                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Brandon Rice,
Petitioner Below, Petitioner                                                       FILED
                                                                                   July 8, 2013
                                                                             RORY L. PERRY II, CLERK
vs.) No. 12-0902 (Fayette County 12-C-226)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


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

                               MEMORANDUM DECISION

       Petitioner Brandon Rice, pro se, appeals the order of the Circuit Court of Fayette County,
entered July 19, 2012, denying his petition for a writ of habeas corpus. The respondent warden, by
counsel Andrew D. Mendelson, filed a summary response. 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. 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On August 16, 2009, petitioner and the victim, Kenneth Lee Workman, became involved in
an altercation over the victim’s dog. When officers arrived at the victim’s residence, they found
him bleeding profusely from injuries to his face and the back of his head. The victim was unable to
give a detailed statement, but indicated that he was trying to prevent two individuals from abusing
his dog and that those individuals beat him badly.

        Petitioner stated that he was walking by the victim’s house when the victim’s dog came out
and began biting him. According to petitioner, the person whom he was with took a second dog up
the road. Petitioner stated that he then commenced trying to hurt the victim’s dog because that was
what he would do to his own dog if it bit him. Petitioner stated that the victim came outside and
grabbed the chain and pulled his dog off. Petitioner stated that he pushed the dog toward the victim
and that the victim fell backwards. Petitioner had injuries to his arms consistent with dog bites.

        The victim in this case clung to life for a month, dying on September 16, 2009, in the
Charleston Area Medical Center. An autopsy was performed on September 17, 2009, the day after
the victim expired. A forensic specialist with the Fayette County Sheriff’s Office traveled to the
Office of the Chief Medical Examiner in Charleston, West Virginia, to observe the autopsy
performed by forensic pathologist H. Mahmoud, M.D. “[T]he cause of death was a cerebral
hemorrhage resulting from a linear skull fracture and a subdural hematoma (bruising of the

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brain[.)].” The manner of death was classified as “homicide.”

       Subsequently, petitioner was indicted for murder in the second degree. According to a
response to ongoing discovery, the State produced the death certificate on March 8, 2010. On April
5, 2010, petitioner entered a guilty plea to the lesser included offense of voluntary manslaughter
pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).

        At the plea hearing, petitioner indicated that he was satisfied with his lawyers and that they
explained to him the different options he had in dealing with the indictment against him. The
circuit court accepted petitioner’s guilty plea and adjudged him guilty of voluntary manslaughter.

        At the sentencing hearing on May 28, 2010, the circuit court denied petitioner’s request for
probation. The circuit court sentenced petitioner to fifteen years in the state penitentiary “because
of the severity of the beating and the seriousness of the crime.” Among the factors the circuit court
noted was that “[the victim] suffered a skull fracture, a subdural hematoma, bruising of the brain,
and the coroner determined that the cause of death, the manner of death was homicide.”

         Petitioner filed a petition for a writ of habeas corpus on July 9, 2012. Petitioner alleged
ineffective assistance of counsel and a denial of due process because there was “no factual basis”
for his conviction and his guilty plea “was involuntary where [the] victim died of pre-existing head
injuries and alcoholism and not from any blows inflicted by my actions.” Petitioner also alleged
that he did not receive a copy of the record.

         On July 19, 2012, the circuit court denied the petition finding that the three grounds of
relief to be without merit. First, “[t]he Court, having presided in the underlying criminal case,
perceived no defects in counsel’s performance which would violate the . . . standard announced in
[State v.] Miller[, 194 W.Va. 3, 459 S.E.2d 114 (1995)].” Second, with regard to petitioner’s claim
that it was pre-existing injuries and alcoholism that killed the victim, the circuit court found that
rather than be tried by a jury, petitioner chose instead to enter a Kennedy plea. Third, the circuit
court found that “no . . . requests [for a copy of the record] appear in the court file in this matter or
in the court file in Indictment No. 10-F-40.”1

        We review a circuit court’s order denying a habeas petition 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.


1
 In his brief, petitioner indicates that he has “receiv[ed] his entire case from the Circuit Court of
Fayette County, including transcripts.”

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Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).2

        On appeal, petitioner asserts that his attorneys encouraged him to plead guilty without
knowing whether the victim’s death was a homicide. Petitioner asserts that he is entitled to the
victim’s full medical records because “if the victim’s death was not found to be a homicide [then]
the Fayette County Circuit Court had no jurisdiction to find him guilty of voluntary
manslaughter[.]” The respondent warden asserts that the appendix record shows that a factual
basis existed for petitioner’s guilty plea and that the victim’s death was a homicide. The
respondent warden cites Syllabus Point Three of State v. Durham, 156 W.Va. 509, 195 S.E.2d 144
(1973): “A defendant may be held criminally responsible where he inflicts upon another a wound
resulting in death, even though the cause of death is related to the proper treatment of the wound or
related to such treatment or effect of a preexisting physical disability of the victim.”

        The finding of the Chief Medical Examiner’s forensic pathologist is in the record. The
circuit court referenced the finding in sentencing petitioner by noting that that “[the victim]
suffered a skull fracture, a subdural hematoma, bruising of the brain, and the coroner determined
that the cause of death, the manner of death was homicide.” (emphasis added). The appendix
record establishes a factual basis for petitioner’s guilty plea and conviction. Therefore, after
careful consideration, this Court concludes that the circuit court did not abuse its discretion in
denying the petition for a writ of habeas corpus.3

       For the foregoing reasons, we affirm.
                                                                                          Affirmed.

ISSUED: July 8, 2013

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

2
  See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (“A court having
jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus
without a hearing and without appointing counsel for the petitioner if the petition, exhibits,
affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the
petitioner is entitled to no relief.”).
3
  In his reply brief, petitioner argues that a violation of Brady v. Maryland, 373 U.S. 83 (1963),
occurred when the State did not produce the autopsy report. Petitioner did not make this argument
to the circuit court. Moreover, as was just explained, the finding of homicide by the forensic
pathologist is in the record.
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