                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Charles W. Parsons,

Petitioner Below, Petitioner                                                        FILED

                                                                                   May 1, 2015
vs) No. 14-0822 (Wood County 13-P-83)                                          RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Farmer, Administrator, Southwestern Regional Jail,
Respondent Below, Respondent


                               MEMORANDUM DECISION
         Petitioner Charles W. Parsons, appearing pro se, appeals the order of the Circuit Court of
Wood County, entered July 29, 2014, denying his petition for writ of habeas corpus. Respondent
David Farmer, Administrator, Southwestern Regional Jail,1 by counsel Shannon Frederick Kiser,
filed a summary response, and 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In June of 2011, a Wood County jury convicted petitioner of one count of first degree
robbery. The circuit court sentenced petitioner to forty years in prison. Petitioner appealed his
conviction in State v. Parsons, No. 12-0760, 2013 WL 2157697 (W.Va. Supreme Court, May 17,
2013) (memorandum decision) (“Parsons I”). In Parsons I, this Court rejected petitioner’s
assignments of error and affirmed his conviction. Id. at *3.

        On June 28, 2013, petitioner filed a petition for writ of habeas corpus. The circuit court
subsequently appointed habeas counsel who filed an amended petition on petitioner’s behalf that,
in pertinent part, alleged ineffective assistance of trial counsel.2 Respondent administrator filed an

       1
          Petitioner is in the custody of the West Virginia Division of Corrections and presently
resides at Huttonsville Correctional Center. However, apparently, at the time of the filing of
petitioner’s habeas petition, petitioner was incarcerated at the Southwestern Regional Jail.
       2
          While petitioner only raises ineffective assistance of trial counsel on appeal, his amended
petition asserted the follow additional grounds of relief: (1) insufficiency of evidence; (2)
prejudicial pretrial publicity; (3) coerced statement; (4) excessive bond; (5) illegal arraignment;
(6) failure to disclose grand jury minutes; (7) improper instructions; (8) improper communications
                                                  1

answer to the amended petition. The circuit court then held an omnibus evidentiary hearing on
April 24, 2014. Petitioner testified in support of his petition, while respondent administrator called
petitioner’s trial counsel to testify.

         Following the omnibus hearing, the circuit court denied the petition by an order entered
July 29, 2014. In its order, the circuit court, in pertinent part, rejected petitioner’s claim that trial
counsel was ineffective because counsel absented himself from a critical stage of the proceedings.
The circuit court noted that the jury requested to view the video recording of the robbery during
their deliberations 3 and that technological issues required that the jury be brought into the
courtroom to view the video recording.4 It is evident from the trial transcript that petitioner’s
counsel was present when the circuit court stated that “we need the [recording]” because counsel
replied, “[c]orrect.” The circuit court further found that petitioner’s counsel was still present when
the court inquired of the jury which of three video clips they desired to view, noting that (1)
counsel left the courtroom during the time in which “the video clip the jury wanted to see was
played”;5 and (2) there was approximately ten minutes of silence while the jury viewed the video
clip of the actual robbery, “except for what appears to be the courtroom door opening and closing,
apparently when trial counsel went to and returned from the restroom.”6

        For purposes of its decision, the circuit court accepted petitioner’s position that the jury
viewing the video recording during deliberations constituted a critical stage of the trial. However,
the circuit court determined that even if counsel was ineffective in absenting himself from the
jury’s actual viewing of the video clip, the error “was harmless beyond a reasonable doubt.”7 The
circuit court explained, as follows:



between prosecutor and jury; (9) jury denied access to crucial exhibits; (10) excessive sentence;
(11) failure to grant mistrial after witness referenced petitioner’s incarceration; and (12) failure to
grant mistrial after witness referenced domestic battery charges that had been severed.
        3
         At the omnibus hearing, counsel testified that the jury previously watched the video
recording during the State’s case-in-chief.
        4
         The circuit court determined that the nature of the video recording required it to be
played on the prosecutor’s computer.
        5
         Counsel testified at the omnibus hearing that he needed to go use the restroom in order to
“to avoid an emergency.”
        6
          In addition to reviewing the relevant portion of the trial transcript, the circuit court also
listened to the court reporter’s audio recording of the time that the jury was brought into the
courtroom to view the video recording.
        7
          See Syl. Pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975)
(“Failure to observe a constitutional right constitutes reversible error unless it can be shown that
the error was harmless beyond a reasonable doubt.”).
                                                 2
               . . . At the habeas corpus evidentiary hearing, trial counsel testified that he
       left the courtroom to go to the bathroom during the playing of the video and that
       when he returned the video was still playing. The recording of the proceedings
       conducted by the court reporter continued. It is silent during this time period. Trial
       counsel was present during a discussion that occurred prior to the jury being
       brought back into the courtroom to view the videos. . . . Petitioner’s Brief argues
       that the prosecuting attorney had free reign on determining which of the 3 videos
       were reviewed by the jury and “that the prosecutor chose to show just one tape.” . .
       . This statement is not supported by the record. [The trial transcript reflects] a
       discussion . . . between the Court and the jury as to which of the 3 videos they
       wished to review. The only role the prosecuting attorney played was to show the
       video the jury wanted to see.

