                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Andrew R. Rios,                                                                    FILED
Petitioner Below, Petitioner
                                                                              December 20, 2019
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 18-0833 (Ohio County 10-C-32 and 16-C-286)                              SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION


       Petitioner Andrew R. Rios, pro se, appeals the August 31, 2018, order of the Circuit Court
of Ohio County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a
summary response in support of the circuit court’s order.

       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 orders is appropriate under Rule 21 of the
Rules of Appellate Procedure.

         On January 10, 2008, petitioner entered a plea of guilty in the Circuit Court of Ohio County
to first-degree robbery pursuant to a plea agreement with the State after having been charged by
information. The State agreed not to pursue a second charge of first-degree robbery for a separate
incident occurring on the same night as the robbery at issue. The State further agreed not to seek a
gun specification necessary for a sentencing enhancement. Given that there was no such
enhancement, petitioner will be eligible for parole after serving fifteen years of incarceration.

        During the plea hearing, petitioner admitted that, on the night in question, he (1) picked up
an individual named Derek Brown; (2) drove Mr. Brown to a rural part of Ohio County and pulled
his vehicle over; (3) discharged a firearm three times (the third shot coming within inches from
Mr. Brown’s face); and (4) took certain items from Mr. Brown. Petitioner further acknowledged
                                                  1
that he understood that he could be sentenced to a term of incarceration of not less than ten years
with no upper limit.1

        On February 22, 2008, the circuit court held a sentencing hearing. In the presentence
investigation report, the probation officer recommended that the circuit court forego alternative
sentencing for petitioner based on the seriousness of the crime. In accordance with that
recommendation, the circuit court declined to consider alternative sentencing, including
commitment to the Anthony Center for Youthful Offenders. Also, petitioner, then twenty-one
years old, did not request such sentencing alternatives. The circuit court sentenced petitioner to a
term of sixty years of incarceration. Subsequently, petitioner filed a motion for reduction of
sentence, which the circuit court denied by order entered on January 30, 2009.

        Petitioner also appealed his sentence, but this Court refused his appeal by order entered on
February 5, 2009. Thereafter, petitioner filed a second motion for reduction of sentence on June 5,
2009. The circuit court did not deny that motion until March 31, 2015. Petitioner appealed the
circuit court’s order denying the motion for reduction of sentence in State v. Rios (“Rios I”), No.
15-0347, 2016 WL 2969180 (W. Va. May 20, 2016) (memorandum decision). In Rios I, this Court
affirmed the circuit court’s March 31, 2015, order, finding that there was no abuse of discretion.
Id. at *2.

         Meanwhile, petitioner filed a petition for a writ of habeas corpus, asserting ineffective
assistance of trial counsel claims, in the circuit court on January 20, 2010. The circuit court first
addressed this habeas petition in an order entered on April 28, 2010, finding that petitioner alleged
that trial counsel failed to (1) challenge the statement in the presentence investigation report that
petitioner did not fire the third shot just inches from the victim’s face; (2) present mitigation
evidence at the sentencing hearing; (3) review the presentence investigation report with petitioner;
and (4) ask the circuit court to consider petitioner for alternative sentencing, including the
commitment to the Anthony Center for Youthful Offenders. The circuit court found that these
ineffective assistance of counsel claims, if true, would not have changed the outcome of the
sentencing hearing. First, the circuit court explained that the third shot being just inches from the
victim’s face “did not weigh heavily in the [c]ourt’s decision to sentence [p]etitioner to sixty years
[of incarceration]”2 and that rather, “[t]he [c]ourt considered the totality of the circumstances of
[petitioner]’s crime[.]” Next, the circuit court rejected the claim that trial counsel deficiently
represented petitioner and found that petitioner’s assertion that counsel did not review the
presentence investigation report with him was “disingenuous” given petitioner’s concession that

       1
        In State v. Turley, 177 W. Va. 69, 71, 350 S.E.2d 696, 698 (1986), we found that West
Virginia Code § 61-2-12 “imposes a minimum, but not an expressly stated maximum, sentence of
confinement for conviction of this offense,” which is now known as first-degree robbery (formerly,
aggravated robbery). See W. Va. Code § 61-2-12(a).
       2
         Petitioner’s assertion that the third shot’s distance from the victim constituted a disputed
fact is contrary to our finding in Rios I that petitioner “admitted” at the plea hearing that the shot
was just inches from the victim’s face. 2016 WL 2969180, at *1.
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counsel had the report during their meeting prior to sentencing. Finally, the circuit court found that
trial counsel’s failure to ask for alternative sentencing notwithstanding, the court “consider[ed]
whether [petitioner] should be treated under the Youthful Offender statute, but declined to do so
pursuant to the presentence investigation report’s recommendations.” Therefore, the circuit court
denied these ineffective assistance claims without a hearing.

