                            STATE OF WEST VIRGINIA
 

                          SUPREME COURT OF APPEALS
 


Harold B.,                                                                       FILED
Petitioner Below, Petitioner                                               September 19, 2016
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0029 (Harrison County 13-C-200-3)                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

David Ballard, Warden,
 

Mt. Olive Correctional Complex,
 

Respondent Below, Respondent
 



                               MEMORANDUM DECISION
        Petitioner Harold B., by counsel Jason T. Gain, appeals the Circuit Court of Harrison
County’s December 14, 2015, order denying his petition for writ of habeas corpus.1 Respondent
David Ballard, Warden, by counsel Gordon L. Mowen II, filed a response. Petitioner filed a
reply. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on
the grounds of ineffective assistance of counsel and improper remarks by the prosecution.

        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.

        Petitioner was indicted during the May of 2010 term of court on the following five
counts: one count of first-degree sexual assault; two counts of first-degree sexual abuse; and two
counts of sexual abuse by a parent, guardian, or custodian. Upon petitioner’s motion, one count
of first-degree sexual abuse involving a different victim was severed. Following a jury trial,
petitioner was convicted in December of 2010 of one count of first-degree sexual assault and one
count of sexual abuse by a parent, guardian, or custodian. Petitioner was acquitted of the
remaining two charges.

        In May of 2011, petitioner was sentenced to a term of incarceration of ten to twenty years
for his conviction of sexual abuse by a parent, guardian, or custodian, and a term of incarceration

       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).


                                                1


of 25 to 100 years for his conviction of first-degree sexual assault. Thereafter, petitioner
appealed his conviction to this Court, and we affirmed the same by memorandum decision in
May of 2012. See State v. H.M.B., No. 11-0941, 2012 WL 3079154 (W.Va. May 29, 2012)
(memorandum decision).

       Thereafter, petitioner filed a petition for writ of habeas corpus in the circuit court in May
of 2013. The circuit court appointed counsel to represent petitioner in the proceeding and then
held an omnibus hearing in February of 2015. At the hearing, the circuit court addressed all the
grounds petitioner raised, which included ineffective assistance of counsel; constitutional errors
in evidentiary rulings; allegedly prejudicial statements by the prosecution; sufficiency of the
evidence; and improper communications between the prosecution or witnesses and the jury.
After a review of petitioner’s claims, the circuit court denied the petition by order entered in
December of 2015. 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 alleges that he was entitled to habeas relief because his
prior habeas counsel was ineffective and because the prosecutor made allegedly prejudicial
remarks to the jury.2 The Court, however, does not agree.

       2
         Specifically, in his petition for writ of habeas corpus below, petitioner alleged that trial
counsel was ineffective for failing to effectively cross-examine the victim. On appeal to this
Court, however, petitioner abandons this argument in favor of alleging that he was denied his
constitutional right to cross-examine the witness because she was not competent. In support of
this argument, petitioner cites the habeas court’s finding that he was not denied effective
assistance of counsel in regard to the cross-examination of the victim because “it is more than
reasonable to believe that a harsh cross-examination of a five[-]year[-]old alleged sexual assault
victim would prove distasteful to a jury.” According to petitioner, this finding is “legally
correct,” although he argues that it only highlights the fact that he was denied a meaningful
opportunity to confront the victim. As such, he argues that “it is more appropriate for this Court
to treat this assignment of error as a denial of a right to effectively cross[-]examine under the
plain error doctrine.” The Court, however, does not agree. Petitioner admits that the circuit
court’s ruling on his claim of ineffective assistance of counsel does not constitute error.
Moreover, petitioner failed to raise the allegation that he was somehow denied the right to
effectively cross-examine the victim because the jury may have found the same “distasteful” in
(continued . . . )
                                                 2


        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 December 14, 2015, “Order Denying
Petition For Habeas Corpus Relief” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: September 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




the proceedings below. We have routinely held that “[o]ur general rule is that nonjurisdictional
questions . . . raised for the first time on appeal, will not be considered.” Shaffer v. Acme
Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). See also,
Whitlow v. Board of Education, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993) (“Our general
rule in this regard is that, when nonjurisdictional questions have not been decided at the trial
court level and are then first raised before this Court, they will not be considered on appeal.”);
Konchesky v. S.J. Groves & Sons Co., Inc., 148 W.Va. 411, 414, 135 S.E.2d 299, 302 (1964)
(“[I]t has always been necessary for a party to object or except in some manner to the ruling of a
trial court, in order to give said court an opportunity to rule on such objection before this Court
will consider such matter on appeal.”). As such, we decline to address petitioner’s allegation that
he was denied a constitutional right to confront the victim on cross-examination, to the extent
that this allegation was not raised below.


