                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Keith R.,                                                                            FILED
Petitioner Below, Petitioner                                                      July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 19-0225 (Greenbrier 16-C-117)                                           SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mount Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION


       Petitioner Keith R.,1 by counsel Carrie F. DeHaven, appeals the February 15, 2018, order
of the Circuit Court of Greenbrier County that denied his petition for post-conviction habeas
corpus relief. Respondent Donnie Ames,2 Superintendent, Mount Olive Correctional Complex,
by counsel Andrea Nease-Proper, filed a response.

       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.

        In June of 2011, petitioner was indicted on three counts of sexual abuse by a parent,
guardian, or custodian in Criminal Action No. 11-F-111. The alleged victim was petitioner’s
sixteen-year-old stepdaughter, G.S. Four months later, in Criminal Action No. 11-F-162, petitioner

       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); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); 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).
       2
         Petitioner originally listed Ralph Terry as the respondent in this matter. However, Donnie
Ames has subsequently taken the position of superintendent at Mt. Olive Correctional Complex.
Therefore, the appropriate public officer has been substituted in accordance with Rule 41 of the
Rules of Appellate Procedure.
                                                  1
was indicted on one count of sexual assault in the first degree; five counts of sexual abuse by a
parent, guardian, or custodian; five counts of incest; and four counts of sexual abuse in the third
degree. The alleged victim was fifteen-year-old M.S.

        On December 18, 2012, petitioner entered Alford/Kennedy3 pleas to (1) one count of sexual
abuse by a parent, guardian, or custodian in Criminal Action No. 11-F-111 and to (2) one count of
incest in Criminal Action No. 11-F-162 in exchange for the State dismissing the remaining sixteen
felony counts in both actions. The plea agreement contained no sentencing recommendation, but
the State reserved the right to comment at petitioner’s sentencing hearing.

        Prior to sentencing, petitioner was on home confinement, but he was delivered into the
custody of the Commissioner of Corrections for the purpose of diagnosis and classification
pursuant to West Virginia Code § 62-12-7a. Thereafter, at petitioner’s June 25, 2013, sentencing
hearing, petitioner asked the circuit court to sentence him to home confinement claiming he had
been on home confinement since his plea, was employed on a full-time basis, and had complied
with all the requirements imposed upon him. Instead, the court sentenced petitioner to not less than
ten nor more than twenty years in prison for the count of sexual abuse by a parent, guardian, or
custodian, and not less than five nor more that fifteen years in prison for the count of incest. The
circuit court ordered that the sentences run consecutively. The court also imposed a period of ten
years of supervised release in accordance with West Virginia Code § 62-12-26, following
petitioner’s release from incarceration.

        Petitioner appealed that conviction to this Court, and we affirmed petitioner’s conviction
in State v. Keith R., No. 13-0768, 2014 WL 1686932 (W. Va., Apr. 28, 2014)(memorandum
decision).

         On June 10, 2016, petitioner filed a petition for a writ of habeas corpus acting as a self-
represented litigant. Thereafter, the habeas court appointed counsel who filed petitioner’s amended
petition and a completed Losh4 list on January 16, 2018. In that list, petitioner waived all grounds
for relief except those raised in his amended habeas petition, i.e., ineffective assistance of counsel;
involuntary guilty plea; and severer sentence than expected.

        At petitioner’s December 10, 2018, omnibus evidentiary hearing, petitioner called his trial
counsel, Robert P. Dunlap, who testified as follows: (1) the two victims allegedly made similar
claims of sexual abuse against a person in North Carolina; (2) he tried to get records substantiating
that claim by contacting the local prosecutor and local health and human services office, but he
found nothing; (3) hiring an investigator might have helped, but he did not believe the cost would
be approved given that the investigator would have to travel to North Carolina; (4) one or two


       3
          See Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987). In Kennedy, this Court
relied upon the decision of the United States Supreme Court in North Carolina v. Alford, 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which that Court affirmed there are no constitutional
barriers to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty
while still protesting his innocence.
       4
           See Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
                                                  2
juvenile male witnesses were slated to testify about the contact he/they saw between petitioner and
the victims; (5) he did not remember a plea offer with a single charge; (6) petitioner refused all
plea offers that required him to admit guilt; (7) petitioner authorized him to speak with petitioner’s
daughter regarding the plea negotiations; (8) based on petitioner’s good conduct on home arrest
prior to his plea, he told petitioner he believed petitioner would be sentenced to home confinement;
(9) he also told petitioner that if he was convicted on all counts, the court would likely run the
sentences consecutively for a total of about 290 to 300 years in prison; (10) he would have gone
over petitioner’s constitutional rights with him; (11) it appeared that the State intended to bring a
third indictment against petitioner; (12) he recommended that petitioner plead guilty because he
was unable to obtain any evidence showing that the victims had accused someone else of sexual
abuse; and (13) as for petitioner’s sentence, he believed the court focused on petitioner’s failure to
take responsibility for his crimes.

