                                                          STATE OF WEST VIRGINIA
                                                        SUPREME COURT OF APPEALS

    James Forest Tincher,
    Petitioner Below, Petitioner                                                           FILED
                                                                                       October 20, 2015 
                                                                                      RORY L. PERRY II, CLERK
    vs) No. 15-0295 (Kanawha County 15-P-86)                                        SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA 

    Dennis Dingus, Warden,
    McDowell County Correctional Center,
    Respondent Below, Respondent


                                                              MEMORANDUM DECISION
            Pro se petitioner James Forest Tincher appeals the Circuit Court of Kanawha County’s
    March 12, 2015, order summarily denying his petition for writ of habeas corpus. Respondent
    Dennis Dingus, Warden, by counsel Benjamin F. Yancey III, filed a response.1 On appeal,
    petitioner alleges that the circuit court erred in summarily denying his habeas petition and in
    making insufficient findings of fact.

            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 April of 2010, a grand jury indicted petitioner on one count of bank robbery and one
    count of conspiracy. Thereafter, petitioner entered a guilty plea to one count of bank robbery
    without a handgun. Pursuant to the plea, the circuit court then sentenced petitioner to a term of
    incarceration of ten to twenty years. In November of 2010, petitioner’s counsel filed a motion for
    reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure.
    The circuit court ultimately denied this motion. Petitioner did not appeal this sentence.

            In March of 2015, petitioner filed a pro se petition for writ of habeas corpus. Petitioner
    alleged that his sentence was disproportionate to the crime and that his counsel was ineffective
    for failing to file an appeal of his sentence. Thereafter, the circuit court summarily denied the
    petition. It is from this order that petitioner appeals.

           This Court reviews appeals of circuit court orders denying habeas corpus relief under the
    following standard:
                                                                
                  1
            Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current
    public officer has been substituted as the respondent in this action.
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               “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).

       On appeal to this Court, petitioner alleges that he was entitled to further habeas
proceedings below, including an omnibus evidentiary hearing, because the circuit court could not
appropriately rule on his petition without a full evidentiary record. The Court, however, does not
agree. We have previously held that

               “[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.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
       S.E.2d 657 (1973).

Syl. Pt. 3, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter,
petitioner simply alleges that it was error to deny his petition because he alleged ineffective
assistance of counsel for failure to appeal his sentence, and that his sentence is disproportionate.
However, the circuit court clearly ruled that petitioner’s argument in regard to his sentence was
previously raised on a Rule 35(b) motion, which was denied.

        Further, petitioner alleges that his counsel’s failure to appeal his conviction constitutes
ineffective assistance of counsel because he was denied his right to an appeal. However,
counsel’s failure to appeal a conviction, in and of itself, does not necessarily constitute
ineffective assistance, especially in light of the fact that petitioner does not allege any facts that
would support such a finding. Given petitioner’s entry of a guilty plea in the criminal
proceedings below and his failure to allege any facts that would give rise to an ineffective
assistance claim in this regard, such as incompetent advice of counsel or an involuntary plea, the
circuit court clearly did not err in denying petitioner relief on his ineffective assistance of
counsel claim. As such, it is clear that the circuit court did not err in summarily denying the
petition for writ of habeas corpus.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error or abuse of discretion by the circuit court.
Our review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the
circuit court’s order includes well-reasoned findings and conclusions as to the assignments of
error raised on appeal. Given our conclusion that the circuit court’s order and the record before
us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit

                                                  2 
 
court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein
and direct the Clerk to attach a copy of the circuit court’s March 12, 2015, “Final Order
Dismissing Petition For Writ Of Habeas Corpus” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 20, 2015

CONCURRED IN BY:

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

 




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