                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Douglas A. Redleski,                                                              FILED
Petitioner Below, Petitioner                                                    September 3, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0487 (Preston County 10-C-13)                                       OF WEST VIRGINIA


Marvin Plumley, Warden,
Respondent Below, Respondent

                                MEMORANDUM DECISION

        Petitioner Douglas A. Redleski’s appeal, filed by counsel William L. Pennington, arises
from the Circuit Court of Preston County, which denied petitioner post-conviction habeas corpus
relief by an opinion letter entered on March 19, 2012, and by an order entered on March 20,
2012. Respondent Marvin Plumley, Warden, by counsel Thomas Rodd, filed a response.1
Petitioner thereafter filed a reply. Petitioner contends that his recidivist proceedings were
improper.

       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.

        In 1996, a jury convicted petitioner on several counts of third degree sexual assault and
sexual abuse by a custodian. Following these convictions, the State filed a recidivist information,
alleging petitioner’s past felony convictions: (1) a 1977 aggravated robbery conviction in Ohio,
(2) a 1983 conviction of burglary habitation with intent to commit aggravated assault in Texas,
and (3) a 1990 aggravated assault conviction in Ohio. A separate jury convicted petitioner as a
recidivist offender and, consequently, the circuit court sentenced petitioner to life in prison,
pursuant to West Virginia Code § 61-11-18. Petitioner thereafter filed three petitions for post-
conviction habeas corpus relief, all of which the circuit court denied. Subsequently, petitioner
filed the instant petition for post-conviction habeas corpus relief, to which the circuit court
denied following an evidentiary hearing. Petitioner now appeals this order denying relief.2



       1
        Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original respondent’s name, Adrian Hoke, with Marvin Plumley, who is the present
warden of Huttonsville Correctional Center where petitioner resides.
       2
        We note that petitioner has also filed a direct appeal of the circuit court’s order denying
his motion to correct his life sentence, Case Number 13-0171.

                                                1
       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.” Syllabus point 1, Mathena v. Haines, 219
       W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). The
following standard is applied to claims concerning ineffective assistance of counsel:

       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.

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

        Petitioner argues that the habeas court erred when it failed to find that petitioner’s trial
counsel and prior habeas counsel provided ineffective assistance. Petitioner makes three
assertions in support of his argument, all of which concern petitioner’s recidivist proceedings.
First, petitioner asserts that the State did not prove that each offense was committed after each
preceding conviction and sentence alleged in the recidivist information. Second, petitioner
asserts that the information presented to the recidivist jury was fundamentally defective because
it did not allege all of the elements required in recidivist proceedings. Specifically, petitioner
raises that the verdict form did not require the jury to consider whether convictions and sentences
of the underlying offenses occurred sequentially. Lastly, petitioner asserts that the circuit court
allowed the State to amend the charging recidivist information after the jury returned its verdict.
The State’s amended information added the 1996 convictions, whereas the original information
only contained petitioner’s three prior felonies.

        Upon our review of the record, we find no abuse of discretion in the circuit court’s
decision to deny post-conviction habeas corpus relief. Petitioner argues that the State failed to
prove that he was convicted and sentenced to each of his prior felonies sequentially; however,
petitioner does not provide any evidence to the contrary. In fact, petitioner states that he does not
dispute the circuit court’s account of the recidivist proceedings, including the exhibits that were
admitted.3 With regard to the State’s amended information, we find no abuse of discretion or
reversible error. As cited, in part, on page twenty-one of the circuit court’s opinion letter,


       3
         Petitioner makes this concession on page eight of his appellate brief. The circuit court’s
account of petitioner’s recidivist proceedings are discussed on pages twenty-three and twenty-
four of its opinion letter.

                                                 2
       Under [West Virginia] Code [§] 61-11-19 (1943), a recidivist proceeding does not
       require proof of the triggering offense because such triggering offense must be
       proven prior to the invocation of the recidivist proceeding . . . Such recidivist
       conviction will then be used to enhance the penalty of the underlying triggering
       conviction.

Syl. Pt. 3, State v. Wyne, 194 W.Va. 315, 460 S.E.2d 450 (1995). As discussed, the State’s
amended information added only petitioner’s 1996 convictions that acted as the trigger for filing
the recidivist information. Both of the State’s filed information indictments contained the
requisite history of petitioner’s prior felonies as a basis for prosecuting petitioner as a recidivist
offender. Accordingly, the circuit court did not err in finding that petitioner failed to meet both
prongs of the aforementioned Strickland test for proving ineffective assistance of counsel, and
consequently, it did not err in denying petitioner’s fourth petition for post-conviction habeas
relief. After hearing evidence on this issue, the circuit court found that petitioner failed to show
how his proceedings would have had a different result had his third habeas counsel challenged
the State’s recidivist amended information.

       Having reviewed the circuit court’s “Opinion Letter” entered on March 19, 2012, and its
“Final Order Denying Petitioner’s Fourth Petition for Habeas Corpus Relief” entered on March
20, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and
conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s opinion letter and order to this memorandum decision.4

       For the foregoing reasons, we affirm.


                                                                                           Affirmed.

ISSUED: September 3, 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




       4
          Because the underlying criminal case involves sensitive facts, we have redacted the
circuit court opinion letter and order to protect the victim’s identification, using only initials to
reference her and her family members. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1,
398 S.E.2d 123, 127 n.1 (1990).

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