault.

       West Virginia Code § 61–11–19 lists the procedural requirements of a recidivist
information, as follows.

       It shall be the duty of the prosecuting attorney when he has knowledge of former
       sentence or sentences to the penitentiary of any person convicted of an offense
       punishable by confinement in the penitentiary to give information thereof to the
       court immediately upon conviction and before sentence. Said court shall, before
       expiration of the term at which such person was convicted, cause such person or
       prisoner to be brought before it, and upon an information filed by the prosecuting
       attorney, setting forth the records of conviction and sentence, or convictions and
       sentences, as the case may be, and alleging the identity of the prisoner with the
       person named in each, shall require the prisoner to say whether he is the same
       person or not. If he says he is not, or remains silent, his plea, or the fact of his
       silence, shall be entered of record, and a jury shall be impanelled to inquire
       whether the prisoner is the same person mentioned in the several records. If the
       jury finds that he is not the same person, he shall be sentenced upon the charge of
       which he was convicted as provided by law; but if they find that he is the same, or
       after being duly cautioned if he acknowledged in open court that he is the same
       person, the court shall sentence him to such further confinement as is prescribed
       by section eighteen of this article on a second or third conviction as the case may
       be.

       With regard to West Virginia Code § 61–11–19, this Court recently found that

       a recidivist information is sufficient if it alleges a previous conviction with such
       particularity as to give reasonable notice to the defendant: (1) of the nature and

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       character of the previous conviction; (2) of the court wherein the previous
       conviction occurred; and (3) that the identity of the person previously convicted is
       the same as the defendant.

Syl. Pt. 3, State v. Hillberry, 233 W.Va. 27, 754 S.E.2d 603 (2014) (emphasis added). In the
instant case, we find that petitioner’s recidivist information satisfies the Hillberry test because it
gave petitioner sufficient notice to identify (1) the nature and character of his previous
convictions; (2) the court in which he was convicted of each crime; and (3) that petitioner was
the person previously convicted of those crimes. As for petitioner’s argument that he was
prejudiced by an incorrect sentence listed in his recidivist information, we note that the record on
appeal reflects that petitioner was, in fact, sentenced to twenty-five years in prison; however, that
sentence was for a kidnapping conviction, and not for a statutory rape conviction as incorrectly
noted in the recidivist information. Therefore, although petitioner’s recidivist information
contained a clerical error, we find that petitioner was not unduly prejudiced by it.

           Petitioner’s third assignment of error is that his trial counsel was ineffective in failing
to identify the procedural defect in the information charging petitioner as a recidivist. In West
Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). Strickland requires a finding that: (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. See Syl.
Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopting Strickland). We first note
that the circuit court had before it a pre-sentence investigation that set forth exacting details of
petitioner’s lengthy criminal history, including his prior convictions, sentences, and revocations.
We also note that the circuit court found that, in opting not to challenge the recidivist
information, petitioner’s trial counsel’s performance was not deficient under an objective
standard because the recidivist information was not procedurally deficient. Therefore, we concur
with the circuit court’s finding that petitioner fails to satisfy either prong of the Strickland/Miller
test.

        Petitioner’s fourth and final assignment of error is that the circuit court’s cumulative error
prevented him from receiving a fair trial. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193
S.E.2d 550, 551-52 (1972) (The cumulative effect of numerous errors may result in the setting
aside of a criminal conviction.) Of the fourteen alleged errors petitioner lists, he fails to explain
specifically how the circuit court violated the law in each instance. Rule 10(c)(7) of the West
Virginia Rules of Appellate Procedure provides that an appellate brief must “contain an argument
exhibiting clearly the points of fact and law presented.” We have also said,

       “Typically, this Court will not address issues that have not been properly briefed.”
       State v. White, 228 W.Va. 530, 541 n. 9, 722 S.E.2d 566, 577 n. 9 (2011). Indeed,
       we have repeatedly cautioned that “casual mention of an issue in a brief is cursory
       treatment insufficient to preserve the issue on appeal.” State v. Lilly, 194 W.Va.
       595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (internal quotations and citation
       omitted). See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996)

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       (“Although we liberally construe briefs in determining issues presented for review,
       issues which are not raised, and those mentioned only in passing but [which] are not
       supported with pertinent authority, are not considered on appeal.”); State, Dep’t of
       Health & Human Res., Child Advocate Office v. Robert Morris N., 195 W.Va. 759,
       765, 466 S.E.2d 827, 833 (1995) (“[A] skeletal ‘argument,’ really nothing more
       than an assertion, does not preserve a claim[.]” (internal quotations and citations
       omitted)).

State v. J.S., 233 W.Va. 198, __ n.18, 757 S.E.2d 622, 628 n.18 (2014). Given that petitioner
mentions his claims only in passing, we find that he has failed to preserve this assignment of error;
therefore, we will not address this issue herein.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis




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