                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Ray P.,
Petitioner Below, Petitioner                                                FILED
                                                                        October 23, 2017
vs) No. 16-1094 (Putnam County 13-C-196)                                   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 Ray P., by counsel Timothy J. LaFon, appeals the Circuit Court of Putnam
County’s October 31, 2016, order denying his petition for writ of habeas corpus.1 Respondent
David Ballard, Warden, by counsel Zachary Aaron Viglianco, filed a response. Petitioner filed a
reply. On appeal, petitioner argues that the circuit court erred in denying his petition on the
grounds of ineffective assistance of counsel, involuntary guilty plea, excessive sentence, and
insufficient evidence of actual guilt upon which to accept a guilty plea.

        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.

        On July 16, 2008, petitioner was indicted on two counts of sexual abuse by a parent,
guardian, or custodian and two counts of incest. Petitioner submitted to a forensic psychological
evaluation for purposes of determining his competency to stand trial and criminal responsibility
for these charges.

        The evaluator concluded that petitioner was not suffering from a mental disease or defect
that would prevent him from appreciating the criminality of his conduct or conforming his
behavior to the requirements of the law, found no evidence that he ever suffered from psychosis
that would have impaired his functioning or evidence to support a diagnosis of mental
retardation, and determined that he was able to assist his attorney with a defense and understand

       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).
                                                1

the charges against him.

        The testing did reveal, however, some cognitive limitations. As a result, the evaluator
recommended that petitioner “would benefit from repetition and definitions of complex
terminology and legal concepts as well as the use of simpl[e] instructions. [Petitioner] will
require coaching and education regarding the legal proceedings against him, but with instruction
he should be able to understand and recall new data.”

        Despite these recommendations, the evaluator also highlighted that petitioner presented
with only “limited cooperation” and “denied knowing very basic personal data.” Throughout the
report, the evaluator noted instances of “a higher level of functioning than he would admit or that
his intellectual testing would demonstrate” and “an individual functioning at a higher cognitive
level than [he] currently claims.” His efforts on the testing were found to be “questionable,” and
his approach to the evaluation was found to be “an unsophisticated attempt to present himself in
a negative manner for a secondary gain.” The evaluator also stated that petitioner’s “ineffective
and unsophisticated attempt to present himself as impaired demonstrates his awareness that an
unpleasant consequence may exist as a result of the instant offense and should be viewed as a
primitive attempt to protect himself.” In sum, the evaluator found that “[a]lthough cognitive
limitations are likely due to the immature, poorly developed and inconsistent approach that he
offered, they are not as severe as he projects.”

        Petitioner later decided to enter into a plea agreement with the State. Petitioner agreed to
plead guilty to two counts of sexual abuse by a parent, guardian, or custodian in exchange for the
dismissal of the remaining two incest counts. The State also agreed to recommend that the
sentences imposed for the sexual abuse by a parent, guardian, or custodian charges be served
concurrently. On November 14, 2008, petitioner was sentenced to an indeterminate term of not
less than ten years nor more than twenty years for each sexual abuse by a parent, guardian, or
custodian count. The sentences were ordered to run consecutively. Petitioner’s trial counsel did
not file a direct appeal, but he did file a “Motion for Reconsideration of Sentence,” which was
denied on March 24, 2009. Approximately four years later, on March 20, 2013, petitioner
submitted a letter to the trial court requesting appointment of counsel to assist him with a petition
for writ of habeas corpus. Shortly thereafter, counsel was appointed.

        On June 12, 2013, petitioner filed a petition for writ of habeas corpus. Petitioner asserted
in his petition that he received ineffective assistance of counsel on account of his trial attorney’s
failure to adequately explain and educate him as to his plea agreement and possible sentencing,
that his plea was involuntary due to the inadequate explanation of the plea’s terms and possible
sentencing, and that trial counsel failed to file an appeal. Respondent filed a response in
opposition to petitioner’s petition. On March 16, 2016, the circuit court held an evidentiary
hearing on petitioner’s petition. The circuit court considered additional grounds raised in
petitioner’s Losh list and at the hearing, including whether there was sufficient evidence of guilt
upon which the guilty plea could have been accepted, whether petitioner’s sentence was more
severe than expected, and whether his sentence was excessive.2 By order dated October 31, 2016,

       2
        Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (setting forth a list of possible
grounds a habeas petitioner’s counsel should discuss with his or her client).
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the circuit court denied petitioner’s petition for writ of habeas corpus. It is from this order that
petitioner appeals.

