                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
                                                                             September 2, 2016
Dennis Burch,                                                                    RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

vs) No. 15-1091 (Kanawha County 14-P-613)

Marvin Plumley, Warden,
Huttonsville Correctional Center, and
West Virginia Parole Board,
Respondents Below, Respondents



                               MEMORANDUM DECISION
        Petitioner Dennis Burch, pro se, appeals the October 8, 2015, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus which challenged a denial of
parole. Respondents Marvin Plumley, Warden, Huttonsville Correctional Center, and West
Virginia Parole Board, by counsel Benjamin Freeman, filed a summary response to which
petitioner filed a reply.1

        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 October 3, 1996, Petitioner shot his wife’s lover six times in the torso. Following
petitioner’s indictment, a jury found him guilty of first degree murder and made a recommendation
of mercy. Accordingly, petitioner was sentenced to a life term of incarceration with a possibility of
parole after fifteen years. Shortly thereafter, the West Virginia Division of Corrections (“DOC”)

       1
         Petitioner also filed a motion to strike respondents’ summary response on the ground that
it was not responsive to his assignments of error. Upon review, we find that respondents’ summary
response was responsive to petitioner’s assignments of error. Accordingly, we deny petitioner’s
motion to strike.

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compiled a report regarding petitioner’s crime that was received by Respondent West Virginia
Parole Board (“board”) on June 30, 1997. In that report, the DOC related that the responding
officer reported that the victim was shot in both the face and the torso. The DOC also reported that
police collected a number of witness statements indicating that petitioner had previously
threatened the victim. On May 20, 1998, petitioner was psychologically evaluated for purposes of
his classification within the prison system. As part of that evaluation, petitioner submitted to a
personality test which indicated that “[petitioner] attempted to create an unrealistically favorable
impression of himself.” Individuals with similar personality profiles are generally described “as
being immature, self-centered, [and] lacking in insight[.]”

        Petitioner became eligible for parole in 2012. In preparation for his most recent parole
interview on October 21, 2013, petitioner participated in a pre-parole report on August 1, 2013. As
part of that report, petitioner stated that his prior criminal record consisted of one speeding ticket.
Petitioner also expressed “no hard feelings” against the prosecutor in the underlying murder case
and stated that the judge and the arresting officer were doing their jobs. Petitioner stated that he
made “a terrible mistake” by killing the victim and that he was “sorry for the heartache” he caused.
Both the audio recording and the transcript of petitioner’s October 21, 2013, parole interview
reflected that the board previously reviewed petitioner’s records.2

        The board asked petitioner about accounts in the record that indicated that he previously
threatened the victim. Petitioner denied making any threats, stating that he just called and talked to
the victim in an effort to persuade him not to “destroy [his] family.” At the conclusion of
petitioner’s parole interview, the board completed a risk assessment and found that petitioner was
“low risk” given factors such as his age (over fifty) and positive prison work record. Nonetheless,
the board denied parole to petitioner and found that he would not be interviewed again until 2016.
The board explained that “[petitioner’s] interview has not convinced this board [that petitioner’s]
release would be compatible [with] or in the best interests of anybody in society.” The board found
that (1) petitioner had no capacity to reintegrate into society; (2) petitioner still had the potential
for future violence; and (3) petitioner committed a willful act of violence against another person
that warranted “extended parole consideration.” Finally, the board informed petitioner of his right
to submit information showing that he should be re-interviewed at an earlier date.

        Petitioner filed an administrative appeal from the board’s decision. The board’s
chairperson denied the appeal on August 22, 2014, and also denied petitioner’s request to be
provided with information regarding community and official sentiment toward his possible parole.
On December 14, 2014, petitioner filed a petition for a writ of habeas corpus challenging the
board’s October 21, 2013, decision to deny parole and not to re-interview him until 2016.
Petitioner argued that he was entitled to a parole hearing that comported with due process of law.
Petitioner also filed a motion for discovery and a motion for appointment of counsel. Petitioner
       2
         Petitioner submitted the transcript of the October 21, 2013, parole interview as part of the
appendix; however, the transcript was incomplete. By order entered July 18, 2016, at this Court’s
direction, the record was supplemented with the audio recording of petitioner’s October 21, 2013,
parole interview pursuant to Rule 6(b) of the West Virginia Rules of Appellate Procedure.

