                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Aron Joseph Freeland,
Petitioner Below, Petitioner                                                       FILED
                                                                                   April 5, 2013
                                                                              RORY L. PERRY II, CLERK
vs.) No. 11-0126 (Monongalia County 07-C-237)                               SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Aron Joseph Freeland, by Scott A. Shough, his attorney, appeals the circuit
court’s order, entered December 17, 2010, dismissing his petition for a writ of habeas corpus. The
respondent warden, by Laura Young, his attorney, filed a summary response to which petitioner
replied pro se.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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On September 5, 2003, petitioner was indicted on two counts of second degree sexual
assault involving two different victims on two different days. On October 1, 2004, petitioner
entered into a plea agreement with the State in which he agreed to plead guilty to one count of
second degree sexual assault in exchange for the State’s promise to dismiss the second count.
Petitioner would then be sentenced to a term of ten to twenty-five years in prison. The circuit court
accepted the plea agreement but did not immediately sentence petitioner.

        On February 8, 2005, petitioner filed a motion to withdraw the guilty plea arguing that he
had insufficient time to consider the plea agreement and breach of the plea agreement. The circuit
court granted the motion.2 A jury trial was held in April of 2005, following which petitioner was
convicted on both counts of the indictment. On May 18, 2005, petitioner was sentenced to two
1
  On June 22, 2012, this Court granted petitioner’s counsel’s motion for leave to file petitioner’s
pro se reply.
2
  Petitioner’s previous counsel had withdrawn from the case. The new trial counsel represented
petitioner in his motion to withdraw the guilty pleas and in subsequent proceedings.

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consecutive sentences of ten to twenty-five years in prison. Petitioner’s subsequent appeal was
refused by this Court on February 16, 2006.

       On June 6, 2005, petitioner filed a motion for reconsideration of sentence. The circuit court
denied the motion. When petitioner appealed, this Court refused his petition on October 11, 2007.

        Subsequently, petitioner filed a petition for a writ of habeas corpus. Counsel was
appointed, and an amended petition was filed on June 9, 2009.3 The circuit court noted that while
petitioner raised forty-four grounds of relief, only eight of those grounds warranted discussion.4 In
a sixteen page order, the circuit court addressed those grounds and explained why the petition did
not merit a hearing. Petitioner appealed the circuit court’s order dismissing his petition.

        On April 15, 2011, Petitioner’s counsel filed an Anders brief. See Anders v. California, 386
U.S. 738 (1967). Counsel subsequently moved this Court for leave to file affidavits sworn by
petitioner in support of his appeal. The Court granted the motion. Once the respondent warden
filed a summary response, counsel moved for leave to file petitioner’s pro se reply. This Court
granted the motion.

                                    STANDARD OF REVIEW

       We review the circuit court’s order dismissing a habeas petition 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).



                                           DISCUSSION



3
    The respondent warden filed an answer on March 15, 2010.
4
  The eight grounds were as follows: (1) constitutional errors in evidentiary rulings; (2) prejudicial
joinder of charges/denial of motion to sever; (3) ineffective assistance of counsel; (4) prejudicial
statements by prosecutor; (5) more severe sentence than expected/excessive sentence; (6)
sufficiency of evidence; (7) mistaken advice of counsel as to sentencing; and (8) irregularities in
arrest.
                                                  2
        In the Anders brief, counsel notes that petitioner would assert ten assignments of error5 and
states his conclusion that “the petitioner’s arguments for appeal are without merit.” In the
summary response, the respondent warden argues that the circuit court did not err in summarily
dismissing petitioner’s habeas petition.

        In his pro se reply, petitioner makes arguments based upon two instances where he alleges
trial counsel was ineffective. In West Virginia, claims of ineffective assistance of counsel are
governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995). Petitioner argues that his conviction on at least one of the counts of second degree sexual
assault should be reversed because trial counsel was ineffective in not calling a witness. Petitioner
further argues that counsel was ineffective by advising him to admit responsibility for the offenses
in connection with his motion for reconsideration of sentence. The circuit court noted petitioner’s
expectation that the witness counsel did not call would have testified that the first victim reported
that no coercion or force had been used. In resolving this and all other claims of ineffective
assistance, the circuit court found it was clear that counsel was not ineffective. The circuit court
also considered petitioner’s claim that petitioner admitted responsibility for the offenses only in
the belief that he would receive an alternative or concurrent sentence if he admitted guilt. The
circuit court found the claim to be without merit noting that “[a]lthough the Court did not reduce
Petitioner’s sentence, offering remorse and accepting responsibility was Petitioner’s only option
for possibly getting the statutory sentences run concurrently.”

        After careful consideration, this Court finds that the two instances petitioner raises do not
meet the Strickland/Miller standard for showing ineffective assistance of counsel. First, petitioner
had only an expectation of what the witness would have testified to, and even if petitioner’s
expectation was correct, the jury might not have believed the witness in light of the other evidence
including the victim’s trial testimony. Second, it was not was not ineffective assistance to advise
that petitioner admit responsibility in connection with his motion for reconsideration; other than
petitioner’s own assertions, there is no evidence that counsel advised him to lie.

        This Court concludes that the circuit court did not abuse its discretion in dismissing the
petition. We hereby adopt and incorporate the circuit court’s well-reasoned findings and

5
  Petitioner’s assignments of error are the same as the eight grounds of relief the circuit court
found warranted discussion, plus failure to hold an evidentiary hearing and failure to strike the
respondent warden’s answer because it was filed late. However, an evidentiary hearing is not
always required. See W.Va. Code 53-4A-7(a); Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973). In addition, deciding a case on its merits is a desirable legal objective. See
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). Therefore, after careful consideration, this
Court concludes that the two issues regarding the circuit court’s conduct of the habeas proceeding
lack merit. As to the other eight assignments of error, this Court incorporates the circuit court’s
order. See infra.

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conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s order to this memorandum decision.6

        For the foregoing reasons, we find no error in the decision of the Circuit Court of
Monongalia County and affirm its order dismissing petitioner’s petition for a writ of habeas
corpus.

                                                                                        Affirmed.

ISSUED: April 5, 2013

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




6
 Certain names have been redacted. See State ex rel. West Virginia Dept. of Human Services v.
Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
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