                                                3


)
                      CIRCUIT COURT OF HARRISON COUNTY, WEST \lRGINIA


     HAROLD                     B


                              Petitioner, 

               v. 	                                          Civil Case No. I3-C-200-3
                                                             Judge James A. Mati.h


     DAVID BALLARD, Warden, .
     MOlllI! Olive Correctional C()mplex,

                              Respondent.

                      QRDER l)ENYING PETITION FOR HABEAS COPUS REUEF

               On February 10, 2015, came the Petitioner, Harold             B.      • via video conference

     al1d by his counsel, Rocco Mazzei. Came also the Respolldent, David Ballard, Warden ofMoum

     Olive Correctional Complex, not in person bnt by counsel, Andrea Roberts, Assistant Prosecuting

)    Attorney for Hanison County, Wast Virginia. The parties were present pursuant to an Order ofthe

     Court setting an Onulibus Hearing on the Petition for a Writ of Habeas Corpus previously filed

     herein.

               Upon eonsid(lration of the evidence presented by the parties and contained in the record in

     the underlying criminal case in ,his matte,', namely, Felony Number I O-F-S3-3, in the Circuit Court

     of Harrison County, West Virginia, the arguments of counsel. and pertinent legal authority, the

     Court concludes that the Petilione£ is not entitled to a Writ of Habeas COJ1)US and his Petition is

     therefore DENIED.



                                              l, 	FlNDmGS     OF I'ACT

         1. 	 The Petitioner was indicted in the May 20 10 illrm On a five count indictment for the

               following crimes: 011e count of sexual assault in the first degree, two counts of sexual abuse

)	             in the first degree, and two counl:!; of sexual abuse by a parent. Upon Petitioner's 111otion,
                                                             I
    )
           one count of sexual abuse in the first degree involved a different victim and it waS severed

           from the other charges for purpose of a trial and a jury found Petitioner not guilty of this

           single count arfas! degree sexual abuse.

        Z.. The Citcuit Court appointed attorney Wiley Newbold to represent the Petitioner on the

           remaining felony C!)unts that are relevant to the Petitioner's request for habeas reJief.

        3. 	 On December 7,2010, the Petitioner was found guilty of one count of sexual abuse by a

           paront, guardian, custodian, or person in a position of tlust and one count of sexnal assault in

            the first degree. The court entered judgment of aequittal on the remaining one count of

           sexual abuse by a parent, guardian, custodian, or person in a position of trust and one couut

           ofsexual abuse in the first degree.

        4. 	 On l\fuy 18,2011, the Petitioner was sentenced to a period of no I less thun ten years not

           more than twenty years in the penitentiary with credit fur time served and a tine 0[$500 plus
)
           court cosll; for the crime of sexual abuse by a parent, guardian, custodian, or person in a .

           position of trust; he was also sentenced to a period of110t less than twenty-five years not

            more than one hundred years with a fine of $5000 for the crime of sexllal assault in the first

            degree, ordered to run concUlTently ",11h the first sentence.

        S. 	 The Petitioner filed an appeal to the West Virginia Supreme CO\ll1 of Appeals, which

            affirmed the actions of the Circuit Court and was denied on May 29,2012.

        6. 	 The Petitioner tIled a Writ ofHabeas Corpus on May 10,2013. The Court appoInted Jason

            Glass to represent the Petitioner on October 24,2013; Mr. Glass subsequently withdrew as

            counsel and the Rocco Mazzei was appointed in hIs place on November 20, 2013.

        7. 	 An Omnibus hearing was held on Petitionee's petition for a Writ of Habeas Corpus on

            February 10, 2015.

