                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Kristopher V.,                                                                        FILED
Petitioner Below, Petitioner                                                         May 1, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0529 (McDowell County 06-C-74)                                         OF WEST VIRGINIA


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


                               MEMORANDUM DECISION
        Petitioner Kristopher V., 1 by counsel D. Adrian Hoosier, II, appeals the order of the
Circuit Court of McDowell County, entered May 2, 2014, that denied his petition for writ of
habeas corpus. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel
Derek A. Knopp, filed a response to petitioner’s brief and a separate response to petitioner’s
supplemental brief.2

        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.

        In 2000, petitioner was indicted by the McDowell County Grand Jury on (1) thirty-six
counts of sexual assault in the first degree pursuant to West Virginia Code § 61-8B-3; (2) thirty-six
counts of sexual assault in the third degree pursuant to West Virginia Code § 61-8B-5; and (3)
thirty-six counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust
pursuant to West Virginia Code § 61-8D-5. The victim was N.O., the then ten-year-old daughter of
petitioner’s then-girlfriend.

        Prior to indicting petitioner, the grand jury heard the testimony of West Virginia State
Police Sergeant John Pauley that the abuse occurred from May of 1999 to January of 2000 and that
the 108 counts in the proposed indictment “accurately reflect what [petitioner] did to [N.O.] over

       1
         Consistent with our practice in cases involving sensitive facts, we use only petitioner’s
first name and last initial, and identify the minor victim only by her initials. See State ex rel. W.Va.
Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
       2
           We permitted petitioner to file a supplemental brief by an order entered January 20, 2015.
                                                   1

that period of time.” The officer also testified that “the worst thing” petitioner committed upon
N.O. was anal intercourse and that this was supported by a doctor’s report that “[N.O.] had venous
congestion around the rectum . . . and . . . her anus had a scar[.]”

        Following the indictment, trial was scheduled for December 4, 2000. However, on that
date, petitioner decided to enter a plea agreement with the State, under which 106 counts of
indictment would be dismissed and petitioner would plead guilty to one count of sexual assault in
the first degree and one count of sexual abuse by a parent, guardian, custodian, or person in a
position of trust. The plea agreement also provided that petitioner may apply for probation or
alternative sentencing and that the State would stand silent regarding sentencing.

        At the December 4, 2000 plea hearing, petitioner answered “yes, sir” to the circuit court’s
admonition that sentencing would be “totally up to the Court” and that subject to the presentence
investigative report, petitioner would most likely be sentenced to prison. Petitioner also replied
“yes, sir” when the circuit court asked petitioner if he was willing to plead guilty pursuant to the
terms of the plea agreement and if petitioner fully knew and understood the plea agreement’s
provisions. In addition, the circuit court explained each of the constitutional rights petitioner
would be surrendering by pleading guilty, and petitioner uniformly answered, “Yes, sir.”

        The circuit court also inquired of petitioner’s background. Petitioner testified that he had
attended special education classes because of learning disabilities and behavioral problems and
that he left school after the ninth grade. Petitioner further testified that he was awarded social
security disability payments. However, apart from examinations necessary to receive those
benefits, petitioner stated that he had not seen a doctor for “any . . . mental or emotional condition
in the last five years.” Petitioner replied “no, sir” to the question of whether he saw any mental
health counselor or “. . . any other kind of counselor.”

       Petitioner testified that his trial counsel represented him in a proper and adequate way.
When the circuit court inquired whether petitioner had any question in his mind that counsel
performed satisfactorily, petitioner answered, “no, sir.” Petitioner also testified that no person had
promised him probation or alternative sentencing in exchange for his guilty pleas.

       During examination by the State, petitioner clarified that he engaged in anal
intercourse—rather than vaginal intercourse—with N.O. by placing his sex organ in “[h]er butt.”
Thereafter, the circuit court allowed petitioner to enter his guilty pleas and found that petitioner
knowingly and voluntarily pled guilty to one count of sexual assault in the first degree and one
count of sexual abuse by a parent, guardian, custodian, or person in a position of trust.

        Petitioner’s sentencing hearing occurred on December 28, 2000. At the hearing, the circuit
court noted that according to a presentence psychological report, petitioner showed no genuine
remorse and was extremely reluctant to accept responsibility for the offenses. The circuit court
concluded that it was the psychologist’s opinion that “[petitioner] does not appear amenable to any
particular program of treatment or rehabilitation.” Accordingly, the circuit court denied
petitioner’s application for probation or alternative sentencing. The circuit court imposed a
sentence of fifteen to thirty-five years of incarceration for sexual assault in the first degree and a
                                                  2

sentence of ten to twenty years of incarceration for sexual abuse by a parent, guardian, custodian,
or person in a position of trust, to be served consecutively. Petitioner did not directly appeal his
convictions and sentences.

