                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Christopher S.,                                                                         FILED
Petitioner Below, Petitioner                                                      November 20, 2015
                                                                                   RORY L. PERRY II, CLERK
vs) No. 15-0035 (Mineral County 14-C-50)                                         SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

Marvin Plumley, Warden, Huttonsville Correctional Center,
Respondent Below, Respondent


                                MEMORANDUM DECISION
        Petitioner Christopher S.,1 by counsel Nicholas T. James, appeals the Circuit Court of
Mineral County’s December 19, 2014, “Order Denying Writ of Habeas Corpus.” Respondent
Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Shannon Frederick
Kiser, filed a response. Petitioner filed a reply.

       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 the circuit court’s order denying habeas relief is
appropriate under Rule 21 of the Rules of Appellate Procedure.

                                         Factual Background

        In September of 2010, petitioner was indicted on charges of first degree sexual assault,
incest, two counts of sexual abuse by a custodian, and first degree sexual abuse. The victim was
his ten-year-old biological daughter. In January of 2012, petitioner pled guilty to one count of
incest and two counts of sexual abuse by a custodian pursuant to an agreement with the State.
The circuit court sentenced petitioner to consecutive prison terms of five to fifteen years and two
terms of ten to twenty years each, for an effective sentence of twenty-five to fifty-five years in
prison.

        Petitioner’s charges stemmed from an allegation, made around July of 2010, in which the
victim told her mother that petitioner had abused her in April of 2009. The Allegheny County
Department of Social Services in Maryland interviewed the victim, which resulted in petitioner’s
arrest and indictment. The indictments charged petitioner with using his fingers to penetrate the
victim’s vagina and using his penis to touch the victim’s buttocks.


        1
            Because of the sensitive facts at issue in this case, we do not use petitioner’s full last
name.
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        Prior to his arraignment, petitioner gave a statement to Corporal Chris Leatherman of the
Mineral County Sheriff’s Department while detained in Mineral County Detention Center.
Petitioner gave a second statement to Corporal Leatherman after his arraignment. Petitioner
signed waiver of Miranda rights forms prior to each statement. Petitioner did not expressly admit
to the charges in either statement, but also did not deny them.

        Petitioner’s trial counsel, Ramon Rozas, moved to suppress the statements, contending
that petitioner did not voluntarily waive his right to counsel. The circuit court held a suppression
hearing on June 28, 2011, in which Corporal Leatherman testified and was cross-examined by
Attorney Rozas. The court denied the suppression motion and ruled petitioner’s statements were
admissible.

         The circuit court held another hearing on August 22, 2011, to determine whether the child
victim would be permitted to testify at trial via closed-circuit television, as was recommended by
the victim’s psychologist. Attorney Rozas requested more time to review the psychologist’s
report, which the circuit court granted. The parties appeared for a second hearing on September
21, 2011, at which Attorney Max White temporarily substituted for Attorney Rozas. Attorney
White advised the court that Attorney Rozas did not contest the contents of the psychologist’s
report, but rather argued that the court should decide whether the victim’s testimony by closed-
circuit television violated petitioner’s rights under the Confrontation Clause of the United States
Constitution. At the conclusion of the hearing, the circuit court ruled that the victim would be
permitted to testify by closed-circuit television and agreed that the jury be instructed on the issue.
The court noted petitioner’s objections, as voiced by Attorney White, on constitutional grounds.

        On the morning of January 18, 2012, the first day of the jury trial, petitioner reached an
agreement with the State in which he would plead guilty to one count of incest and two counts of
sexual abuse by a custodian, in exchange for the State’s dismissal of the remaining charges. The
parties were free to argue their respective positions on sentencing. After being properly
questioned by the circuit court, petitioner indicated that he understood the ramifications of his
plea, agreed that Attorney Rozas had spent adequate time on his case, and entered his guilty plea
that morning. The court accepted the guilty plea and scheduled a sentencing hearing for June 12,
2012.

