                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS
                                                                                    FILED
Mark A. Turner,
                                                                              November 25, 2014
Petitioner Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0052 (Pendleton County 13-C-05)                                       OF WEST VIRGINIA



David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Mark A. Turner, appearing pro se, appeals the January 17, 2014, order of the
Circuit Court of Pendleton County that denied his petition for a writ of habeas corpus. Respondent
warden, by counsel Julie A. Warren, filed a response. Petitioner filed a reply.

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

        In 1997, petitioner was indicted on twelve counts of sexual assault in the first degree and
twelve counts of sexual abuse in the first degree with regard to alleged sexual misconduct against
two minor victims. Counts One through Twelve related to the first victim, while Counts Thirteen
through Twenty-Four related to the second victim. The State moved to amend the indictment
stating that the wrong victim’s name was inserted in Counts Thirteen through Twenty-Four
because of a typographical error. (Uncorrected, those counts contained the names of both victims.)
The circuit court granted the motion to amend and denied a motion to dismiss by petitioner’s
counsel alleging that the last twelve counts, as unamended, failed to allege a criminal offense. The
circuit court granted petitioner’s counsel leave to further brief the issue. Counsel also moved to
suppress petitioner’s confession, which motion was not ruled upon by the time petitioner accepted
a plea bargain.

        On May 14, 1997, petitioner wrote the circuit court a letter stating that he desired new
counsel. However, on May 19, 1997, petitioner and the State entered into a plea agreement, by
which petitioner pled guilty to three counts of sexual assault in the first degree and three counts of
sexual abuse in the first degree. In exchange, the State dismissed the remaining eighteen counts. At
the plea hearing, the circuit court questioned petitioner concerning his May 14, 1997, letter.
Petitioner informed the circuit court that he had no objections to his counsel continuing to

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represent him, and the circuit court proceeded with petitioner’s plea. Petitioner underwent a total
of three psychological evaluations, none of which indicated that probation would be appropriate.
Following a presentence report, the circuit court imposed on petitioner an effective sentence of
forty-eight to 120 years in prison. Petitioner appealed to this Court, which refused the appeal on
June 16, 1998.

        Petitioner filed a petition for a writ of habeas corpus on February 12, 2013. The circuit
court appointed petitioner habeas counsel, who filed an amended petition on April 29, 2013.
Attached to the amended petition was petitioner’s Losh checklist, in which petitioner
acknowledged that “all grounds not raised in the ‘Petition’ will be waived.” See Losh v. McKenzie,
166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981). On June 25, 2013, respondent warden
filed a response to the amended petition. The circuit court then held an omnibus hearing on
October 3, 2013. At the October 3, 2013, hearing, the circuit court went over petitioner’s Losh
checklist and confirmed that petitioner was waiving the issues marked as waived on his list. On
January 17, 2014, the circuit court denied the petition in a comprehensive thirty-five page order
that refuted every issue that petitioner did not waive.

        Petitioner now appeals the circuit court’s January 17, 2014, order denying his habeas
petition. We apply the following standard of review in habeas cases:

       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).

        On appeal, petitioner makes numerous assignments of error, as follows: (1) the indictment
shows, on its face, that no offense was committed; (2) petitioner entered his plea involuntarily; (3)
petitioner gave a coerced confession; (4) the probation officer included erroneous information in
the presentence report; (5) trial counsel provided ineffective assistance; (6) the circuit court
refused to order the production of the grand jury transcript; (7) the circuit court did not hold the
suppression hearing that was continued; (8) the circuit court failed to appoint new counsel when
petitioner requested it; (9) the State made inflammatory statements at the sentencing hearing; and
(10) the indictment included counts that were duplicative of each other. Respondent warden
counters that none of petitioner’s many claims are supported by the record and that this Court
should adopt the comprehensive findings of fact and conclusions of law found in the circuit court’s
order denying habeas relief. We agree.

        Having reviewed the circuit court’s “Order Denying Petitioner’s Petition for Writ of
Habeas Corpus,” entered January 17, 2014, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

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      For the foregoing reasons, we find no error in the decision of the Circuit Court of Pendleton
County and affirm its January 17, 2014, order, denying the petition for a writ of habeas corpus.

                                                                                        Affirmed.


ISSUED: November 25, 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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