        8. 	 A review ofthe "Checklist of GrOlUlds tor Post-Conviction Habeas Corpus Relief" filed by
)
                                                       2
)

           the Petitioner pursuant to Losh 1< ,tfcKenzie, 166 W.Va. 762,277 S.E.2d 606 (1981), as

           confmned by the Petitioner and ills counsel upon the record in this matter at the time of the

            Omnibus Hearing, the Court notes that the Petitioner, Harold             B       , "dises onl y .

            the following Losh grounds:

              a. ineffective assistaJ1ce of counsel (Lash Checklist No. 21);

              b. COIlstitutional errors in evidentiary rulings (Losh Checklist No. 41 );

              c. claims ofprejudidal statements by prosecutor (Losh Checklist No. 44);

              d. sufficiel1cy of evidence (Losh Checklist No. 45); and

              e. improper commu.nications between prosecutor or witnesses and jury (Losh Checklist

                 No. 48). 


            The COut1: will address each ground separately. 



)
                                       It CONCLUSlONS OF LAW 


       L Ineffective Assi,"tance ofCo\lnseU'Losh CheckllstNo. 21} 


            The Petitioner alleges that his trial. counsel (1) tuiled to object to what he considers leading

     questions by the prosecutor, (2) failed to effectively cross examine the victim, and (3) failed to have

     an exculpatory photo enhanced to prove his innocence, and therefore his trial counsel did not

     provide reasonable assistance.

            In order to find that an attomey's assistance is ineffective, the Strickland test must be

     applied, which states that (1) counsel's perfOnllanCe 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 proc(''ediugs would have been different. Strickland v. Washington,466 U.S. 668

     (1984). State ex rei. Kitchen v. Painter clarifies this test by holding that when an attack on counsel's

     pe1TOrmance as ineffective "arises from occurrel1Ces involving strategy, tactics and arguable courses
)
                                                         3
)
    of actio"" his conduct will be deemed effectively assislive of his client imerests, unless no

    reasonably qualified defense attorney would have so acted in the defense of an accused." 226 W.Va.

    278,700 S.E.2d 489 (2010). Failure to meet the burden of proof imposed by either palt of the

    SlricklandfMiIler test is fatal to a habeas petitioner's claim. State ex reI. Daniel v, Legursky. 195

    W,Va. 314, 465 S.E.2d 416 (l995), In addition, a "decision regardil1g trial tactics cannot be the

    basis for a claim of ineffective assistance of counsel unless counsel's tactics aTe shown      (0   be so ill

    chosen that it permeates the, entire trial with obvious unfairness," Id The same case also states that

    "[i]n making the requisite silowlng of prejudice, a petitioner may demonstrate that the cumulative

    effect of counsel's individual acts or omissions was substantial enough to meet StrickJand's test."

    Id. Furthet·, when ruling on factors in a petition for habeas corpus, including whether actions of trial

    counsel could be considered to be strategic or tactical, the reviewing court must construe the actions

    in a light favorable to the prosecution. SyJ. pt 1, State v. Gulizrie. 194 W.va. 657,461 S.E.2d 163
)
    (l995). Petitioner's burden in proving ineffective assistance of counsel is heavy as there is strong

    presumption that counsel's conduct fhlls within the wide range of reas~1fIble professional assistance.

    U.S.C.A. Consl,Amend, 6; see at.w Srate ex ret. VeN/aller v, Warden,        ~y:   Virginia Peni1enticl1Y, 207

    W. Va. 11,52& g,E.2d 207 (1999),

            First, Petitioner alleges that his trilll coullsel failed to object to leading questions by the

    prosecutor. When the prosecutor \\1113 conducting direct examination of the victim, J .R" oftentimes a

    question was asked several limes until the pros.ecutor·s desired answer was given. A specific

    example of this occurrence, the Petitioner argues, inclLlded the victim twice responding "no~ to

    whether she had ever received a "bad touch" and, after the prosecutor asked whether she "'115 sure,

    the victim eventually responded to the "had louch" question in the afi1l1native, As stated above.

