                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Ellis B.,
Petitioner Below, Petitioner                                                         FILED
                                                                                   October 28, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 13-0088 (Raleigh County 13-C-13)                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Patrick Mirandy, Warden, St. Mary’s Correctional Center,
Respondent Below, Respondent

                               MEMORANDUM DECISION

      Petitioner Ellis B.,1 appearing pro se, appeals the order of the Circuit Court of Raleigh
County, entered January 15, 2013, that summarily dismissed his petition for writ of habeas corpus.
Respondent Warden, by counsel Laura Young, filed a summary response.

       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 May 10, 2006, a Raleigh County grand jury indicted petitioner on four counts: (1)
sexual abuse by a parent, guardian, or custodian; (2) first degree sexual assault; (3) sexual abuse by
a parent, guardian, or custodian; and (4) first degree sexual assault. The indictment consisted of
one page that listed and described the counts in order and concluded, after the fourth count, by
stating that the charges were “all . . . against the peace and dignity of the State[.]” (Emphasis
added).

        Subsequently, pursuant to a plea agreement, petitioner was convicted of two counts
attempted first degree sexual assault and two counts of first degree sexual abuse. The circuit court
sentenced petitioner to one to three years in prison on each conviction for attempted first degree
sexual assault and to one to five years in prison on each conviction for first degree sexual abuse, all
sentences to run consecutively for an aggregate term of four to sixteen years in the penitentiary.


       On January 9, 2013, petitioner filed a petition for writ of habeas corpus that alleged that

       1
         Because of sensitive facts, we protect the identities of those involved. See State ex rel.
West Va. Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
(1987).

                                                  1
Counts One and Three of the indictment were fatally flawed because each failed to contain the
words “against the peace and dignity of the State” as required by the West Virginia Constitution.2
This was the first time petitioner challenged the validity of the indictment. On January 15, 2013,
the circuit court issued a ruling that the petition was frivolous and without merit. The circuit court
ruled that “[a]lthough Petitioner argues that the language ‘against the peace and dignity of the
State’ was not included in the Indictment in question, a careful review of the Indictment indicates
that the language was, in fact, included at the bottom of the document.” Accordingly, the circuit
court summarily dismissed the petition. A copy of the indictment was attached to the order.
Petitioner now appeals the circuit court’s January 13, 2013 order.

       We review an court’s order that summarily dismisses 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). 3 In addition, “the
sufficiency of an indictment is reviewed de novo.” Syl. Pt. 2, in part, State v. Miller, 197 W.Va.
588, 476 S.E.2d 535 (1996).

        On appeal, petitioner relies on case law from the first half of the last century in arguing that
to be valid, each count of the indictment must have the words “against the peace and dignity of the
State.” Respondent counters that the modern rule is that “[i]ndictments are now considered ‘from
the broad and enlightened standpoint of common sense and right reason rather than from the
narrow standpoint of petty preciosity, pettifogging, technicality[,] or hair splitting fault finding.’”
State v. Wallace, 205 W.Va. 155, 159-60, 517 S.E.2d 20, 24-25 (1999) (quoting Parsons v. United
States, 189 F.2d 252, 253 (5th Cir. 1951) (footnote omitted by the Court)).



       In Syllabus Point One of Miller, this Court held as follows:


       2
          See W.Va. Const., art 2, § 8 (“Indictments shall conclude, ‘Against the peace and dignity
of the State.’”); see also Rule 7(c)(1), W.Va.R.Crim.P.
       3
          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.”).
                                                   2
              Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure
              requires that a defendant must raise any objection to an indictment
              prior to trial. Although a challenge to a defective indictment is never
              waived, this Court literally will construe an indictment in favor of
              validity where a defendant fails timely to challenge its sufficiency.
              Without [an] objection, the indictment should be upheld unless it is
              so defective that it does not, by any reasonable construction, charge
              an offense under West Virginia law or for which the defendant was
              convicted.

        Upon an independent review of the indictment, this Court finds that the circuit court
correctly rejected petitioner’s challenge to the validity of Counts One and Three. Therefore, the
Court concludes that the circuit court did not abuse its discretion in summarily dismissing the
petition.
       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 28, 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




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