                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS



Randy M.,
Petitioner Below, Petitioner                                                           FILED
                                                                                    April 28, 2020
vs.) No. 19-0675 (Hardy County 18-C-31)                                           EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Mark Williamson, Superintendent, Denmar
Correctional Center,
Respondent Below, Respondent




                               MEMORANDUM DECISION



         Petitioner Randy M.,1 self-represented litigant, appeals the June 28, 2019, order of the
Circuit Court of Hardy County denying his amended petition for a writ of habeas corpus.
Respondent Mark Williamson, Superintendent, Denmar Correctional Center, by counsel Karen
Villaneuva-Matkovich, filed a summary response in support of the circuit court’s order. Petitioner
filed a reply.

       The 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 January of 1999, petitioner, then eighteen or nineteen years old, had sex with a twelve-
year-old girl. On June 1, 1999, petitioner was indicted on one count of third-degree sexual assault
in the Hardy County Circuit Court. On July 1, 1999, pursuant to a plea agreement, petitioner pled
guilty to the lesser included offense of third-degree sexual abuse in exchange for petitioner’s
       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); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

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consent to “undergo a psychological evaluation, undergo HIV testing, cooperate with [the] State
in regard to any [other related criminal] prosecution . . ., [and] pay for [the minor] victim’s
counseling if [the] victim desires.” Petitioner further declared that no person made any other
promise to him “[o]ther than any plea bargain set forth in . . . above.”

       At the plea hearing,

       . . . [T]he trial court placed [p]etitioner under oath. The [p]rosecutor went over the
       terms of the plea agreement, including that [p]etitioner would have to register as
       a sexual offender, although the [p]rosecutor did not state the length of
       [p]etitioner’s registration. Petitioner agreed that the [p]rosecutor stated the entire
       agreement. The trial court then reviewed [p]etitioner’s legal rights[,] and
       [p]etitioner indicated he understood. The [p]rosecutor then recited the factual basis
       of the crime to which [p]etitioner was pleading. The trial court found the plea to be
       voluntary and that there was a factual basis upon which to base the plea. The trial
       court then directed [p]etitioner to review the Notice of Sexual Offender Registration
       Requirements [(“written notice”)] with his attorney and to sign it.

(Emphasis added). The written notice erroneously informed petitioner that he was required to
register as a sex offender for a period of ten years rather than for life. At an August 11, 1999,
hearing, petitioner was sentenced to ninety days of incarceration, which was suspended in favor of
five years of probation.

        By letter dated May 30, 2002, the West Virginia State Police notified petitioner that
pursuant to the 1999 amendments to the West Virginia Sex Offender Registration Act, West
Virginia Code §§ 15-12-1 through 15-12-10 (“the Act”), he was required to register as a sex
offender for life given that his sexual offense involved a minor. According to the certified mail
receipt, petitioner’s then-wife signed for the letter on June 5, 2002.

        On September 17, 2003, the Hardy County Circuit Court found petitioner in violation of
the terms of his probation. 2 By order entered September 26, 2003, the Hardy County Circuit Court
revoked petitioner’s probation and required him to serve the underlying sentence of ninety days of
incarceration.

        On November 1, 2016, petitioner was indicted in the Pendleton County Circuit Court with
a failure to provide accurate information regarding changes to his registration information.
According to petitioner, he is serving a sentence of one to five years of incarceration following a
guilty plea. It is this Pendleton County sentence for which petitioner is currently incarcerated.

        On October 9, 2018, petitioner filed a petition for a writ of habeas corpus in the Hardy
County Circuit Court, arguing that he did not have to register for life as a sex offender based upon
the erroneous written notice that he was given at the July 1, 1999, plea hearing, which provided
that he had a ten-year registration period. By order entered on October 17, 2018, the Hardy County
Circuit Court appointed habeas counsel for petitioner. On December 24, 2018, petitioner filed an
       2
           The record does not reflect which term of his probation petitioner violated in 2003.
                                                  2
amended habeas petition and a Losh checklist. 3 Respondent filed a response to the amended
petition on March 20, 2019.

        On June 28, 2019, the Hardy County Circuit Court entered an order denying the amended
habeas petition. First, the circuit court noted that it addressed all issues raised either in the amended
petition or on the Losh checklist: ineffective assistance of counsel, involuntary plea, unfulfilled
plea bargain, a more severe sentence than expected, and excessive sentence. The circuit court
found that the ineffective assistance claim addressed the performance not of the trial counsel in the
1999 Hardy County proceeding, but of the trial counsel in the 2016 Pendleton County proceeding.
Accordingly, the circuit court found that “any errors on the part of [the trial counsel in 2016
Pendleton County proceeding were] not properly before the [c]ourt.”

