                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Edward M.,                                                                        FILED
Petitioner Below, Petitioner                                                November 21, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0195 (Berkeley County 11-C-373)                                     OF WEST VIRGINIA


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


                               MEMORANDUM DECISION

        Petitioner, Edward M.1, by counsel Christopher J. Prezioso, appeals the order of the
Circuit Court of Berkeley County, entered January 30, 2014, denying his post-conviction habeas
corpus petition. Respondent David Ballard, by counsel Christopher C. Quasebarth, 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On May 15, 2007, a Berkeley County grand jury returned a thirteen count indictment
indicting petitioner for the offense of sexual assault in the first degree in violation of West
Virginia Code § 61-8B-3(a)(2), in counts one, five, and nine; sexual abuse in the first degree in
violation of West Virginia Code § 61-8B-7(a)(3), in counts two, six, and twelve; incest in
violation of West Virginia Code § 61-8-12, in counts four, eight, and eleven; and sexual abuse by
a parent, guardian, or custodian in violation of West Virginia Code § 61-8D-5(a), in counts three,
seven, ten, and thirteen. The indictment named two minor victims, A.H. (counts one through
eleven) and S.M (counts twelve and thirteen). A.H. is petitioner’s granddaughter through
marriage; S.M. is also petitioner’s granddaughter, but was adopted by petitioner and his wife.

         Petitioner’s trial was held from September 12 to September 14, 2007. S.M. did not
testify. A.H. testified that she lived with petitioner and her grandmother until she was about
seven or eight years old. On three separate occasions, when A.H. was eight or nine years old,
petitioner rubbed his member against her genitals while they were alone in petitioner’s home.
A.H. also testified that petitioner fondled and licked her genitals. The jury also heard evidence
       1
          Consistent with our practice in cases involving sensitive matters, we use initials to
protect the identity of the child victims in this case. See W.Va. R.A.P. 40(e)(1); State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
                                                1

admitted under Rule 404(b) from M.H. (A.H. and S.M.’s mother) and M.W. (A.H.’s cousin).
M.H. testified that petitioner raped her several years earlier after a pool party, and M.W. testified
that she witnessed petitioner fondling her cousin, A.A., a fourteen year old girl. M.W. also
testified that petitioner admitted to her that he had previously had sex with A.A. on three
occasions while A.A. was underage.

         Petitioner asserted a defense of falsified testimony at trial. Petitioner alleged through
counsel that he met his wife, L.M. at a VA hospital, and that L.M. invented the charges as part of
a scheme to gain possession of petitioner’s home, which she lived in at the time of trial with
many of her family members. At the close of the State’s case, petitioner moved for judgment of
acquittal, and the State dismissed counts twelve and thirteen of the indictment for insufficient
evidence. The trial court denied petitioner’s motion on the remaining counts. The jury returned a
verdict of guilty on two counts of sexual assault in the first degree; two counts of sexual abuse in
the first degree; two counts of incest; and three counts of sexual abuse by a parent, guardian, or
custodian.

       Petitioner filed a motion for post-verdict judgment of acquittal, a motion for a new trial,
and a Notice of Intent to Appeal, alleging only insufficiency of evidence. The trial court denied
those motions and sentenced petitioner to an indeterminate term of fifteen to thirty-five years in
the penitentiary for his convictions of sexual assault in the first degree in counts one, five and
nine; an indeterminate term of ten to twenty years in the penitentiary for his convictions of
sexual abuse by a parent guardian or custodian in counts three seven and ten; an indeterminate
term of five to fifteen years in the penitentiary for his convictions of incest in counts four, eight
and eleven. The trial court ordered the sentences on counts one to four to run concurrently,
counts five to eight to run concurrently with each other, but to run consecutively to the first four
counts, and count ten to run consecutively to all others, for a total effective sentence of forty to
ninety years.

        Petitioner timely appealed. This Court refused petitioner’s direct appeal on November 5,
2008. Petitioner then filed a petition for writ of habeas corpus in the Circuit Court of Berkeley
County on February 29, 2012. By order entered January 30, 2014, the circuit court denied
petitioner’s habeas petition without a hearing. Finding petitioner was entitled to no relief, the
court held petitioner either waived his right to a habeas hearing on a number of the grounds, or
did not plead the facts with enough specificity to require a hearing. Citing Losh v. McKenzie, 166
W.Va. 762, 771, 277 S.E.2d 606, 612 (1981), the circuit court found, “A mere recitation of any
of our enumerated grounds without detailed factual support does not justify the issuance of a
writ, the appointment of counsel, and the holding of a hearing.” Petitioner now appeals the
January 30, 2014, order denying his habeas relief.

