                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

James Allen Smith,

Petitioner Below, Petitioner                                                      FILED

                                                                                November 26, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 12-0374 (Raleigh County 10-C-1013)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Patrick Mirandy, Warden,

Saint Marys Correctional Center,

Respondent Below, Respondent


                                MEMORANDUM DECISION

        Petitioner James Smith’s appeal, filed by counsel Timothy Lupardus, arises from the
Circuit Court of Raleigh County, wherein petitioner’s petition for writ of habeas corpus was
denied by order entered on March 5, 2012. Respondent Warden Patrick Mirandy,1 by counsel
Andrew Mendelson, filed a response in support of the circuit court’s decision. On appeal,
petitioner alleges that the circuit court erred in conducting a habeas hearing without his presence
or participation, that the circuit court failed to make the mandatory inquiries in accordance with
Rule 9(b) of the Rules Governing Post-Conviction Habeas Corpus, that the circuit court’s order
does not comply with Rule 9(c) of the Rules Governing Post-Conviction Habeas Corpus, and
that his constitutional rights were violated when the circuit court held a pretrial hearing outside
his presence.

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

        In early 2001, Raymond Perry Jr. died from a single gunshot wound to the head.
Following an investigation, petitioner was indicted for first degree murder. On May 23, 2003, a
jury convicted petitioner of first degree murder with a recommendation of mercy. Petitioner filed
his direct appeal with this Court in January of 2004, which was refused by order entered on June
14, 2004. State v. James Allen Smith, No. 040210 (W.Va. Supreme Court, June 8, 2004).

       Petitioner filed a pro se petition for writ of habeas corpus in Kanawha County, which was
properly transferred to Raleigh County. See Rule 4(a) of the Rules Governing Post-Conviction
Habeas Corpus Proceedings. (“The court shall promptly review whether the petition should be

       1
        Petitioner named David Ballard, Warden of the Mount Olive Correctional Complex, as
the respondent in this case. However, because petitioner is presently incarcerated in Saint Mary’s
Correctional Center, pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure
we have substituted Patrick Mirandy as the party respondent.

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transferred to a venue set forth in Rule 3(a).”)2 By order entered on August 24, 2006, the circuit
court denied petitioner’s petition for writ of habeas corpus. On November 20, 2010, petitioner,
by counsel, filed a petition for writ of habeas corpus. The circuit court held a hearing, in which
petitioner was not physically present, on December 8, 2011. By order entered on March 5, 2012,
the circuit court denied petitioner’s petition for writ of habeas corpus. This appeal followed.

        Petitioner raises four assignments of error on appeal. First, petitioner argues that his
constitutional right of due process was violated when he was denied the opportunity to
participate in his omnibus hearing physically, electronically, or in absentia by completing a
“Losh List.”3 Petitioner argues that he was denied the opportunity to discuss with his counsel
whether he should withdraw substantial portions of his petition. Petitioner also contends that he
was not allowed to speak on his own behalf, testify, or be questioned as to whether he raised all
issues that could be asserted in his habeas petition and if he knowingly and willingly waived
those rights. Second, petitioner argues that the circuit court erred in finding that he knowingly
and intelligently waived all grounds for habeas corpus relief not asserted. Third, petitioner argues
that the circuit court erroneously held that he was advised concerning his obligation to raise all
grounds for post-conviction relief in one habeas proceeding. Finally, petitioner argues that the
circuit court erred in finding that the pre-trial hearing on his underlying criminal charge was
administrative and did not involve substantive issues.

       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).

        As to petitioner’s first assignment of error, this Court finds that the circuit court did not
abuse its discretion. Rule 9(b) of the Rules Governing Post-Conviction Habeas Corpus
Proceedings in West Virginia gives circuit courts the discretion to determine whether an
evidentiary hearing is required. A review of the December 8, 2011, hearing transcript reflects
that the circuit court did not require the taking of evidence at a hearing. Instead, the circuit court
       2
         Rule 3(a) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West
Virginia states “[a] petition may be filed: (1) in the circuit court of the county wherein the
petitioner is incarcerated; or (2) in the circuit court of the county wherein the petitioner was
convicted and sentenced.” Petitioner was convicted of first degree murder in the Circuit Court of
Raleigh County and was initially incarcerated at Mount Olive Correctional Complex in Fayette
County. Thus, petitioner could have filed his petition in Raleigh or Fayette County.
       3
         The checklist of grounds typically used in habeas corpus proceedings, commonly known
as “the Losh list,” originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

