                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



Dale Shoop,                                                                         FILED
Petitioner Below, Petitioner                                                 November 21, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-1313 (Morgan County 10-P-41)                                          OF WEST VIRGINIA


David Ballard, Warden
Respondent Below, Respondent


                                 MEMORANDUM DECISION
       Petitioner Dale Shoop, by counsel Christopher J. Prezioso, appeals the November 22,
2013, order of the Circuit Court of Morgan County dismissing of his petition for writ of habeas
corpus. Respondent David Ballard, Warden, by counsel Laura Young, filed his response to
which petitioner submitted a reply.

        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 in 2007 on one count of sexual assault in the first degree, and a
preliminary hearing was held in the Magistrate Court of Morgan County on August 8, 2007.1
Pretrial hearings were held on December 19, 2007, and January 22, 2008. A jury trial was held
on January 23 and 24, 2008, and petitioner was convicted of sexual assault in the first degree. On
April 7, 2008, petitioner was sentenced to an indeterminate term of incarceration of twenty-five
to one hundred years. Petitioner appealed the jury’s verdict in Appeal No. 091642, and that
appeal was refused by this Court by order entered on January 14, 2010.

        On April 6, 2012, petitioner filed a petition for writ of habeas corpus seeking to have his
conviction and sentence set aside. The State filed a response and a supplemental response, and
the circuit court determined that an evidentiary hearing was unnecessary. On November 22,
2013, the Circuit Court of Morgan County entered a final order denying that petition and denying
the requested relief. Petitioner appeals from that order.

   After careful consideration, this Court finds that the circuit court did not err in denying habeas
corpus relief to petitioner. We apply the following standard of review in habeas cases:


       1
           Prior to this arrest, petitioner was a registered sex offender.
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               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). Further, “‘[a] habeas
corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.’ Syllabus Point 4 of State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) Cert. Denied, 464 U.S. 831, 104 S.Ct. 110, 78
L.Ed.2d 112 (1983).” Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

        On appeal, petitioner sets forth seven assignments of error. First, he contends that the
circuit court abused its discretion by summarily dismissing his petition for writ of habeas corpus
without conducting an evidentiary hearing. He argues that the contents of the petition prove there
was probable cause to believe that petitioner was entitled to relief. He, therefore, asserts that he
was entitled to an evidentiary hearing pursuant to West Virginia Code § 53-4A-7(a). That statute
provides that

       [i]f the petition, affidavits, exhibits, records and other documentary evidence
       attached thereto . . . 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 . . . 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. If it appears to the court
       from said petition, affidavits, exhibits, records, and other documentary evidence
       attached thereto, . . . or any such record or records referred to above, that there is
       probable cause to believe that the petitioner may be entitled to some relief and
       that the contention or contentions and grounds (in fact or law) advanced have not
       been previously and finally adjudicated or waived, the court shall promptly hold a
       hearing and/or take evidence . . . .

Id. As we previously found,

               “‘[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.’ Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657
       (1973).”

Syl. Pt. 2, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). In its order, the
circuit court stated that it was “satisfied based on the pleadings and exhibits that the Petitioner is
entitled to no relief . . . .” Because we find that the circuit court adequately addressed each of the
grounds petitioner asserted for habeas corpus relief, we find no error in the circuit court’s order

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denying petitioner an evidentiary hearing.

        Petitioner’s second assignment of error is that the circuit court abused its discretion by
denying the requested relief on his claim of ineffective assistance of counsel. At trial, petitioner
was represented by court-appointed counsel, B. Craig Mansford. Petitioner complains that Mr.
Mansford advised petitioner that he could receive fifteen to thirty-five years of incarceration if
convicted of the crimes charged. However, at the pretrial conference, petitioner claims he learned
that the penalty, if convicted, was actually twenty-five years to life incarceration. Petitioner also
contends that his trial counsel was ineffective because he agreed to stipulate that the panties
found in petitioner’s residence belonged to the eleven-year-old victim. Further, he argues that
Mr. Mansford provided ineffective assistance because he failed to submit portions of the victim’s
preliminary hearing testimony as an exhibit at trial. According to petitioner, during trial the most
significant subject of cross-examination and re-direct of the victim was the fact that the victim
had testified at the preliminary hearing that petitioner touched her buttocks but had not
penetrated her anus. Petitioner contends that this subject was very important because the trial
court properly instructed the jury that if petitioner only made sexual contact with the victim,
rather than sexual intrusion, then the jury would have to find him guilty of the lesser included
offense of sexual abuse in the first degree, which carries a sentence of five to twenty-five years.
He also contends that Mr. Mansford provided ineffective assistance because Mr. Mansford
mistakenly advised petitioner not to testify on his own behalf when petitioner’s testimony was
necessary to obtain an acquittal of the charges or to cause petitioner to be convicted of the lesser
included offense of sexual abuse in the first degree. Finally, petitioner argues that he received
ineffective assistance of counsel because Mr. Mansford failed to subpoena and secure witnesses
that petitioner requested appear at trial.

