                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Brian Parks,                                                                         FILED
Petitioner Below, Petitioner                                                      July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 19-0458 (Kanawha County 16-F-151)                                      SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Brian Parks, by counsel Robert Dunlap, appeals the April 16, 2019, order of the
Circuit Court of Kanawha County, denying his petition for a writ of habeas corpus. The State of
West Virginia, by counsel Mary Beth Niday, filed a summary response in support of the circuit
court’s order.

       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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        This matter stems from a violent attack that occurred at Renaissance Circle in Charleston,
West Virginia, on September 23, 2015. The Charleston Police Department responded to a report
from the tenant residing in an eighth-floor apartment located at Renaissance Circle, who advised
of a disturbance in an apartment located on the floor above her apartment. The tenant stated that
she heard loud noises that sounded like fighting from upstairs. Soon after, she heard knocking at
her eighth story window. When she went to the window, she saw a man dangling from the building,
yelling for her to let him in. Before the tenant could pull the victim, Bryson Ward, through the
window, he fell to his death. When the responding officers arrived at the scene, Mr. Ward was
found lying on the ground outside of the building. After entering the ninth-floor apartment, the
responding officers observed a puddle of blood in the kitchen, a hole in the wall, and multiple
bloody handprints.

        Petitioner Brian Parks was later indicted on charges of first-degree robbery and felony-


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murder arising from this incident. According to the indictment, petitioner1 entered the apartment
where Mr. Ward was known to be staying, physically assaulted Mr. Ward, and robbed him of
money and drugs. The indictment further stated that, during the robbery, Mr. Ward jumped out of
a ninth-story window, and subsequently died as a result of his injuries.

        On May 6, 2016, petitioner entered a guilty plea to the felony offense of first-degree
robbery pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure. During
the plea hearing, the circuit court engaged petitioner in a colloquy to determine whether his guilty
plea was “freely, intelligently, and voluntarily entered into.” Petitioner provided the following
factual basis for the plea: he assisted his co-defendants in entering the victim’s apartment, beating
the victim, and taking money and drugs from the victim’s apartment.

       On May 25, 2016, after petitioner entered his guilty plea, but one day prior to his
sentencing, petitioner filed a motion to withdraw his plea pursuant to Rule 32(e) of the West
Virginia Rules of Criminal Procedure. On May 26, 2016, the circuit court denied petitioner’s
motion and proceeded to sentence him to a determinate term of fifty years in prison in accordance
with the plea agreement.

        Petitioner, with the assistance of counsel, filed a notice of appeal on June 22, 2016, and
timely perfected that appeal. The sole issue raised in that appeal was the circuit court’s denial of
petitioner’s motion to withdraw his guilty plea. In affirming the circuit court’s ruling, we found:

       [P]etitioner based his motion, in part, upon his alleged innocence, claiming he had
       a “potential defense” to the crime charged. However, upon a review of the record,
       this Court finds that the circuit court did not abuse its discretion in this matter. The
       record in this proceeding supports the circuit court’s order denying petitioner’s
       motion. Contrary to petitioner’s argument that he had a potential defense to the
       first-degree robbery, petitioner admitted in his plea colloquy that he participated in
       the robbery. Further, petitioner offered no additional evidence in support of his
       innocence or his motion. The circuit court advised petitioner that he must articulate
       a fair and just reason in order for it to consider his motion to withdraw. However,
       it is clear from the record that petitioner chose not to testify and failed to articulate
       any further basis for his motion. Accordingly, the circuit court correctly found that,
       absent some additional evidence, petitioner made a fully-informed decision to plead
       guilty. Therefore, petitioner failed to provide a fair and just reason for his plea to
       be withdrawn.

State v. Parks, No. 16-0595, 2017 WL 2608433, at *2 (W. Va. June 16, 2017) (memorandum
decision).

      On August 8, 2017, petitioner filed a pro se motion for a Rule 35(b) reduction of sentence
and motion for stay and abeyance, and the Court denied the motions on September 12, 2017. On

       1
          In addition to petitioner, three co-defendants were also charged in connection with this
crime. The co-defendants entered guilty pleas and received sentences that the State considered to
be reflective of their level of involvement.
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November 13, 2017, petitioner filed a pro se petition for a writ of habeas corpus and, on October
1, 2018, filed an amended petition for habeas corpus relief. On January 10, 2019, the circuit court
held an omnibus hearing on the amended habeas petition, where petitioner appeared via video-
conference, despite his counsel’s request that he appear in person. By order entered on April 26,
2019, the circuit court denied petitioner’s request for habeas relief.

