                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Neil W.,
                                                                         FILED
Petitioner Below, Petitioner                                                 February 2, 2018

                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 17-0383 (Ohio County 17-C-85)                                            OF WEST VIRGINIA


Patrick Mirandy, Warden,

St. Marys Correctional Center,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Neil W.,1 pro se, appeals the March 27, 2017, order of the Circuit Court of Ohio
County denying his seventh petition for a writ of habeas corpus. Respondent Patrick Mirandy,
Warden, St. Marys Correctional Center, by counsel Robert L. Hogan, filed a summary response in
support of the circuit court’s order. Petitioner filed a reply.

        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 September 14, 1998, an Ohio County grand jury indicted petitioner on fifty-two counts
relating to child sexual offenses. Specifically, the indictment included the following:

       Seventeen counts of sexual assault in the third degree; nineteen counts of sexual
       abuse in the third degree; seven counts of exhibiting obscene material to a minor;
       five counts of photographing a minor in sexually explicit conduct; three counts of
       sexual abuse by a parent, guardian, or a custodian; and one count of sexual abuse in
       the first degree.
       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).


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The indictment stated that the offenses occurred in July of 1998 as to forty-three counts. As to the
remaining nine counts, the offenses were said to have occurred between October of 1997 and
December of 1997. No victim was identified by name. Instead, the indictment noted that each
victim’s name was known to the grand jury.

       On November 17, 1998, petitioner entered guilty pleas to fourteen counts of the indictment
pursuant to a plea agreement. The fourteen counts included twelve felonies and two
misdemeanors. Specifically, petitioner pled guilty to eight counts of sexual assault in the third
degree; one count of sexual abuse in the third degree; two counts of sexual abuse by a parent,
guardian, or a custodian; one count of exhibiting obscene material to a minor; one count of sexual
abuse in the first degree; and one count of photographing a minor in sexually explicit conduct. The
remaining counts of the indictment were dismissed.

         On December 30, 1998, the circuit court held a hearing on a request by petitioner to
withdraw his guilty pleas based on the claim that, at the time of his pleas, medical conditions
affected his ability to make intelligent decisions regarding complex issues. However, following
petitioner’s testimony, the State offered the testimony of petitioner’s next door neighbor, Jean S.,
who visited with petitioner in jail several times following the November 17, 1998 plea hearing.
Jean S. testified that petitioner’s motivation in filing his motion to withdraw his guilty pleas was
that “if he kept it up long enough, . . . they would reduce [his] sentence.” Accordingly, the circuit
court reaffirmed its prior determination that petitioner’s guilty pleas were intelligently, knowingly,
and voluntarily made. By order entered on January 8, 1999, the circuit court denied petitioner’s
motion to withdraw his guilty pleas.

        The circuit court held petitioner’s sentencing hearing on February 2, 1999. At the start of
the hearing, petitioner’s trial attorney presented a second motion to withdraw the guilty pleas
alleging that the State’s non-disclosure of exculpatory evidence affected petitioner’s decision to
plead guilty. The circuit court agreed with trial counsel that a medical report, which showed that
one of the victims had no physical signs of being sexually assaulted, constituted helpful evidence
for the defense. However, the circuit court denied the motion finding that the medical report was
not exculpatory because the lack of physical evidence was not determinative of petitioner’s guilt or
innocence.

        After the circuit court denied the second motion to withdraw the guilty pleas, it inquired
whether the parties were ready to proceed to sentencing. Petitioner’s trial attorney responded by
waiving petitioner’s right to a presentence investigation report and noting petitioner’s
authorization to do so. The circuit court first heard argument from petitioner’s counsel and then
directly from petitioner. During his allocution, petitioner criticized his trial attorney’s advice and
stated that trusting him was a mistake. The circuit court then heard argument from the State and a
statement by the victims’ therapist. Ultimately, the circuit court imposed the sentence to which the
parties agreed in the plea agreement, which was an aggregate term of twenty-eight to eighty years
of incarceration.
        Following the pronouncement of petitioner’s sentence, the circuit court agreed with his
attorney’s argument that it was required to give petitioner credit for time served. The circuit court
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further advised petitioner of his right to appeal its judgment. Petitioner requested appointment of
appellate counsel. Petitioner’s trial attorney requested to withdraw and not be appointed appellate
counsel. Counsel explained that “it would appear [that] there is now a conflict of interest between
myself and my client” and that he would be a witness in any post-conviction proceeding about the
plea negotiations and the advice that he provided to petitioner. Petitioner did not object to his trial
attorney’s motion to withdraw. Accordingly, the circuit court appointed a new attorney to
represent petitioner on appeal.