               “In 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.C.t. 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.” Syl. Pt. 5, State v. Miller,
       194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 3, Watson, 200 W.Va. at 202, 488 S.E.2d at 477. Further, when reviewing counsel’s
performance, courts must determine whether “the identified acts or omissions were outside the
broad range of professionally competent assistance while at the same time refraining from
engaging in hindsight or second-guessing of trial counsel’s strategic decisions.” Syl. Pt. 6, in
part, Miller, 194 W.Va. at 6, 459 S.E.2d at 117. Based upon the record before this Court, we find
that petitioner has failed to satisfy his burden to establish ineffective assistance of counsel.

        With regard to the potential sentence if convicted of the crime charged, petitioner stated
at the pretrial hearing that he had been laboring under a misapprehension as to the sentence.
However, petitioner declined to take additional time offered by the trial court to decide whether
to go forward. He indicated at that time that he did not want to plead guilty to a crime he did not
commit. The only plea offer contained in the record was an offer by the State for petitioner to
plead guilty to the indicted offense with the State’s concession that it would not file a recidivist

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information against petitioner. Therefore, even if petitioner received incorrect information
regarding the sentence, it did not change the result of the case.

        In regard to petitioner’s decision not to testify at trial, the trial court specifically
addressed this decision with petitioner, who twice informed the trial court that he understood that
decision was his alone. Thus, petitioner failed to allege facts that would meet either prong of the
two-prong standard. Additionally, the decision to stipulate that the victim’s panties were found in
petitioner’s dirty laundry appears to be a strategic decision by trial counsel. Angela Gill from the
West Virginia State Police crime lab testified that the underwear contained the victim’s DNA,
and petitioner does not appear to dispute that the panties were found in his residence. In addition,
the stipulation avoided the need to ask the victim to identify her panties in front of the jury.

        Finally, with respect to petitioner’s contention that his counsel was ineffective because he
failed to admit the preliminary hearing transcript into evidence at trial, this Court finds that
petitioner has failed to satisfy his burden. The preliminary hearing transcript includes arguments
of counsel and testimony of the investigating officer that were not relevant and could have
harmed petitioner’s defense. At trial, the victim was asked by Mr. Mansford about the
differences between her preliminary hearing testimony and her trial testimony. He specifically
questioned her about the fact that at the preliminary hearing, she stated that petitioner had
touched her anus. In addition to the fact that counsel questioned the victim about the alleged
discrepancies, there were strategic reasons not to admit the preliminary hearing transcript into
evidence, as the victim was questioned about the ways petitioner touched her. Because the jury
heard testimony related to the victim’s preliminary hearing testimony, petitioner has not shown
that the result of the trial would have been different if the transcript had been admitted. For these
reasons, we find that the circuit court did not abuse its discretion in denying the requested relief
on this ground.

        Petitioner’s third assignment of error is that the circuit court abused its discretion by
denying the requested relief, as the State failed to present sufficient evidence to sustain a
conviction. Petitioner argues that the circuit court order did not set forth findings of fact or
provide any legal analysis. He argues generally that there was insufficient evidence to convict
him under the clear language of West Virginia Code § 61-8B-1(8). Further, he contends that the
evidence to establish his innocence was not placed before the jury due to the ineffective
assistance of counsel. “‘[E]xcept in extraordinary circumstances, on a petition for habeas corpus,
an appellate court is not entitled to review the sufficiency of the evidence.’ Cannellas v.
McKenzie, 160 W.Va. 431, 436, 236 S.E.2d 327, 331 (1977).” McBride v. Lavigne, 230 W.Va.
291, 300, 737 S.E.2d 560, 569 (2012). Further,

       [a] criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record


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       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 663, 461 S.E.2d 163, 169 (1995). As set forth
above, we find that petitioner did not receive ineffective assistance of counsel sufficient to justify
reversal of the circuit court’s order denying his petition for habeas corpus relief. Based on the
record before this Court, we find that this case does not fall within the extraordinary
circumstance where this Court will review a sufficiency of evidence claim in a habeas corpus
proceeding. Therefore, we decline to otherwise address this contention.