        Petitioner appeals the lower court’s denial of the amended petition for habeas corpus relief,
asserting five assignments of error. Specifically, he alleges that the circuit court erred: (1) by
requiring him to appear via video-conference and precluding him from attending the omnibus
hearing in person; (2) by failing to find that he received ineffective assistance of counsel; (3) by
refusing to allow him to withdraw his guilty plea in the underlying criminal case; (4) by failing to
find that the indictment was defective; and (5) by failing to find that he received an excessive
sentence. We will address each of these assignments of error in turn.

       This Court reviews appeals of circuit court orders denying habeas corpus relief 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).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        First, petitioner claims that the circuit court erred when it failed to allow him to attend the
omnibus hearing in person. This Court has long held that habeas corpus proceedings are “civil in
character and shall under no circumstances be regarded as criminal proceedings or a criminal
case.” State ex rel. Harrison v. Coiner, 154 W. Va. 467, 476, 176 S.E.2d 677, 682 (1970). Even if
it were a criminal matter, video appearances for inmates are expressly allowed by statute. See W.
Va. Code § 25-1A-5. Despite his argument to the contrary, petitioner was able to meaningfully
participate in the omnibus hearing as he was able to see and hear the witnesses, counsel, and the
circuit judge. Moreover, although petitioner argues that his appearance by video-conferencing
precluded him from offering crime scene photos, he does not explain how these photos were in
any way relevant to his claims. As the habeas corpus proceeding was a civil proceeding, and
petitioner was able to meaningfully participate in the omnibus evidentiary hearing via video-
conference, we conclude that the circuit court did not err when it refused petitioner’s request to
appear in person.

        Next, despite numerous references in the record noting petitioner’s satisfaction with
counsel, he alleges that he received ineffective assistance of trial counsel. Petitioner alleges that
trial counsel failed to fully explain the terms of the plea agreement, failed to file a motion for




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reconsideration, failed to challenge the language of the indictment regarding intent,2 failed to
challenge the sufficiency of the indictment prior to the entry of his guilty plea, and failed to request
an investigator. With regard to petitioner’s ineffective assistance of counsel claims, we have held:

                3.      “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.” Syllabus point 5, State v.
        Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
                ....
                6.      In cases involving a criminal conviction based upon a guilty plea,
        the prejudice requirement of the two-part test established by Strickland v.
        Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v.
        Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), demands that a habeas petitioner
        show that there is a reasonable probability that, but for counsel’s errors, he would
        not have pleaded guilty and would have insisted on going to trial.

Syl. Pts. 3 and 6, State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 528 S.E.2d
207 (1999). “Failure to meet the burden of proof imposed by either part of the Strickland/Miller
test is fatal to a habeas petitioner’s claim.” Id. at 17, 528 S.E.2d at 213 (quoting State ex rel. Daniel
v. Legursky, 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995)). Importantly, hindsight is not to
be applied to the objective standard:

                “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. Pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
        (1995).

Syl. Pt. 3, Raines v. Ballard, 236 W. Va. 588, 782 S.E.2d 775 (2016).

                Where a counsel’s performance, attacked as ineffective, arises from
        occurrences involving strategy, tactics and arguable courses of action, his conduct
        will be deemed effectively assistive of his client’s interests, unless no reasonably
        qualified defense attorney would have so acted in the defense of an accused.

Syl. Pt. 21, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).


        2
          Inasmuch as we conclude that the circuit court did not err in finding that the indictment
was not defective, we decline to address petitioner’s ineffective assistance claims with regard to
his indictment. See discussion infra.
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         Here, the circuit court found that trial counsel was not ineffective. First, the court made
detailed findings of fact as to trial counsel’s explanation to petitioner of the terms of the plea
agreement. Further, the circuit court found that “[p]etitioner’s claims are refuted by the careful
taking of the original plea” and “[t]he plea colloquy amply demonstrates that the plea was knowing,
voluntary and understanding.” As to petitioner’s claim that his counsel was ineffective because he
did not hire a private investigator, the circuit court relied upon the testimony of counsel that he did
not hire an independent investigator because his office employs in-house investigators. Finally, as
to petitioner’s contention that his counsel was ineffective because he failed to file a motion to
reduce the sentence, the circuit court found that “[c]ounsel cannot have been ineffective for failing
to file a motion to “reconsider” [p]etitioner’s sentence.” Although Rule 35 of the West Virginia
Rules of Criminal Procedure allows for a petitioner to move to reduce a sentence, “[i]t would have
been inappropriate for counsel to move to reduce petitioner’s sentence” because petitioner’s plea
was binding under Rule 11 of the West Virginia Rules of Criminal Procedure. Based upon all of
the above, we find that the circuit court did not err in denying petitioner’s ineffective assistance of
counsel claims.

