                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Keith Edward Ross,
Petitioner Below, Petitioner                                                           FILED
                                                                                 September 18, 2015
vs) No. 14-1093 (Mercer County 13-C-543)                                         RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Patrick Mirandy, Warden,

St. Mary’s Correctional Center,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Keith Edward Ross, by counsel Paul R. Cassell, appeals the “Order Denying
Petitioner’s Petition for Writ of Habeas Corpus,” entered by the Circuit Court of Mercer County
on September 25, 2014. Respondent Patrick Mirandy, Warden, St. Mary’s 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 is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In the February 2011 term of the Mercer County grand jury, petitioner was indicted on
three counts of fraudulent use of an access device, one count of credit card forgery, one count of
breaking and entering, one count of petit larceny, and one count of conspiracy. Petitioner and a
co-defendant were accused of breaking the window of a vehicle, stealing a credit card and other
items from inside the vehicle, and using the victim’s card to make unauthorized purchases. The
case proceeded to a jury trial in December of 2011, during which the jury heard from eight
witnesses and viewed surveillance video showing petitioner and his co-defendant using the
stolen card to make purchases.1

       1
           In this Court’s June 7, 2013, memorandum decision affirming petitioner’s convictions,
the trial evidence was described as follows:

                 The victim testified at trial that when she left work and got in her vehicle,
       her car seat was covered in broken glass. She then noticed her purse was missing.
       When she called to cancel the credit cards in her purse, she learned they had been
       used while she was working. Each of the transactions, at three different locations,
       was unauthorized. The manager of one of the locations testified that her store had
(continued . . .)
                                                  1

        Petitioner was acquitted of breaking and entering, but convicted on all other charges in
the indictment. The circuit court sentenced petitioner to consecutive definite prison terms of ten
years for each count of fraudulent use of an access device, an indeterminate term of one to ten
years for credit card forgery, an indeterminate term of one to five years for conspiracy, and one
year for petit larceny. The court suspended the prison sentences in lieu of five years of
supervised probation on all of the charges except for the two counts of fraudulent use of an
access device, resulting in an effective determinate prison sentence of twenty years.

        Petitioner appealed to this Court, which affirmed his convictions. See State v. Ross, No.
12-0441, 2013 WL 2462166, at *3 (W.Va. June 7, 2013). On December 19, 2013, petitioner filed
a pro se petition for a writ of habeas corpus. Thereafter, the circuit court appointed counsel, who
filed an amended habeas petition and Losh checklist on petitioner’s behalf on April 24, 2014.2
The circuit court conducted an omnibus hearing on September 11, 2014, and by order entered on
September 25, 2014, denied petitioner’s claims for habeas relief. Petitioner now appeals to this
Court.

       We have set forth our standard for reviewing the denial of a habeas petition as follows:



       multiple cameras and that one of them is positioned directly over the counter. The
       owner of another location testified that he provided the tapes from his four
       cameras to the state trooper investigating that transaction. The trooper testified,
       without objection, that he pulled the car over that matched the video from one of
       the locations and that the driver (petitioner) appeared to be the same person in the
       video using the card for one of the transactions. The trooper identified petitioner
       in court as the driver he stopped. He also testified that he heard petitioner say after
       the arrest, “All this over the swipe of a credit card?” The video showed that
       petitioner and the co-defendant entered the store together and that the co­
       defendant purchased three packs of cigarettes standing beside of petitioner. The
       video shows the clerk getting a carton of cigarettes, the swipe of the card, and
       petitioner signing the transaction slip.

State v. Ross, No. 12-0441, 2013 WL 2462166, at *3 (W.Va. June 7, 2013).
       2
         The Losh checklist was filed pursuant to Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d
606 (1981). Therein, petitioner alleged the following grounds for habeas relief: (1) failure of
counsel to take appeal to the United States Supreme Court; (2) consecutive sentences for the
same transaction; (3) erroneous information contained in the pre-sentence report; (4) ineffective
assistance of counsel; (5) no preliminary hearing; (6) failure to provide a copy of the indictment
to the petitioner; (7) trial court’s refusal to grant a continuance; (8) refusal to subpoena
witnesses; (9) constitutional errors in evidentiary rulings; (10) improper instructions to the jury;
(11) prejudicial statements made by the prosecutor; (12) sufficiency of the evidence; (13)
petitioner’s absence from part of the trial proceedings; (14) more severe sentence than expected;
(15) excessive sentencing; and (16) mistaken advice of trial counsel regarding parole or
probation eligibility.