    gl'eat deference is given to the strategy and tactic choices of counsel and the actions must be

    construed in the light most favorable to the pl'Osecution. It is a very common concern that obj~'Otions
)
                                                         4
    oflen highlight a point (hat the objector actually wishes to conceal, among mhcl' reasons; in

    addition, special care is often taken in how an opposing attorney treats a young victim in front of a

    jury. The victim iJ:l this case was five years old. While she 'W-as on the witness stand, the jury was

    able to see any goading by the prosecutor in his direct examination nf the victim and presumably

    weighed J.R. '8 testimony accordingly. Additionallr, regarding the missed opportunity to object, it is

    important to note that Strickland does not guarantee perfect representation, only a reasonably

    competent attorney. V.S.C.A. COllst.Amend. 6, Harrington v. Richter, 562 U.S. 86 (2011). Trial

    counsel' 5 inaction in this instance did not cause any substantial effect on the Petitioner's trial, and

    the Petitioner does not provide any argument to support the contention that, but-for the attomey's

    inactions, the outcome ofthe tpal would have been diffcl'<i:n1. Tberefore, this ground is insufficient

    to support habeas corpus relief.

            Next, Petitioner argues that his trial counsel did not effectively cross-examine the victim,
)
    J.R. The Petitioner does not claim that his counsel was ill-prepared; rather, he slates that his

    attorney expressed concerns about how the jury would view certain treatment of the young alleged

    victim. With this information, it is clear that trial nounsc] cal<::ulated his cross-examination and

    exercised Iris right to conduct the Petitioner's case according to his own ,iralegy. Ultimately. it is

    more than reasonable to believe thai a harsh cross-examination of a five year old alleged sexual

    assault victim would prove distasteful to a jury. Therefore, because trial couusel made reasonable

    tactical decisions regarding the "ictim's cross-examination, this ground is not sufficient to support a

    claim for habeas corpus relief.

            Third, the Petitioner asserts that his attorney failed to etiliance a photo. which was used by

    the prosecotion as evidence ofbis guilt, to show ex(mlpatory details. Speci!1cally, the prosecntion

    used a photo of a man, a11eged to be the Petitioner, on a tractor with the victim. The Petitioner

    claims that, if enhanced, the photo would reve.al that it was not the Petitioner in the photo. The
)
                                                         5
         Petitioner has tattoos on his foreanns, yet the man in the photo, claim' the Petitioner, dues no!. The

         Petitioner believes that the man in the photo is the victim's grandfather and that the photo was usea

         inappropriately by the prosecution. The Petitioner argues that the photo had a large effect on the

         outcome of the case because it is the only evidence presented tn the jury that depicts the victim on a

         tractor, which is where the alleged abuse took place. His attorney told him at the time that the photo

         'i'<'lIS   not very persuasive because the State was uot arguing that the abuse took place on the day that

         the photo was taken, and noted that a witness had already identified the Petitioner as the man in the

         photo, Petitioner raised additional ooncerns about a photo ofhhuself, alone, on a black tractor

         during wUiter months, when the girl testified that the abtlSe occurred Oil a gJ'een and yellow tractor

         in the summer. Again, trial counsel chose !lotiO oi:lject

                      As stated above, great deterence must be given to trial counsel's strategic and tactical

    ),   'decisions. Trial counsel often tried. to explain to the Petitioner why he chose not to object to certain
/

         evidence, indicating a proaotive decision not to raise an objection, rather than negligence or

         aceidental omission. The photos themselves are not "smoking guns" that necessarily swayed the

         jury one way or another; as such, it is not unreasonable that trial counsel "''Quid want to save

         objections for more meaningful issues. Therefore, because trial counsel made reasonable tactical

         decisions regarding when and when not to oi1iect to certain evidence, this ground is not sufficieru to

         support a claim for habeas corpus reliet:

             2. Constitutional Errors in Evidentiro..B.ulings (Lesh Checklist No. 41)

                         Petitioner asserts constitutional errors in evidentiary l11lings as a ground in his Petition;

             however, the Court finds that the Petitioner failed to present any evidence in support of this

             ground and that this argument is therefure without merit




)
                                                                    6
    I.
          3.   ClaiU1~of Prejudicial   Statements by Prosecutor (Lash Checklist   NQ~   44)

                  Petitioner argues thatthe prosecutor made a prejudicial statement to tbe jlU'Y when, in

          closing, he stated that he had "forced" the victim to testify. Petitioner's trial counsel immediately

          objected and, after a discussion at the bench, the prosecutor proceeding witl1 his closing and

          explained his use of the word "fol"ce" aud described it as a POOl" word choice. The Pelitioner has

          not provided any argument or evidence as to how this affected the outcome orbis trial in any way.

