                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jackie Lee R. Sr.,
Petitioner Below, Petitioner                                                        FILED
                                                                                  October 4, 2013
                                                                              RORY L. PERRY II, CLERK
vs) No. 12-1302 (Ritchie County 12-P-13)                                    SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

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

                               MEMORANDUM DECISION

         Petitioner Jackie Lee R. Sr.,1 appearing pro se, appeals the order of the Circuit Court of
Ritchie County, entered October 4, 2012, that denied his petition for writ of habeas corpus without
a hearing. Respondent Warden, by counsel Laura Young, filed a summary response. 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was indicted in 2008 on two counts of sexual abuse by a parent, guardian,
custodian, or other person of trust, two counts of sexual abuse in the first degree, and one count of
contributing to the delinquency or neglect of a child. Petitioner and the State entered into a plea
agreement under which petitioner would plead guilty to one count of sexual abuse by a parent,
guardian, custodian, or other person of trust and one count of sexual abuse in the first degree and
the State would dismiss the remaining counts of the indictment.2 The plea agreement was dated
December 11, 2008, and was signed by petitioner, petitioner’s attorney, and Steven A. Jones who


was the Prosecuting Attorney of Ritchie County. At the time, Judith McCullough was Assistant


       1
         Because of sensitive facts, we protect the identities of those involved. 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).
       2
         The State also agreed that it would not file recidivist charges against petitioner based on
his 1994 conviction for sexual abuse by a parent, guardian, custodian, or other person of trust.
                                                 1
Prosecuting Attorney of Ritchie County.3

        At a plea hearing on December 11, 2008, petitioner testified that his attorney did
everything petitioner requested the attorney to do in providing him with a defense and that he was
satisfied with the attorney’s representation. The circuit court inquired of petitioner as to why he
thought he was guilty of sexual abuse by a parent, guardian, custodian, or other person of trust.
Petitioner responded that he “touched a juvenile child in my care” and that the touching occurred
“through [the child’s] clothing in a sexual manner.” When the circuit court asked if the touching
was in the area of the child’s penis, petitioner responded affirmatively. The circuit court inquired
of petitioner as to why he thought he was guilty of sexual abuse in the first degree. Petitioner
responded that “I allowed a child, fifteen years of age, to touch my penis to my pleasure.” When
prompted by the circuit court, petitioner confirmed that the child was of an insufficient age to
consent to such an act. The circuit court adjudged petitioner guilty of one count of sexual abuse by
a parent, guardian, custodian, or other person of trust and one count of sexual abuse in the first
degree.

         At a subsequent hearing, the circuit court sentenced petitioner to ten to twenty years in
prison for sexual abuse by a parent, guardian, custodian, or other person of trust and to one to five
years in prison for first degree sexual abuse, to be served consecutively. Petitioner’s attorney
moved to have the circuit court reconsider petitioner’s sentence. The circuit court held a hearing on
the motion and then denied the same by an order entered June 26, 2009. There was no direct appeal
in petitioner’s criminal case.

         On December 10, 2009, petitioner filed his first petition for writ of habeas corpus in which
petitioner raised two grounds of relief: (1) failure of counsel to file an appeal; and (2) petitioner
was denied a complete copy of his records. On February 12, 2010, the circuit court denied the
petition and found that petitioner freely pled guilty, gave a factual basis for his admission of guilt,
and was well represented. The circuit court further found that “there is no indication from any . . .
filing or statement [prior to petitioner’s petition] that he was interested in appealing his [p]lea” and
that “[petitioner] was sentenced on December 30, 2008[,] so filing an [a]ppeal at this time would
clearly be outside the time restrictions set by the Court[.]” As to petitioner’s second ground for
relief, the circuit court held that the failure to obtain records is not a proper basis for habeas relief.
In addition, the circuit court found that the petition contained only a plain recitation of facts, which
did not entitle petitioner to a hearing.

