                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                      January 15, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0538 (Wood County 92-F-110)                                          OF WEST VIRGINIA



Harold Stephen M.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Harold Stephen M.1, by counsel Wells H. Dillon, appeals the April 23, 2013
order of the Circuit Court of Wood County resentencing petitioner. Respondent State of West
Virginia, by counsel Christopher S. Dodrill, has filed a response in support of the circuit court’s
order.

        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 tried upon allegations that he molested his ten-year-old stepdaughter and
her friend. Both victims testified at trial. Petitioner was convicted on two counts of sexual assault
in the first degree; two counts of sexual abuse in the first degree; two counts of sexual abuse by a
parent; and, one count of battery in Wood County in August of 1993. Petitioner moved for a new
trial based on: (a) the court’s denial of his motions for judgment of acquittal or directed verdict;
(b) the court allowing the State to reopen its case-in-chief for the presentation of additional
evidence after the State rested; and, (c) the court’s denial of petitioner’s pretrial motions
regarding severance of the counts of the indictment involving one victim from those involving
the other victim. Petitioner was sentenced to fifteen to twenty-five years of incarceration on each
count of sexual assault; one to five years of incarceration on each count of sexual abuse in the
first degree; five to ten years of incarceration on each count of sexual abuse by a parent; and, one
year in the county jail on the battery charge. All sentences were to run consecutively.


       1
        Because of sensitive facts, we protect the identities of those involved. See State ex rel.
West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182
n.1 (1987).

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         Petitioner filed his first petition for writ of habeas corpus in October of 2001, seeking
resentencing. On November 27, 2001, petitioner’s sentence was amended based on the trial
court’s miscalculation. His sentence was amended to fifteen to twenty-five years of incarceration
on each count of first degree sexual assault; one to five years on each of the sexual abuse
convictions; five to ten years on each of two counts of sexual abuse by a parent; and, one year in
jail on the battery charge. Also in November of 2001, petitioner was resentenced for purposes of
filing a direct appeal. The appeal was refused by this Court on July 12, 2002.

        Petitioner then filed another petition for writ of habeas corpus in October of 2002, which
was summarily denied as “without merit” in a two-sentence order. Petitioner appealed that denial
to this Court, which granted the petition and remanded the case for appointment of counsel and
an omnibus hearing. Current counsel was appointed, and an amended petition was filed on May
16, 2007, arguing twenty separate grounds for relief. Evidentiary hearings were held on January
23, 2008, and February 4, 2009. On July 19, 2012, the circuit court issued its opinion denying the
petition for writ of habeas corpus except as to Ground 16, which requested a resentencing
hearing based on an improper sentence. The circuit court granted petitioner a resentencing
hearing.

        In January of 2013, petitioner was examined by Dr. Bobby Miller, who issued a report
dated January 30, 2013, at the request of petitioner’s counsel. Dr. Miller found that petitioner
was at “moderate to high risk for sexual re-offense among the general population.” Standardized
testing showed that petitioner ranked at the “severe problems” level because he perceives
children as sexually attractive and sexually motivated. He was therefore found not to be a
candidate for specific sexual-offender-based treatment. Based on his examination, Dr. Miller
found that petitioner likely suffers from a paraphilia regarding exhibitionism and frotteruism
(“recurrent, intense sexually arousing fantasies; sexual urges or behaviors involving touching or
rubbing against a nonconsenting person.”). Dr. Miller further noted that “[h]istorically, Mr.
M[.]’s victims were subjects of opportunity within his environment. Should Mr. M[.] be released
from incarceration, it is recommended that he be incapacitated through some other means such as
home confinement.”

         Petitioner was resentenced in April of 2013. Counsel argued for concurrent sentencing to
allow for release based on petitioner’s age (sixty-nine years old), his poor health, and his lack of
a prior criminal record. The State pointed out petitioner’s lack of remorse for the crimes. Based
on Dr. Miller’s report, the court denied alternative sentencing and once again ordered
consecutive sentences. However, petitioner’s sentences on the first degree sexual assault charges
were reduced to consecutive ten to twenty year terms. He was also sentenced to one to five years
of incarceration on each of the two counts of sexual abuse in the first degree; five to ten years of
incarceration on each of the two counts of sexual abuse by a parent; and, one year in the regional
jail on the battery charge.
         Petitioner raises three assignments of error on appeal of his resentencing order. First, he
argues that the circuit court erred in not granting his request to dismiss the indictment filed
against him or grant him a new trial due to the many instances of the ineffectiveness of his trial
counsel James Bradley Jr. This Court has applied the following standard to claims concerning
ineffective assistance of counsel:

                                                 2

              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.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.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694, 104 S.Ct. 2052, 2068 (1984). In the present case, petitioner gives a list of actions or
inactions he feels illustrates his counsel’s ineffective assistance. These include: allowing the
preliminary hearing to be held when petitioner was not present; failing to have petitioner’s
competency evaluated; failing to file a motion for a bill of particulars until after the trial was
continued; failing to object to the State’s motion to continue the trial based on one victim’s
unavailability; failing to insist on inspecting counseling records of one of the victims; failing to
move for a mistrial when testimony regarding petitioner’s right to remain silent was brought up
at trial; failing to have petitioner submit to a sexual offender evaluation; failing to hire an expert
witness; failing to request a lesser included instruction; failing to object to the improper sentence
which has now been corrected; and, failing to appeal for eight years. In the present case, the
ineffective assistance of counsel claim is improper as the issue has been fully litigated in a proper
habeas corpus proceeding.2 Therefore, we will not address this assignment of error.

        Second, petitioner argues that the circuit court erred in not finding that his constitutional
right to a fair trial was violated by the trial judge’s failure to conduct a proper 404(b) evidentiary
hearing. The testimony was proffered and no in camera hearing was held. This Court has stated
as follows:

               Where an offer has been made of lustful disposition evidence pursuant to
       State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), the reviewing
       court must evaluate the admissibility of that evidence as required by Edward
       Charles L. and State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

Syl. Pt. 3, State v. Jonathan B., 230 W.Va. 229, 737 S.E.2d 257 (2012). Upon our review of the
record, we do not find that the circuit court abused its discretion. This Court has stated:
                Collateral acts or crimes may be introduced in cases involving child sexual
        assault or sexual abuse victims to show the perpetrator had a lustful disposition
        towards the victim, a lustful disposition towards children generally, or a lustful
        disposition to specific other children provided such evidence relates to incidents
        reasonably close in time to the incident(s) giving rise to the indictment. To the
        extent that this conflicts with our decision in State v. Dolin, 176 W.Va. 688, 347
       2
        Petitioner appealed the circuit court’s denial of habeas corpus relief. This Court affirmed
the denial via memorandum decision. See, Harold Stephen M. v. David Ballard, Warden, No.
12-1034 (W.Va. Supreme Court, January __, 2014) (memorandum decision).

                                                  3

       S.E.2d 208 (1986), it is overruled.

Syl. Pt. 2, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). Pursuant to our
caselaw, evidence that petitioner had sexually molested his daughter in other ways - including
putting his tongue in her mouth - was clearly admissible to show his lustful disposition toward
children. Further, we agree with the circuit court’s finding during the habeas corpus proceeding
below3 that there was sufficient evidence to show that the acts occurred; that the evidence was
admissible for a legitimate purpose; and, that the evidence of “other acts” was more probative
than prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence. Thus, although no
hearing was held, the court conducted a proper analysis and determined that the evidence was
admissible.

        Finally, petitioner argues that the circuit court: (1) abused its discretion in sentencing him
to consecutive sentences and denying alternative sentencing, and (2) imposed a sentence that he
believes to be cruel and unusual under the circumstances of this case. Petitioner states that the
imposition of thirty-two to seventy years of incarceration is excessive given the offense and
tantamount to a life sentence given petitioner’s advanced age and failing health. He further
argues that home incarceration would have been far more appropriate under the circumstances.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Moreover, “‘[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.’ 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). However, this Court has held as
follows:

               Punishment may be constitutionally impermissible, although not cruel or
       unusual in its method, if it is so disproportionate to the crime for which it is
       inflicted that it shocks the conscience and offends fundamental notions of human
       dignity, thereby violating West Virginia Constitution, Article III, Section 5 that
       prohibits a penalty that is not proportionate to the character and degree of an
       offense.

Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). Upon our review, we find no
abuse of discretion by the circuit court in petitioner’s sentences. The sentences imposed were
within statutory limits and not based on an impermissible factor, nor were they disproportionate
to the crimes. Importantly, the initial errors on petitioner’s sentence have been corrected by
resentencing. Therefore, we find no error in the circuit court’s sentencing order.

       For the foregoing reasons, we affirm.


       3
           See Footnote 2.

                                                  4

                                      Affirmed.

ISSUED: January 10, 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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