                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Andrew Smith,
Petitioner Below, Petitioner                                                        FILED
                                                                                  May 22, 2017
vs) No. 16-0406 (Berkeley County 15-C-175)                                        RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                                 MEMORANDUM DECISION

        Petitioner Andrew Smith, by counsel Kevin D. Mills and Shawn R McDermott, appeals
the Circuit Court of Berkeley County’s April 1, 2016, order denying his petition for writ of
habeas corpus. Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Benjamin
M. Hiller, filed a response in support of the circuit court’s order to which petitioner filed a reply.
On appeal, petitioner argues that the circuit court erred in denying his request for habeas relief
wherein he alleged (1) that he received ineffective assistance of trial counsel; (2) that his guilty
plea was involuntary; (3) that there was an insufficient factual basis for his guilty plea; and (4)
that the State failed to disclose exculpatory evidence. Petitioner further alleges that the circuit
court erred in failing to hold an omnibus evidentiary hearing below.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       In February of 2010, petitioner entered a Kennedy plea to one count of first-degree sexual
abuse.1 He was thereafter sentenced to a term of incarceration of five to twenty-five years
followed by ten years of supervised release. However, pursuant to the plea agreement, the
sentence was suspended in lieu of five years of supervised probation.

        In March of 2012, the Berkeley County Probation Office filed a petition to revoke
petitioner’s probation, and a hearing was held on April 30, 2012. During the hearing, petitioner

       1
        See Syl. Pt. 1, Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987) (permitting the
entry of a guilty plea without admitting participation in the crime if a defendant “intelligently
concludes that his interests require a guilty plea and the record supports the conclusion that a jury
could convict him.”).

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admitted to several probation violations. The circuit court thereafter ordered that petitioner’s
original sentence be imposed and denied his request to return him to probation after serving a
portion of the sentence. This Court affirmed the circuit court’s probation revocation by
memorandum decision. See State v. Smith, No. 12-0953, 2013 WL 2301907 (W.Va. May 24,
2013) (memorandum decision).

        In 2014, Petitioner filed a petition for writ of habeas corpus with the circuit court, which
he subsequently withdrew. In May of 2015, petitioner filed another petition for writ of habeas
corpus relief with the circuit court alleging (1) that he received ineffective assistance of trial
counsel; (2) that his guilty plea was involuntary; (3) that there was an insufficient factual basis
for his guilty plea; and (4) that the State failed to disclose exculpatory evidence. The circuit court
entered an order on March 31, 2016, denying petitioner’s petition for writ of habeas corpus
without holding an omnibus evidentiary hearing. It is from this order that petitioner appeals.

       This Court reviews a circuit court order 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).

        First, we address petitioner’s argument that the circuit court erred in denying his request
for an omnibus evidentiary hearing. Specifically, he contends that his petition for writ of habeas
corpus “presented probable cause that he may be entitled to some relief had the evidence panned
out at the hearing as [he] had predicted it would.” West Virginia Code § 53-4A-7(a) provides, in
part, that

       [i]f the petition, affidavits, exhibits, records and other documentary evidence
       attached thereto, or the return or other pleadings, or the record in the proceedings
       which resulted in the conviction and sentence, or the record or records in a
       proceeding or proceedings on a prior petition or petitions filed under the
       provisions of this article, or the record or records in any other proceeding or
       proceedings instituted by the petitioner to secure relief from his conviction or
       sentence, show to the satisfaction of the court that the petitioner is entitled to no
       relief, or that the contention or contentions and grounds (in fact or law) advanced
       have been previously and finally adjudicated or waived, the court shall enter an
       order denying the relief sought.

Additionally, West Virginia Code §§ 53-4A-1 through 53-4A-11 contemplate the circuit court’s
exercise of discretion regarding granting or denying habeas relief.



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         We have held that a circuit court having jurisdiction over habeas corpus proceedings may
deny a petition for a writ of habeas corpus without a hearing “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.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657
(1973). In the comprehensive March 31, 2016, order denying petitioner’s request for habeas
relief, the circuit court cited to this syllabus point, found that the petition demonstrated that
petitioner was not entitled to relief, and dismissed his petition. Based on this record, and in light
of our holding in Perdue, we find no error.

