                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jason Browning,                                                                    FILED
Petitioner Below, Petitioner                                                    February 18, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0558 (Mingo County 10-C-248)                                        OF WEST VIRGINIA



Evelyn Seifert, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Jason Browning, by counsel Susan J. Van Zant, appeals an order of the Circuit
Court of Mingo County entered April 26, 2013, which denied his motion for reconsideration of a
previous circuit court order denying his petition for a writ of habeas corpus. Respondent Evelyn
Seifert, Warden, by counsel Laura Young, filed a response.

        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 April of 2005, petitioner was indicted by a Mingo County Grand Jury on sixteen
counts of sexual abuse by a parent, guardian, or custodian, and sixteen counts of third degree
sexual assault involving two twelve-year old sisters. Petitioner, who was then twenty-four years
old, was the boyfriend of the victims’ mother. Both victims contracted a sexually-transmitted
disease from petitioner and one of the victims became pregnant. The sexual acts at issue occurred
from March to October of 2004.

       On December 1, 2005, petitioner entered into a plea agreement1 in which he agreed to
plead guilty to two counts of sexual abuse by a parent, guardian, or custodian, and two counts of
sexual assault in the third degree. In exchange for the guilty plea, the State agreed to dismiss the
remaining counts of the indictment. The plea agreement also provided that the State would
recommend the statutory sentence of not less than ten nor more than twenty years of
incarceration for each count, and would further recommend the statutory sentence of not less
than one nor more than five years of incarceration for each count of sexual assault in the third
degree. Additionally, the plea agreement provided that the State would recommend that the

       1
        The plea agreement was not made a part of the appellate record. The relevant facts
recounted herein regarding the terms of the plea agreement are derived from the Final Order
Denying Omnibus Petition for Writ of Habeas Corpus, entered January 18, 2013.
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sentences for sexual abuse by a parent, guardian, or custodian run concurrently to each other and
that the sentences for third degree sexual assault would run consecutively to each other and
consecutively to the sentences for sexual abuse by a parent, guardian, or custodian.

        Following the January 9, 2006 sentencing hearing, the circuit court ordered petitioner
sentenced to not less than ten nor more than twenty years of incarceration for each count of
sexual abuse by a parent, guardian, or custodian, and not less than one nor more than five years
of incarceration for each count of sexual assault in the third degree.2 The sentences were ordered
to run consecutively. Petitioner’s request for probation and alternative sentencing was denied.

        On August 6, 2010, petitioner filed a petition for writ of habeas corpus alleging multiple
grounds as set forth on the Checklist of Grounds for Post Conviction Habeas Corpus Relief. See
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Petitioner filed an amended habeas
petition on August 22, 2012, alleging, in relevant part, claims of ineffective assistance of counsel
and lack of mental competency at the time of the crime due to heavy drug use.

       Following an omnibus hearing, the circuit court denied petitioner’s petition for writ of
habeas corpus by final order entered January 18, 2013. Petitioner’s motion for reconsideration
was denied by order entered April 26, 2013. This appeal followed.

       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, 377, 701 S.E.2d 97, 99 (2009).

        On appeal, petitioner argues that he was denied effective assistance of counsel during the
plea proceedings because his previous counsel failed to properly advise him that the circuit court
was not bound to sentence him strictly according to the terms of the plea agreement; failed to
effectively communicate the options available to petitioner with regard to trial and entering a
plea; and failed to communicate the possibility of negotiating the plea to a lesser included
offense. Petitioner argues that had he been completely informed, he would have chosen a jury
trial and that, in effect, his guilty plea was entered into involuntarily.

        With regard to claims of ineffective assistance of counsel, this Court has previously held
as follows:




       2
           The circuit court also imposed monetary fines.
                                                  2

               “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.” Syllabus point [5], State v.
       Miller, 194 W.Va. 3, 459 S.E.2d 114, (1995).

Syl. Pt. 3, Ballard v. Ferguson, __ W.Va. __, __, 751 S.E.2d 716, 717 (2013). This Court further
held that

               “In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.” Syl. Pt. 6, State v. Miller, 194 W.Va.
       3, 459 S.E.2d 114 (1995).

Syl. Pt. 6, State v. Meadows, 231 W.Va. 10, __, 743 S.E.2d 318, 321 (2013). Finally, courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” State v. Miller, 194 W.Va. at 15, 459 S.E.2d at 126 (quoting
Strickland v. Washington, 466 U.S. at 689).

        In his second and final assignment of error, petitioner argues that, due to heavy drug use,
he lacked mental competency with respect to his sexual contact with one of the victims.3
Petitioner contends that although he believes he had sexual contact with the victim, he claims he
was intoxicated and on drugs at the time and does not remember what occurred. He also argues
that, when he entered into the plea agreement, he had only been sober for a brief period of time.

       In its forty-five page order denying petitioner’s petition for writ of habeas corpus entered
January 18, 2013, the circuit court specifically addressed the assignments of error raised in the
present appeal.4 Our review of the circuit court’s order and the record before us reflects no clear

       3
        In contrast, with respect to the victim who became pregnant, petitioner does not claim
lack of mental competency with regard to his sexual contact with her.
       4
         In addition to the assignments of error raised in the instant appeal, the circuit court’s
order also addressed the following issues: double jeopardy; improper venue; pretrial delay; faulty
indictment; the State’s knowing use of perjured testimony; claims concerning the use of
informers to convict; constitutional errors in evidentiary rulings; petitioner’s absence from part
of the proceedings; improper communications between prosecutor or witness and jury; refusal to
turn over witness notes after witness had testified; excessive sentence; consecutive sentences for
the same transaction; severer sentence than expected; unfilled plea bargain; sufficiency of the
evidence; erroneous information in the presentence report; conflict of interest with the
                                                3

error or abuse of discretion. Accordingly, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s January 18, 2013, Final Order Denying
Omnibus Petition for Writ of Habeas Corpus to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                      Affirmed.

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




prosecuting attorney’s office; language barrier to understanding the proceedings; mistaken
advice of counsel as to parole or probation eligibility; involuntary guilty plea, coerced
confession, and question of actual guilt upon an acceptable plea; and suppression of helpful
evidence by the prosecutor.
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