                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Joshua Slater,                                                                   FILED
Petitioner Below, Petitioner                                                  September 27, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-0330 (Kanawha County 09-MISC-120)                                  OF WEST VIRGINIA



David Ballard, Warden, Mount Olive Correctional Center
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Joshua Slater, by counsel Edward L. Bullman, appeals the order of the Circuit
Court of Kanawha County, entered February 22, 2012, denying his post-conviction habeas
corpus petition. Respondent Warden David Ballard, by counsel Benjamin F. Yancey III, filed a
response.

       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 lived with his long-time girlfriend, Angela Walls, and their two small children
in Sissonville, West Virginia. During an argument on November 29, 2005, petitioner hit Ms.
Walls on the side of her head and threw a hammer, hitting her in the leg and causing minor
bruising. When Ms. Walls indicated that she was taking the children to her mother’s house,
petitioner ordered her to stay at gunpoint. He also threatened to kill Ms. Walls’ entire family.
Petitioner then ordered Ms. Walls into the bedroom where he pointed a twelve-gauge shotgun at
her and threatened to shoot her. While they were in the bedroom, he told Ms. Walls to change
into camouflage clothing. After she did so, petitioner informed her that she had fourteen hours to
live, and then he was going to take her into the woods, tie her to a tree, “buckshot” her in both
her knees, knock her teeth out so there would be no dental records, and set her body on fire so
she could not be found. Shortly thereafter, Ms. Walls and the children escaped through the
bedroom window, and Ms. Walls drove to her mother’s house.

        Subsequently, petitioner went to Ms. Walls’ mother’s house. By that time, Ms. Walls, her
mother Lori Walls, and the children had fled to Ms. Walls’ grandmother’s house. Petitioner
attempted to open the door to the Walls’ house with a key but was unable to do so. He then broke
the window in the back door with the barrel of a gun and kicked in the back door. A short time
later, a police officer arrived at the Walls’ house. Although petitioner fled the house, he was
arrested later that day.

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       Petitioner was found guilty by a jury of kidnaping, for which he was sentenced to life
with mercy; domestic battery, for which he received a determinate term of one year; wanton
endangerment, for which he was sentenced to a determinate term of five years; and daytime
burglary by breaking and entering, for which the trial court sentenced him to an indeterminate
term of not less than one nor more than fifteen years, with sentences to run consecutively. This
Court affirmed petitioner’s convictions following his direct appeal in State v. Slater, 222 W.Va.
499, 665 S.E.2d 674 (2008).

        On March 7, 2009, petitioner, pro se, filed his initial petition for writ of habeas corpus.
On August 20, 2009, through counsel, petitioner filed an amended petition for writ of habeas
corpus and raised eight grounds for relief. On February 22, 2012, the circuit court denied this
petition.

         Requesting a new trial, petitioner raises two assignments of error on appeal. He
challenges the constitutionality of the kidnaping statute, West Virginia Code 61-2-14a. Petitioner
also challenges the trial court’s jury instruction on the basis that it unconstitutionally shifted the
burden of proof on the element of intent. After careful consideration of the record and the
parties’ arguments, this Court finds that the circuit court did not err in denying habeas corpus
relief to petitioner.

        We note that 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).

        First, petitioner challenges the constitutionality of the kidnaping statute, West Virginia
Code § 61-2-14a, alleging it is overly broad, vague, and allows the trial court to make findings of
fact that may enhance the sentence from a term of years to a life sentence. Petitioner essentially
relies on the dissenting opinion in his direct appeal. The majority opinion of Slater does not
directly address the dissent. However, Justice Benjamin’s concurring opinion does:

       According to the dissent, the majority opinion is inconsistent with the United
       States Supreme Court’s rulings in Apprendi v. New Jersey, 530 U.S. 466, 120
       S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296,
       124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This simply is not true. As this Court
       explained in State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005), Apprendi
       and Blakely stand for the principle that any fact other than a prior conviction that
       increases the penalty for a crime beyond the statutory maximum must be

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       submitted to a jury and proved beyond a reasonable doubt. In contrast, our
       kidnaping statute does not provide for the enhancement of a defendant’s sentence
       beyond the statutory maximum based on additional facts found by the trial judge,
       but rather provides for the possible reduction of a defendant’s sentence based on
       the trial judge’s additional findings. Because Apprendi and Blakely are not
       applicable to the instant facts, those cases were properly omitted from the
       discussion in the majority opinion.

Slater, 222 W.Va. at 511, 665 S.E.2d at 686 (Benjamin, J., concurring).

       Similarly, the circuit court found that West Virginia Code § 61-2-14a does not provide
for the enhancement of a defendant’s sentence beyond the statutory maximum based on
additional facts found by the trial judge in violation of the constitutional right to a trial by jury.
The circuit court noted that the maximum sentence that petitioner could receive for the kidnaping
conviction, based upon the jury’s finding, was life with mercy, which is the sentence he received.
We agree and find no reversible error.

       Petitioner’s second assignment of error challenges the trial court’s instruction to the jury
that

       [i]t is reasonable to infer that a person ordinarily intends to do that which he does
       or which is the natural or probable consequence of his knowing acts. The jury
       may draw the inference that a person intended all of the consequences which one
       standing in like circumstances and possessing like knowledge should reasonably
       have expected to result from any intentional act or conscious omission. Any such
       inference drawn is entitled to be considered by the jury in determining whether or
       not the State has proved beyond a reasonable doubt the required criminal intent.

Petitioner argues that this instruction violates the United States Supreme Court case of
Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and this Court’s
holding in State v. O’Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979), by shifting the burden of
proof on the element of intent. The circuit court rejected this argument and found that the jury
instruction was proper because it was neither couched in mandatory terms, nor shifted the burden
of proof to petitioner, relying on a similar instruction in United States v. Arthur, 544 F.2d 730
(4th Cir. 1976). Our consideration of the entire charge in this case convinces us that it was
sufficiently clear to the jury that the burden was at all times upon the State to prove petitioner’s
intent beyond a reasonable doubt, and never upon him to prove the lack thereof.

        The circuit court’s order reflects its thorough analysis of the grounds raised in the petition
for habeas corpus. Having reviewed the opinion order entered on February 22, 2012, we hereby
adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all the
assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.




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       For the foregoing reasons, we affirm.

                                                    Affirmed.

ISSUED: September 27, 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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