        The initial sentencing order was entered on February 3, 1999. However, the circuit court
resentenced petitioner on August 26, 1999, for the purposes of appeal. On appeal, petitioner
argued that the circuit court erred in accepting his guilty pleas. By order entered March 23, 2000,
this Court refused petitioner’s appeal. Petitioner filed his first petition for a writ of habeas corpus
on October 22, 2000. Subsequently, in a July 21, 2005, agreed order to correct sentence, the circuit
court held that under the statute in effect at the time, the applicable sentence for sexual abuse by a
parent, guardian, or a custodian was five to fifteen years. Thus, the circuit court found that
petitioner had been sentenced to two illegal ex post facto terms of ten to twenty years under the
current version of the statute for the two convictions for sexual abuse by a parent, guardian, or a
custodian. The court resentenced petitioner to two five to fifteen terms on each of those counts, to
be served consecutively to each other. Petitioner subsequently filed five additional habeas
petitions, all of which were either denied or dismissed.

       Petitioner filed his seventh habeas petition on March 17, 2015, claiming that his trial
attorney withdrew at the beginning of the February 2, 1999, hearing and left him unrepresented
during sentencing. By order entered on March 27, 2017, the circuit court found that, after
“review[ing] the pleadings, evidence, and pertinent legal authorities,” petitioner’s claim was
devoid of merit. Accordingly, the circuit court denied the petition.

       Petitioner now appeals the circuit court’s March 27, 2017, order. 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).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus point 3 of Anstey,
we held as follows:

               “‘A court having jurisdiction over habeas corpus proceedings may deny a
       petition for a writ of habeas corpus without a hearing and without appointing
       counsel for the petitioner if the petition, exhibits, affidavits or other documentary
       evidence filed therewith show to such court’s satisfaction that the petitioner is
       entitled to no relief. Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d
                                                  3
       657 (1973).’ Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004) [(per
       curiam)].”

237 W.Va. at 412, 787 S.E.2d at 866.

        On appeal, petitioner reiterates his claim that his trial attorney withdrew at the beginning of
the February 2, 1999, hearing and left him unrepresented during sentencing. Petitioner argues that
his claim rises to the level of constitutional magnitude because sentencing constituted a critical
stage of his criminal proceedings. Respondent concedes that the right to assistance of counsel
during sentencing is a fundamental right. See State ex rel. Hicklin v. Boles, 149 W.Va. 163,
163-64, 139 S.E.2d 182, 183 (1964) (granting habeas relief on a claim that the petitioner was
sentenced without benefit of counsel). However, respondent asserts that the February 2, 1999,
sentencing hearing transcript unequivocally shows that petitioner’s trial attorney did not withdraw
until the end of the hearing. Upon our review of the sentencing hearing transcript, we agree with
respondent and find that petitioner’s trial attorney represented him throughout the hearing.
Therefore, we find that the circuit court did not err in denying the instant habeas petition.2

        For the foregoing reasons, we affirm the circuit court’s March 27, 2017, order denying
petitioner’s seventh petition for a writ of habeas corpus.

                                                                                            Affirmed.

ISSUED: February 2, 2018

CONCURRED IN BY:

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


       2
         Though petitioner makes a magnitude of complaints regarding his criminal proceedings,
the circuit court found that he raised only one issue in the instant petition—that being his spurious
claim that he was unrepresented during sentencing. Petitioner did not include a copy of his habeas
petition in his appendix. Consequently, respondent asserts that nothing in the appellate record
indicates that petitioner raised any other issue before the circuit court. We agree. Therefore, we
decline to address the other issues that petitioner raises on appeal. Syl. Pt. 2, Sands v. Sec. Trust
Co., 143 W.Va. 522, 102 S.E.2d 733 (1958) (holding that “[t]his Court will not pass on a
non[-]jurisdictional question which has not been decided by the trial court in the first instance”);
see also W.Va.Rul.App.Proc. 10(c)(7) (providing that an argument must include citations that
pinpoint when and how issues were presented to the circuit court and that this Court “may
disregard errors that are not adequately supported by specific references to the record on appeal”).

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