                                                 2

               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).

        Petitioner raises three assignments of error, the first of which -- that he received
ineffective assistance of counsel during his trial -- comprises the lion’s share of his argument on
appeal. Claims of ineffective assistance are governed by the following standard, which is set
forth in syllabus points five and six of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995):

               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.

        Petitioner claims that his trial counsel was ineffective on eight separate fronts, which we
will address individually according to the standard outlined in Miller, above. First, petitioner
challenges his counsel’s waiver of petitioner’s preliminary hearing, contending that the
preliminary hearing is a critical stage in the proceeding necessitating his and his counsel’s
presence. See Syl., State v. Stout, 172 W.Va. 763, 310 S.E.2d 695 (1983) (“A preliminary
hearing, when accorded an accused by a justice of the peace [now “magistrate”] pursuant to
Code, 1931, 62-1-8, as amended, is a critical stage in a criminal proceeding to which the right to
counsel, guaranteed by the Sixth Amendment to the Constitution of the United States, attaches,
and a denial of counsel in those circumstances constitutes error for which a defendant is entitled
to relief, unless it is clear beyond a reasonable doubt that the denial of counsel was harmless
error.”) (citation omitted). However, petitioner fails to appreciate the distinction between the
right to counsel at the preliminary hearing and the absence of a constitutional right to a
preliminary hearing in the first place. See Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va.
183, 268 S.E.2d 45 (1980) (“A preliminary hearing in a criminal case is not constitutionally
required.”). Accordingly, we do not conclude that counsel’s waiver of petitioner’s preliminary
hearing constituted ineffective assistance of counsel.




                                                3

        Second, petitioner challenges the adequacy of his counsel’s investigation. Petitioner
argues that, although his counsel at trial raised the issue of an apparent discrepancy between the
time stamps on the video surveillance and the receipts, counsel did not force the investigating
officer to explain that discrepancy. Additionally, petitioner argues that his counsel failed to
investigate petitioner’s co-defendant, who, according to petitioner, drafted a letter exonerating
petitioner, despite implicating petitioner in the crimes at his own sentencing.3 In syllabus points
three and four of State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), we
held as follows:

               3.      The fulcrum for any ineffective assistance of counsel claim is the
       adequacy of counsel's investigation. Although there is a strong presumption that
       counsel's conduct falls within the wide range of reasonable professional
       assistance, and judicial scrutiny of counsel's performance must be highly
       deferential, counsel must at a minimum conduct a reasonable investigation
       enabling him or her to make informed decisions about how best to represent
       criminal clients. Thus, the presumption is simply inappropriate if counsel's
       strategic decisions are made after an inadequate investigation.

              4.      In determining whether counsel's conduct falls within the broad
       range of professionally acceptable conduct, this Court will not view counsel's
       conduct through the lens of hindsight. Courts are to avoid the use of hindsight to
       elevate a possible mistake into a deficiency of constitutional proportion. Rather,
       under the rule of contemporary assessment, an attorney's actions must be
       examined according to what was known and reasonable at the time the attorney
       made his or her choices.

        In the present case, the record plainly demonstrates that petitioner and the co-defendant
were on video using the victim’s credit card. Counsel made as much of an issue of the
discrepancy as he could, given the video evidence of petitioner’s guilt. As for the decision not to
investigate and rely on the co-defendant’s testimony, counsel made a strategic decision that this
Court will not second-guess. Given the volatility of the co-defendant’s testimony, petitioner
cannot demonstrate that he was prejudiced by his counsel’s inaction; petitioner might very well
have been in a worse position had his co-defendant’s testimony been introduced. Accordingly,
we find no error in the circuit court’s ruling with respect to counsel’s investigation.

        Next, petitioner argues that his counsel presented an inadequate and ill-prepared defense.
Petitioner argues that his counsel (1) provided an incomplete alibi defense, and (2) erroneously
contended that the use of a computer was required as an essential element for a conviction for



       3
         Counsel testified in the omnibus hearing that he was not provided a copy of the letter
from the co-defendant purporting to exonerate petitioner until after petitioner’s trial and after the
co-defendant’s own sentencing hearing, wherein the co-defendant fully implicated petitioner in
the crimes.