        The other claim set forth in petitioner’s 2010 habeas petition was counsel’s alleged failure
to appeal the denial of the first motion for reduction of sentence. The circuit court deferred ruling
on that issue. On September 19, 2016, petitioner filed a second habeas petition. By order entered
on October 13, 2016, the circuit court consolidated the two habeas proceedings. The circuit court
found that any failure to appeal the denial of the first motion for reduction of sentence did not
cause petitioner prejudice given this Court’s affirmation of the denial of the second such motion
in Rios. The circuit court further found that the ineffective assistance claims raised in petitioner’s
2016 habeas petition were the same as the claims previously raised in the 2010 petition.
Accordingly, the circuit court reaffirmed its denial of those claims.

        As to the remaining claim set forth in petitioner’s 2016 habeas petition, the circuit court
appointed habeas counsel for petitioner and held a hearing as to the alleged unconstitutional
disproportionality of his sentence on June 13, 2018.3 Thereafter, by order entered on August 31,
2018, the circuit court found that petitioner’s sentence was not unconstitutionally disproportionate
under either the subjective test set forth in Syllabus Point 5 of State v. Cooper, 172 W. Va. 266,
304 S.E.2d 851 (1983), 4 or the objective test set forth in Syllabus Point 5 of Wanstreet v.
Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 5 Therefore, the circuit court denied
petitioner’s habeas petition. Petitioner now appeals the circuit court’s August 31, 2018, order.

       3
           Petitioner appeared at the June 13, 2018, hearing by telephone.
       4
           In Syllabus Point 5 of State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983), we held:

                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.
       5
        In Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205
(1981), we held:

               In determining whether a given sentence violates the proportionality
       principle found in Article III, Section 5 of the West Virginia Constitution,
       consideration is given to the nature of the offense, the legislative purpose behind
       the punishment, a comparison of the punishment with what would be inflicted in
       other jurisdictions, and a comparison with other offenses within the same
       jurisdiction.

                                                   3
       In Syllabus Points 1 and 2 of Watts v. Ballard, 238 W. Va. 730, 798 S.E.2d 856 (2017),
we held:

               “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).

               “West Virginia Code section 53-4A-7(c) (1994) requires a circuit court
       denying or granting relief in a habeas corpus proceeding to make specific findings
       of fact and conclusions of law relating to each contention advanced by the
       petitioner, and to state the grounds upon which the matter was determined.” Syl. Pt.
       1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).

        On appeal, petitioner argues that the circuit court failed to make findings of fact and
conclusions of law for claims other than the alleged disproportionality of his sentence in its August
31, 2018, order. Respondent counters that the circuit court’s findings regarding petitioner’s other
claims were set forth in its April 28, 2010, and October 13, 2016, orders, in which it found that
those claims could be denied without a hearing. Based on our review of those orders, we agree
with respondent and reject petitioner’s argument that the circuit court failed to make findings of
fact and conclusions of law as to his other claims.

        Petitioner next argues that trial counsel’s failure to ask the circuit court to consider
petitioner for alternative sentencing constitutes ineffective assistance. We disagree. In Syllabus
Point 5 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we held:

              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.[6]

(Footnote added). “Failure to meet the burden of proof imposed by either part of the
Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W.
Va. Penitentiary, 207 W. Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citing State ex rel. Daniel v.
Legursky, 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995)).



       6
        The second prong of the Strickland/Miller standard is often referred to as the prejudice
prong. See State v. Hutton, 235 W. Va. 724, 739, 776 S.E.2d 621, 636 (2015).
                                                  4
        Here, we find that the circuit court rejected this ineffective assistance claim based on
petitioner’s failure to satisfy his burden regarding the prejudice prong of the Strickland/Miller
standard. As the circuit court found in its April 28, 2010, order, trial counsel’s failure to ask for
alternative sentencing notwithstanding, the court “consider[ed] whether [petitioner] should be
treated under the Youthful Offender statute, but declined to do so pursuant to the presentence
investigation report’s recommendations.” Based on our review of the record, we concur with the
circuit court’s determination and find that it properly found that trial counsel was not ineffective.

        Finally, petitioner argues that his sentence of sixty years of incarceration was
unconstitutionally disproportionate pursuant to the subjective and objective tests set forth in
Cooper and Wanstreet. We disagree and find that, for the reasons given by the circuit court in its
October 13, 2016, order, the court properly found that petitioner’s sentence was not
unconstitutionally disproportionate under either of those tests. Having reviewed the circuit court’s
October 13, 2016, “Order,” we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions. The Clerk is directed to attach a copy of that order to this memorandum
decision. Accordingly, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s August 31, 2018, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                          Affirmed.


ISSUED: December 20, 2019

CONCURRED IN BY:

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




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