        Petitioner’s daughter also testified during petitioner’s case-in-chief. She testified that (1)
petitioner did not understand “technical lingo;” (2) she attended two meetings between petitioner
and his trial counsel; (3) she vaguely recalled a discussion where petitioner could plead guilty to a
single charge but believed petitioner would not accept it because he would have to admit guilt; (4)
she confirmed that trial counsel told petitioner that, if he pled guilty, he would probably get little
to no time in prison and likely remain on home incarceration; (5) she did not recall trial counsel
telling petitioner about the maximum time he could receive or the rights he would be giving up if
he pled guilty; and (6) she admitted that petitioner would have had many meetings with his trial
counsel that she did not attend.

         Petitioner next called Deborah S., his sister, who testified that (1) she attended about six
meetings between petitioner and trial counsel but was not present when petitioner was offered a
plea to a single count; (2) she heard trial counsel tell petitioner that it was not in his best interests
to go to trial; (3) she did not remember trial counsel telling petitioner what rights he would be
giving up if he pled guilty; (4) she did recall that trial counsel told petitioner he could get a
maximum of fifteen years in prison on each of the two counts to which he was pleading guilty, or,
if petitioner went to trial, he could get fifteen years on each of the seventeen counts pending against
him; (5) she was present for the presentation of the plea offer to two counts; and (6) she said
petitioner’s counsel initially believed he could prevail at trial but later was more inclined to suggest
a plea.

         Petitioner testified that (1) the first plea offer, which might have been made prior to the
second indictment, required that he plead guilty to one count; (2) he rejected the first plea offer
because it required him to enter a guilty plea, and his trial counsel believed he had a good chance
at trial; (3) counsel was unable to confirm the North Carolina allegations; (4) he failed to follow
up on a list of ten names petitioner gave to him as potential witnesses; (5) trial counsel advised
him that he could get home confinement if he pled guilty, but counsel did not guarantee home
confinement and said that petitioner’s sentence was up to the judge; (6) he knew he could reject
the plea offer and go to trial; (7) he met with trial counsel at least eight times; (8) trial counsel
reviewed the plea agreement with him but not his rights; and (9) he took the Kennedy plea because
he “gave up” after his parental rights were terminated at the conclusion of his children’s abuse and
neglect proceedings and his divorce was finalized.



                                                   3
         On February 15, 2018, the habeas court denied the requested relief. The habeas court found
that trial counsel was not ineffective because he investigated petitioner’s claims regarding the
victims’ alleged allegations of other abuse to the extent possible. The habeas court also found that
petitioner’s trial counsel properly advised petitioner that, while his chances of home incarceration
were good, the judge had the final say and there was no promise of leniency. Regarding petitioner’s
sentence, the habeas court found that it was within statutory limits and there was no basis to
overturn it.

       Petitioner now appeals the court’s denial of habeas relief.

               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).

        Petitioner raises three assignments of error on appeal. Petitioner first argues that the habeas
court erred in failing to find that petitioner was provided ineffective assistance of counsel.

       In syllabus point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we held 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.

         Petitioner claims his trial counsel failed to provide effective assistance of counsel because
he did not adequately investigate the allegation that the victims accused a North Carolina man of
sexual abuse, but later recanted those allegations. Petitioner claims that his trial counsel made only
a few phone calls in that regard instead of hiring an investigator to investigate the victims’ recanted
accusation or filing a motion to compel to aid in gathering information from North Carolina.
Petitioner also asserts that his trial counsel failed to investigate the ten potential witnesses he
named who might have helped his defense. Accordingly, petitioner contends that his trial counsel’s
investigative efforts were deficient under an objective standard of reasonableness. Finally,
petitioner argues that there was a reasonable probability that if counsel had conducted an adequate
investigation, the outcome in this case would have been different. That is, if petitioner had been
able to damage the victims’ credibility, he could have gotten a more favorable plea offer or gone
to trial and been acquitted.

       We have said,




                                                  4
               [t]he fulcrum for any ineffective assistance of counsel claim is the adequacy
       of counsel’s investigation. Although there is a strong presumption that counsel’s
       conduct falls within the wide range of reasonable professional assistance, and
       judicial scrutiny of counsel’s performance must be highly deferential, counsel must
       at a minimum conduct a reasonable investigation enabling him or her to make
       informed decisions about how best to represent criminal clients. Thus, the
       presumption is simply inappropriate if counsel’s strategic decisions are made after
       an inadequate investigation.

