                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



C.B.                                                                                 FILED
Petitioner Below, Petitioner                                                         April 25, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0498 (Cabell County 99-C-320)                                          OF WEST VIRGINIA


Marvin Plumley, Warden
Respondent Below, Respondent


                                  MEMORANDUM DECISION

      Petitioner C.B. 1, by counsel Abraham J. Saad, appeals the Circuit Court of Cabell
County’s order entered on March 20, 2013, denying petitioner habeas relief. Respondent Warden
Plumley, by counsel Laura Young, has filed a 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner C.B. was indicted on two counts of first degree sexual assault and one count of
sexual abuse by a parent, guardian, or custodian in September of 1996. The victim was a
preschool aged girl. Petitioner moved to suppress statements he made to a state trooper just after
his release from the hospital due to an apparent overdose. The trooper later testified that he
informed petitioner of his rights and petitioner indicated he understood the same prior to making
his statements. The trooper also testified that the statements were given freely and there was no
indication that petitioner had any type of impairment. Petitioner executed the written Miranda
form. Petitioner later testified that he did not remember telling the police that the child was four
years old at the time; that she had her mouth on his penis; or, that his daughter and his son had
touched his penis. After a hearing, the circuit court found that there was no evidence the
statement was involuntarily given or that medications induced the statement; therefore, the
statement was deemed admissible.


       1
         “We follow our past practice in juvenile and domestic relations cases which involve
sensitive facts and do not utilize the last names of the parties.” State ex rel. West Virginia Dep’t of
Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations
omitted).


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         Petitioner went to trial in January of 1997 and was found guilty on all counts. He was
then sentenced on October 14, 1997, to two concurrent sentences of fifteen to thirty-five years of
incarceration on the first degree sexual assault charges, and five to fifteen years of incarceration
on the count of sexual abuse by a parent, guardian, or custodian, to be served consecutively with
the first two sentences.

         Petitioner appealed his conviction to this Court on February 17, 1998, but his petition was
refused. He filed a pro se petition for writ of habeas corpus on April 29, 1999, and a hearing was
held on that petition on May 30, 2001. The circuit court denied the habeas petition. The circuit
court found that there was no evidence petitioner’s confession was not voluntary. As to the
admission of Rule 404(b) evidence, the court found that the introduction of evidence that he
possessed pornography and sexual aids was not more prejudicial than probative, and that the
testimony by his minor daughter of one instance of sexual abuse against her by petitioner did not
violate any specific constitutional right. The habeas court noted that the trial court did investigate
whether Attorney Wilson, formerly with the public defender’s office, who had moved to the
prosecuting attorney’s office prior to this action, should be allowed to participate in the trial, and
concluded that the case that petitioner had while Wilson was at the public defender’s office was a
domestic violence case, which had nothing to do with this matter. Moreover, there was no
indication that petitioner objected to Wilson’s participation when his counsel told him about it
initially. As to the claim of ineffective assistance of counsel, the court heard testimony from
petitioner’s trial counsel and determined that his decisions were strategic and not representative
of ineffective assistance. Petitioner appeals from this denial.

       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).

        On appeal, petitioner reasserts the same assignments of error that he raised in circuit
court. He argues that the court erred in allowing statements by petitioner to law enforcement
personnel that were given immediately upon his release from the hospital, as they were not
voluntarily given. He also argues that the court erred in allowing the introduction of a separate
instance of sexual abuse involving a minor child. Further, he argues that the prosecutor made
inappropriate comments during the trial and allowed a former member of the public defender’s
office to participate in the prosecution, and argued that defense counsel was ineffective by failing
to have the child victim examined by a physician.



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        Our review of the record uncovers no error in the circuit court’s decision to deny habeas
corpus relief based on petitioner’s arguments on appeal. The circuit court’s order reflects its
thorough findings of fact and conclusions of law concerning the same arguments petitioner has
raised on appeal. The record on appeal reveals no support for any of petitioner’s assignments of
error. There was no evidence that petitioner gave the statements to police involuntarily or that he
was somehow incapable of giving a knowing and voluntary statement. As to the entry of
evidence of other sexual abuse, the trial court properly held a Rule 404(b) hearing and the habeas
count found that the evidence was not erroneously admitted. The court also properly found no
prosecutorial misconduct when he referred to petitioner as a perverted, lustful, and predatory
person, as this did not implicate petitioner’s constitutional rights. Likewise, there was no error in
the fact that one of the prosecutors was formerly with the public defender’s office, as there was
no evidence that she had worked on any case petitioner previously had while he was represented
by the public defender’s office and thus there was no conflict. Finally, the court found no
ineffective assistance of counsel for counsel’s failure to have the child victim examined by a
physician, finding that the risk of what an evaluation would uncover was too great to chance, and
the decision was within the discretion of counsel and based on counsel’s trial strategy.

        Having reviewed the circuit court’s “Amended Order Denying Writ of Habeas Corpus”
entered on March 20, 2013, 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:     April 25, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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