                                                 4

fraudulent use of an access device under West Virginia Code § 61-3C-13.4 Counsel initially
interpreted the statute to require that a computer be involved in the fraudulent access, not just a
credit card. Counsel’s interpretation of the statute as requiring the use of a computer was a
defense strategy that was rejected by the circuit court well before trial. Petitioner was aware of
the circuit court’s ruling in this regard and still rejected the ongoing plea opportunity offered by
the State. As a result, petitioner’s counsel was in a position of having to assert an incomplete
alibi defense by calling petitioner’s mother and sister, presumably in an effort to remove

       4
           The full text of West Virginia Code § 61-3C-13 reads as follows:

       (a) As used in this section, the following terms shall have the following meanings:

       (1) “Access device” means any card, plate, code, account number, or other means
       of account access that can be used, alone or in conjunction with another access
       device, to obtain money, goods, services, or any other thing of value, or that can
       be used to initiate a transfer of funds (other than a transfer originated solely by
       paper instrument);

       (2) “Counterfeit access device” means any access device that is counterfeit,
       fictitious, altered, or forged, or an identifiable component of an access device or a
       counterfeit access device;

       (3) “Unauthorized access device” means any access device that is lost, stolen,
       expired, revoked, canceled, or obtained without authority;

       (4) “Produce” includes design, alter, authenticate, duplicate, or assemble;

       (5) “Traffic” means transfer, or otherwise dispose of, to another, or obtain control
       of with intent to transfer or dispose of.

       (b) Any person who knowingly and willfully possesses any counterfeit or
       unauthorized access device shall be guilty of a misdemeanor, and, upon
       conviction thereof, shall be fined not more than one thousand dollars or confined
       in the county jail for not more than six months, or both.

       (c) Any person who knowingly, willfully and with intent to defraud possesses a
       counterfeit or unauthorized access device or who knowingly, willfully and with
       intent to defraud, uses, produces or traffics in any counterfeit or unauthorized
       access device shall be guilty of a felony, and, upon conviction thereof, shall be
       fined not more than ten thousand dollars or imprisoned in the penitentiary for not
       more than ten years, or both.

       (d) This section shall not prohibit any lawfully authorized investigative or
       protective activity of any state, county or municipal law-enforcement agency.



                                                 5
petitioner from the crimes enough for a jury to place greater blame on the co-defendant.
However, neither witness could deny that petitioner and the co-defendant were together on the
night in question. Again, as we concluded with the previous argument, counsel made the most of
the case he had. Petitioner’s argument that his counsel was ineffective in this respect, therefore,
fails.

         Fourth, petitioner argues that his counsel permitted improper “other bad act” evidence to
be introduced at trial. Petitioner points to the testimony of the arresting officer, who stated during
the State’s direct examination that petitioner initially gave a false name. Petitioner claims that his
counsel was ineffective for failing to object. The habeas court recognized that the State did not
solicit the officer’s testimony regarding petitioner’s giving a false name, and quickly moved on,
rather than dwelling on it. Additionally, the habeas court observed, and we agree, that
petitioner’s counsel’s strategy in not objecting – and thereby drawing additional attention to the
officer’s comment – was not unreasonable, and certainly did not constitute ineffective assistance
of counsel.

        Fifth, petitioner contends that his counsel failed to preserve petitioner’s right to remain
silent. Petitioner states that the arresting officer commented during his testimony that petitioner
elected not to give a statement. As distinguished from petitioner’s argument above, in this
instance, petitioner’s counsel objected and the objection was sustained. The circuit court advised
the jury of petitioner’s right to remain silent. Therefore, we cannot conclude that counsel’s
actions were unreasonable or that they prejudiced petitioner.

        Sixth, petitioner again targets counsel’s interpretation of West Virginia Code § 61-3C-13
and contends that his counsel’s flawed legal analysis resulted in petitioner refusing the State’s
plea bargain, which exposed him to much harsher prison sentence. As we noted above, the circuit
court rejected counsel’s statutory interpretation argument prior to trial; petitioner was aware and
yet continued in his refusal to engage in plea bargaining. Under the record on appeal, the habeas
court found that petitioner’s counsel properly advised petitioner of the possible penalties should
petitioner be convicted and petitioner opted to go to trial. Therefore, we cannot conclude that
counsel’s flawed statutory interpretation was ineffective in the context of obtaining a beneficial
plea bargain on petitioner’s behalf.

