                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Joseph S.,
                                                                       FILED
Petitioner Below, Petitioner                                                September 23, 2016

                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 15-1137 (Kanawha County 15-P-408)                                          OF WEST VIRGINIA


Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Joseph S.,1 pro se, appeals the November 3, 2015, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus. Respondent Marvin Plumley,
Warden, Huttonsville Correctional Center, by counsel Shannon Frederick Kiser,2 filed a summary
response, and petitioner filed a reply.

        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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case
is remanded to the circuit court for appointment of counsel and an evidentiary hearing on whether
petitioner’s trial counsel provided effective assistance.

       On September 25, 2006, petitioner entered a guilty plea on two counts of second degree
sexual assault and the State dismissed the remaining counts of the indictment. However, a medical
       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
        To the extent that Respondent Plumley, in his capacity as the warden of Huttonsville
Correctional Center, is represented by the West Virginia Attorney General’s Office, we will
hereinafter refer to respondent as “the State.”

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examination of the victim revealed no signs of sexual trauma and testing performed on male DNA
found on a bed cover excluded petitioner from being the donor of that DNA. Petitioner entered his
plea pursuant to Syllabus Point 1 of Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987),
which allowed him to plead guilty despite his claim of innocence on the basis that his interests
required a guilty plea.3 At a subsequent sentencing hearing, the circuit court imposed a sentence of
ten to twenty years of incarceration for each conviction of second degree sexual assault and
ordered that petitioner serve those sentences consecutively.

        Petitioner filed the instant petition for a writ of habeas corpus on September 22, 2015,4 and
alleged that trial counsel was ineffective in the following ways: (1) trial counsel did not seek to
have petitioner evaluated for his mental competency at the time of the crimes and at the time of his
plea hearing; (2) trial counsel advised petitioner to plead guilty without attempting to rectify the
conditions of his pretrial confinement, which conditions provoked him to plead guilty; (3) trial
counsel misadvised petitioner as to the possible sentences for the kidnaping charge; (4) trial
counsel misadvised petitioner as to the likelihood of the circuit court imposing consecutive
sentences; (5) trial counsel advised petitioner that she would file a motion for reconsideration of
sentence and then failed to do so; (6) trial counsel advised petitioner to plead guilty without
requesting that the State produce the test results of the DNA swabs taken from the victim’s vaginal
and rectal areas; and (7) trial counsel advised petitioner to plead guilty on the basis that an
all-white jury would convict an African-American male from New York for raping a local woman.
The circuit court rejected petitioner’s allegations of ineffective assistance of counsel in a brief
order entered November 3, 2015. The circuit court found that the allegations contained in
petitioner’s petition did not warrant the holding of a hearing.

        Petitioner now appeals the circuit court’s November 3, 2015, order denying his habeas
petition. We apply the following standard of review in habeas appeals:

               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.


       3
        Petitioner had an extensive criminal history from the State of New York and was facing
the possibility that the State of West Virginia would charge him with being a recidivist pursuant to
West Virginia Code § 61-11-18(c).
       4
        Petitioner filed a previous habeas petition in [Joseph S.] v. Ballard, No. 12-0419, 2013
WL 2495117, at *2 (W.Va. May 24, 2013) (memorandum decision), in which this Court affirmed
the denial of that petition. However, because petitioner was not afforded appointment of counsel or
an evidentiary hearing in Joseph S., the doctrine of res judicata did not bar petitioner from filing a
subsequent petition. See Syl. Pt. 2, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).


                                                  2
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
        On appeal, petitioner argues that the circuit court acted precipitously in rejecting his
allegations of ineffective assistance of counsel. The State counters that the judge who denied
petitioner’s habeas petition had a familiarity with the facts and circumstances of the case because
she was the same judge who presided in petitioner’s criminal proceeding. However, the State
concedes that if we find that the circuit court acted precipitously in rejecting petitioner’s
allegations, the proper remedy is to remand this case for appointment of counsel and an evidentiary
hearing. The State further concedes that the record does not include the transcript of the September
25, 2006, plea hearing because the same has not been prepared.

        Based on our own review of the record, we accept the State’s concessions. See Syl. Pt. 8,
State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991). We find that the State’s argument—that the
judge who presided in petitioner’s criminal case had sufficient knowledge to decide his habeas
petition without a hearing—is unpersuasive. In State ex rel. Watson v. Hill, 200 W.Va. 201, 204,
488 S.E.2d 476, 479 (1997), in directing the circuit court to hold a hearing on a habeas petitioner’s
ineffective assistance of counsel claim, we acknowledged that a judge who presided at trial is
sufficiently familiar with the underlying proceedings to determine most habeas issues without a
hearing. However, we explained that “[t]hose issues, such as incompetency of counsel, of which
[the petitioner] would have been unaware at trial, must be litigated in a collateral proceeding.” Id.
(quoting Losh v. McKenzie, 166 W.Va. 762, 767, 277 S.E.2d 606, 610 (1981)). Therefore, we
conclude that the circuit court abused its discretion in not holding a hearing on petitioner’s
ineffective assistance counsel claims. Accordingly, we reverse the decision of the circuit court.

       For the foregoing reasons, we reverse the November 3, 2015, order of the Circuit Court of
Kanawha County and remand this case to the circuit court for appointment of counsel and an
evidentiary hearing on whether petitioner’s trial counsel provided effective assistance.

                                                         Reversed and Remanded with Directions.


ISSUED: September 23, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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