                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                    FILED

Eric T. Johnston,                                                          February 19, 2016
                                                                               RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 15-0108 (Jefferson County 11-F-55 and11-F-78)

Marvin C. Plumley, Warden, Huttonsville

Correctional Center,

Respondent Below, Respondent.




                               MEMORANDUM DECISION
      Petitioner Eric T. Johnston, pro se, appeals the January 13, 2015, order of the Circuit
Court of Jefferson County summarily denying his petition for a writ of habeas corpus.
Respondent, by counsel Brandon C. H. Sims, filed a 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. 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.

       On September 12, 2011, petitioner entered guilty pleas in two unrelated cases, Nos. 11-F­
55 and 11-F-78. In No. 11-F-55, petitioner pled guilty to breaking and entering. The circuit court
sentenced petitioner to one to ten years of incarceration. Pursuant to petitioner’s plea agreement
with the State, the circuit court made petitioner’s sentence for breaking and entering concurrent
with petitioner’s one to five year sentence for his conviction for failure to register as a sex
offender in No. 11-F-78.1 In the instant habeas proceeding, petitioner challenges only his
conviction for breaking and entering in No. 11-F-55.

        Petitioner was initially charged with breaking and entering in May of 2009. In June of
2009, the State made a plea offer pursuant to which petitioner would serve his breaking and
entering sentence concurrently with a previous unrelated sentence which he was already serving.
Petitioner refused the plea offer.

       1
         Petitioner also pled guilty to misdemeanor battery and received a sentence of six months
of incarceration, to be served consecutively to his felony sentences.
                                                1

       Petitioner alleges that the State retaliated against him for his rejection of its June of 2009
plea offer by not indicting him on the breaking and entering charge until April of 2011—one
month before his release from incarceration in the prior case. Following his release in May of
2011, petitioner was rearrested on the breaking and entering charge and arraigned on the
indictment in No.11-F-55. The May 9, 2011, arraignment order reflects that petitioner, who had
counsel at that time, “waived [his right to a] speedy trial.” Petitioner was released on bond until
August of 2009 when he was arrested for failure to register in No. 11-F-78.

        Following his guilty pleas and sentencing in Nos. 11-F-55 and 11-F-78, petitioner filed a
petition for a writ of habeas corpus on July 7, 2014, challenging his breaking and entering
conviction. Petitioner claimed that his right to a speedy trial was violated because the State
waited from 2009 to 2011 to indict him for breaking and entering and that counsel provided
ineffective assistance in not moving that the indictment be dismissed. Finding that petitioner’s
later claim was derivative of his former claim, the circuit court analyzed both grounds pursuant
to this Court’s four-factor test for assessing alleged violations of the Sixth Amendment right to a
speedy trial:2

       A determination of whether a defendant has been denied a trial without
       unreasonable delay requires consideration of four factors: (1) the length of the
       delay; (2) the reasons for the delay; (3) the defendant’s assertion of his rights; and
       (4) prejudice to the defendant. The balancing of the conduct of the defendant
       against the conduct of the State should be made on a case-by-case basis and no
       one factor is either necessary or sufficient to support a finding that the defendant
       has been denied a speedy trial.

Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

        Based on petitioner’s allegations that he repeatedly contacted his attorney from 2009 to
2011 to inquire as to when he was going to be indicted for breaking and entering, the circuit
court found that the third Foddrell factor—assertion of the right to a speedy trial—weighed in
petitioner’s favor. However, the circuit court rejected petitioner’s claim that his right to a speedy

       2
           The Sixth Amendment to the United States Constitution provides, as follows:

                In all criminal prosecutions, the accused shall enjoy the right to a
                speedy and public trial, by an impartial jury of the State and
                district wherein the crime shall have been committed, which
                district shall have been previously ascertained by law, and to be
                informed of the nature and cause of the accusation; to be
                confronted with the witnesses against him; to have compulsory
                process for obtaining witnesses in his favor, and to have the
                assistance of counsel for his defense.