        Petitioner raises several assignments of error on appeal. 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



                                                 2

       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).

         Petitioner asserts the circuit court abused its discretion in denying his habeas petition on
the following grounds: (1) the circuit court denied petitioner’s habeas petition without
conducting an evidentiary hearing; (2) petitioner received ineffective assistance of counsel; (3)
the State presented insufficient evidence to sustain a conviction; (4) the trial court allowed
improper 404(b) evidence to be admitted at trial over the objection of petitioner; (5) petitioner’s
sentence violates the Eighth Amendment to the United States Constitution and Article III,
Section 5 of the West Virginia Constitution; (6) petitioner may have been incompetent to stand
trial for mental health reasons; and (7) petitioner’s conviction was based on false testimony.

        We deny the relief requested in a habeas petition if the record demonstrates that the
petitioner is entitled to no relief.

       If the petition, affidavits, exhibits, records and other documentary evidence
       attached thereto, or the return or other pleadings, or the record in the proceedings
       which resulted in the conviction and sentence, or the record or records in a
       proceeding or proceedings on a prior petition or petitions filed under the
       provisions of this article, or the record or records in any other proceeding or
       proceedings instituted by the petitioner to secure relief from his conviction or
       sentence, show to the satisfaction of the court that the petitioner is entitled to no
       relief, or that the contention or contentions and grounds (in fact or law) advanced
       have been previously and finally adjudicated or waived, the court shall enter an
       order denying the relief sought.

W.Va. Code § 53-4A-7(a), in relevant part.

        Petitioner primarily contends that the circuit court erred by denying his habeas petition
without a hearing. After careful consideration of the record and the parties’ arguments, this Court
finds that the circuit court did not err in denying habeas relief to petitioner.

               “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).

        Petitioner also alleges that the circuit court erred in denying his habeas petition because
petitioner’s trial counsel was ineffective. Claims of ineffective assistance of counsel are
governed by the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.



                                                 3

2052, 80 L.Ed.2d 674 (1984), which was adopted by this Court in Syllabus Point 5 of State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

              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.

“In deciding ineffective assistance claims, a court need not address both prongs of the
conjunctive Strickland/Miller standard, but may dispose of such claims based solely on a
petitioner’s failure to meet either prong of the test.” State ex rel Daniel v. Legursky, 195 W.Va.
314, 321, 465 S.E.2d 416, 423 (1995).

        In support of his assertion, petitioner claims that his trial counsel (1) made
representations guaranteeing an acquittal in his case, yet (2) failed to adequately investigate the
matter, (3) made an inappropriate and prejudicial comments during opening statement, (4) did
not object to leading questions asked by the State during its examination of A.H. and Trooper
Boober, a West Virginia State Trooper who testified on behalf of the State, and (5) presented no
evidence on defendant’s behalf during his case in chief.

        Petitioner alleges that he relied upon counsel’s guarantees of acquittal to his detriment.
Petitioner asserts that if his counsel had not promised him an acquittal, he would have
encouraged his counsel to seek out a plea agreement rather than take the case to trial.

        We first note there is no absolute right under either the West Virginia or the United States
Constitutions to a plea bargain. See Myers v. Frazier, 173 W.Va. 658, 664 n.5, 319 S.E.2d 782,
788 n.5 (1984). (A defendant has “no constitutional right to have his case disposed of by way of
a plea bargain.”) (Citations omitted.) Even if petitioner’s counsel guaranteed an acquittal, under
Strickland petitioner has failed to sufficiently prove how the outcome of his case would have
been different but for his counsel’s actions. There is nothing in the record to support that the
State of West Virginia was inclined to make a plea offer, or that the State made a plea offer
which petitioner failed to accept due to his counsel’s representations.

        Further, in his brief on appeal petitioner fails to identify what witnesses should have been
called at trial that were not called, what evidence should have been presented, or what a thorough
investigation would reveal, or how this evidence could have changed the outcome of his trial. To
this end, the circuit court found that petitioner’s claim lacks the required specificity under West
Virginia Code § 53-4A-7 to necessitate a hearing. We agree.

       The circuit court found that petitioner’s remaining claims of ineffective counsel lacked
the specificity required under West Virginia Code § 53-4A-7, and did not meet the required
burden under Strickland. Those remaining claims are that petitioner’s trial counsel failed to
adequately investigate the matter, made an inappropriate and prejudicial comments during



                                                 4

opening statement, and did not object to leading questions asked by the State during its
examination of two State witnesses.