                                                  2

alleged that other murder convicts were granted parole despite having more extensive criminal and
disciplinary records than his. Thus, petitioner argued that an attorney should review every case in
which parole was granted to an inmate convicted of first degree murder since 2010 to determine if
those cases were similar to his case. By order entered October 8, 2015, the circuit court denied
petitioner’s habeas petition and his motions for discovery and appointment of counsel. The circuit
court found that “the grounds alleged do not entitle [petitioner] to the relief sought” or to the
information “that petitioner claims he is entitled to receive as discovery.” Petitioner now appeals
the circuit court’s October 8, 2015, order denying his 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).

                                 The circuit court did not err in denying

                   petitioner’s motions for discovery and for appointment of counsel.


       Petitioner contends that his case needs to be compared with every case in which parole was
granted to an inmate convicted of first degree murder since 2010. Given that inmates should not
have access to each other’s files, petitioner argues that an attorney needs to be appointed to
conduct such a review. In Syllabus Point 3 of State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532
S.E.2d 654 (2000), we held, as follows:

                In proceedings under the West Virginia Post-Conviction Habeas Corpus
        Act, [West Virginia] Code §§ 53-4A-1 to -11, discovery is available only where a
        court in the exercise of its discretion determines that such process would assist in
        resolving a factual dispute that, if resolved in the petitioner’s favor, would entitle
        him or her to relief.

        Respondents argue that each inmate’s case is different. Thus, respondents assert that the
review that petitioner seeks would not aide in showing that he is entitled to the requested habeas
relief. We agree and note the circuit court’s correct finding that petitioner’s alleged grounds for
habeas relief entitled him neither to the discovery requested nor the ultimate relief sought. 3
Therefore, we conclude that the circuit court did not abuse its discretion in denying petitioner’s
motions for discovery and for appointment of counsel.


        3
            As we explain, infra, we find that the circuit court correctly denied petitioner’s habeas
petition.

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                                 The circuit court did not err in denying

            petitioner’s habeas petition challenging the board’s October 21, 2013, decision.


        Petitioner challenges the board’s October 21, 2013, decision on a number of grounds which
we review under the following standards: “The decision to grant or deny parole is a discretionary
evaluation to be made by the [board]. However, such a decision shall be reviewed by this Court to
determine if the [board] abused its discretion by acting in an arbitrary and capricious fashion.” Syl.
Pt. 3, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981) (citing Tasker v. Mohn, 165 W.Va.
55, 67, 267 S.E.2d 183, 190 (1980)). In addition, West Virginia Code § 62-12-13(e) provides that
the board may delay re-interviewing inmates serving life terms of incarceration with the possibility
of parole for up to three years. In Syllabus Point 3 of State ex rel. Carper v. West Virginia Parole
Board, 203 W.Va. 583, 509 S.E.2d 864 (1998), we held that, for it to pass constitutional muster
under the Ex Post Facto Clause of the West Virginia Constitution, 4 West Virginia Code §
62-12-13(e) “must be applied on a case-by-case basis to prisoners whose offenses occurred at a
time when the law prescribed annual parole reviews.”

         Petitioner first contends that due process required the board to provide him with the
information regarding community and official sentiment toward his possible parole. See Syl. Pt. 4,
in part, Tasker, 165 W.Va. at 55, 267 S.E.2d at 184 (holding that, if no security concern exists to
prevent disclosure, an inmate is entitled to access to information which will be used to determine
whether he is paroled). We note that, shortly after we decided Tasker, we decided Stanley v. Dale,
171 W.Va. 192, 298 S.E.2d 225 (1982). In Stanley, the inmate argued that he was entitled to
receive access to information regarding community sentiment. Id. at 194, 298 S.E.2d at 227. This
Court rejected the inmate’s argument, noting that a habeas petitioner bears the burden of proving
that his petition has merit. Id., at 194, 298 S.E.2d at 227-28. In Stanley, we found that the inmate
failed to carry his burden of showing that he was prejudiced by the non-disclosure because “[w]e
cannot say with any degree of certainty that the [board] would have granted parole to the [inmate]
in the absence of their consideration of community sentiment.” Id., at 194-95, 298 S.E.2d at
227-28. In this case, we similarly find that petitioner failed to carry his burden of showing that he
was prejudiced by the non-disclosure because the board did not base its decision on community
and official sentiment, but on petitioner’s responses during his parole interview.