        On October 4, 2010, petitioner filed an original jurisdiction petition for writ of mandamus
in this Court stating that he had not been provided with the records he requested as necessary to
have a “meaningful habeas” and that counsel was not appointed, nor was an omnibus hearing held
prior to the denial of his first habeas petition. This Court refused petitioner’s petition on November
17, 2010.

        Petitioner filed his second petition for writ of habeas corpus on February 24, 2011, making

        3
          On appeal, petitioner challenges Ms. McCullough’s authority to enter into plea
negotiations on the State’s behalf during December of 2008.
                                                    2
various claims that West Virginia Code § 61-8D-5, which provides for the offense of sexual abuse
by a parent, guardian, custodian, or other person of trust, was unconstitutional. The circuit court
denied the petition by an order entered June 24, 2011. The circuit court recognized that (1)
petitioner was arguing that West Virginia Code § 61-8D-5 was unconstitutional for various
reasons, (2) addressed the one argument it found meritorious, and (3) stated the others would not
be discussed. Specifically, the circuit court concluded that West Virginia Code § 61-8D-5 was not
void for vagueness, relying on Kolender v. Lawson, 461 U.S. 352 (1983). Petitioner appealed the
circuit court’s June 24, 2011, order. This Court affirmed the denial of habeas relief. See [Jackie
Lee R. Sr.] v. Ballard, No. 11-1033 (W.Va. Supreme Court, July 3, 2012) (memorandum
decision).

        Petitioner filed his third petition for writ of habeas corpus on September 21, 2012, alleging
the following grounds for relief: (1) counsel provided ineffective assistance during the pretrial and
plea stages of his criminal case; (2) the indictment failed to set forth separate and distinct acts of
criminal conduct which could be identified as to give adequate notice of what was being charged;
(3) the State violated due process of law because it presented the investigating officer as the sole
witness before the grand jury; and (4) counsel failed to file an appeal. The circuit court denied the
petition by an order entered October 4, 2012. The circuit court found that the petition contained a
mere recitation of grounds “without a sufficient factual foundation” and noted that it could be
denied “without the necessity of an evidentiary hearing.” Petitioner now appeals the circuit court’s
October 4, 2012, order.

       We review the circuit court’s order denying 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).4

        On appeal, petitioner argues that his attorney was ineffective because he failed to file an
appeal challenging petitioner’s guilty pleas on the ground of double jeopardy. Petitioner contends
that one cannot commit the offense of sexual abuse by a parent, guardian, custodian, or other
person of trust without first committing sexual abuse in the first degree and, therefore, he is being
punished twice for the same criminal act. Respondent counters that the Legislature has expressed a
clear intent that the offense set forth in West Virginia Code § 61-8D-5 is a separate and distinct

       4
          See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (“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”).
                                                  3
crime from the general sexual offenses set forth in W.Va. Code §§ 61–8B–1 to –18 for purposes of
punishment. See Syl. Pt. 9, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). In Gill, this Court
specifically stated that “separate sentences for both crimes were permissible in a trial involving the
same acts.” 187 W.Va. at 144, 416 S.E.2d at 261 (Footnote omitted.). Therefore, the substantive
issue petitioner alleges his attorney should have raised in an appeal is completely devoid of merit.
Accordingly, this Court concludes that the circuit court did not abuse its discretion in denying the
petition.5

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: October 4, 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




        5
          This Court finds that other issues petitioner raised on appeal were not presented to the
circuit court for a ruling; therefore, we decline to pass on them in the first instance. See Syl. Pt. 2,
Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958). Furthermore, even if the
Court were to consider the issues, we note that the record plainly contradicts petitioner’s claims
that his plea colloquy did not provide the circuit court a sufficient factual basis on which to accept
his guilty pleas and that Assistant Prosecuting Attorney McCullough did not have the authority to
enter into plea negotiations on the State’s behalf.
                                                   4