Syl. Pt. 3, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

        The circuit court did not err in finding that petitioner’s counsel’s investigation was not
ineffective. First, the circuit court properly found that petitioner failed to show that any information
helpful to his case would have come from an additional investigation. At the habeas hearing,
petitioner’s trial counsel testified that he made several attempts to substantiate the statements
allegedly made by the victims regarding another man in North Carolina; however, counsel could
find no evidence to substantiate that claim. He also testified that hiring an investigator might have
helped locate some corroborating information, but he did not believe the cost would be approved
given the limited funds the State made available for such an investigator and the fact that an
investigator would have to travel to North Carolina. As the circuit court found, “the fact that [trial
counsel] was unable to verify that [the victims] had previously made unfounded allegations of
sexual misconduct against another man does not prove that [counsel’s] investigation was
inadequate.” In fact, petitioner himself offered no evidence in support of this allegation, nor does
he say how he learned of such an allegation. Accordingly, he was entitled to no relief on this issue.

       As for petitioner’s ten proposed witnesses, in his brief to the Court, petitioner offered no
information regarding these persons, i.e., who they were or what their testimony might have been.
Thus, petitioner fails to show how any of these proposed witnesses would have changed the
outcome of his case. Accordingly, petitioner fails to meet his burden of proof that his counsel’s
performance was deficient under an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different. Accordingly, we find he is entitled to no relief in this regard.

        Petitioner’s second assignment of error is that the habeas court erred by failing to find that
petitioner entered an involuntary plea. Relevant to that claim are syllabus points 2 and 3 of State
v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978), in which we held that:

               2. The controlling test as to the voluntariness of a guilty plea, when it is
       attacked either on a direct appeal or in a habeas corpus proceeding on grounds that
       fall within those on which counsel might reasonably be expected to advise, is the
       competency of the advice given by counsel.

             3. Before a guilty plea will be set aside based on the fact that the defendant
       was incompetently advised, it must be shown that (1) counsel did act
       incompetently; (2) the incompetency must relate to a matter which would have



                                                   5
       substantially affected the fact-finding process if the case had proceeded to trial; (3)
       the guilty plea must have been motivated by this error.

Petitioner argues that he was forced to take the plea because, due to his counsel’s inadequate
investigation, his only defense witness was himself. Thus, he pled guilty to his detriment due to
his counsel’s ineffective assistance. When this issue was raised in petitioner’s habeas proceeding,
the habeas court found that petitioner failed to demonstrate there was “a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Syl. Pt. 6, in part, State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11,
528 S.E.2d 207 (1999).

         First, as we found above, petitioner failed to prove his counsel’s investigation was
inadequate. Second, we concur with the habeas court’s finding that petitioner cannot satisfy
Vernatter. Petitioner fails to show that any information existed regarding the victims’ rumored
claim against a perpetrator in North Carolina that would have helped him at trial. Further, the
record reveals that petitioner’s guilty plea was not motivated by counsel’s alleged failure to
investigate a rumor. Moreover, by petitioner’s own admission, counsel fully advised him of the
possible range of sentences he faced if found guilty. Counsel told petitioner that, in his experience,
defendants who perform successfully on pre-plea home confinement are likely to be sentenced to
home confinement post-plea. Counsel also noted that petitioner’s evaluation showed he was at low
risk of reoffending. However, counsel clearly advised petitioner that his sentence was wholly up
to the court and petitioner acknowledged the same. Here, it appears from the court’s comments
that it was particularly troubled by petitioner’s failure to admit any wrongdoing, which resulted in
a more severe sentence than trial counsel anticipated. However, that counsel’s best guess regarding
sentencing did not come to fruition does not rise to the level of ineffective assistance of counsel or
an involuntary plea because counsel clearly advised petitioner that the court might impose a prison
sentence as opposed to home confinement.

       We have noted that

               [t]he Fourth Circuit Court of Appeals held that “a bad guess by counsel as
       to what the judge will do does not require revocation of the sentence.” Cleckley, I–
       XIII Handbook on West Virginia Criminal Procedure (citing United States v.
       Futeral, 539 F.2d 329 (4th Cir. 1975); Vanater v. Boles, 377 F.2d 898 (4th Cir.
       1967)). Furthermore, “an attorney’s ‘bad guess’ as to sentencing is no reason to
       invalidate a plea on the basis of ineffective assistance of counsel.” Id. (citing Little
       v. Allsbrook, 731 F.2d 238 (4th Cir. 1984); United States v. White, 572 F.2d 1007,
       1010 (4th Cir. 1978); Vanater at 899–900.) “[A]n erroneous sentence estimate by
       defense counsel does not render a plea involuntary. And a defendant’s erroneous
       expectation, based on his attorney’s erroneous estimate, likewise does not render a
       plea involuntary.” Allsbrook at 241(citing with approval Wellnitz v. Page, 420 F.2d
       935 (10th Cir. 1970)).