        Subsequently, petitioner filed a petition for writ of habeas corpus. Habeas counsel was
appointed, who filed an amended petition. Petitioner raised the following grounds for relief: (1) the
circuit court erred in not refusing to continue the plea hearing and order an evaluation of
petitioner’s competency pursuant to West Virginia Code § 27-6A-2 after the court was informed
that petitioner was awarded social security disability payments; and (2) trial counsel provided
ineffective assistance by not (a) challenging whether the grand jury had probable cause to indict
petitioner on a total of 108 counts of sexual misconduct;3 (b) investigating whether petitioner
lacked competency because he received social security disability payments; and (c) raising
petitioner’s competency after it was learned at the plea hearing that petitioner was on disability. At
an April 26, 2013, hearing, petitioner testified in support of his petition,4 and, at a July 9, 2013,
hearing, respondent warden presented the testimony of petitioner’s trial counsel.5

       Following those evidentiary hearings, the circuit court denied the petition on May 2, 2014,


       3
          Petitioner asserts that the grand jury lacked probable cause to indict him on a total of 108
counts of sexual misconduct. Upon our review of the grand jury transcript, we find Sergeant
Pauley’s testimony greatly undermines petitioner’s claim. More fundamentally, however,
“[e]xcept for willful, intentional fraud[,] the law of this State does not permit the court to go behind
an indictment to inquire into the evidence considered by the grand jury, either to determine its
legality or its sufficiency.” Syl. Pt. 3, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009)
(Internal citations and quotations omitted.). Petitioner does not allege willful or intentional fraud;
therefore, we decline to address this claim.
       4
          At the April 26, 2013 hearing, petitioner also testified that he was “waiv[ing]” his pro se
motion for appointment of a guardian ad litem (“GAL”). The circuit court previously denied the
motion at a status hearing because petitioner failed to provide a reason why he needed a GAL and
already had the benefit of habeas counsel. Petitioner invites us to review this ruling under the plain
error doctrine. We decline to do so, finding that the circuit court’s refusal to appoint a GAL was
not in error.
       5
           Also at the July 9, 2013 hearing, petitioner presented the testimony of an additional
witness, petitioner’s cousin, who testified that he heard trial counsel promise petitioner that he
would be given either probation or alternative sentencing if he pled guilty. We surmise that
petitioner presented this additional witness because, at the April 26, 2013 hearing, petitioner
testified that he did not remember what counsel told petitioner when he advised petitioner to take
the plea bargain. At the July hearing, trial counsel testified that he couldn’t remember whether
other family members were present when he recommended the plea bargain to petitioner.
However, as discussed infra, counsel also testified that he never made promises to any defendant
or guaranteed that the circuit court would impose any particular sentence.

                                                   3

making the following pertinent findings:6 (1) the circuit court had jurisdiction and petitioner’s
guilty pleas were valid because petitioner’s claim of incompetency at the time of the plea hearing
lacked evidentiary support; (2) petitioner entered his guilty pleas voluntarily because petitioner
“communicated well” with the circuit court and “told [the court] that he was voluntarily pleading
guilty to counts one and three”; (3) petitioner was not incompetent at the time of the offenses
because “there is no evidence that the petitioner did not know right from wrong or appreciate the
wrongfulness of his actions at the time of the crime[s]”; (4) petitioner was not given consecutive
sentences for the same offense—and the double jeopardy clause was not implicated—because
sexual abuse by a parent, guardian, custodian, or person in a position of trust constitutes a separate
and distinct offense pursuant to Syllabus Point 9 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253
(1992); (5) petitioner’s trial counsel provided effective assistance because “[counsel] acted as a
reasonable lawyer would have acted under the circumstances” and negotiated “an excellent plea”
for petitioner, where petitioner is capable of discharging his sentences and being released from
prison instead of serving a virtual life sentence; (6) petitioner’s guilty pleas were supported by
sufficient evidence because petitioner admitted at the plea hearing that he had anal intercourse
with N.O. “by putting his male sex organ in her butt”; and (7) petitioner did not receive excessive
punishment—and his sentences were not unexpected—because the circuit court informed
petitioner that he would probably be sentenced to prison and explained to him the nature of
consecutive sentences, and, while petitioner’s aggregate sentence is substantial, “petitioner’s
crimes against this little girl were horrific.”

        Petitioner now appeals the circuit court’s May 2, 2014, order denying the petition. We
apply the following standard of review in habeas cases:

        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).

