                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Shane Peck,                                                                        FILED
Petitioner Below, Petitioner                                                    March 16, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0421 (Kanawha County 13-P-374)                                       OF WEST VIRGINIA


Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
         Petitioner Shane Peck, by counsel William C. Forbes, appeals the Circuit Court of
Kanawha County’s April 2, 2014, order denying his petition for writ of habeas corpus.1
Respondent Marvin Plumley, Warden, by counsel Laura Young, filed a response.2 Petitioner
filed a reply. On appeal, petitioner alleges that the circuit court erred in denying habeas relief on
his claims of an involuntary plea, ineffective assistance of counsel, and violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

        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.

        In March of 2011, petitioner’s victim, Geraldine Gibson, was found bound and gagged in
her home. She stated that two men entered the home, knocked her down, bound and gagged her,
pointed a gun at her, and then searched her house. According to the victim, petitioner and his
accomplice took items totaling more than $1,000 from the home. She later identified petitioner as
one of her assailants. Following his arrest and indictment, petitioner accepted a plea offer from
the State on the morning of trial in May of 2011. According to the agreement, the State would
recommend a sixty-year sentence if petitioner would plead guilty to one count of burglary, one

       1
       Petitioner’s counsel filed his brief pursuant to the United States Supreme Court of
Appeals’ decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
       2
        The petition for appeal originally listed the warden of Mount Olive Correctional
Complex, David Ballard, as respondent. However, petitioner has subsequently been transferred
to Huttonsville Correctional Center. Pursuant to Rule 41(c) of the West Virginia Rules of
Appellate Procedure, the appropriate party has been substituted in the style of this matter.


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count of assault during the commission of a felony, and one count of first degree robbery. During
the plea hearing that same day, petitioner stated that he understood the terms of his plea
agreement and acknowledged that the circuit court was not bound by the State’s recommended
sentence. Thereafter, the circuit court sentenced petitioner to a determinate term of incarceration
of seventy-five years for his conviction of first degree robbery, a concurrent term of
incarceration of two to ten years for his conviction of assault during the commission of a felony,
and a consecutive term of incarceration of one to fifteen years for his conviction of burglary.

        In July of 2013, petitioner filed a petition for writ of habeas corpus in the circuit court.
The circuit court thereafter appointed counsel to represent petitioner. In November of 2013,
petitioner’s counsel filed an amended petition for writ of habeas corpus alleging that the
prosecution failed to provide petitioner with evidence, that petitioner was mentally incompetent
at the time of the crime and at the time he accepted the plea agreement, and that pre-trial
publicity violated petitioner’s right to a fair trial and proper venue. Moreover, petitioner alleged
that his trial counsel was ineffective in the following ways: (1) by failing to adequately explain
the plea offer, including the fact that the recommended sentence was not binding on the circuit
court; (2) in failing to move for a change of venue; and (3) in failing to move for a mental
competency evaluation of petitioner. Following an omnibus evidentiary hearing on February 13,
2014, the circuit court ultimately denied petitioner habeas relief. It is from the resultant order that
petitioner appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

               “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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner reasserts the same claims that were rejected by the circuit court.
Upon our review and consideration of the circuit court’s order, the parties’ arguments, and record
submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of
the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus
relief based on the errors he assigns on appeal, which were also argued below. Indeed, the circuit
court’s order includes well-reasoned findings and conclusions as to all of the assignments of
error raised herein. Given our conclusion that the circuit court’s order and the record before us
reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s
findings and conclusions and direct the Clerk to attach a copy of the circuit court’s April 2, 2014,
“Final Order Denying Petition For Writ Of Habeas Corpus” to this memorandum decision.

       For the foregoing reasons, we affirm.



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                                          Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

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




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