                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Jesse B.,                                                                         FILED
Petitioner Below, Petitioner
                                                                              January 8, 2018
                                                                              EDYTHE NASH GAISER, CLERK
vs) No. 16-0433 (Ohio County 14-C-129)                                        SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
      Petitioner Jesse B., by counsel Mark D. Panepinto and pro se, appeals the Circuit Court
of Ohio County’s March 29, 2016, order denying his petition for writ of habeas corpus.1

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).

      Additionally, Petitioner’s counsel filed a brief in accordance with Rule 10(c)(10)(b) of
the West Virginia Rules of Appellate Procedure, which provides that

       [i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
       from the contentions presented in the brief, counsel must preface the brief with a
       statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
       inject disclaimers or argue against the client’s interests. If counsel is ethically
       compelled to disassociate from any assignments of error that the client wishes to
       raise on appeal, counsel must file a motion requesting leave for the client to file a
       pro se supplemental brief raising those assignments of error that the client wishes
       to raise but that counsel does not have a good faith belief are reasonable and
       warranted.

Per this Rule, petitioner’s counsel filed a motion requesting leave for petitioner to file a pro se
supplemental brief. This motion was granted, and petitioner filed a pro se supplemental brief.

       Finally, since the filing of the petition in this case, the warden at Mount Olive
Correctional Complex has changed and the acting warden is now Ralph Terry. The Court has
made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of
Appellate Procedure.


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Respondent Ralph Terry, Acting Warden, by counsel Elizabeth Davis Grant, filed a response. On
appeal, petitioner argues that the circuit court erred in finding that his plea was voluntary and
that he was afforded effective assistance of counsel.

        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.

       In March of 2010, petitioner was charged, by way of criminal complaint, with four counts
of sexual abuse by a parent, three counts of first-degree sexual abuse, and one count of first-
degree sexual assault. Petitioner entered into a plea agreement with the State whereby he agreed
to plead no contest2 to the first-degree sexual assault charge in exchange for the State’s
agreement to refrain from prosecuting him for any offense known to the State and occurring
before the date on which the plea was entered. The circuit court accepted this plea on May 7,
2010, and proceeded to sentence him to not less than 25 nor more than 100 years of
incarceration.

       On May 12, 2014, petitioner filed a petition for writ of habeas corpus alleging that his
plea was involuntary and ineffective assistance of counsel. The circuit court held an omnibus
hearing on January 7, 2015, and denied the petition by order entered on March 29, 2016. It is
from this order that petitioner appeals.

       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).

        Petitioner advances two assignments of error on appeal. Petitioner’s first contention is
that the circuit court erred in finding that his plea was voluntary. Petitioner states that he “did not
understand any thing [sic] that was happening” and that he “just followed the lead of [c]ounsel.”
Petitioner asserts that “sexual offenders are frowned upon in jail and prison by other inmates
which ultimately cause[d him to] be under a lot of duress.” Petitioner claims that the stress of his

       2
        “A plea of ‘nolo contendere,’ when accepted by the court, is, in its effect upon the case,
equivalent to a ‘plea of guilty.’” Syl., in part, Schad v. McNinch, 103 W.Va. 44, 136 S.E. 865
(1927).
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incarceration caused him to “say and do anything to get out of the place in which he resided.”
Petitioner further states that he was confused by the plea agreement and led to believe that he
would be receiving a fifteen to thirty-five-year sentence.

        Petitioner’s second assignment of error is that he received ineffective assistance of
counsel because counsel pressured him into entering into the plea agreement. Petitioner contends
that he was under duress as explained above, confused about the plea, and did not wish to plead
guilty or no contest. Accordingly, petitioner contends he was “under no condition to be forced
into taking a plea.”