               In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Syl. Pt. 6, Miller, 194 W.Va. at 6-7, 459 S.E.2d at 117-18.

        Petitioner does not demonstrate that his counsel’s remarks at trial were unreasonable,
failed to identify what other evidence he would present at trial, chose not to take the stand on his
own behalf, and failed to identify what evidence he would present to undermine the testimony of
the victim A.H. Therefore, we decline to second-guess the strategic decisions of petitioner’s trial
counsel and find the circuit court did not err in denying the petition on this ground.

        Petitioner’s second and seventh assignments of error address the sufficiency of evidence.
Petitioner asserts that the circuit court erred in finding that the State presented sufficient evidence
to convict him, and that his convictions were based upon false testimony.

               A criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

        We find these claims to be without merit. The primary evidence presented at trial was the
unrebutted testimony of the victim, A.H. She plainly described three different sexual acts forced
upon her by petitioner when she was seven, eight, or nine years old, and while he was the adult
in whose care she was entrusted. The circuit court found that A.H.’s testimony was significantly
consistent for a child and that the jury could make a determination of her credibility. The jurors
had the opportunity to view the live testimony of the State’s witnesses, and to assess their
credibility, and clearly believed the testimony of the witnesses. Accordingly, petitioner failed to
overcome his burden on this ground. Thus, viewed in the light most favorable to the prosecution
and crediting all inferences that the jury may have drawn in favor of the prosecution, the circuit
court found that there was sufficient evidence for a jury to find petitioner guilty of the nine
offenses with which he was convicted. We agree.
                                                  5

        Petitioner’s third assignment of error alleges that the trial court erred by admitting
improper 404(b) evidence at trial. This matter was properly raised in petitioner’s direct appeal,
which this Court refused. However, the circuit court found that the trial court did not err in
making its finding by a preponderance of the evidence that the acts occurred and that petitioner
committed them. We agree. Accordingly, we do not find that the circuit court erred, or that the
trial court abused its discretion by allowing the 404(b) evidence at trial. Therefore, we find no
error in the circuit court’s denial of the petition on this ground.

        Next, petitioner alleges that his sentence violates the United States Constitution and the
Constitution of the State of West Virginia because it is excessively long and violates his
constitutional right to be free from excessive and cruel punishment. Petitioner concedes that the
sentence imposed by the trial court is within the statutory limits, but claims that his sentence is
grossly disproportionate to his crimes in violation of the Eighth Amendment of the United States
Constitution. We find this claim to be without merit. “While our constitutional proportionality
standards theoretically can apply to any criminal sentence, they are basically applicable to those
sentences where there is either no fixed maximum set by statute or where there is a life recidivist
sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

        Here, petitioner was convicted of crimes that each have a fixed maximum sentence, and
petitioner’s sentence falls within those proscribed statutory limits. Moreover, the trial court did
not abuse its discretion by directing certain statutory sentences to run consecutively. West
Virginia Code § 61-11-21 provides,

       When any person is convicted of two or more offenses, before sentence is
       pronounced for either, the confinement to which he may be sentenced upon the
       second, or any subsequent conviction, shall commence at the termination of the
       previous term or terms of confinement, unless, in the discretion of the trial court,
       the second or any subsequent conviction is ordered by the court to run
       concurrently with the first term of imprisonment imposed.

Accordingly, the circuit court did not err in finding petitioner’s argument had no merit.

       Petitioner also claims that the circuit court erred by denying his petition because he may
have been incompetent to stand trial for mental health reasons. Speculating that he was suffering
mentally during the trial, petitioner alleges that he was “in shock from being prosecuted for a
crime he did not commit.”

        “A circuit court may ‘summarily deny unsupported claims that are randomly selected
from the list of grounds’ found in the Losh opinion. 166 W.Va. at 771, 277 S.E.2d at 612.”
Markley v. Coleman, 215 W.Va. 729, 733, 601 S.E.2d 49, 53 (2004). Petitioner provides no
evidence in support of this claim and concedes in his brief on appeal that it does not appear from
the record that petitioner’s trial counsel nor the Court asked for an evaluation of petitioner’s
competency. Petitioner did not supplement his brief with a psychological evaluation or any
evidence that would tend to indicate that petitioner was incompetent to stand trial, nor does the
record reflect any behavior on petitioner’s behalf which would necessitate an evaluation. Noting
that the habeas petition was the first time petitioner raised this issue, the circuit court found

                                                 6

petitioner provided no factual basis for the allegation that he was incompetent to stand trial. We
agree and find no error in the circuit court’s denial of that claim.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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