        Seventh, petitioner contends that his counsel did not address factual errors in the
presentence report and failed to adequately prepare petitioner for sentencing. Contrary to
petitioner’s argument, the record reflects that his counsel met with him to prepare for sentencing,
discussed petitioner’s right to allocution, and requested a continuance to review the specifics of
the presentence report. Before the habeas court, counsel could not recall all of the specific
information discussed with petitioner in preparation for sentencing, but the record is clear that
petitioner cannot show that he was prejudiced by any failure by counsel in this respect. At
petitioner’s sentencing, the circuit court noted that overwhelming amount of negative
information in the report, such as a collection of forty-five charges amassed by petitioner across
three states, leading the court to conclude that petitioner posed a high likelihood of recidivism.
We, therefore, cannot conclude that petitioner’s counsel was ineffective in preparing petitioner
for or in any facet of handling petitioner’s sentencing.



                                                  6

        Petitioner’s final argument that his counsel was ineffective is that his counsel failed to
appeal his conviction to United States Supreme Court. As the habeas court properly concluded,
petitioner is not entitled to such an appeal pursuant to Ross v. Moffit, 417 U.S. 600 (1974)
(holding that neither the Due Process Clause nor the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution afford an indigent defendant the right to only a
discretionary appeal). Also, the State’s Public Defender Services is unable to cover the cost of
such an appeal according to West Virginia Code § 29-21-2(2) (stating that legal representation
provided pursuant to the provisions of this article is limited to the court system of the state of
West Virginia). Finally, the habeas court found that there was no agreement between counsel and
the petitioner for counsel to file an appeal to the United States Supreme Court. We note that
counsel did file an appeal to this Court on petitioner’s behalf.

        In sum, according to the standards set forth in Miller and Strickland, petitioner has failed
to demonstrate any error with respect to the habeas court’s ruling on the issue of ineffective
assistance of counsel. We turn now to petitioner’s remaining two assignments of error.

        In his second assignment of error, petitioner argues that he received a disproportionate
sentence when compared to that of his co-defendant, who was sentenced to two to fifteen years
in prison. Under Article III, Section 5 of the West Virginia Constitution, “[p]enalties shall be
proportioned to the character and degree of the offense.” However, with respect to comparing
sentences of co-defendants, this Court has held that

               [d]isparate sentences for codefendants are not per se unconstitutional.
       Courts consider many factors such as each codefendant's respective involvement
       in the criminal transaction (including who was the prime mover), prior records,
       rehabilitative potential (including post-arrest conduct, age and maturity), and lack
       of remorse. If codefendants are similarly situated, some courts will reverse on
       disparity of sentence alone.

Syl. Pt. 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).

        In the present case, petitioner was convicted of multiple offenses, whereas his co­
defendant opted to plead guilty as part of an agreement. Second, the circuit court based
petitioner’s sentence on the nature of the crimes themselves, but also on petitioner’s long
criminal history and likelihood for recidivism.5 Even with all the negative information in
petitioner’s presentence report, the circuit court suspended petitioner’s prison sentence on all but
two of his convictions. Therefore, we cannot conclude that petitioner’s effective sentence of
twenty years in prison is unconstitutionally disproportionate.

      Petitioner’s final assignment of error is that he was denied a fair trial because of the
cumulative effect of the errors below. Specifically, petitioner argues that “the overwhelming



       5
          As respondent points out, petitioner did not make the co-defendant’s criminal history
part of the record on appeal.


                                                 7

evidence of ineffective assistance of counsel invades all aspects of the case and the trial court’s
failure to grant relief is erroneous.” We have held that

               [w]here the record of a criminal trial shows that the cumulative effect of
       numerous errors committed during the trial prevented the defendant from
       receiving a fair trial, his conviction should be set aside, even though any one of
       such errors standing alone would be harmless error.

Syl. Pt. 12, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (citations omitted).

        Here, as respondent correctly argues, the only potential errors in petitioner’s trial are the
arresting officer’s unsolicited reference to petitioner offering a false name and stating that
petitioner chose not to give a statement. In the first instance, the State quickly moved on from the
questioning, and in the second instance, the circuit court properly directed the jury to disregard
the officer’s testimony and reminded the jury that petitioner is presumed innocent and has the
right to remain silent. Neither of these potential errors warrants reversal of the habeas court’s
order. Accordingly, we reject petitioner’s claim that he was denied a fair trial as a result of the
cumulative effect of numerous errors below.

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

                                                                                           Affirmed.

ISSUED: September 18, 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




                                                 8

