                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Amy Cline,                                                                        FILED
Petitioner Below, Petitioner                                                    April 13, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0487 (Mingo County 12-C-179)                                        OF WEST VIRGINIA


Lori Nohe, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Amy Cline, by counsel Karen Hatfield, appeals the Circuit Court of Mingo
County’s April 22, 2014, order that denied her petition for writ of habeas corpus. Respondent
Lori Nohe, Warden, by counsel Derek Knopp, filed a response in support of the circuit court’s
order. On appeal, petitioner argues that she received ineffective assistance of counsel; that there
was insufficient evidence to sustain her conviction; and that she received a more severe sentence
than expected.

        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 2007, a Mingo County Grand Jury indicted petitioner for two counts of first
degree sexual assault and two counts of sexual abuse by a custodian. Prior to trial, the State
dismissed both counts of sexual abuse by a custodian. In June of 2007, the circuit court granted a
mistrial as a result of a hung jury. In August of 2007, the circuit court held petitioner’s second
trial. At the close of evidence, the jury convicted petitioner guilty of two counts of first degree
sexual assault in violation of West Virginia Code § 61-8B-3. In September of 2007, the circuit
court sentenced petitioner to two consecutive terms of fifteen to thirty-five years in prison.

       Thereafter, petitioner filed a direct appeal with this Court, which was refused. In March
of 2013, petitioner filed a petition for writ of habeas corpus. After holding an omnibus
evidentiary hearing, the circuit court denied petitioner habeas relief. Petitioner now appeals to
this Court.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:



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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).

        First, petitioner argues that the circuit court erred in denying her habeas relief because
she received ineffective assistance of counsel. In support, petitioner alleges that her trial counsel
failed to call a key witness during trial. Petitioner contends that the witness would have testified
that petitioner was never left alone with the victim and that petitioner was in a custody dispute
with her grandmother, who implicated petitioner in the underlying crimes. We have previously
held that
               “[i]n 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.” Syl. Pt. 5, State v. Miller,
       194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 1, State v. Frye, 221 W.Va. 154, 650 S.E.2d 574 (2006). We have further held that
“[w]here a counsel’s performance, attacked as ineffective, arises from occurrences involving
strategy, tactics and arguable courses of action, his [or her] conduct will be deemed effectively
assistive of his client’s interests, unless no reasonably qualified defense attorney would have so
acted in the defense of an accused.” Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445
(1974). During the omnibus evidentiary hearing, petitioner acknowledged that her trial counsel
chose not to call this alleged key witness based on his trial strategy. The record is devoid of any
proof as to what additional information this witness would have testified to at trial beyond
petitioner’s self-serving statements.1 Nevertheless, a review of the trial transcript reveals that
petitioner’s trial counsel elicited substantially similar testimony from a different witness during
the underlying criminal trial. Therefore, we find that the circuit court did not err in denying
petitioner’s claim that she received ineffective assistance of counsel.
        Next, petitioner argues that there was insufficient evidence to support her conviction for
first degree sexual assault. Specifically, petitioner argues that the victim’s testimony was
inconsistent between the first and second trial and that two experts testified that the victim’s
symptoms of sexual assault could have been caused by other factors.
       We have previously held as follows:




       1
           Petitioner did not call the alleged key witness during the omnibus evidentiary hearing.
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               “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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007).
        This Court has stated that “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.” State v. Guthrie, 194 W.Va. 657, 669-70, 461 S.E.2d 163, 175-76
(1995). To obtain convictions on the charges for sexual assault in the first degree, the State had
to prove that petitioner was at least fourteen years old, that she engaged in sexual intercourse or
intrusion with the victim, and that the victim was younger than twelve years old at the time. The
State introduced evidence to support each of these elements. The parties do not dispute the
relevant ages. The victim’s treating physician testified that she stated that petitioner “pushed her
down on the bed and held her down and started touching her vaginal area,” and that petitioner
“inserted her fingers into her vaginal area.” Thus, the evidence was sufficient to sustain
petitioner’s conviction.
        As to petitioner’s contention that the victim’s testimony was inconsistent during the first
and second trial, this Court has held that “‘[a] new trial will not be granted in a criminal case on
the ground of insufficiency of the evidence, when the verdict against the defendant is based on
conflicting oral testimony and the credibility of witnesses is involved, or when the verdict is
supported by substantial evidence.’ Syllabus point 3 of State v. Vance, 146 W.Va. 925, 124
S.E.2d 252 (1962).” Syl. Pt. 1, State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990).
Furthermore, “‘[t]he jury is the trier of the facts and in performing that duty it is the sole judge as
to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2, State v. Bailey, 151
W.Va. 796, 155 S.E.2d 850 (1967).” Syl. Pt. 2, State v. Martin, 224 W.Va. 577, 687 S.E.2d 360
(2009). For the reasons already stated above, it is clear that the evidence was sufficient to support
petitioner’s conviction.
        Finally, this Court finds no merit to petitioner’s argument that she received a more severe
sentence than expected. To begin, we note that the circuit court correctly denied petitioner relief
on this issue, but for the wrong reason. “This Court may, on appeal, affirm the judgment of the
lower court when it appears that such judgment is correct on any legal ground disclosed by the
record, regardless of the ground, reason or theory assigned by the lower court as the basis for its
judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). This Court has
held that:


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       Under the provisions of Chapter 53, Article 4A, Code of West Virginia, 1931, as
       amended, commonly known as ‘Post-Conviction Habeas Corpus,‘there is a
       rebuttable presumption that petitioner intelligently and knowingly waived any
       contention or ground in fact or law relied on in support of his petition for habeas
       corpus which he could have advanced on direct appeal but which he failed to so
       advance.
Syl. Pt. 1, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). This Court has also held that
“[i]n a habeas corpus proceeding under Chapter 53, Article 4A, Code of West Virginia, 1931, as
amended, the burden of proof rests on petitioner to rebut the presumption that he intelligently
and knowingly waived any contention or ground for relief which theretofore he could have
advanced on direct appeal.” Syl. Pt. 2, Id. Here, petitioner failed to assert this claim on her direct
appeal. Further, petitioner fails to directly state any reason for this failure for the purposes of
rebutting the presumption of waiver. Accordingly, the Court finds that petitioner, who was
represented by counsel on direct appeal, could have advanced this claim on direct appeal and did
not. Therefore, this issue is deemed waived.
       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: April 13, 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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