        On June 12, 2012, at the start of what was to be the sentencing hearing, the court was
advised that petitioner had retained Attorney Nicholas James to move for the withdrawal of the
guilty plea on the basis that it was involuntary. Attorney Rozas was unaware that Attorney James
had been retained. The court denied the motion to withdraw the plea, noting that in the January
proceedings, petitioner (1) was involved in the plea negotiations, (2) had advised the court that
he understood his plea, and (3) advised that he was satisfied with Attorney Rozas. The court
further noted that petitioner took no action to withdraw his plea for over five months.

        The parties appeared for sentencing on June 25, 2012. Attorney Rozas, appearing on
petitioner’s behalf,2 argued that petitioner should be given concurrent sentences due to the

       2
         The briefs do not indicate that petitioner discharged Attorney Rozas upon retaining
Attorney James.
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minimal amount of contact between the victim and petitioner. The State and the victim’s
guardian ad litem countered, arguing that the victim had required nearly two years of counseling
as a result of petitioner’s crimes. The court sentenced petitioner to consecutive prison terms,
resulting in an effective sentence of twenty-five to fifty-five years in prison.

         On May 5, 2014, petitioner filed a petition for a writ of habeas corpus alleging (1) that his
guilty plea was involuntary, (2) ineffective assistance of counsel by Attorney Rozas, and (3)
improper denial of his motion to withdraw his guilty plea. The circuit court held an omnibus
hearing on December 1, 2014, at which Attorney Rozas testified. Attorney Rozas recounted his
pretrial motions, his preparation of the case on petitioner’s behalf, his and petitioner’s
participation in the plea negotiations, and his willingness to go to trial had the parties not reached
an agreement. Attorney Rozas recalled advising petitioner that probation was out of the question
given the circumstances, but that he could argue for concurrent sentences. Attorney Rozas
testified that he was satisfied with the plea deal as agreed-to because petitioner was not exposed
to the thirty to one hundred twenty-five year term of imprisonment carried by dismissed charges.
By order entered on December 19, 2014, the circuit court denied the habeas petition. This appeal
followed.

                                             Discussion

       On appeal, petitioner raises the following two assignments of error: (1) petitioner was
denied effective assistance of counsel at all stages of the lower court proceedings in violation of
the United States and West Virginia Constitutions; and (2) petitioner’s guilty plea was
involuntary as a result of the circuit court’s violation of Rule 11 of the West Virginia Rules of
Criminal Procedure. This Court has previously set forth the standard of review for an appeal of
the denial of a petition for a writ of habeas corpus as follows:

               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).

         With this standard of review in mind, we turn to petitioner’s arguments. As his first
assignment of error, petitioner contends that Attorney Rozas provided ineffective assistance of
counsel on nine separate fronts. First, petitioner argues that Attorney Rozas failed to adequately
prepare his defense because he only met with petitioner twice prior to trial while petitioner was
in jail, with the last of those two meetings being held the day before trial was to begin.3 Second,
petitioner contends that Attorney Rozas failed to timely plea bargain by waiting until the night
before trial was to begin, which resulted in a rushed decision to tender a guilty plea. Third,



       3
          Attorney Rozas testified that he visited the jail a third time, which was not documented
by the jail.
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despite moving to suppress petitioner’s statements and appearing at the hearing thereon,
petitioner contends that Attorney Rozas failed to advance a prompt presentment and Sixth
Amendment arguments. Fourth, petitioner states that Attorney Rozas represented another
defendant in the same term as petitioner’s indictment who was charged with similar crimes as
petitioner. This defendant agreed to plead guilty to three counts of sexual abuse and was
sentenced to consecutive terms, and Attorney Rozas should have advised petitioner of this
sentence as part of the plea negotiations. Fifth, petitioner states that Attorney Rozas failed to
subpoena witnesses for petitioner’s trial. Sixth, petitioner argues that Attorney Rozas failed to
require the testimony of the psychologist who determined that the victim should be permitted to
testify by closed-circuit television, and by doing so, capitulated on this constitutional issue.
Seventh, petitioner argues that Attorney Rozas failed to adequately prepare for sentencing by
waiting until the day before sentencing to meet with petitioner, resulting in no witnesses being
available to speak for petitioner. Eighth, petitioner contends that Attorney Rozas failed to request
an evaluation for petitioner to be considered for probation. Finally, petitioner states that Attorney
Rozas failed to present mitigating evidence at sentencing.

