                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Kurt M. Ray,
                                                                     FILED
Petitioner Below, Petitioner                                                 February 17, 2017

                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 16-0022 (Brooke County 13-C-75)                                           OF WEST VIRGINIA


Karen Pszczolkowski, Warden,

Northern Regional Correctional Facility,

Respondent Below, Respondent



                               MEMORANDUM DECISION
         Petitioner Kurt M. Ray, pro se, appeals the December 7, 2015, order of the Circuit Court of
Brooke County denying his amended petition for a writ of habeas corpus. Respondent Karen
Pszczolkowski, Warden, Northern Regional Correctional Facility, by counsel Julie A. Warren,
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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On March 3, 2008, petitioner was indicted on the following offenses: burglary, wanton
endangerment, assault during the commission of a felony, sexual assault in the first degree, sexual
assault in the second degree, kidnaping, and threats to kidnap. The charges stemmed from an
occurrence during the night of January 11, 2008, when petitioner entered the home of his former
girlfriend and forced her to leave with him. When the police later encountered the two, the victim
was wearing nothing but a flannel jacket. She screamed for help, and the police arrested petitioner
without incident. The police transported the victim to a hospital to receive treatment for her
injuries.

       On March 18, 2009, the circuit court held a hearing at which the parties presented a plea
agreement. Petitioner agreed to plead guilty to burglary, wanton endangerment, and assault during
the commission of a felony, kidnaping, and threats to kidnap. In exchange, the State agreed to
dismiss the counts charging sexual assault in the first degree and sexual assault in the second
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degree. The parties further agreed that sentencing would be at the circuit court’s discretion and that
the State would be permitted to argue that the court should impose an aggregate sentence under
which petitioner would not be eligible for parole for thirty years. The circuit court found that
petitioner understood both the terms of the plea agreement and his constitutional rights and that he
voluntarily entered his guilty pleas. The circuit court accepted petitioner’s pleas and convicted him
of the counts to which he pled guilty.

        On April 24, 2009, the circuit court held petitioner’s sentencing hearing. Petitioner’s
father, cousin, and friend made statements indicating that petitioner’s crimes were not consistent
with his normal character. Petitioner’s attorney stated that other individuals came to support
petitioner at sentencing and submitted letters on his behalf, but that those individuals did not desire
to make oral statements. The State presented the statements of the victim and of the nurse who
treated the victim at the hospital. Prior to the nurse’s statement, petitioner’s attorney objected to
the State’s questioning of the nurse. The circuit court ruled that neither party could question the
nurse, but that she could give a statement like every other witness at the sentencing hearing. The
nurse gave a statement detailing the victim’s injuries on the night of January 11, 2008.

        Following the witness statements, the circuit court imposed sentences of one to fifteen
years of incarceration for burglary;1 five years of incarceration for wanton endangerment; two to
ten years of incarceration for assault during the commission of a felony; a life term of incarceration
for kidnaping with the possibility for parole after ten years;2 and twenty years of incarceration for
threats to kidnap. With regard to petitioner’s conviction for threats to kidnap, for which West
Virginia Code § 61-2-14c sets no maximum sentence, the State previously recommended that the
circuit court impose a term of sixty-four years of incarceration. Therefore, in sentencing petitioner
to twenty years of incarceration for threats to kidnap, the circuit court rejected the State’s
sentencing recommendation with regard to that conviction. The circuit court ordered that
petitioner serve his sentences consecutively. Petitioner filed a direct appeal on December 8, 2009,
alleging that his sentence for threats to kidnap was unconstitutionally disproportionate to the
character of the offense. By order entered March 4, 2010, this Court refused petitioner’s appeal.

        Petitioner filed a petition for a writ of habeas corpus on June 3, 2013. The circuit court
subsequently appointed habeas counsel for petitioner and directed the filing of an amended habeas
petition. Petitioner’s habeas attorney filed the amended petition on November 18, 2013, alleging
the following grounds for relief: (1) incompetency at the time of petitioner’s plea hearing due to
drug and alcohol abuse; (2) coerced and involuntarily entered guilty pleas; (3) excessive sentence
and a sentence more severe than expected; (4) violation of double jeopardy with regard to

       1
         Based on an error in the presentence report, the circuit court initially sentenced petitioner
to a term of one to ten years of incarceration for burglary. However, after counsel for both parties
alerted the circuit court of the error, the court imposed a sentence of one to fifteen years of
incarceration, as required. See W.Va. Code § 61-3-11(a).
       2
       West Virginia Code § 62-12-13(c) provides that, generally, “[a]n inmate sentenced for life
may not be paroled until he or she has served ten years.”

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petitioner’s convictions for kidnaping and threats to kidnap; (5) denial of petitioner’s right to
confront the victim’s nurse at his sentencing hearing; and (6) ineffective assistance of trial counsel,
including that his attorney mistakenly advised him regarding the possibilities of probation and
parole. In alleging ineffective assistance, petitioner asserted that his trial attorney (a) failed to raise
the issue of his intoxication on the night of his offenses; (b) pressured petitioner into accepting the
parties’ plea agreement; (c) failed to raise petitioner’s depression and the fact the he was on
medication for his depression; (d) failed to correct errors in the presentence report; and (e) failed to
present all of petitioner’s witnesses at his sentencing hearing.

        With his amended habeas petition, petitioner filed a Losh checklist of grounds waived.3
Respondent filed a response on October 8, 2015. Following the filing of petitioner’s amended
petition and respondent’s response, the circuit court determined that the record was sufficient for it
to adjudicate the claims raised by petitioner and canceled the habeas hearing previously scheduled
for November 16, 2015. On December 7, 2015, the circuit court entered a twenty-six page order
denying petitioner’s amended habeas petition after refuting all of his grounds of relief, including
the sub-grounds petitioner raised as part of his ineffective assistance claim.

       Petitioner now appeals the circuit court’s December 7, 2015, order denying his amended
habeas petition. We apply the following standard of review in habeas appeals:

                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). A court having jurisdiction
over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing
“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).

        On appeal, petitioner challenges the circuit court’s finding that the record was sufficient for
it to adjudicate the claims raised by petitioner without the necessity of an evidentiary hearing.
Respondent counters that the circuit court correctly found that the record allowed it to summarily
deny petitioner’s amended habeas petition. We agree with respondent and note that the circuit
court found that it could deny the amended petition after reviewing “the court files [and] the
transcripts.” We have reviewed the plea and sentencing transcripts, petitioner’s indictment and the
parties’ plea agreement in his criminal case, his amended habeas petition filed in the instant case,
and other documents included by petitioner in his appendix. Based on our review of the record, we


        3
            See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).


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conclude that the circuit court did not err in finding that the record was sufficient for it to
adjudicate petitioner’s habeas claims without a hearing.

        Having reviewed the circuit court’s December 7, 2015, “Order Denying Petitioner’s
Amended Petition For [Post-]Conviction Habeas Corpus Relief,” we hereby adopt and incorporate
the circuit court’s well-reasoned findings and conclusions as to the issues raised by petitioner in
this appeal.4 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision. We conclude that the circuit court did not abuse its discretion in denying petitioner’s
amended petition for a writ of habeas corpus.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.


ISSUED: February 17, 2017

CONCURRED IN BY:

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




       4
         To the extent that petitioner raises issues not presented in his amended habeas petition, we
find that such issues are not cognizable on appeal. See Syl. Pt. 2, Sands v. Sec. Trust Co., 143
W.Va. 522, 102 S.E.2d 733 (1958) (holding that “[t]his Court will not pass on a
non[-]jurisdictional question which has not been decided by the trial court in the first instance”).

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