       This Court reviews appeals of circuit court orders 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).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        Petitioner first assigns as error the circuit court’s failure to find that he received
ineffective assistance of counsel. Specifically, petitioner contends that his trial counsel failed to
spend a sufficient amount of time on his case; properly investigate his case, including speak with
a potential witness to whom the victim, his youngest daughter, purportedly recanted; file an
appeal; and correctly advise petitioner as to his possible sentence and the possibility of
probation.

              In 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). Furthermore,

               [i]n reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. Finally,

               [i]n cases involving a criminal conviction based upon a guilty plea, the
       prejudice requirement of the two-part test established by Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984), and State v.
       Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), demands that a habeas petitioner



                                                   3

       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.

Syl. Pt. 6, State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 528 S.E.2d 207
(1999).

        With respect to the amount of time petitioner’s trial counsel spent on his case, petitioner
points to counsel’s timesheets, which indicate that he billed only $216.50. Petitioner contends
that this represents an insufficient amount of time given the gravity of petitioner’s charges.
Petitioner, however, ignores trial counsel’s testimony at the evidentiary hearing as to the specific
tasks counsel performed that are not reflected on that particular billing, that that particular
voucher represented only a portion of the time spent on petitioner’s case, and that he believes
other billings were submitted. Moreover, petitioner was the respondent in an abuse and neglect
proceeding that arose from the same conduct alleged in his underlying criminal matter.
Petitioner’s trial counsel represented him in that nearly factually-identical proceeding, and his
billings and investigative work in that proceeding are also ignored by petitioner in advancing this
assignment of error. These facts, coupled with the fact that petitioner cites no law to support any
argument that a specific amount of time must be expended by trial counsel lest he or she be
found to have rendered ineffective assistance of counsel, compel the finding that the circuit court
did not abuse its discretion in finding that petitioner’s arguments here failed to establish
ineffective assistance of counsel.

        Petitioner also contends that his trial counsel failed to adequately investigate his case,
including speak with a potential witness to whom the victim allegedly recanted. Trial counsel
admitted to not speaking with this potential witness, but he explained that he did so because, at
about the same time petitioner identified this potential witness, petitioner’s oldest daughter came
forward and stated that she intended to testify against her father. Petitioner then admitted to trial
counsel that “stuff had went on,” and, while petitioner did not believe that his youngest daughter,
the victim, would ultimately testify against him, he believed that his oldest daughter would.
Petitioner then related to counsel that he did not wish to go to trial and wanted to seek a plea
agreement. Petitioner’s trial counsel, therefore, approached the State about a possible plea
bargain.

        Petitioner’s argument here ignores the evidence adduced at his evidentiary hearing that it
was he who changed the course of his case. Petitioner, upon learning that his oldest daughter
intended to testify against him, decided that trial was no longer an option he wanted to pursue.
Rather, he asked counsel about a plea agreement. Thus, we find that the circuit court did not
abuse its discretion in finding that counsel did not render ineffective assistance of counsel based
upon this allegation.

         Petitioner further claims that he received ineffective assistance of counsel due to his
counsel’s failure to file an appeal. At petitioner’s evidentiary hearing, petitioner’s trial counsel
testified that, at the time of petitioner’s conviction, it was not the circuit court’s practice to
automatically appoint trial counsel to handle an appeal. Petitioner’s trial counsel nonetheless
provided petitioner with a packet instructing him to fill out certain documents and contact the



                                                 4

circuit court if petitioner wished to file an appeal. Petitioner’s counsel testified that he did not
hear anything else from either petitioner or the circuit court.

        In addressing this ground, we begin by noting that “[a]ppointed trial counsel for an
indigent criminal defendant who is convicted is required to continue representation of the
defendant through the appeal process unless an order is entered relieving him of such
obligation.” Syl. Pt. 5, in part, State v. Merritt, 183 W.Va. 601, 396 S.E.2d 871 (1990). Thus, the
circuit court’s local practices cannot relieve counsel of this obligation. But, we have also held
that “[w]hile the State is constitutionally obliged to appoint effective counsel to assist an indigent
criminal defendant in his appeal, once this has been done there rests on the indigent criminal
defendant some responsibility to make known to the court his counsel’s inaction.” Syl. Pt. 7,
Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977). Petitioner was provided with a
written “Notice of Right to Appeal.” Petitioner did not alert the circuit court to his alleged desire
to prosecute an appeal nor did he make known counsel’s inaction, assuming he articulated this
desire to counsel.