               Trial counsel knew what was on the video. He was provided copies of all
       three videos in discovery. Trial counsel even indicated that he wanted the video that
       the jury viewed admitted into evidence because he believed that it helped his case
       because it did not show (in his opinion) that there was any knife in the possession of
       the person who was allegedly the robber. . . .

(Footnote and citations to record omitted.) Accordingly, the circuit court denied the ineffective
assistance claim because “[t]he audio recording of the trial . . . continued in [counsel’s] absence
and shows that nothing occurred while he was gone.”

      Petitioner now appeals the circuit court’s July 29, 2014, order denying his habeas petition.
We apply the following standard of review in habeas cases:

       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).

        On appeal, petitioner raises as his only assignment of error—the circuit court’s
determination that counsel’s absence from the courtroom during the jury’s actual viewing of the
video clip as part of their deliberations constituted harmless error. Because the circuit court
accepted petitioner’s contention that counsel was absent from a critical stage of trial, petitioner
argues that a harmless error analysis was not appropriate. Respondent administrator counters that
the circuit court’s decision was correct and should, therefore, be affirmed.

       We note that in West Virginia, claims of ineffective assistance of counsel are governed by
the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (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
                                                 3

would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The
second prong of this test is often referred to as the prejudice prong. We find that while the circuit
court used the language of a harmless error analysis, the court evaluated petitioner’s ineffective
assistance claim under the Strickland/Miller standard: the circuit court assumed, for purposes of its
decision, that counsel’s performance was unreasonable because he was absent from the jury’s
actual viewing of the video clip during deliberations,8 but found that the error did not prejudice
petitioner because (1) counsel was present in the courtroom through the colloquy between the
circuit court and the jury about which video clip they wanted to see and until the video was
playing; (2) during the time the video was playing, nothing else happened; and (3) counsel
returned before the video finished.

        Petitioner contends that a case where counsel is absent from a critical stage of trial is an
instance in which a reviewing court should presume that the prejudice prong has been satisfied. In
State ex rel. Daniel v. Legursky, 195 W.Va. 314, 321, 465 S.E.2d 416, 423 (1995), we noted that in
United States v. Cronic, 466 U.S. 648, 658 (1984)—upon which petitioner relies—the Supreme
Court of the United States indicated that “some types of ineffective assistance are so egregious that
prejudice should be presumed.” However, we explained that the timing of counsel’s deficient
performance—whether it occurred at a critical stage of the proceedings—was not as important as
whether the deficiency allowed the State’s case to move forward without meaningful adversarial
testing, stating as follows:

       In Cronic, the Supreme Court indicated that an attorney’s representation could be
       presumed ineffective under the Sixth Amendment if, by failing to appear at a
       critical stage or otherwise, he or she failed to subject the prosecution’s case to
       adversarial testing. [citation omitted] To establish a violation under Cronic, a
       petitioner must demonstrate that he or she suffered the equivalent of a complete
       absence of counsel.

Legursky, 195 W.Va. at 325, 465 S.E.2d at 427. We find that petitioner did not suffer a complete
absence of counsel for the reasons given by the circuit court and set forth herein.9 We conclude
       8
         A court may assume that counsel’s performance was deficient and reject an ineffective
assistance claim for a failure to meet the prejudice prong. See Syl. Pt. 5, State ex rel. Daniel v.
Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).
       9
          Petitioner contends that contrary to the circuit court’s findings, counsel left the
courtroom before the court inquired of the jury about which video clip they desired to view and did
not return until after the video was finished playing. While we review the ultimate legal claim of
ineffective assistance of counsel de novo, a circuit court’s findings of underlying predicate facts
are reviewed only for clear error. See State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465
S.E.2d 416, 422 (1995). In the instant case, the circuit court credited counsel’s testimony over
petitioner’s with regard to when counsel left the courtroom and when he returned. “An appellate
court may not decide the credibility of witnesses or weigh evidence as that is the exclusive
function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163,
175 n. 9 (1995); see Legursky, 195 W.Va. at 327, 465 S.E.2d at 429 (“In cases where there is a
                                                   4

that petitioner’s ineffective assistance claim lacks merit and, therefore, that the circuit court did not
abuse its discretion in denying petitioner’s habeas petition.

        For the foregoing reasons, we affirm.

                                                                                              Affirmed.

ISSUED: May 1, 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




conflict of evidence between defense counsel and the defendant, the circuit court’s findings will
usually be upheld.”). Accordingly, we do not disturb the circuit court’s determination that counsel
was the more credible witness and sustain the findings made on the basis of that determination.
                                                5
