                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Gary Elmer Tacy,
Petitioner Below, Petitioner                                                          FILED
                                                                                 October 20, 2015
vs) No. 15-0041 (Randolph County 13-C-5)                                         RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Patrick Mirandy, Warden,
St. Mary’s Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Gary Elmer Tacy, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Randolph County’s December 16, 2014, order denying his petition for writ of habeas corpus.
The State, by counsel David A. Stackpole, filed a response in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in denying habeas relief because he
maintains that his trial counsel was constitutionally ineffective for failing to file a direct appeal
of his conviction and sentence.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In October of 2010, the Randolph County grand jury indicted petitioner on two counts:
attempted second-degree robbery, a felony in violation of West Virginia Code § 61-2-12, and
wearing a mask, hood, or face covering, a misdemeanor in violation of West Virginia Code § 61-
6-22. Petitioner proceeded to trial in February of 2011. Petitioner’s trial counsel was Andrea
Roberts. At trial, the State presented evidence that petitioner entered an establishment called the
High Life Lounge and gave a note to a worker there demanding money. A witness identified
petitioner as the culprit, and petitioner’s fingerprint was found on the note. Ultimately, the jury
convicted petitioner on both counts. In April of 2011, the circuit court held a sentencing hearing
and sentenced petitioner to five to eighteen years for the count of attempted second-degree
robbery and one year for the count of wearing a mask or face covering. Those sentences were
ordered to run consecutively to one another.

        In January of 2014, petitioner filed a pro se habeas petition, and the circuit court
appointed petitioner counsel to prosecute the same. In September of 2013, petitioner, by counsel,
filed an amended habeas petition in which he claimed, inter alia, that his trial counsel was
constitutionally ineffective for failing to file an appeal of his conviction.

                                                 1
        In October of 2014, the circuit court held an omnibus evidentiary hearing on the amended
habeas petition. Ms. Roberts testified that she discussed petitioner’s right to appeal his
conviction with him following the trial, but he chose not to pursue a direct appeal at that time.
She further stated her belief that petitioner had no viable grounds for an appeal. Instead of filing
a direct appeal, petitioner and his trial counsel filed a motion for reconsideration of sentence,
which was denied. Based on Ms. Roberts’ testimony, which the circuit court found to be
credible, the circuit court concluded that petitioner failed to prove the first element of an
ineffective assistance claim because his trial counsel’s performance was not deficient. Therefore,
by order entered on December 16, 2014, the circuit court denied petitioner’s habeas petition.
This appeal followed.

       This Court reviews a circuit court order 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 raises the sole issue that the circuit court erred in denying habeas
relief based on his claim of ineffective assistance of trial counsel for failing to file a direct appeal
of his conviction. Upon our review and consideration of the circuit court’s final order, the
parties’ arguments, and the 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’s petition for writ of habeas corpus based on this ground. Having reviewed the circuit
court’s order denying habeas relief, entered on December 16, 2014, we hereby adopt and
incorporate that order’s well-reasoned findings of fact and conclusions of law as to this
assignment of error. We note that while the circuit court found no ineffective assistance of trial
counsel in this matter based on petitioner’s instructions following his trial, petitioner may file a
motion for resentencing for purposes of a direct appeal before the circuit court for consideration
therein. 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.




                                                   2
ISSUED: October 20, 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




                                    3