        As to petitioner’s four remaining claims, which addressed the 1999 Hardy County
proceeding, the circuit court found that they all were based on petitioner’s contention that he did
not have to register for life as a sex offender given the erroneous written notice of a ten-year
registration period at the July 1, 1999, plea hearing. Therefore, the circuit court found all four
claims were precluded by Syllabus Point 6 of State v. Bostic, 229 W. Va. 513, 729 S.E. 835 (2012),
in which this Court held, in pertinent part, that pursuant to West Virginia Code § 15-12-4(a)(2)(E),
“a person required to register under the . . . Act . . . shall continue to do so, except during ensuing
periods of incarceration or confinement, for life, if that person has been convicted . . . of a
qualifying offense as referred to in the Act, involving a minor.” Lastly, the circuit court found that
its denial of petitioner’s claims was supported by the record, rendering an evidentiary hearing
unnecessary.

        Petitioner now appeals the circuit court’s June 28, 2019, order denying the amended habeas
petition. 4 This Court reviews a circuit court order denying a habeas petition under the following
standard:
        3
         In Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), we compiled a nonexclusive
list of potential grounds that a circuit court should address with a habeas petitioner as to whether
each ground was being either waived or raised in the proceeding. Id. at 768-70, 277 S.E.2d at 611-
12.
        4
         Given that petitioner is no longer serving any term of incarceration due to his 1999 Hardy
County conviction, the circuit court should have dismissed the habeas petition for a lack of
jurisdiction pursuant to Syllabus Point 3 of Cline v. Mirandy, 234 W. Va. 427, 765 S.E.2d 583
(2014). We assume, arguendo, that the circuit court could have construed the petition as a petition
for a writ of error coram nobis pursuant to Syllabus Point 5 of State v. Hutton, 235 W. Va. 724,
776 S.E.2d 621 (2015):

                 A claim of legal error may be brought in a petition for a writ of error coram
        nobis only in extraordinary circumstances and if the petitioner shows that (1) a more
        usual remedy is not available; (2) valid reasons exist for not attacking the conviction
        earlier; (3) there exists a substantial adverse consequence from the conviction; and
        (4) the error presents a denial of a fundamental constitutional right.

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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.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1 of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        On appeal, 5 petitioner attempts to distinguish the situation addressed by this Court in
Bostic, where the defendant entered a guilty plea when the pre-1999 version of the Act was in
effect. At that time, West Virginia Code § 61-8F-4 provided, in pertinent part, that any person
required to register as a sex offender, regardless of the offense for which that person was convicted,
“shall be required to do so for a period of ten years[.]” Bostic, 229 W. Va. at 519, 729 S.E.2d at
841 (quoting statute). 6 Petitioner argues that the post-1999 version of the Act, particularly West
Virginia Code § 15-12-4(a)(2)(E), requiring lifetime registration, was already in effect at the time
his guilty plea on July 1, 1999.

        Conversely, respondent argues that the circuit court properly denied the amended habeas
petition based on this Court’s decision in Bostic. We agree with respondent. As we stated in
Hensler v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (2001), “[t]he provisions of [the post-1999
version of the Act] apply both retroactively and prospectively.” Id. at 533, 558 S.E.2d at 333
(quoting W. Va. Code § 15-12-2(a)). 7

        We find that this case is analogous to the situation addressed by this Court in Bostic, where
we held, in pertinent part, that pursuant to West Virginia Code § 15-12-4(a)(2)(E), “a person
required to register under the . . . Act . . . shall continue to do so, except during ensuing periods of
incarceration or confinement, for life, if that person has been convicted . . . of a qualifying offense
as referred to in the Act, involving a minor.” Syl. Pt. 6, 229 W. Va. at 514, 729 S.E. at 836. Or, as
more concisely stated, “the lifetime registration requirement set forth in West Virginia Code § 15-
12-4(a)(2)(E) is mandatory and attaches by operation of law.” Id. at 523, 729 S.E.2d at 845.
Therefore, we conclude that the circuit court’s denial of the amended habeas petition did not

       5
         Petitioner persists in arguing that his trial counsel in the 2016 Pendleton County
proceeding was ineffective. Due to petitioner’s filing of his habeas petition in the Hardy County
Circuit Court, we concur with that court’s ruling that “any errors on the part of [the trial counsel
in 2016 Pendleton County proceeding were] not properly before the [c]ourt.”
       6
        We explained in Bostic that on March 13, 1999, the Legislature repealed West Virginia
Code §§ 61-8F-1 through 61-8F-10 and replaced it with the post-1999 version of the Act, set forth
in Chapter 15, Article 12 of the West Virginia Code. Id. at 516, 729 S.E.2d at 838. The post-1999
version of the Act took effect ninety days from passage.
       7
         In Syllabus Point 5 of Hensler, we held that the Act “is a regulatory statute which does
not violate the prohibition against ex post facto laws.” Id. at 531, 558 S.E.2d at 331.
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constitute an abuse of discretion.

        For the foregoing reasons, we affirm the circuit court’s June 28, 2019, order denying
petitioner’s amended petition for a writ of habeas corpus.

                                                                                   Affirmed.



ISSUED: April 28, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:

Justice Margaret L. Workman




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