        Petitioner’s fourth assignment of error is that the circuit court committed reversible error
by denying the requested relief, as the trial court allowed improper Rule 404(b) evidence to be
admitted at trial over petitioner’s objection. Petitioner contends that during the January 22, 2008,
hearing regarding the proposed Rule 404(b) evidence, the testimony of Officer James Kapara of
the Johnstown Police Department was improperly admitted at trial. Officer Kapara testified
about petitioner’s prior convictions for indecent assault in order to show both a lustful
disposition and modus operandi. “A habeas corpus proceeding is not a substitute for a writ of
error in that ordinary trial error not involving constitutional violations will not be reviewed.” Syl.
Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979). Based upon
petitioner’s assignment of error and related arguments, we find that this alleged error does not
rise to the level of a constitutional error. Therefore, it will not be considered in this habeas
corpus appeal.

         Petitioner’s fifth assignment of error is that the circuit court abused its discretion by
denying the requested relief, as the State intentionally withheld or destroyed potentially
exculpatory evidence. The investigating officer’s report of the criminal investigation sets forth a
list of potential exhibits to be entered at trial, including item ten: “Five (5) Original Drawings as
utilized by the CPS worker during the video-taped interview of the victim on July 23, 2007.”
Petitioner asserts that the drawings were never made available to petitioner, and that they may
have contained exculpatory evidence that could have been used as part of petitioner’s defense.
He also contends that if the State intentionally withheld or destroyed the drawings, the same
requires that petitioner’s conviction be reversed. The habeas court below found that the
documents from the CPS worker were provided in supplemental discovery and placed in the
court file on December 19, 2007. The habeas court also found that the contention could have
been raised on direct appeal but was not, so it was waived. “We have held that ‘[t]he right of
challenge, where it exists must be exercised [timely], and if not so exercised, the objection is
unavailing to set aside the verdict.” State v. Tommy Y., Jr., 219 W.Va. 530, 539, 637 S.E.2d 628,
637 (2006) (quoting State v. Hayes, 109 W.Va. 296, 303, 153 S.E. 496, 499 (1930) (internal
quotations and citation omitted)). We, likewise, find that petitioner waived this alleged error that
should have been raised, if at all, in a direct appeal. Thus, we will not address the merits of this
assignment of error in the habeas proceeding.

        Petitioner’s sixth assignment of error is that the circuit court abused its discretion by
denying the requested relief, as the State engaged in intentional bad acts during the trial by
making improper communications to the jury. Petitioner argues that the manner in which the
assistant prosecuting attorney and the arresting officer escorted the victim into the courtroom

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“depicted them as her bodyguards” and “implied that they needed to protect her from petitioner.”
Petitioner contends that his attorney approached the bench and entered an objection to the same
but that the objection is not contained in the trial transcript. According to the State, the procedure
for bringing the child victim into the courtroom was discussed prior to trial, and it was agreed
that the victim was going to walk through the back door. Petitioner’s trial counsel did not object
to this plan. The trial transcript does not reflect how the child was brought into the courtroom
and does not contain any reference to petitioner’s trial counsel approaching the bench. While
there does not appear to be anything in the record to support petitioner’s claim, even if the
claimed escort and lodging of an objection is accurate, this alleged escort does not rise to the
level of a constitutional violation. In addition, it appears that petitioner failed to assert this
ground in his direct appeal to this Court, so the same is waived.

         Petitioner’s seventh and final assignment of error is that the circuit court abused its
discretion by denying the requested relief because petitioner’s sentence violates the Eighth
Amendment to the United States Constitution. He asserts that his sentence of twenty-five years
to life incarceration is a violation of his constitutional right to be free from an excessive, cruel,
and unjust sentence. He points out that because the victim was under the age of twelve, his
sentence was enhanced. However, he concedes that his sentence is within statutory limits.
“‘Sentences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.’ Syllabus Point 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d
674 (2008). We, therefore, conclude that petitioner’s sentence is not subject to our review
because the sentence imposed is within the statutory limit and petitioner has not identified any
impermissible factor upon which the sentence is based. For these reasons, we find that the circuit
court did not err in denying the requested relief on this ground.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

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




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