                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS


Roger Neil Reed,

Petitioner Below, Petitioner
                                                            FILED
                                                                                         April 16, 2013
vs) No. 12-0789 (Upshur County 11-C-55)                                             RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent


                                  MEMORANDUM DECISION

       Petitioner Roger Reed, by counsel Hunter D. Simmons, appeals the May 30, 2012 order of
the Circuit Court of Upshur County denying his petition for writ of habeas corpus. Respondent
Ballard, by counsel, has filed a 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.

        In May of 2009, petitioner was sentenced to thirty-five years of incarceration for the crime
of sexual assault in the first degree and a concurrent term of incarceration of three to ten years for
the crime of abduction with intent to defile. Sentence was imposed after petitioner pled guilty
pursuant to a plea agreement whereby the State agreed to dismiss two other counts of first degree
sexual assault, one count of kidnapping, and one count of nighttime burglary. The State also
agreed to refrain from filing a recidivist information against petitioner, though this language was
stricken from the written plea agreement and all parties initialed next to the correction, including
petitioner. It is uncontested that, despite this alteration, the State did not seek a recidivist
proceeding against petitioner. In June of 2011, petitioner filed a petition for writ of habeas corpus,
which the circuit court denied after holding an omnibus hearing.

        On appeal, petitioner alleges that the circuit court erred in denying him habeas relief
because his guilty plea was not entered into knowingly, intelligently, and voluntarily. According
to petitioner, he initialed the plea agreement next to the paragraph relating to the Habitual
Criminal Offender Act, but that language was stricken after he signed it. Petitioner argues that he
would not have entered a guilty plea if he had known this part of the agreement was going to be
stricken and his belief that the State could not seek recidivist proceedings against him was a major
factor in inducing his plea. Respondent argues that the circuit court’s findings of fact in regard to
petitioner’s plea agreement being given knowingly, intelligently, and voluntarily must be taken as
true because petitioner did not take exception to them. Further, the testimony from petitioner’s

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trial attorneys and his mother clearly established that the plea agreement document was executed
before petitioner represented to the circuit court that he wished to enter guilty pleas. Most
importantly, respondent argues that the State never sought a recidivist proceeding against
petitioner and is, in fact, now time-barred from doing so.

       This Court has previously held that

       [i]n 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). After careful consideration
of the parties’ arguments, this Court concludes that the circuit court did not abuse its discretion in
denying the petition for writ of habeas corpus. Having reviewed the circuit court’s “Order
Following Hearing On Petition For Writ Of Habeas Corpus” entered on May 30, 2012, 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.

       For the foregoing reasons, we find no error in the decision of the circuit court and its May
30, 2012 order denying the petition for writ of habeas corpus is affirmed.

                                                                                           Affirmed.

ISSUED: April 16, 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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