        On appeal, petitioner makes the following assignments of error:7 (1) the circuit court erred
in finding that trial counsel did not provide ineffective assistance; (2) the circuit court erred in not
continuing the plea hearing and ordering an evaluation of petitioner’s competency pursuant to
West Virginia Code § 27-6A-2 after the court was informed that petitioner was awarded social
security disability payments; and (3) the circuit court violated double jeopardy principles by


       6
         We find that contrary to petitioner’s contentions, the circuit court did not err in also
making findings as to claims petitioner indicated he wanted to raise on his Losh checklist. See Losh
v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
       7
           We have reformulated petitioner’s assignments of error in order to eliminate duplication.

                                                   4

imposing consecutive sentences for the same offense.8 We take these issues in turn, mindful of the
circuit court’s determination that petitioner was “a less than credible witness.” See State v.
Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (“An appellate court may not
decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of
the trier of fact.”).

           I. The circuit court correctly determined that trial counsel was not 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): (a) counsel’s
performance was deficient under an objective standard of reasonableness; and (b) 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 alleges sixteen areas of ineffective assistance, but argues only three of the claims: (1)
counsel should have retained an expert to offer opinion testimony as to the veracity of statements
made by the child victim, N.O.; (2) counsel promised petitioner that he would be given either
probation or alternative sentencing if he pled guilty; and (3) once petitioner stated at the plea
hearing that he was receiving social security disability payments, counsel should have moved to
continue the hearing and to have petitioner’s competency evaluated pursuant to West Virginia
Code § 27-6A-2.

        First, trial counsel contradicted petitioner’s claim that counsel promised petitioner that he
would receive either probation or alternative sentencing by testifying that during the twenty years
counsel practiced law, “[I] never told any defendant . . . that I make this promise to you or this is
what the judge is going to do[.]” Petitioner insinuates that counsel’s testimony should not be
credited because, subsequent to his representation of petitioner, counsel’s law license was
annulled by this Court. However, in the instant case, as between petitioner and his former attorney,
the circuit court determined that petitioner was “[the] less than credible witness” in part because
petitioner’s testimony in the instant case was contradicted by his testimony at the plea hearing. At
that hearing, petitioner testified that no person had promised him probation or alternative
sentencing in exchange for his guilty pleas. Therefore, we defer to the circuit court’s credibility
determination and reject this claim. See Guthrie, 194 W.Va. at 669 n. 9, 461 S.E.2d at 175 n. 9; see
also State ex rel. Daniel v. Legursky, 195 W.Va. 314, 327, 465 S.E.2d 416, 429 (1995) (“In cases
where there is a conflict of evidence between defense counsel and the defendant, the circuit court’s
findings will usually be upheld.”).

       Second, while petitioner contends that counsel should have retained an expert to offer
       8
          Petitioner also asserts that (1) the circuit court erred in denying habeas relief due to the
cumulative effect of alleged errors; and (2) the circuit court provided insufficient findings to
support its denial of the petition. We reject these arguments summarily. First, because we find no
error, see discussion infra, we have no reason to conduct a cumulative error analysis. Second, as
reflected in the discussion infra, we determine that the circuit court’s findings were adequate to
resolve petitioner’s claims.

                                                  5

opinion testimony as to the veracity of N.O.’s statements, respondent warden counters that
petitioner does not explain how retention of an expert would have aided petitioner’s case. We
agree with respondent warden and note the circuit court’s determination that “[counsel] acted as a
reasonable lawyer would have acted under the circumstances” where petitioner not only decided to
plead guilty, but also specifically testified that he engaged in anal sex with his girlfriend’s minor
child. We also agree with the circuit court that counsel negotiated “an excellent plea” for
petitioner, where petitioner is capable of discharging his sentences and being released from prison
instead of serving a virtual life sentence.9 Therefore, we find that the circuit court did not clearly
err in determining that counsel acted reasonably under the circumstances of petitioner’s case.

        Third, we reject petitioner’s claim that counsel should have moved to continue the plea
hearing and to have petitioner’s competency evaluated pursuant to West Virginia Code § 27-6A-2
because, for the reasons discussed in Section II below, petitioner was not entitled to a competency
hearing. Accordingly, we conclude that the circuit court did not abuse its discretion in finding that
petitioner’s ineffective assistance claim lacked merit.10

                  II. The circuit court did not err in refusing to continue the plea
                           for an evaluation of petitioner’s competency.