        With respect to our review of a claim of ineffective assistance of counsel, we have held
as follows:

       5.     In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.

       6.      In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Syl. Pts. 5 and 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        Upon review of the record on appeal, we find no ineffective assistance of counsel by
Attorney Rozas. As respondent argues, Attorney Rozas met with petitioner and discussed
potential witnesses; he moved to reduce petitioner’s bond; he challenged and vigorously cross-
examined the officer who took petitioner’s statements; despite not questioning the psychologist
who recommended closed circuit victim testimony, he argued the constitutional implications of
allowing it, and objected to the court’s adverse ruling; he prepared fully for trial; and, perhaps
most important, he secured a plea deal whereby petitioner avoided exposure to the most serious
charges facing him. Although petitioner challenges Attorney Rozas’s failure to subpoena
witnesses in petitioner’s defense or on his behalf at sentencing, neither the record nor petitioner’s
brief identifies that any such witnesses existed. Moreover, given the heinous nature of the

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petitioner’s offenses, it was not ineffective for Attorney Rozas to forgo an argument for
probation at the sentencing hearing, and instead to hope for concurrent sentences. Accordingly,
we cannot find that Attorney Rozas’s “performance was deficient under an objective standard of
reasonableness.” See Miller, supra. Petitioner’s claim that he was denied effective assistance of
counsel is, therefore, without merit.

        Petitioner’s second and final assignment of error is that his guilty plea was involuntary as
he did not fully understand the plea agreement as it related to sentencing. As noted above, the
plea agreement did not contain a sentencing recommendation by the State; both parties were free
to argue their respective positions on sentencing. We have held that “[a] criminal defendant can
knowingly and intelligently waive his constitutional rights, and when such knowing and
intelligent waiver is conclusively demonstrated on the record, the matter is res judicata in
subsequent actions in habeas corpus.” Syl. Pt. 2, Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d
665 (1975). We have further held that

                [w]hen a criminal defendant proposes to enter a plea of guilty, the trial
        judge should interrogate such defendant on the record with regard to his
        intelligent understanding of the following rights, some of which he will waive by
        pleading guilty; 1) the right to retain counsel of his choice, and if indigent, the
        right to court appointed counsel; 2) the right to consult with counsel and have
        counsel prepare the defense; 3) the right to a public trial by an impartial jury of
        twelve persons; 4) the right to have the State prove its case beyond a reasonable
        doubt and the right of the defendant to stand mute during the proceedings; 5) the
        right to confront and cross-examine his accusers; 6) the right to present witnesses
        in his own defense and to testify himself in his own defense; 7) the right to appeal
        the conviction for any errors of law; 8) the right to move to suppress illegally
        obtained evidence and illegally obtained confessions; and, 9) the right to
        challenge in the trial court and on appeal all pre-trial proceedings.

Syl. Pt. 3, id.

         In the present case, Attorney Rozas discussed the plea agreement with petitioner in detail
prior to informing the circuit court of the agreement, and indicated that he and petitioner
discussed the reality that probation was unlikely. Surely, if petitioner disagreed with his attorney,
he would have made an effort to correct him at the plea hearing, but no such effort is noted in the
record. Our review of the record demonstrates that the circuit court engaged in the proper plea
colloquy, as required by Call, and we find no error with respect to the circuit court’s acceptance
of petitioner’s guilty plea.

       For the foregoing reasons, we affirm the denial of petitioner’s petition for a writ of
habeas corpus.

                                                                                          Affirmed.

ISSUED: November 20, 2015



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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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