                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

John P.,                                                                            FILED
Petitioner Below, Petitioner
                                                                                January 17, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 18-0518 (Gilmer County 16-C-21)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Charles Williams, Superintendent,
Huttonsville Correctional Center,
Respondent Below, Respondent

                               MEMORANDUM DECISION

         Petitioner John P., by counsel Brian W. Bailey, appeals the April 16, 2018, order of the
Circuit Court of Gilmer County denying his petition for a writ of habeas corpus.1 Respondent
Charles Williams, Superintendent, Huttonsville Correctional Center, by counsel Holly M. Flanigan,
filed a response in support of the circuit court’s order.2 On appeal, petitioner argues that the circuit
court erred in denying his claims of ineffective assistance of counsel and in finding that he was
competent to understand his criminal and habeas corpus proceedings.

        The 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 May of 2014, the Gilmer County Child Protective Services (“CPS”) office received a
referral alleging that petitioner had sexually abused his daughters. A CPS worker initiated an
interview with petitioner while law enforcement was present. A law enforcement officer informed
petitioner of his Miranda3 rights prior to the interview. Petitioner indicated that he understood those


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
       2
          Petitioner listed Ralph Terry, former Warden of Mt. Olive Correctional Complex, as
respondent in this matter. However, petitioner is now housed at the Huttonsville Correctional
Center, where Charles Williams is the superintendent. Accordingly, the appropriate party has been
substituted per Rule 41(c) of the West Virginia Rules of Appellate Procedure.
        3
          Miranda v. Arizona, 384 U.S. 486 (1966).
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rights and proceeded with the interview. Throughout the course of the interview, petitioner admitted
to sexually abusing his daughters as alleged and was subsequently arrested.

        In November of 2014, petitioner was indicted on three counts of first-degree sexual assault,
three counts of sexual abuse by a parent, guardian, or custodian, and three counts of incest.
Petitioner was appointed counsel and was ordered to participate in a competency evaluation.
Following the receipt of petitioner’s competency evaluation, the circuit court found that he was
competent to stand trial. Specifically, the circuit court found that “the results of the Wechler Adult
Intelligence Scale-IV showed [petitioner’s] intellection [sic] functioning to be in the Intellectual
Disability Range; however, this is an underestimat[ion] of the true abilities due to inconsistent effort
[by the petitioner] on the tasks;” “[t]hat [petitioner] suffers from intellectual disability, mild, versus
Borederling [sic] Intellectual Functioning; Malingering, Provisional, Adjustment Disorder with
depressed mood[;]” and petitioner was “competent to stand trial in that he has an adequate factual
and rational appreciation of the procedure against him and is able to assist in his own defense.”
Neither party challenged the circuit court’s finding that petitioner was competent to stand trial.

        In February of 2015, petitioner entered a no contest plea to two counts of incest. In April of
2015, the circuit court sentenced petitioner to an aggregate term of ten-to-thirty years of
incarceration. Further, the circuit court ordered petitioner be subject to for fifty years of extended
supervision upon his release from incarceration pursuant to West Virginia Code § 62-12-26.
Petitioner did not appeal this order.

        Petitioner, by counsel, filed a petition for a writ of habeas corpus in August of 2016. Among
the grounds raised, petitioner asserted the following claims that are relevant to this appeal:
“Involuntary Guilty plea,” alleging that previous counsel pressured petitioner into pleading guilty;
“Competency to Stand Trial,” alleging that he was intellectually incapable of standing trial;
“Language Barrier to Understand Proceedings,” alleging that he was unable to follow the basic
courtroom terminology and procedures; “Unintelligent Waiver of Counsel,” alleging that he was
unable to understand that he had a right not to waive his Miranda rights; and “Ineffective Assistance
of Counsel” alleging, based on the totality of his allegations, “as well as other good and sufficient
evidence which may be adduced during an Omnibus Habeas Corpus proceeding,” that he was
denied effective assistance of counsel.

        In March of 2017, the circuit court held an omnibus hearing and heard testimony from
petitioner, his trial counsel, the investigating law enforcement officer, and the investigating CPS
worker. Ultimately, the circuit court denied petitioner relief by a detailed twenty-eight page order
entered on April 16, 2018. It is from this order that petitioner appeals.

       Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas
corpus is governed by 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



                                                        2
       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 argues that the circuit court erred in denying him relief based on his
ineffective assistance of counsel claim because it is unclear whether a motion to suppress his
statements to law enforcement was filed. However, we find that petitioner is entitled to no relief on
this claim because he failed to show that he raised this particular ineffective assistance of counsel
claim below. The circuit court noted that petitioner raised ineffective assistance of counsel based
on allegations that counsel “did not file an appeal, did not subpoena witnesses, and based on the
cumulative effect of all errors raised in the petition,” but does not mention an assertion that counsel
failed to file a motion to suppress petitioner’s statements to law enforcement. Moreover, petitioner
fails to cite to a place in the record to show that he did, in fact, preserve this claim. Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure provides that

       [t]he argument must contain appropriate and specific citations to the record on
       appeal, including citations that pinpoint when and how the issues in the assignments
       of error were presented to the lower tribunal. The Court may disregard errors that
       are not adequately supported by specific references to the record on appeal.

Further, this Court has previously held that “‘[o]ur general rule is that nonjurisdictional questions .
. . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, we decline to address
this assignment of error.

        Petitioner next argues that the circuit court erred in denying him relief based on his inability
to comprehend the proceedings. However, the circuit court fully addressed this argument below.
Because we find no clear error or abuse of discretion in the circuit court’s order or the record before
us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to
petitioner’s assignment of error raised on appeal and direct the Clerk to attach a copy of the circuit
court’s April 16, 2018, “Final Order on Petition for Writ of Habeas Corpus” to this memorandum
decision.

        For the foregoing reasons, we affirm the circuit court’s denial of petitioner’s petition for a
writ of habeas corpus.
                                                                                           Affirmed.
ISSUED: January 17, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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