        The only basis petitioner has to assert that the circuit court should have continued the plea
hearing and order a competency hearing pursuant to West Virginia Code § 27-6A-2 is his
testimony at that hearing that he was awarded social security disability payments. Respondent
warden counters that we recently rejected a similar argument in Short v. State, No. 13-0475, 2014
WL 998418 (W.Va. Supreme Court, March 14, 2014) (memorandum decision), at *3, by stating
that “the test for competency to plead guilty is different than the standard used to determine


       9
         As noted by the circuit court in its order denying habeas relief, if petitioner had been
convicted and sentenced consecutively on all 108 counts of the indictment, petitioner’s aggregate
term would be 936 years to 2,340 years in prison.
       10
           The other thirteen alleged areas of ineffective assistance generally fall under the heading
“case preparation,” including claims that trial counsel failed to conduct an adequate investigation
and failed to find witnesses. At the July 9, 2013 hearing, counsel provided testimony contradicting
those claims, including that he did “some legwork” on the case and that he talked to a potential
witness, but “never could get any answer out of her.” Also, as previously discussed supra, the
circuit court partially based its finding that petitioner was “[the] less than credible witness” on the
fact that petitioner’s testimony in the instant case was contradicted by his testimony at the plea
hearing where he stated that counsel adequately represented him. Petitioner concedes that none of
the instances regarding ineffective assistance that relate to case preparation would, individually,
entitle petitioner to habeas relief. We find that even cumulatively, these allegations would not
entitle petitioner to relief. Finally, petitioner alleges that counsel should have challenged whether
the grand jury had probable cause to indict him. For the reasons discussed in fn. 3, supra, we find
this claim meritless.

                                                  6

disability for social security purposes.”11 See also Harrison v. State, 905 So.2d 858, 862 (Ala.
Crim. App. 2005) (testimony that defendant “had previously received Social Security disability
benefits, and that he needed help understanding business and legal affairs, . . . was not sufficient to
raise a bona fide doubt as to his competency.”). We note that there are two differences between
Short and this case, but find them irrelevant. First, in addition to being awarded disability
payments, petitioner testified at the April 26, 2013 hearing, that he had a “payee” designated to
cash his checks. However, as explained by the court in Harrison, neither the fact that a defendant
has been awarded disability payments, nor the fact that he may have difficulty in handling his
business affairs, constitutes a sufficient basis for requiring a competency hearing. Second, in the
instant case, petitioner also claims that he was incompetent at the time of the offenses—relying on
his social security disability status, which does not trigger a competency hearing. Therefore, we
conclude that the circuit court did not abuse its discretion in rejecting petitioner’s claim that he
should have been afforded a competency hearing pursuant to West Virginia Code § 27-6A-2.12

                  III. The circuit court did not violate double jeopardy principles
                        by sentencing petitioner twice for the same conduct.

         Petitioner finally argues that the circuit court sentenced him twice for the same conduct.
We find that the circuit court properly disposed of this claim by citing to Syllabus Point 9 of State
v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), in which we held, as follows:

       W.Va. Code, 61–8D–5(a) (1988), states, in part: “In addition to any other offenses
       set forth in this code, the Legislature hereby declares a separate and distinct offense
       under this subsection[.]” Thus, the legislature has clearly and unequivocally
       declared its intention that sexual abuse involving parents, custodians, or guardians,
       11
            Footnote omitted.
       12
           We note that petitioner also asserts that he did not knowingly enter his guilty pleas
because his competency should have been evaluated pursuant to West Virginia Code § 27-6A-2,
due to his poor intellectual ability. As we have explained, petitioner had no right to a competency
hearing under West Virginia Code § 27-6A-2. Furthermore, in the recent case of State v. Holstein,
__ W.Va. __, __ S.E.2d __, No. 14-0086, Slip. Op. p. 19 (March 13, 2015), we rejected a
defendant’s claim that he did not intelligently and voluntarily enter his guilty plea due to an alleged
diagnosis of bipolar disorder, finding that the defendant’s plea colloquy met the requirements set
forth in Syllabus Points 3, 4, and 5 of Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975).
We noted that the record showed that the defendant (a) stated that the decision to plead guilty was
his alone; (b) assured the circuit court that he understood the constitutional rights he was
surrendering; and (c) gave answers to the circuit court that “were responsive and clear.” Id. at 22.
Based on our review of the record in this case, we find that petitioner’s plea colloquy similarly
satisfied Call because petitioner (a) testified that no person had promised him probation or
alternative sentencing in exchange for his guilty pleas; (b) answered “yes, sir” as the circuit court
explained each of the constitutional rights he was surrendering; and (c) communicated well with
the circuit court throughout the plea colloquy. Accordingly, we conclude that the circuit court did
not abuse its discretion in determining that petitioner’s guilty pleas were valid.
                                                   7
       W.Va. Code, 61–8D–5, is a separate and distinct crime from general sexual
       offenses, W.Va. Code, 61–8B–1, et seq., for purposes of punishment.

Accordingly, we conclude that the circuit court did not abuse its discretion in rejecting this claim
and in denying petitioner’s habeas petition.

     For the foregoing reasons, we find no error in the decision of the Circuit Court of
McDowell County and affirm its May 2, 2014, order denying the petition.

                                                                                         Affirmed.

ISSUED: May 1, 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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