        Next, petitioner argues that the circuit court abused its discretion in denying petitioner’s
motion to withdraw his guilty plea. We need not address this argument as that issue was previously
adjudicated by this Court in a prior appeal. See Parks, 2017 WL 2608433. As the circuit court
correctly noted, that issue may not be readdressed in this proceeding as it is barred by the law of
the case doctrine. Syl. Pt. 1, Mullins v. Green, 145 W. Va. 469, 115 S.E.2d 320 (1960).

         Petitioner next argues that the circuit court erred by denying his petition based upon a
defective indictment. Specifically, petitioner argued that his indictment was defective because it
failed to state a date certain for the offense and lacked the intent requirement for the crime. The
circuit court found that the indictment was not defective for either reason because (1) time was not
of the essence to the offense3 and (2) the indictment followed the statutory language. Further, the
circuit court found that this issue was not raised on direct appeal and was therefore waived.

       Considering the validity of the indictment, this Court has pronounced:

           Generally, the sufficiency of an indictment is reviewed de novo. An
           indictment need only meet minimal constitutional standards, and the
           sufficiency of an indictment is determined by practical rather than technical
           considerations.” Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476
           S.E.2d 535 (1996). This Court has held that, “An indictment for a statutory
           offense is sufficient if, in charging the offense, it substantially follows the
           language of the statute, fully informs the accused of the particular offense
           with which he is charged and enables the court to determine the statute on
           which the charge is based.” Syllabus Point 3, State v. Hall, 172 W.Va. 138,


       3
          W. Va. Code § 62-2-10 provides, in pertinent part, that “[n]o indictment or other
accusation shall be quashed or deemed invalid . . . or for omitting to state, or stating imperfectly,
the time at which the offense was committed, when time is not of the essence of the offense . . . .”


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           304 S.E.2d 43 (1983). In this case, the indictment substantially followed the
           language of the statutes under which the appellant was charged. Thus, the
           appellant was informed of the nature of the offenses he allegedly
           committed, the statutes he allegedly violated, and the manner in which he
           allegedly violated said statutes.

State v. David D.W., 214 W. Va. 167, 172-73, 588 S.E.2d 156, 161-62 (2003).

        Petitioner was charged in the indictment with a violation of W. Va. Code § 61-2-12(a)(1).
In essence, that section provides that any person who commits robbery or attempted robbery by
violence to the person by striking or beating is guilty of robbery of the first degree. Since petitioner
did not assert that time was of the essence for this offense, the lack of a specific date does not
invalidate the indictment. Further, as to intent or “animus furandi,” this Court has previously
rejected such an argument. Specifically, we found:

           “Animus furandi, or the intent to steal or to feloniously deprive the owner
           permanently of his property, is an essential element in the crime of
           robbery.” Syl. Pt. 2, State v. Hudson, 157 W.Va. 939, 206 S.E.2d 415
           (1974). Count two alleges that petitioner feloniously committed violence on
           the victim’s person and “then and there feloniously and violently did steal,
           take[,] and carry away” specified items of his property. Therefore, we
           conclude that count two of the indictment met minimal constitutional
           standards and charged an offense under West Virginia law.

Lind v. Ballard, No. 16-1033, 2017 WL 4570572, at *6 (W. Va. Oct. 13, 2017) (memorandum
decision). Petitioner’s indictment charged that he “then and there feloniously and violently did
steal, take and carry away” money and property from the victim. This language which is identical
to the language of the indictment in Lind, and which this Court determined passed constitutional
muster. Thus, we find that the circuit court did not err in finding that the indictment was sufficient.

        Finally, petitioner argues that the circuit court abused its discretion in denying his petition
for habeas corpus relief based on an excessive sentence. The circuit court found that petitioner’s
plea was binding under the West Virginia Rules of Criminal Procedure and petitioner received
exactly the sentence that he bargained for -- fifty years. Further, the court found that petitioner’s
contention that the sentence was constitutionally disproportionate could have been, but was not,
addressed on direct appeal.4 Notwithstanding petitioner’s failure to timely raise this issue, we find
that the court sentenced petitioner to the sentence that he agreed upon and, thus, did not err in
finding that the sentence imposed was well within the discretion of the court.



       4
         Petitioner filed a direct appeal and received a decision on the merits. It is well established
that the burden rests upon petitioner to rebut the presumption that any ground which could have
been asserted on direct appeal, but was not, was knowingly and intelligently waived. See Syl. Pt.
1, Ford v. Coiner, 156 W. Va. 362, 196 S.E.2d 91 (1972). Here, petitioner failed to rebut the
presumption that he intelligently and knowingly waived any argument as to sentencing which he
could have advanced on direct appeal.
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       For the foregoing reasons, we affirm the circuit court’s decision to deny the petition for
habeas corpus relief.


                                                                                       Affirmed.
ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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