                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Larry B.,
Petitioner Below, Petitioner                                                       FILED
                                                                              September 5, 2017
vs) No. 16-0720 (Mercer County 15-C-370-DS)                                       RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Larry B., by counsel Paul Cassell, appeals the Circuit Court of Mercer
County’s June 22, 2016, order denying his petition for writ of habeas corpus.1 Respondent David
Ballard, Warden, by counsel Julie A. Warren, filed a response. On appeal, petitioner argues that
the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of
trial counsel and that his guilty plea was not knowingly, intelligently, and voluntarily made.

        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.

       During the October of 2003 term of court, a grand jury indicted petitioner on fourteen
counts of first-degree sexual assault, eight counts of incest, and sixteen counts of sexual abuse by
a custodian. According to the indictment, petitioner was alleged to have engaged in sexual
misconduct with three minor children in his care.

        In March of 2004, petitioner pled guilty, pursuant to a plea agreement, to three counts of
first-degree sexual assault, three counts of incest, and two counts of sexual abuse by a custodian.
In exchange, the State agreed to dismiss the remaining counts from the indictment. Thereafter,
the circuit court held a sentencing hearing and imposed the following sentence: not less than
fifteen nor more than thirty-five years for the offense of first-degree sexual assault as set forth in

       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).


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counts one, nine, and thirty-five of the indictment; not less than five nor more than fifteen years
for the offense of incest as set forth in counts eleven, seventeen, and thirty-six of the indictment;
and not less than ten nor more than twenty years for the offense of sexual abuse by a custodian as
set forth in counts twenty-one and thirty-three of the indictment. The sentences were ordered to
run consecutively to one another. Additionally, the circuit court suspended the sentences
imposed for counts nine, seventeen, twenty-one, thirty-three, thirty-five, and thirty-six and
ordered that petitioner be placed on probation for five years following the completion of his term
of incarceration. Petitioner did not appeal this order.

        In May of 2013, petitioner filed a pro se petition for writ of habeas corpus and a motion
to be resentenced for purposes of appeal. After the circuit court appointed him counsel, petitioner
filed a renewed motion to be resentenced for purposes of appeal. The circuit court thereafter
entered two orders resentencing petitioner, although he eventually decided not to pursue a direct
criminal appeal in light of his pending habeas action in circuit court.

        In November of 2015, petitioner, by counsel, filed his petition for writ of habeas corpus.
The petition raised the following grounds: ineffective assistance of counsel, involuntary guilty
plea, disproportionate sentence, and deficient indictment. After respondent filed a brief, the
circuit court held an omnibus evidentiary hearing in February of 2016. Following the hearing, the
circuit court entered an order in June of 2016 denying the petition for writ of habeas corpus. It is
from this order that petitioner appeals.

       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).

        On appeal to this Court, petitioner argues that he was entitled to habeas relief due to trial
counsel’s ineffective representation and his allegation that his guilty plea was not knowingly,
intelligently, and voluntarily made. The Court, however, does not agree. Upon our review and
consideration of the circuit court’s 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 post-conviction habeas corpus relief based
on these alleged errors, which were also argued below. Indeed, the circuit court’s order includes
well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given
our conclusion that the circuit court’s order and the record before us reflect no clear error or
abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions
as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a
copy of the circuit court’s June 22, 2016, “Order Denying The Petitioner’s Petition For Writ of

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Habeas Corpus Ad Subjiciendum And Removing This Action From the Active Docket Of This
Court” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                            Affirmed.

ISSUED: September 5, 2017

CONCURRED IN BY:

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




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