                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Charles E.,
Petitioner Below, Petitioner
                                                                                 FILED
                                                                            February 21, 2017
vs) No. 16-0045 (Gilmer County 14-C-16)                                        RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Charles E., by counsel Bryan S. Hinkle, appeals the Circuit Court of Gilmer
County’s December 14, 2015, order that denied his petition for writ of habeas corpus.1 The State,
by counsel Jonathan E. Porter, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying petitioner’s request for habeas relief
because his trial counsel was constitutionally ineffective.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In 2012, a Gilmer County grand jury indicted petitioner on two counts of first-degree
sexual abuse in violation of West Virginia Code § 61-8B-7(a)(3), and two counts of first-degree
sexual assault in violation of West Virginia Code § 61-8B-3(a)(2).2 The victim was his great-
nephew, J.S., who was four years old at the time of the alleged crimes and six years old at the
time of trial.

       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).
       2
        According to West Virginia Code § 61-8B-7(a)(2) and § 61-8B-7(a)(3), “[a] person is
guilty of sexual abuse in the first-degree when [s]uch person subjects another person to sexual
contact who is physically helpless; or [s]uch person, being fourteen years old or more, subjects
another person to sexual contact who is younger than twelve years old.”

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        In November of 2012, petitioner’s criminal trial began. Respondent’s primary evidence
against him was the victim’s testimony.3 The victim testified at trial that petitioner touched the
victim’s penis on one occasion and digitally penetrated his anus on more than two occasions. A
social worker, who was qualified by the circuit court as an expert in the area of whether children
exhibit characteristics of being abused, testified about an interview she conducted of the victim
and testified that the victim described and demonstrated the sexual acts on a doll, the victim
identified petitioner as the perpetrator who committed those acts; and that the victim’s statements
to her were consistent. Petitioner did not testify at trial or present any evidence in his defense.
Following the jury trial, petitioner was convicted of one count of first-degree sexual abuse and
one count of first-degree sexual assault; the remaining counts were dismissed by the circuit
court. On April 5, 2013, the circuit court denied petitioner’s post-trial motion for a judgment of
acquittal or new trial and sentenced petitioner to an indeterminate term of incarceration of not
less than five nor more than twenty-five years for first-degree sexual abuse and not less than
twenty-five nor more than 100 years for first-degree sexual assault. The circuit court ordered the
sentences to run consecutively to one another and further ordered that petitioner register as a sex
offender for a term of fifty years following his release from incarceration.

        In 2014, petitioner filed a direct appeal with this Court alleging that the circuit court erred
(1) when it denied his motion for judgment of acquittal at the close of respondent’s case-in-chief;
(2) when it did not grant his motion for a new trial on the grounds that respondent produced a
witness statement only after that witness testified at the trial and prior to cross-examination; (3)
and that the sentence imposed upon petitioner violated the proportionality principle found in
Article III, Section 5 of the West Virginia Constitution. By ordered entered on April 25, 2014,
this Court affirmed petitioner’s conviction. See State v. Charles E., No. 13-0571 (W.Va.
Supreme Court, April 25, 2014)(memorandum decision). Thereafter, this Court refused
petitioner’s petition for rehearing.

       In June of 2015, Petitioner filed a petition for writ of habeas corpus alleging that he
received ineffective assistance of counsel at trial. In August of 2016, following an omnibus
evidentiary hearing, the circuit court entered an order denying petitioner’s petition for writ of
habeas corpus. This appeal followed.

       This Court reviews a circuit court order 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).

       3
        Petitioner’s trial counsel, Kevin C. Duffy, had his law license temporarily suspended in
June of 2016. See Office of Disciplinary Counsel v. Duffy, 237 W.Va. 295 787 S.E.2d 566
(2016), No. 16-0156 (W.Va. Supreme Court, June 2, 2016)(memorandum decision).
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Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner argues that the circuit court erred in denying habeas relief based on
his claim that his trial counsel was constitutionally ineffective. We do not agree. Petitioner
claims that his counsel failed to meet with him, to investigate his case, or prepare a defense for
trial. Our review of the record supports the circuit court’s decision to deny petitioner post-
conviction habeas corpus relief based on the error alleged in this appeal, which was also argued
below. According to the record on appeal, petitioner’s own testimony establishes that his counsel
met with him approximately twelve to fourteen times between the preliminary hearing and the
jury trial. Contrary to petitioner’s own argument, he testified below that he met with counsel
several times, that counsel communicated all plea agreements to petitioner, and advised him on
all the plea offers presented. Indeed, the circuit court’s order includes well-reasoned findings and
conclusions as to the assignment 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 court’s findings and conclusions as they relate to petitioner’s
assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s
December 14, 2015, “Final Opinion and Order on Petition Writ of Habeas Corpus Relief” to this
memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: February 21, 2017

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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