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only heard arguments from the parties’ lawyers. Furthermore, petitioner’s counsel waived
petitioner’s right to attend the hearing through the following exchange:

       The Court:	     The record should reflect that [petitioner] is not present. His
                       presence is not necessarily required because this is a civil
                       proceeding. In addition to that, it appears as though there’s not
                       going to be any evidence taken.

       [Counsel]:	     That is correct, Judge. I thought since it was just arguments, that’s
                       why we did that. Everything is laid out in the brief. I thought I
                       would use this time to maybe address some of the issues raised in
                       the response and then, otherwise, I’m relying on what’s in the
                       petition.

We have previously held that “‘[o]ur general rule is that nonjurisdictional questions . . . raised
for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206
W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999.” Noble v. W.Va. Dep’t of Motor
Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). This Court finds that the circuit court
did not abuse its discretion.

       To the extent that petitioner argues that habeas counsel improperly waived petitioner’s
appearance at the omnibus hearing and failed to argue specific grounds for habeas relief, we
decline to address these issues on appeal. This Court has held:

       It is the extremely rare case when this Court will find ineffective assistance of
       counsel . . . . The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

Syl. Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E. 2d 511 (1992). Petitioner is raising
habeas counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues
to believe that prior habeas counsel was ineffective, the preferred way of raising ineffective
assistance of habeas counsel is to file a subsequent petition for a writ of habeas corpus raising
this issue in the court below. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606
(1981) (While a prior habeas corpus hearing is res judicata as to all matters either raised or
should have been raised at the habeas corpus hearing, “an applicant may still petition the court
on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus
hearing.”).4

        Likewise, we decline to address petitioner’s second and third assignments of error.
Petitioner argues that that the circuit court erred in finding that he knowingly and intelligently
waived all grounds for habeas corpus relief not asserted. However, petitioner does not allege
       4
        We express no opinion as to the merits of any subsequent claim for ineffective assistance
of habeas counsel.

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what additional grounds he would have asserted. Petitioner also argues that the circuit court
erroneously held that he was advised by his attorney concerning his obligation to raise all
grounds for post-conviction relief in a single habeas proceeding. As stated above, to the extent
that petitioner believes that prior habeas counsel was ineffective for failing to adequately explain
his habeas corpus rights or for failing to raise all grounds for relief, the preferred way of raising
ineffective assistance of habeas counsel is to file a subsequent petition for a writ of habeas
corpus raising this issue in the court below.

        Finally, petitioner argues that the circuit court erred in finding that petitioner did not need
to be present at a pre-trial hearing in the underlying criminal case because the hearing was for
administrative purposes and did not involve substantive issues. “In a criminal proceeding, the
defendant's absence at a critical stage of such proceeding is not reversible error where no
possibility of prejudice to the defendant occurs.” Syl. Pt. 3, State ex rel. Redman v. Hedrick, 185
W.Va. 709, 408 S.E.2d 659 (1991). “A critical stage of a criminal proceeding is where the
defendant's right to a fair trial will be affected.” Syl. Pt. 2, State v. Tiller, 168 W.Va. 522, 285
S.E.2d 371 (1981). Rule 43(c)(3) of the West Virginia Rules of Criminal Procedure does not
require the presence of a defendant “at a conference or argument upon a technical question of
law not depending upon facts within the personal knowledge of the defendant.” A review of the
limited transcript filed as part of the appendix record reveals that the pre-trial hearing did not
involve facts within petitioner’s personal knowledge. The lawyers simply discussed whether
petitioner would testify at his criminal trial, memorialized the fact that the State offered
petitioner a plea deal, and that petitioner’s DNA was not found. This Court finds that the circuit
court did not abuse its discretion.

       For the foregoing reasons, we affirm.


                                                                                            Affirmed.

ISSUED: November 26, 2013


CONCURRED IN BY:

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


DISSENTING:

Justice Robin Jean Davis




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