Tomblin v. Mirandy, No. 16-0432, 2017 WL 1371279, at *5 (W. Va. Apr. 10, 2017)(memorandum
decision). Further, the Court, in Miller v. Pszczolwski, No. 15-0352, 2016 WL 700634, at *3 (W.
Va. (Feb. 9, 2016)(memorandum decision), concluded in a similar case that

                                                  6
       petitioner’s allegations that counsel misadvised him as to the possibility of
       consecutive sentences are without merit. Because petitioner’s claim that his guilty
       pleas were involuntary is based on being so misadvised, we accordingly find that
       claim to lack merit and conclude that the circuit court did not err in finding that
       petitioner’s pleas were voluntarily entered.

Both Tomblin and Miller are analogous to the instant case and show that, although petitioner’s
counsel miscalculated how heavily the trial court would weigh petitioner’s denial of wrongdoing,
such miscalculation does not rise to the level of ineffective assistance of counsel, particularly
where counsel informed petitioner that sentencing was wholly up to the court.

       Moreover, at petitioner’s sentencing hearing, he gave several reasons for pleading guilty
which belie this assignment of error.

       The Circuit Court: Okay. Can you let the [c]ourt know why you decided to take a
       Kennedy plea for more charges than before?

       Petitioner: Well, because a lot of things happened during this time frame. I mean,
       I had been basically beat down for, like, two years.

       The Circuit Court: I understand.

       Petitioner: 2012, I’m thinking in September, when I went in for my divorce, Judge
       – think of his name – Robertson sat there on the bench, looked at me and said “Mr.
       R[.], in my opinion you’re guilty, and I’m going to give her what she wants.” So I
       gave up.

Petitioner further testified that he took the plea because he did not have to admit guilt:

       The Circuit Court: And is that the reason you came around to accepting that plea,
       was the – even though it contained two counts, it was a plea in which you were not
       going to be required to acknowledge to the court any specific act of criminal
       conduct?

       Petitioner: Yes sir.

       The Circuit Court: Okay. So from your perspective, Mr. K[.], not from [your
       counsel’s] or anybody else’s, but from your perspective, was that the reason you
       decided to say yes to that Kennedy plea offer.

       Petitioner: Along with being beaten for, like , two years, and to keep the plea, and
       everything like that, and I didn’t have to say I was guilty, I just -- like I said, sir, at
       the point in time, I was just – I wanted it over.




                                                   7
Petitioner’s testimony clearly shows that he took a Kennedy/Alford plea to end the case without
having to admit guilt and not due to any misrepresentations regarding sentencing made by his trial
counsel. Accordingly, petitioner’s plea was voluntary. Therefore, we reject this second assignment
of error.

        Petitioner’s third and final assignment of error is that the circuit court erred in imposing a
more severe sentence than he expected, i.e., he expected home confinement, but was sentenced to
prison.

        As we have oft said, “‘[s]entences imposed by the trial court, if within statutory limits and
if not based on some [im]permissible factor, are not subject to appellate review.’ Syl. pt. 4, State
v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 7, State v. Sugg, 193 W.Va. 388,
456 S.E.2d 469 (1995). Here, petitioner’s sentences for sexual abuse by a parent, guardian, or
custodian, and for incest are within statutory limits and not based on any impermissible factor.
Thus, they are not proper for appellate review.

        At petitioner’s omnibus hearing, he testified that (1) he understood the trial court had the
final say in sentencing when he entered his pleas and there was no guarantee that he would be
sentenced to home confinement; and (2) his trial counsel told him that a plea was his best option
but that he knew that he was free to reject any plea and proceed to trial. Also at the omnibus
hearing, petitioner’s witness, Deborah S., testified that petitioner’s trial counsel told petitioner in
her presence about the possible maximum sentences on the two plea counts, and that if he went to
trial and lost, he could get the maximum sentence on all seventeen counts. Further, the transcript
of petitioner’s sentencing hearing shows he was aware of his possible sentence length. Finally,
“nothing in Kennedy precludes a court from considering at sentencing whether a defendant has
accepted responsibility for his crimes.” State v. Keith R., No. 13-0768, 2014 WL 1686932, at *2
(W. Va. Supreme Court Apr. 28, 2014). Nor does petitioner cite to any law that precludes a court
from considering this issue at sentencing. In fact, in responding to petitioner’s direct appeal, the
Court explained that it “has identified remorse or the lack thereof as a factor to be taken into
account by a trial judge when sentencing a defendant.” Id. Accordingly, we find no error.

       For the foregoing reasons, we affirm.
                                                                                            Affirmed.

ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman

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