          Therefore, this ground is not sufficient to support a claim fm habeas COIpllS relief.

          4. Suf!1ciency of Evidence (Lash Checklist No. 45j

                   Petitioner assens sufficiency of evidence as a grclmd in his Petition; however, the Court

          finds that the Petitioner failed to present any evidence in support of this ground .md that this

          argument is therefore without merit.

           S. lmpmper Communications Behveeu Prosecutor or Witnesses and Jurv (Lash Checklist No. @
)
                 First, Petitioner asSerts that improper communications occurred between all assistant

         prosecutor, Chet Walker, who "ilLS not involved in this case, and a member of the jury, Mr. Stout.

         According to the trial transcripts. Juror Stout walked out of the restroom and Mr. WaU,er attempted

         to shake his handaud say hello. Mr. Stout responded by telling Mr'. Walker that he was on ajuty

         and implied that he could not shake his hand; at thal poiut. both parties turned and \\!alked away

         from one another. Mr. Stout later told the Court that he was merely an acquaintance, rather than a

         close personal friend, of Mr. Walker's. The Court noted the occurrence and, finding no issue,

         allowed lVlr. Stout to sit au the jury in the Petitioner's trial.

                 In State v. Holland, the West Virginia Supreme Court of Appeals addressed the issue of a

         Slate trooper having c{lIlversations with jurors afte<' they were impaneled; in that case, the defendant

         was nor entitled to a mistrial because the tmoper and the jurors did not discuss the defendallt's case

         or any issue associated ; ..ith it. 178 W. Va. 744,687 S.E.2d 133 (1997).
                                                                            .      The case was distinl!uished
)                                                                                                        ~




                                                                7
    by Slale v. Rush. where all out-of-court conversation among a State's witness, a poHce officer, and

    four jurors during a lunch break resulted in a mistrial. 224 W. Va. 544. 364 S.E.2d 535 (2009). In

    lhat case, lhe Court found that the conversation was lengthy and significant enough to necessitate

    mistrial, as the conversation harllasted up to twenty minutes and the witness was an onicer who sat

    at the prosecution's table throughout the trial. Id.

           To compare the Petitioner's instant claim of improper communication, the severity reaches

    nowhere close to situation illustrated by Rush; it is even difficult to even comp<1I'e the almost­

    interaction of Mr. Stout and Mr. Walker to the conversation discussed in Holland. In this case, Mr.

    Stout did exactly what he should have done to avoid any appearance of impropriety and removed

    himselffrom any potential interaction wilh Mr, Walker. Run-illS with familiar faces occasionally

    occur, and the actions of both Mr, Stout and Mr. Walker in this instance were perfectly appropriate,

    In addition, the Petitioner provides no indication that Mr. Stout was swayed or biased by his brief
)
    encounter. Thcl'efore, this grotiud in not sufficient to support a claim of habeas corpus relief.

            Finally, the Petitioner argues that the victim's mother's presence in the courtroom

    throUgllOut the Irial is a violation oflhe Rules of Evidence and constitutes improper cornmunicati,)U.

    At the onset oftrial, a motion to sequester pursuant to Rule 615 ofthe West Virginia Rules of

    Evidence was granted, requiring all witnesses to remain outside the courtroom'until they were

    called to testify. The Petitioner does not stale the effect, if any, the presence of the victim's mother

    in courtroom had On the outcome of his trial. F1l11hennore, Petitioner's cOllI1Si:l did not object when

    the victim's mother subsequently took the stand, so any violation oflhe Court's sequestration order

    was waived by the Petitioner.

