                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Mark Lynn J.,                                                                       FILED
Petitioner Below, Petitioner
                                                                               February 21, 2017
vs) No. 15-1034 (Mercer County 13-C-431-DS)                                       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 Mark Lynn J., by counsel Paul R. Cassell, appeals the Circuit Court of Mercer
County’s September 23, 2015, order denying his petition for post-conviction habeas corpus
relief.1 Respondent David Ballard, Warden, by counsel Nic Dalton, filed a response in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his
habeas petition because (1) his trial counsel was constitutionally ineffective; (2) his sentence was
disproportionate to his crimes; and (3) the cumulative effect of the errors in his case required a
new trial.

        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 2010, petitioner was indicted on two counts of purchasing a child; three counts of first-
degree sexual abuse; one count of first-degree sexual assault; and four counts of sexual abuse by
a custodian. The charges stemmed from the claim that petitioner offered $15,000 to $20,000 to
his daughter-in-law to purchase custody of his granddaughters, then four-year-old A.A. and two­
year-old K.J., and had abused/assaulted his step-granddaughter, A.P.

        In August of 2011, petitioner’s first jury trial ended in a mistrial. Petitioner’s second jury
trial commenced in November of 2011. All counts in the indictment were tried together. During

       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).


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jury voir dire, several prospective jurors indicated their skepticism about their ability to find a
defendant guilty of a crime based solely on the uncorroborated testimony of a child. Noting that
the law allows for a guilty verdict based on such evidence, the circuit court excused the
prospective jurors from further service.

       At trial, the State presented several witnesses, including petitioner’s daughter-in-law,
Sylvia A.; petitioner’s granddaughters; a licensed social worker specializing in children’s
counseling and play therapy, Phyllis Hasty; a Child Protective Services worker, Christopher Bell;
and three law enforcement officers. At the conclusion of the jury’s deliberation, petitioner was
found guilty of two counts of purchasing a child, three counts of sexual abuse in the first degree,
four counts of sexual abuse by a custodian, and one count of sexual assault in the first degree.

        Following a sentencing hearing, the trial court sentenced petitioner to consecutive prison
terms of one to five years for each of the counts of purchasing a child; one to five years for each
count of sexual abuse; ten to twenty years for each count of sexual abuse by a custodian; and
twenty-five to one hundred years for the count of sexual assault. The trial court ordered the
sentences for the three counts of sexual abuse by a custodian and the sexual assault count
suspended, pending a five-year period of probation upon discharge of the remaining counts.
Therefore, petitioner received an effective sentence of fifteen to forty-five years in the
penitentiary. A “motion for reconsideration” was denied.2 Thereafter, petitioner appealed his
conviction and sentence to this Court, which denied the appeal by memorandum decision. See
State v. Mark Lynn J., No. 12-0272, 2013 WL 3185087 (W.Va. June 24, 2013) (memorandum
decision).

        In 2013, petitioner, pro se, filed a petition for writ of habeas corpus in the circuit court,
alleging ineffective assistance of trial counsel; excessive sentence; prosecutorial misconduct; and
improper jury instructions. Following the appointment of counsel, petitioner’s counsel filed an
amended petition alleging ineffective assistance of trial counsel; disproportionate sentence; and
cumulative error. Respondent filed a response in which it argued that petitioner was not entitled
to habeas corpus relief. According to respondent, none of petitioner’s allegations of ineffective
assistance of counsel, if true and if viewed individually or collectively, would likely have
changed the outcome of the trial and that his prison term was not disproportionate to his
conviction of sex crimes against children.

        In December of 2014, the circuit court held an omnibus evidentiary hearing. At that
hearing, the circuit court informed petitioner of the finality of his habeas petition and waiver
checklist. The circuit court proceeded to hear testimony from petitioner, petitioner’s wife, and
petitioner’s trial counsel, Robert Holroyd. At the conclusion of the hearing, the circuit court took
the matter under advisement. By order entered on September 23, 2015, the circuit court entered
its order denying habeas relief to petitioner. The circuit court found that petitioner’s trial counsel
was not ineffective; his sentence was not disproportionate to his crimes; and his claim of
cumulative error was without merit. This appeal followed.
       2
       The Court notes that the West Virginia Rules of Criminal Procedure do not provide for a
“motion for reconsideration” in criminal proceedings. Rule 35 of the West Virginia Rules of
Criminal Procedure allows a court to correct and/or reduce a previously imposed sentence.

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       This Court reviews appeals of circuit court orders denying habeas 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). Further, a
habeas petitioner bears the burden of establishing that he is entitled to the relief sought. See
Markley v. Coleman, 215 W.Va. 729, 734, 601 S.E.2d 49, 54 (2004); Syl. Pts. 1 and 2, State ex
rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486, 487 (1966).
        On appeal, petitioner raises three grounds for relief: ineffective assistance of counsel;
disproportionate sentencing; and cumulative error. Petitioner’s arguments to this Court are
largely identical to the arguments he made to the circuit court in his underlying habeas action.
Upon our review and consideration of the parties’ arguments, the record on appeal, and pertinent
legal authority, we find no error in the circuit court’s order denying petitioner post-conviction
habeas corpus relief. Indeed, the circuit court’s 126-page order includes well-reasoned findings
and conclusions as to the assignments of error raised in this appeal. Given our conclusion that the
circuit court’s order and the record on appeal reflect no clear error, we hereby adopt and
incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments
of error raised herein and direct the Clerk to attach to this memorandum decision a copy of the
circuit court’s September 23, 2015, “Order Denying the Petitioner’s Petition for Writ of Habeas
Corpus Ad Subjiciendum and Removing It from the Court’s Active Docket[.]”

       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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