        We have also noted that a criminal defendant has limited grounds for appeal following
entry of a guilty plea: “A direct appeal from a criminal conviction based on a guilty plea will lie
where an issue is raised as to the voluntariness of the guilty plea or the legality of the sentence.”
Syl. Pt. 1, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). Petitioner concedes that his
sentence falls within statutory limits, and he does not otherwise challenge the legality of his
sentence. Thus, the only potential claim on appeal would have been the voluntariness of his
guilty plea. As discussed below, we find petitioner’s guilty plea to have been voluntarily given.
As a result, we find that the circuit court did not abuse its discretion in concluding that petitioner
failed to establish that the proceedings would have been different had counsel prosecuted an
appeal.

         Petitioner’s final alleged instance of ineffective assistance of counsel concerns counsel’s
alleged failure to correctly advise him as to parole eligibility. Petitioner points to his
psychological evaluation results that indicated he would need clear explanations throughout the
course of his case. Petitioner also contends that his trial counsel informed him that he would, in
fact, receive probation, and that he would not have entered into the plea agreement had he known
that probation was not guaranteed. Petitioner also asserts as a separate assignment of error that
his plea was not voluntarily given. Petitioner claims that he did not fully comprehend the
potential consequences of entering into a plea agreement or that probation was not guaranteed.
Petitioner claims that his ability to understand and comprehend matters is limited, and that he
needed additional time and explanation than what was provided to be able to understand the
terms of his plea agreement. Because these allegations are related, we address them in tandem.

       At petitioner’s plea hearing, petitioner’s trial counsel informed the circuit court that he
went through each of the twelve paragraphs of petitioner’s plea agreement

       on at least two different occasions, actually three because [the prosecuting
       attorney] gave them to me in letter form before he actually accepted the plea. I
       explained every one of his rights. I wanted to make sure that he understood
       exactly what the plea would be and the two charges that were being dismissed, the

                                                  5

       possible penalty. . . . Then we went through his options, what will happen if he
       was eligible for any kind of alternative sentencing, that he would have to get in
       counseling and so forth before he would be able to do that. And then went through
       the options where the Code says he could actually [sic] up to fifty years in any
       kind of probation or release even if he paroled out.

               But we went through each and every one of those paragraphs in quite
       detail. Asked if he had any questions about those, I don’t think he had any
       questions, and I think he understands what he’s pleading guilty to.

Petitioner informed the court that he read the plea agreement. Although he admitted to having
some difficulty reading “big words,” he acknowledged that he asked his trial counsel to explain
the meaning of those words. Petitioner proceeded to identify the crimes to which he was pleading
and set forth the possible term of incarceration.

       Petitioner also understood that the circuit court was under no obligation to follow any
sentencing recommendation:

              THE COURT: Am I required to follow the recommendation of the State?

              THE DEFENDANT: No.

               THE COURT: And likewise, if your lawyer makes a recommendation, am
       I required to follow what your lawyer says?

              THE DEFENDANT: No.

       The circuit court asked petitioner whether he had any questions about the plea agreement,
and petitioner responded, “No, sir.” Petitioner confirmed that he wrote all responses in his
“Defendant’s Statement in Support of Guilty Plea,” except for two enumerating the statutory
elements of his crimes. Petitioner also confirmed that he understood each question before
answering it and answered each question truthfully.

        The circuit court even discussed petitioner’s prior psychological evaluation and whether
the issues that necessitated the evaluation prevented an understanding of the plea agreement:

               THE COURT: Okay, Mr. Jarrell [petitioner’s trial counsel], did you
       believe that your client should be psychiatrically or psychologically evaluated as
       to either criminal responsibility or his ability to understand these proceedings?

               MR. JARRELL: Your Honor, when I first got appointed to this, before we
       actually got to the point he was indicted, I actually felt it was necessary. We had
       one done. One of the issues I had when he was first arrested, I was having
       problems communicating. We had that, the tests came back, they found him to be
       competent on both issues. And I think what a lot of the problem was at the time



                                               6

       when this originally was charged, he was off his medications, there was some
       issues.

