                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Andrew Scott Perry,                                                                  FILED
                                                                                     June 7, 2013
Petitioner Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 12-0941 (Wayne County 10-C-178)                                           OF WEST VIRGINIA



David Ballard, Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Andrew Scott Perry, by counsel A. Courtenay Craig, appeals the Circuit Court
of Wayne County’s July 16, 2012, order denying and dismissing his petition for writ of habeas
corpus. Respondent David Ballard, by counsel Scott E. Johnson, filed his 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 pled guilty to murder in the first degree for the murder of Dennis “Denny”
Isaacs and was adjudicated guilty based upon his own statements. Petitioner claims that he, Mr.
Isaacs, and others were drinking alcohol together during the evening of May 18, 2005. He further
claims that at some point during the evening, Mr. Isaacs sexually assaulted him, though he had
no memory of the incident until the next day. Petitioner states that on May 19, 2005, he
confronted Mr. Isaacs about the incident, and Mr. Isaacs responded by threatening to rape and/or
kill petitioner’s daughter if petitioner told anyone about the incident. Petitioner reportedly left the
area where Mr. Isaacs was located before returning with a gun, shooting Mr. Isaacs in the head,
and fleeing the scene. He turned himself in to law enforcement, and counsel was appointed.

         Petitioner pled guilty to murder in the first degree. During the plea hearing, the circuit
court asked petitioner if he had been treated or hospitalized for mental illness. Petitioner
explained to the court that he first went to Prestera Center due to “real bad nerves. I don’t know,
I just felt depressed like. . . . the other times I was on drugs, and it was like – it was drugs and my
nerves, too, but they mostly treated me for my drug problem.” Petitioner also informed the court
that he was suicidal in 2004 and had been hospitalized a few days later. Other than those
hospitalizations, petitioner denied hospitalizations for mental illness or disability. Petitioner also
denied any treatment for alcohol addiction but admitted to drug treatment in the mid 1990’s. He
also admitted taking Seroquel and Lexapro for “nerves and depression,” but he claimed those

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medications did not alter his ability to think. It is undisputed that petitioner informed his counsel
that he had been treated for mental illness. There was no mental evaluation performed following
the arrest, and petitioner entered into a plea agreement whereby he pled guilty to first degree
murder. He was sentenced to life without mercy, and his direct appeals filed in 2006 and 2007
were denied.

        Petitioner filed his petition for writ of habeas corpus on July 23, 2009, alleging
ineffective assistance of counsel. There were two omnibus hearings held, the first on November
21, 2011, and the second on April 18, 2012. At the first habeas hearing, a staff psychiatrist from
Prestera Center testified that she sent a letter to petitioner’s counsel on December 8, 2005, but
that counsel never contacted her. That letter stated that petitioner requires medication to control
the voices he hears, and that he had ideations of committing suicide and crying spells. The letter
continued by stating that if petitioner takes his medicine regularly, his mood is much improved,
he is not as sad, and he is able to function well in the community setting and in his daily living
routine. She testified at the habeas hearing that she believed petitioner should have been able to
understand the court proceedings in 2005.

        Trial counsel also testified at the habeas hearing. He stated that petitioner expressed
concern about the impact of a trial on his family. Counsel informed petitioner that a voluntary
intoxication defense was a difficult defense, especially with a jury. Counsel also testified that a
“surge of anger” would not constitute a defense since the alleged assault occurred in a separate
location, approximately twelve to sixteen hours before the shooting. The court entered its
“Opinion Order Denying Writ of Habeas Corpus Following Omnibus Hearing” on July 16,
2012.1 In its order, the court found that petitioner “gambled on receiving mercy from the court[. .
., but he] was informed of what possible sentences the Court could impose and he responded that
he understood this.” The court also found that while petitioner was aware that mercy was
possible, he was fully aware that a harsher sentence was possible. In the discussion section of the
order, the court stated that petitioner could not demonstrate that counsel was deficient in some
way, as the court’s denial of mercy was based on petitioner’s past criminal record, specifically a
prior felony conviction involving petitioner shooting another person.

        Petitioner asserts a single assignment of error in his appeal. He claims that his counsel
was ineffective because counsel neither fully investigated petitioner’s history of psychiatric
problems nor offered them in mitigation at sentencing. In response, respondent argues that
counsel did not fall below a reasonable standard of professional competency in failing to raise
the issue of petitioner’s competency. In order to satisfy the “prejudice” requirement under these
circumstances, petitioner must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial. The circuit
court made detailed findings of fact with regard to counsel’s efforts in this regard, as well as
petitioner’s knowledge and actions in entering his plea. Moreover, under any allegation of
ineffective assistance of counsel here, the second part of the test of State v. Miller, 194 W.Va. 3,
459 S.E.2d 114 (1995), petitioner cannot meet his burden that the outcome of this matter would

       1
        It appears there was an error on the judge’s signature page, as it shows an entered date of
July 16, 2010. However, the hearings were not held until after that date, and the first page of the
order shows that it was entered on July 16, 2012.
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have been different. The circuit court properly analyzed a number of reasons why petitioner
could not satisfy this standard, not the least of which was the fact that petitioner was found by
the circuit court to be competent, so he has suffered no prejudice.

        Having reviewed the circuit court’s well-reasoned “Opinion Order Denying Writ of
Habeas Corpus Following Omnibus Hearing” entered on July 16, 2012, we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions as to 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.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: June 7, 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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