         In petitioner’s second assignment of error, he contends that he would not have entered a
guilty plea but for the “pressure placed on him by his family and trial counsel.” Petitioner
maintains his innocence but concedes that he pled guilty “nonetheless.” He contends that the
record on appeal supports his reluctance to enter a guilty plea. According to petitioner, he had
“mixed-feelings” about the plea because his “life [was] ruined” as a result of the plea and he pled
guilty because he “did not want to go to prison.” Having carefully reviewed the circuit court’s
order, this Court concludes that the circuit court did not abuse its discretion in denying
petitioner’s request for habeas corpus relief. With regard to petitioner’s claim that his plea was
involuntary, we find that the circuit court properly concluded, after reviewing the record on
appeal, that petitioner did not raise this issue on his direct appeal to this Court. We have
previously held that “there is a rebuttable presumption that petitioner intelligently and knowingly
waived any contention or ground in fact or law relied on in support of his petition for habeas
corpus which he could have advanced on direct appeal but which he failed to so advance.” Syl.
Pt. 2, in part, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). As such, this claim has been
waived. Additionally, the record on appeal also supports the circuit court’s conclusion that there
was simply no evidence provided that supported petitioner’s claim. To the contrary, according to
the record, petitioner’s testimony at the plea hearing was that “no one made any promises
regarding the plea, threatened, forced or pressured him into entering his plea.”

        In petitioner’s third assignment of error, he claims that he was “subjected to ineffective
assistance of counsel” because his trial counsel failed to adequately communicate with him
during the course of representation, failed to investigate the case, failed to request exculpatory
evidence, waived the preliminary hearing, and failed to request discovery. However, we find that
the circuit court did not abuse its discretion in concluding that petitioner received effective
assistance of counsel, as it specifically found that he failed to meet either prong of the two-prong
standard necessary to prove ineffective assistance claims. See Syl. Pt. 5, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995) (holding that “[i]n the West Virginia courts, claims of
ineffective assistance of counsel are to be governed by the two-pronged test established in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.”)

        In petitioner’s fourth assignment of error, he claims that there was no factual basis for his
plea. Petitioner contends that the State failed to provide any factual basis for determining that the
“touching” of the victim was intentional or that the “touching” was done for the sexual



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gratification of either party, pursuant to West Virginia Code § 61-8B-1(6).2 The circuit court also
did not abuse its discretion in concluding that there was sufficient evidence upon which to accept
petitioner’s guilty plea as it found that petitioner acknowledged, on the record, “the charge he
was pleading guilty to and that his counsel explained to him all of the essential elements
thereof.” It is clear from the record on appeal that petitioner ultimately pled guilty to the first-
degree sexual abuse of the eight year-old victim after a night of consuming alcohol and drugs.

        In petitioner’s final assignment of error, he claims that the State failed to disclose
exculpatory evidence. Petitioner contends that a West Virginia State Trooper threatened him into
confessing to the crime and that the State was obligated under Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194 (1963), to disclose this information. Petitioner contends that the trooper shoved
him, pounded on the table, screamed and cursed at him, and threatened “to put him in prison for
the rest of his life.” According to petitioner, the trooper’s alleged behavior made his confession
inadmissible.

        We note that petitioner does not clearly indicate to whom the information regarding his
confession should have been disclosed. Petitioner was present for his own confession and,
therefore, the State was not required to disclose that evidence to him. As such, the circuit court
did not abuse its discretion in concluding that the State did not fail to disclose exculpatory
evidence as it found that petitioner “voluntarily opted to take the State’s plea offer and its
recommendation of probation.” According to the circuit court, “once he entered his knowing and
voluntary guilty plea, [he] waived any claim to challenge the evidence against him.” The circuit
court’s conclusion on this issue is supported by our previous holding that “[a] knowing and
voluntary guilty plea waives all antecedent, nonjurisdictional defects.” State v. Proctor, 227
W.Va. 352, 364, 702 S.E2d 549, 561 (2011).

        For the foregoing reasons, we affirm the circuit court’s April 1, 2016, order denying
petitioner’s petition for a writ of habeas corpus.



                                                                                         Affirmed.



ISSUED: May 22, 2017




       2
           West Virginia Code § 61-8B-1(6) provides that

       [s]exual contact means any intentional touching, either directly or through
       clothing, of the breasts, buttocks, anus or any part of the sex organs of another
       person, or intentional touching of any part of another person’s body by the actor’s
       sex organs, where the victim is not married to the actor and the touching is done
       for the purpose of gratifying the sexual desire of either party.
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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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