                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
                                                                                   May 17, 2013
Plaintiff Below, Respondent                                                   RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs) No. 12-0561 (Wood 09-F-53)                                                  OF WEST VIRGINIA




Wendy Thomas,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Wendy Thomas, by counsel D. Adrian Hoosier, appeals the Circuit Court of
Wood County’s “Sentencing Order,” entered on February 13, 2012, that sentenced petitioner to
eight to thirty-five years in prison for fraudulent use of a credit card, petit larceny, forgery, and
uttering, following her “unsuccessful discharge” from a drug court program. The State, by
counsel Thomas W. Rodd, filed a summary response in support of the circuit court’s decision.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       On January 16, 2009, petitioner was indicted on eleven counts, including fraudulent use
of an access device (a credit card), petit larceny, forgery, and uttering. Petitioner was thereafter
released on bond. However, on August 18, 2009, the State filed a motion to revoke petitioner’s
bond and charged petitioner with four additional counts, two for forgery and two for uttering.

        On March 4, 2010, petitioner pled guilty to two counts of fraudulent use of an access
device, one count of misdemeanor petit larceny, two counts of forgery, and two counts of
uttering. The circuit court sentenced petitioner to a net effective sentence of eight to thirty-five
years in prison. However, after finding that petitioner’s crimes were related to her drug
addiction, the circuit court suspended petitioner’s sentence in lieu of petitioner’s participation in
the West Central Regional Drug Court Program.

       On September 15, 2010, petitioner was accepted into the drug court program. Petitioner
claims that while she was in the drug court program, she improved, successfully passed multiple
drug screens, attempted to find a job, and “stayed out of trouble.” However, petitioner was
expelled from the program on December 30, 2011, and her case was returned to the criminal
docket for sentencing.


                                                 1

      At the outset of petitioner’s February 13, 2012, sentencing hearing, the following
exchange occurred:

       Defense counsel: Your Honor, [petitioner] is present in person, and by [counsel].
       We’re set here today from a continuation of the last hearing.

       The Circuit Court: Okay.

       Defense counsel: I think I had—had someone go out and have my client sign a
       release so that the Court could review her drug court records and the Court is
       going to make its decision today based upon that review.

       The Circuit Court: Okay. Do you have anything you wish to say?

       Defense Counsel: No, sir.

       The Circuit Court: Does your client wish to speak?

       Defense Counsel: No, sir.

       The Circuit Court: Okay. Mr. [Prosecutor]?

       The State: I have nothing to add if the Court’s gotten to review the drug court summary.

Thereafter, the circuit court imposed petitioner’s original eight to thirty-five year sentence and
remanded petitioner to the penitentiary.

       On appeal, petitioner first argues that the circuit court erred in relying on her drug court
records and/or a summary thereof because they were never provided to her.

        “On an appeal to this Court the appellant bears the burden of showing that there was error
in the proceedings below resulting in the judgment of which he complains, all presumptions
being in favor of the correctness of the proceedings and judgment in and of the trial court.” Syl.
Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

        Although petitioner now claims that she never received a copy of her drug court records,
neither petitioner nor her counsel made such a claim at petitioner’s sentencing hearing. In fact,
petitioner’s counsel (1) specifically referenced petitioner’s drug court records, (2) stated that he
understood petitioner had signed a release for those records, and (3) highlighted that the circuit
court was going to make its sentencing decision based upon the records. Moreover, petitioner’s
counsel did not dispute any of the findings in the records, even after the circuit court specifically
asked both defense counsel and petitioner if they would like to speak. Under these facts, we
cannot say that the circuit court erred in relying on petitioner’s drug court records and/or on the
summary thereof in sentencing petitioner.




                                                 2

        Petitioner next argues that she was denied due process because the circuit court erred in
failing to conduct an “effective” hearing in imposing petitioner’s original sentence following her
expulsion from the drug court program.

        Based on the record on appeal, we note the following in regard to the procedural nature
of petitioner’s sentencing hearing: Petitioner was sentenced at a hearing in open court. Petitioner
was represented by counsel who explained the reason for the hearing. The State was present, by
counsel, but made no argument regarding sentencing. The circuit court gave petitioner’s counsel
and petitioner an opportunity to speak, but both denied the offer. The circuit court then
pronounced petitioner’s sentence. Importantly, neither petitioner nor her counsel lodged any
objection regarding the nature of the proceeding. “This Court will not consider an error which is
not properly preserved in the record nor apparent on the face of the record.” Syl. Pt. 4, State v.
Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997). Therefore, because petitioner failed to preserve
her claim, and because the claim is wholly unsupported by the facts in the record on appeal, we
cannot say that the circuit court erred in the manner in which it conducted petitioner’s sentencing
hearing.

       Finally, petitioner appears to argue that she received ineffective assistance of counsel at
her sentencing hearing because her counsel offered no remarks concerning her expulsion from
the drug court program or her sentence. Petitioner claims that she stood silent at the hearing
because her counsel did not tell her she could speak for herself.

        This Court’s ability to review a claim of ineffective assistance of counsel is very limited
on direct appeal. Such a claim is more appropriately developed in a petition for writ of habeas
corpus. Syl. Pt. 11, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995); Syl. Pt. 10, State v.
Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992). Accordingly, we decline to rule on any claims
of ineffective assistance of counsel in the context of this direct appeal and express no opinion on
the merits of petitioner’s ineffective assistance claims.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 17, 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




                                                3