The Sixth Amendment is made applicable to the several States pursuant to the Fourteenth
Amendment. See Barker v. Wingo, 407 U.S. 514, 515 (1972).
                                                 2

trial was violated because the court determined the three other factors weighed against a finding
that a violation occurred. The circuit court noted that in Foddrell, this Court found that a delay of
almost six years was not violative of the right to a speedy trial,3 that once petitioner was indicted,
his right to a speedy trial was waived at arraignment; and that “[petitioner] was in no way
prejudiced by the prosecution of this charge at a later time, when [petitioner] himself declined an
opportunity to serve the sentence (to which he later pled guilty) at an earlier time,[4] and
concurrent to another sentence, anyway.” Having determined that petitioner’s right to a speedy
trial was not violated, the circuit court found that counsel was not ineffective in not moving to
have the indictment dismissed on that ground. Accordingly, the circuit court summarily denied
petitioner’s habeas petition by an order entered on January 13, 2015.

        Petitioner appeals the circuit court’s summary denial of habeas relief. We review a circuit
court’s order denying a habeas petition pursuant to 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). In West
Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984): (1) counsel’s performance was
deficient under an objective standard of reasonableness; and (2) there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceedings would have been
different. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995).

        On appeal, petitioner raises the same two claims he made in the circuit court: that his
right to a speedy trial was violated because the State waited from 2009 to 2011 to indict him for
breaking and entering and that counsel provided ineffective assistance in not moving that the
indictment be dismissed. Like the circuit court, we address these two claims together.

        First, petitioner reiterates his allegation that, by not indicting him on the breaking and
entering charge until April of 2011, the State retaliated against him for his rejection of its June of
2009 plea offer. However, upon our review of petitioner’s habeas petition, we find that this
allegation was subject to summary denial because petitioner failed to buttress it with any
       3
           171 W.Va. at 57, 297 S.E.2d at 832.
       4
         In his habeas petition, petitioner never alleged that he is not guilty of breaking and
entering and suggested, as an alternative to dismissing the charge, that the circuit court could
change his effective sentence date (to the date of his initial arrest in May of 2009) so that his
sentence for breaking and entering would be deemed already served. On appeal, respondent
responds to petitioner’s suggestion as if it were a separate issue. However, having found that
petitioner’s suggestion goes only to a possible remedy and that he is not entitled to habeas relief,
we decline to address his suggested remedy.


                                                  3

supporting factual allegations. See Losh v. McKenzie, 166 W.Va. 762, 771, 277 S.E.2d 606, 612
(1981) (“A mere recitation of any of our enumerated grounds without detailed factual support
does not justify the issuance of a writ, the appointment of counsel, and the holding of a
hearing.”); see also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657, 658 (1973).

        Next, petitioner complains that his attorney did nothing in response to his inquiries as to
when he was going to be indicted. Respondent counters that according to petitioner’s habeas
petition, counsel responded by advising petitioner that “the State might choose to do nothing and
that, therefore, we should do nothing.” We find that such advice was not unreasonable. See
Barker v. Wingo, 407 U.S. 514, 521 (1972) (noting that delays in criminal proceedings can work
to defendant’s advantage).5

        Finally, petitioner contends that in applying the Foddrell factors to find petitioner’s right
to a speedy trial was not violated, the circuit court placed too much emphasis on the fact that
petitioner waived his right to a speedy trial once he was indicted. We find the circuit court’s
reliance on petitioner’s waiver of a speedy trial, once indicted, was proper to the extent that it
reflects that petitioner did not prioritize obtaining a resolution of the breaking and entering
charge. While we agree with petitioner that the relevant period was before he was indicted, as
respondent points out, counsel’s wait-and-see approach during that timeframe was sound. See
Barker, 407 U.S. at 521 (giving example of prosecution witnesses becoming unavailable during
delay). Therefore, we find that the circuit court did not clearly err in determining that neither a
speedy trial violation nor ineffective assistance of counsel occurred in petitioner’s case.
Therefore, we conclude that the circuit court did not abuse its discretion in summarily denying
petitioner’s petition for a writ of habeas corpus.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: February 19, 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




       5
        In Barker, the Supreme Court of the United States set forth the four-factor test we later
adopted in Foddrell. 407 U.S. at 530; see Foddrell, 171 W.Va. at 55, 297 S.E.2d at 830.
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