        Second, petitioner contends that certain factual errors tainted the board’s decision to deny
parole and not to re-interview him until 2016. However, upon our review of the record before us,
we find that any factual misconceptions the board may have had did not materially impact or
prejudice its decision in this case. Petitioner takes issue with two items he describes as factually
incorrect in the record: (1) that petitioner shot the victim in the face; and (2) that petitioner abused
alcohol. In a 1997 report, the DOC describes the presentation of the victim’s body as suggesting
that he suffered gunshots to both the face and the torso. The board gave petitioner an opportunity to
make clarifications and correct any errors in the record. Petitioner corrected the board’s
misconception that the victim was shot in the face, stating that “it wasn’t in the face.” However,

        4
            The Ex Post Facto Clause of the West Virginia Constitution is found in article III, § 4.


                                                    4

based on our review of the audio recording and hearing transcript, we find that, in fact, the board
was concerned about the number of times petitioner shot the victim (six times), and not in the
location of the wounds.

        According to petitioner’s psychological evaluation, petitioner consumed alcohol as a
young adult. During the hearing, the board asked petitioner whether he had any problem with
drugs or alcohol, to which petitioner answered, “no.” Petitioner notes that, on the risk assessment,
the board gave him one point for drug and alcohol use. However, we find that, even if the board
gave that point in error, petitioner’s overall score was still “-2” which classified him as “low risk.”
Therefore, we conclude that petitioner corrected any factual errors the board may have had with
regard to his alcohol abuse; alternatively, even assuming otherwise, the board’s misconceptions
did not prejudice petitioner.

        Finally, petitioner contends that the board acted arbitrarily in denying him parole and failed
to base its decision to delay his next parole interview until 2016 on a “case-specific individualized
determination.” Syl. Pt. 3, in part, Carper, 203 W.Va. at 585, 509 S.E.2d at 886. We disagree. In its
report, the DOC informed the board that the police collected a number of witness statements that
petitioner threatened the victim prior to the incident during which petitioner shot him. When the
board questioned petitioner about those accounts at his parole interview, petitioner denied that he
threatened the victim. We note that the board was able to see petitioner and observe his demeanor
during his interview. Thus, we find that the board was in a position to judge petitioner’s credibility.
See State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (noting that an
appellate court may not review credibility determinations). We note the board’s finding that it was
“[petitioner’s] interview” that “has not convinced this board [that petitioner’s] release would be
compatible [with] or in the best interests of . . . society.” We note that, according to petitioner’s
psychological evaluation, petitioner is capable of “attempt[ing] to create an unrealistically
favorable impression of himself.” The report noted that individuals with similar personality
profiles are generally described “as being immature, self-centered, [and] lacking in insight[.]”
Therefore, we find that petitioner’s responses at his parole interview—which both contradicted the
record and reflected tendencies observed during petitioner’s psychological evaluation—provided
the board with an adequate, case-specific basis for its decision. Accordingly, we conclude that the
board did not abuse its discretion in denying parole to petitioner and delaying his next parole
interview until 2016.

        For the foregoing reasons, we affirm the circuit court’s October 8, 2015, order denying
petitioner’s habeas petition challenging the board’s October 21, 2013, decision. The Clerk of this
Court is directed to issue the mandate in this matter forthwith.5

                                                                                            Affirmed.

ISSUED: September 2, 2016


       5
           Petitioner’s next parole interview is scheduled for October of 2016.

                                                   5

CONCURRED IN BY:

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




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