                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


William R. Ward,
Petitioner Below, Petitioner                                                         FILED
                                                                                   February 11, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 12-0490 (Fayette County 12-C-77)                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Evelyn Seifert, Warden,
Respondent Below, Respondent

                                  MEMORANDUM DECISION

       Petitioner William Ward, appearing pro se, appeals the Circuit Court of Fayette County’s
order entered on March 26, 2012, denying his petition for writ of habeas corpus. Respondent
Warden Seifert, by counsel Laura Young, filed a response in support of the circuit court’s
decision. Petitioner has 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Petitioner was indicted on two counts of first degree sexual abuse, two counts of incest,
and two counts of sexual abuse by a guardian or custodian. On the date his trial was to begin,
petitioner’s counsel suffered a medical episode and a mistrial was declared. On the date of the
second trial, petitioner’s counsel again was suffering from medical issues and was subsequently
excused and replaced by another lawyer from his firm. Petitioner absconded after the first day of
trial, and did not reappear for trial. Petitioner’s eleven-year-old victim testified against him at
trial. Petitioner was then found guilty by a jury of all six counts. Following petitioner’s arrest, the
circuit court sentenced him to fifteen to thirty-five years of incarceration on each of the two first
degree sexual assault charges; five to fifteen years of incarceration on each of the two incest
charges; and ten to twenty years of incarceration on the sexual abuse by a parent, guardian, or
custodian charges. All counts were to run consecutively except the incest charges, which were to
run concurrently. Petitioner then filed a pro se petition for writ of habeas corpus, arguing
ineffective assistance of counsel, insufficiency of the evidence, and problems with the jury pool.
The petition was denied without appointment of counsel or an evidentiary hearing. Petitioner
appeals from this denial.

       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


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       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).

        Petitioner first argues that his counsel was ineffective in not moving for a mistrial or a
continuance when his counsel had to be substituted; in not seeking a mental evaluation because
he claims he had a nervous breakdown, resulting in his absconding from trial; and, in failing to
move for a continuance after he absconded. The State argues that counsel had no grounds for a
mistrial, as a trial may continue without the defendant and because his alleged mental problems
only arose when he absconded. Further, the State argues that petitioner has failed to assert any
specific grounds showing his counsel was ineffective in any other area.

        This Court finds no merit in petitioner’s ineffective assistance of counsel claims. First,
petitioner has failed to specifically state how he was prejudiced by the substitution of counsel, or
how substituted counsel was in any manner deficient. Moreover, petitioner has produced no
evidence that he was or is suffering from a mental deficiency. As to petitioner’s absence from
trial, Rule 43 of the West Virginia Rules of Criminal Procedure states specifically that a trial
may continue if the defendant has voluntarily absented himself from trial. Thus, counsel had no
basis on which to move for a mistrial.

        With regard to the jury selection, petitioner argues that he was prejudiced because one of
the jurors was familiar with the prosecuting attorney, because another juror made a disparaging
comment about him, and because the judge had more than a casual acquaintance with a third
juror. The State argues in response that the juror who knew the prosecuting attorney only knew
the elected prosecuting attorney, not the assistant prosecuting attorney assigned to petitioner’s
case, and the juror stated that he could remain unbiased. Moreover, the State notes that the juror
who made the disparaging comment was immediately stricken, and the comment was only
overheard by one other juror. Lastly, the State argues that there is no cause to disqualify a juror
merely because he or she may have been friendly with, or know, the judge.

       Petitioner has cited no caselaw in support of his contention that the circuit court erred in
jury selection. First, the juror who knew the elected prosecutor had no relationship with the
attorney actually prosecuting the action and stated that he was unbiased. Moreover, there is no
caselaw that states that when a juror is familiar with the judge that the juror is somehow
disqualified from a trial. Finally, the juror who made a disparaging comment about petitioner
was immediately stricken and the judge inquired as to whether another juror heard the comment.
We find no error in the circuit court’s jury selection as complained of by petitioner.

        Petitioner also argues that the evidence was insufficient because it was all circumstantial.
The State argues that the evidence was not circumstantial, as petitioner’s victim testified as to the
sexual abuse perpetrated by petitioner against her. This Court finds petitioner’s argument without
merit, as petitioner gives no specifics on how the evidence against him was insufficient. Pursuant




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to Rule 10(c)(7) of the Rules of Appellate Procedure, this Court disregards this assignment of
error based on its inadequacy.

        Finally, petitioner argues that the circuit court erred in failing to hold an evidentiary
hearing because the failure to hold a hearing precluded him from developing the assignments of
error in his petition. In response, the State argues that a hearing was unnecessary and the circuit
court did not err in ruling without holding a hearing.

        This Court has previously addressed the denial of a writ of habeas corpus without holding
a hearing, as follows:

       “A court having jurisdiction over habeas corpus proceedings may deny a petition
       for a writ of habeas corpus without a hearing and without appointing counsel for
       the petitioner if the petition, exhibits, affidavits or other documentary evidence
       filed therewith show to such court's satisfaction that the petitioner is entitled to no
       relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 2, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). In the present
matter, the circuit court did not err in failing to hold an evidentiary hearing. A review of the
record presented and of the circuit court’s order shows that the circuit court properly determined
that petitioner was not entitled to relief without the necessity of a hearing.

       For the foregoing reasons, we affirm the circuit court’s order.


                                                                                           Affirmed.

ISSUED: February 11, 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




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