            The presence ofth" Petitioner's mother does nOlrequire a mistrial, as the Petitioner argues,

    The West Virginia Supreme Court held in State v. Wilson that "[wjhere a·sequestered witness does

    not wilhdraw when ordered, or afterwards returns into the courtroom and is present during the
)
)

     examination of other ",'itnesses, it is discretionary witb the judge whether or not he will allow this

     witness to be examined." Syllabus Point 7, State   lI.   Wilson, 157 W.Va. 1036,207 S.E2d 174

     (1974); see also Stare v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987). In additioJl, a violation of a

     sequestration order doeS not in itself render the violating witness incompetent to testify. Stale v.

     Steele at 3341562 (illlemai citations omitted). As the Petitioner has not alleged any certain way in

     which the testimony of the victim's mother was swayed by testimony she heard from other

     witnesses ortbe victim herself, this Court is ullconvinced that effect of the violff1;ion rendered a

     verdict that in any way violated the Petitioner's constitutional rights. TIlerefore, this ground is not

     sufficient to snpport a claim for habeas corpus relief



                                                 m.     RULING

             Based upon the foregoing conclusions, it is ORDERED that the Petitioner's Petition for a
)
     Writ of Habeas Corpus should be and the same is hereby m':NIED.

             It is ftlrther ORDERED that the writ is hereby discharged and the Petitioner is remanded to

     tbe custody of the Respondellt to serve the sentence imposed hy the valid judgment ofimprisonmcnt

     ordered in FeloflY Case No. I (J-F-83·3.

             It is fUl'ther ORDERED that purSllant to W.Va. Code § 53-4A-4(b), all costs and expenses.

     including the attorney fees of Petitioner! s counsel, shall be assessed by the Clerk of this Court

     against the Petitioner and the State of West Virginia shall have ajudgment against him in said

     amount.

             This is a final order from which any party may appeal by flUng a notice of appeal and

     attachments with the Office of the Clerk oHhe Supreme Court of Appeals of West Virginia within

     thirty days of the entry of this on:\er and by serving a copy on all parties who have appeared in this

     action, the Clerk of the Circuit Court of Harrison County, and the court reporter. In addition, within
)
                                                          9
     fou, month, of the entry oftbi" judgment, any person wishing to appeal           mtL<;t   tlle a p<:tition for

     appeal with the Clerk ofthe Supreme Court of Appeals of West Virginia, and by serving a copy on

     all parties who have appeared in this action, the Clerk ohlle Circuit Court of Harrison County, and

     the court reporter.

            This is a final Order. The Clerk shall remove this case from the COUlt's docket.

             It is further ORDERED that the Clerk of this COUlt place a certified copy oflhis Order in

     Felony Case No. IO-F-83-3 and deliver a certified copy of the within Order, by first class mail or

     other means, unto the following:


     Andrea Roberts 	                             Rocco Mazzei, Esq.
     Assistant Prosecuting Attorney               427 W. Pike Street
     30l W, Main Street                           Clarksburg, WV 26301 

     Clarksburg, WV 2630 I 


     David Ballard, Warden 	                      Harold                 B . , Inmate
)	   Mount Olive Correctional Complex             Mount Olive Con'ectioua! Complex
     I Mountainside Way                           1 Mountainside Way
     Mt. Olive, VIV 25Ul5                         Mt. Olive, WV 25) 85

     Rory Perry, Clerk
     Supreme Court of Appeals of West Virginia 

     State Capito I Room E-317 

     Charleston, WV 25305




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                                                      10 

     STATE OF WEST VLRGINIA

     COUNTY OF HARRISON, TO-WIT




     I, Donald L. Kopp,Il, Clerk ofthe Fifteenth Judicial Circuit and the 18 th Family

     Court Circuit of Harrison County, West Virginia, hereby certify the foregoing

     to be a true copy of the ORDER entered in the above styled action on the

     If/d    day of   ft~)               ,20---'.L.




)


     IN TESTIMONY WHEREOF, I hereunto set: my hand and affix the Seal of the

     Court this   /.51/, day of itU4?J?~__.2{)~.




                                                      lJrmnllll /fapf4 [
                                                      Fifteenth Judicial Circuit & 18 th
                                                      Family Court Circuit Clel'k
                                                      Harrison County, West Virginia


)