               Since that time after we went through the testing, it’s become more and
       more apparent to me a lot of it was medication issues, because he’s been able to
       converse with me and go through this and they’ve got him stabilized over at the
       jail, and I think that at that time he did. As of right now, though, I feel he
       understands what’s going on and been able to help me in my defense. It’s my –

               THE COURT: You know, it’s my observation as well. I have seen
       [petitioner] throughout the neglect and abuse proceedings as well as this
       proceeding, and to me he’s much more clearer, sharper, seems to be fully aware
       of what’s going on, and I would agree with you. Much, much improvement since
       he started this process.

The court ultimately found that petitioner “clearly kn[e]w what [he was] doing” and expressed a
willingness to accept the plea so long as petitioner wanted to proceed with pleading guilty.
Petitioner stated, “we’ll go ahead with the plea.”

       Petitioner proceeded to provide a factual basis for his plea. He admitted to “inappropriate
sexual contact,” specifically sexual intercourse, with the victim, his daughter, who lived with
him at that time. Petitioner also admitted to the sexual intercourse happening more than once.
The circuit court accepted petitioner’s plea and found it to be “freely, voluntarily, intelligently,
knowingly, and understandedly [sic] tendered unto the Court[.]”

        This Court’s review of petitioner’s plea hearing transcript reveals that petitioner’s trial
counsel went through the terms of the plea agreement at length with petitioner. Petitioner’s
counsel stated as much on the record, and petitioner did not indicate that his counsel was being
untruthful. The plea agreement, which was explained on the record at the plea hearing, set forth
the penalties petitioner faced. Petitioner also correctly informed the court as to the penalty for his
crimes, and he acknowledged that the circuit court was not bound by any recommendations as to
parole or whether the sentences ran concurrently. The circuit court specifically stated, as was
also memorialized in petitioner’s plea agreement, that “sentencing is within the sole discretion of
this [c]ourt[,]” and “[a]ny recommendations that may be included either in the agreement or
made at the time of sentencing are simply recommendations to the [c]ourt.” Consequently, the
circuit court did not abuse its discretion in concluding that petitioner failed to demonstrate that
he would have insisted on going to trial had he realized probation was not guaranteed. Petitioner
was thoroughly informed of the plea agreement’s terms, demonstrated an understanding of those
terms, and acknowledged that the circuit court did not have to accept any sentencing
recommendations. The circuit court also specifically considered the psychological evaluation’s
recommendations and, nonetheless, found that petitioner understood the terms of his agreement
and willingly and voluntarily entered into it. For these reasons, we find that the circuit court did
not abuse its discretion in concluding that petitioner received effective assistance of counsel and
that his plea was voluntarily given.




                                                  7

        Petitioner’s next assignment of error is that the circuit court erred in concluding that his
sentence was not excessive in nature. Petitioner argues that he believed he would be given an
alternative sentence. Although petitioner acknowledges that his sentence is within statutory
limits, he argues that, based upon the findings from his psychological evaluation and the fact that
petitioner was not adequately advised by his attorney about the possible sentencing options, his
sentence was excessive in nature.

        In addressing this ground, we simply note that “[s]entences imposed by the trial court, if
within statutory limits and if not based on some [im]permissible factor, are not subject to
appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
Petitioner acknowledges that his sentence is within statutory limits, and he does not argue that it
was based on an impermissible factor. Accordingly, the circuit court did not abuse its discretion
in finding that this ground lacked merit.

        Petitioner’s final assignment of error is that there was insufficient evidence of actual guilt
upon which to base a guilty plea. Petitioner claims that the victim recanted to two individuals,
including petitioner’s mother. Thus, petitioner claims that the circuit court erred in finding
sufficient evidence of actual guilt.

        In a statement petitioner provided to law enforcement prior to his indictment, he admitted
to the crimes of which he was later indicted. Petitioner also admitted to sexual intercourse with
his young daughter on more than one occasion at his plea hearing. Finally, at petitioner’s
evidentiary hearing, the victim testified that she never recanted her story and that she stands by
her accusations. Accordingly, we find no abuse of discretion in the circuit court’s finding that a
sufficient factual basis existed for petitioner’s guilty plea.

        For the foregoing reasons, we affirm the circuit court’s October 31, 2016, order denying
petitioner’s petition for writ of habeas corpus.

                                                                                           Affirmed.

ISSUED: October 23, 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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