        In Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we observed that “[t]he
most common issues in [h]abeas corpus cases are whether there were, indeed, knowing and
intelligent waivers, whether there were facts outside the record which improperly caused the
defendant to enter his plea, and whether defendant’s counsel was indeed competent.” Id. at 196,
220 S.E.2d at 669-70. We found that these issues “can all be finally resolved in the careful taking
of the original plea” and outlined certain inquiries that should be made prior to the acceptance of
a plea. Id. at 196, 220 S.E.2d at 670. Where a plea bargain has been entered into, “the trial court
should spread the terms of the bargain upon the record and interrogate the defendant concerning
whether he understands the rights he is waiving by pleading guilty and whether there is any
pressure upon him to plead guilty other than the consideration admitted on the record.” Id. at
191, 220 S.E.2d at 667, Syl. Pt. 4. Further,

               [a] trial court should spread upon the record the defendant’s education,
       whether he consulted with friends or relatives about his plea, any history of
       mental illness or drug use, the extent he consulted with counsel, and all other
       relevant matters which will demonstrate to an appellate court or a trial court
       proceeding in [h]abeas corpus that the defendant’s plea was knowingly and
       intelligently made with due regard to the intelligent waiver of known rights.

Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5.

       Ineffective assistance of counsel claims

               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).

        Both of petitioner’s claims are belied by the record and were “finally resolved in the
careful taking of the original plea.” Call, 159 W.Va. at 196, 220 S.E.2d at 670. Although our
review of the record reveals that the circuit court carefully inquired into the areas required by
Call during petitioner’s plea hearing, the following excerpts are particularly relevant to
petitioner’s claims. First, petitioner’s plea hearing began with a recitation of his plea agreement,

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including the portion setting forth the sentence of “not less than 25 nor more than 100 years[.]”
Petitioner himself recounted to the circuit court his understanding of the possible sentence:

              THE COURT: Okay. [Petitioner], has [your attorney] discussed with you
       what the mandatory minimum penalty is for the crime with which you’ve been
       charged, as well as the maximum possible penalty?

               THE DEFENDANT: Yes, sir.

               THE COURT: And what is your understanding of the possible penalties
       that you’re facing under this plea agreement.

               THE DEFENDANT: Twenty-five to 100 years in prison.

       The circuit court inquired whether petitioner had heard the plea agreement placed upon
the record, whether he reviewed the plea agreement after it had been reduced to writing, and
whether he understood the plea agreement. Petitioner responded in the affirmative to each
question. Petitioner also stated that he understood everything that was going on during the
proceedings, that he had an adequate opportunity to ask his attorney questions concerning his
plea and the agreement itself, and that the plea agreement had been fully explained to him by
counsel.

        In addition to petitioner testifying to being completely satisfied with counsel’s legal
services, he gave no indication that he was coerced by counsel into entering the plea agreement.
The circuit court specifically asked, “Have there been any promises made to you in order to get
you to enter into this plea agreement other than the promises contained within the agreement?”
Petitioner responded, “No.” The circuit court also asked whether “anyone forced you or
threatened you in order to get you to come here today and enter this plea?” Petitioner again
responded in the negative. Thus, there is no support for petitioner’s contention that he was
coerced by counsel into entering his plea.

        Finally, the circuit court informed petitioner that it did not want him “to plead no contest
to anything today unless you feel that that’s the appropriate thing that you should do. Do you
understand that?” Petitioner responded, “I understand.” Following a recitation of the evidence
against petitioner, he was asked whether he believed that the evidence would lead to his
conviction. Petitioner responded, “Yes, sir.” This exchange refutes petitioner’s assertion that his
plea was entered under duress. Petitioner understood that the evidence against him was sufficient
to convict him. Petitioner also understood that the circuit court did not want him to enter his plea
unless petitioner felt it appropriate. Given the evidence against him, petitioner proceeded to
voluntarily, knowingly, and intelligently enter his plea of no contest. Accordingly, we find no
abuse of discretion in the circuit court’s findings that petitioner’s plea was voluntarily entered
into and that he received effective assistance of counsel.

        For the foregoing reasons, we affirm the circuit court’s March 29, 2016, order denying
petitioner’s petition for writ of habeas corpus.



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                                         Affirmed.

ISSUED: January 8, 2018

CONCURRED IN BY:

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




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