                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
Robert D. Copen,
Petitioner Below, Petitioner
                                                                              February 17, 2017
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) Nos. 16-0260 and 16-0503 (Kanawha County 15-P-340 and 16-P-159)                OF WEST VIRGINIA



David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION

        In these consolidated appeals, petitioner Robert D. Copen, pro se, appeals two orders of the
Circuit Court of Kanawha County. In Supreme Court No. 16-0260, petitioner appeals the circuit
court’s February 11, 2016, order dismissing his petition for a writ of habeas corpus without
prejudice pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas
Corpus Proceedings in Kanawha County Circuit Court Case No. 15-P-340. In Supreme Court No.
16-0503, petitioner appeals the circuit court’s April 16, 2016, order dismissing his petition for a
writ of habeas corpus without prejudice pursuant to Rule 4(c) in Kanawha County Circuit Court
Case No. 16-P-159. Respondent Warden, by counsel Zachary Aaron Viglianco, filed a summary
response in support of the circuit court’s orders. 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 orders is appropriate under Rule 21
of the Rules of Appellate Procedure.

        During the early morning hours of August 21, 1999, petitioner climbed to the roof of a
small shopping center in Belle, West Virginia, and shot Joan C. Moore, the proprietor of a beauty
shop, as she was about to enter her car with the prior day’s receipts. The rifle that petitioner used
had a laser scope, and petitioner fired eleven shots of which eight or nine struck the victim. The
gunshots attracted attention, and the police and an ambulance were summoned to the scene. The
victim did not die immediately, remained conscious, and was able to identify petitioner, who had
worked for her previously, as the individual who had shot her. Subsequently, petitioner was
arrested and later charged with murder.

       At trial, during the defense portion of the case, petitioner took the stand and admitted that
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he had fired shots in the direction of the victim on the evening of the crime charged. However,
petitioner testified that he did not intend to shoot the victim, but that he merely intended to scare
her so that he could rob her. The jury subsequently found petitioner guilty of first-degree murder
without a recommendation of mercy. After denying various post-trial motions by petitioner, the
circuit court sentenced him to life in prison without the possibility of parole. Petitioner appealed
his conviction. In State v. Copen, 211 W.Va. 501, 508, 566 S.E.2d 638, 645 (2002), this Court
affirmed petitioner’s conviction.

        Since 2011, petitioner has filed seven successive petitions for a writ of habeas corpus in the
circuit court asserting various claims under a general allegation of ineffective assistance of
counsel.1 The circuit court has dismissed each petition pursuant to Rule 4(c) which provides, in
pertinent part, as follows: “If the petition contains a mere recitation of grounds without adequate
factual support, the court may enter an order dismissing the petition, without prejudice, with
directions that the petition be refiled containing adequate factual support. The court shall cause the
petitioner to be notified of any summary dismissal.” As part of each order, the circuit court
directed that the circuit clerk “shall serve a copy of this order upon the petitioner.”

       Petitioner appeals the circuit court’s February 11, 2016, and April 16, 2016, orders
dismissing without prejudice his sixth and seventh habeas petitions. We apply the following
standard of review in habeas appeals:

               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). In West Virginia, claims of
ineffective assistance of counsel are governed by the two-pronged test established in Strickland v.
Washington, 466 U.S. 668 (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. See Syl. Pt. 5, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        On appeal, petitioner concedes, in No. 16-0260, that the circuit court properly dismissed
that habeas petition because of a lack adequate factual support for his allegations. Upon our review
of that petition,2 we accept petitioner’s concession and affirm the circuit court’s February 11,

       1
         In State v. Copen, No. 13-0772, at 2 (W.Va. Supreme Court, March 14, 2014)
(memorandum decision), we affirmed the circuit court’s dismissal of petitioner’s third habeas
petition pursuant to Rule 4(c).
       2
        In syllabus point 8 of State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991), we held that we
will accept a party’s concession only after our own independent review of the issue.
(Continued . . .)
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2016, order dismissing that petition.

        In No. 16-0503, petitioner contends that a March 7, 2000, letter from his attorney that he
attached to that habeas petition provided factual support for his allegation that counsel gave him
erroneous advice as to his parole eligibility under a plea bargain offered by the State prior to trial.
Petitioner asserts that counsel erroneously advised him that he would have to wait thirty years to be
parole-eligible when the proposed plea agreement provided that he would be parole-eligible after
only seventeen-and-a-half years.

        Respondent counters that petitioner’s attorney never opined in the March 7, 2000, letter
that the plea bargain required petitioner to serve thirty years of incarceration before achieving
parole eligibility. Rather, the attorney wrote the letter in response to petitioner’s phone call to the
attorney’s office, in which he rejected the plea offer because he “did not believe that the [c]ourt
would expect you to serve thirty years.”3 The attorney initially replied to petitioner’s statement by
stating that it was “obvious” that petitioner did not understand “the potential outcomes for your
case.” Next, petitioner’s attorney reminded him that, if he went to trial and was convicted by a jury
of murder without a recommendation of mercy, petitioner would be “incarcerated until you die.”
The attorney further reminded petitioner that discovery in his case revealed “nothing that . . .
would . . . establish a defense for you.” Thus, while petitioner’s attorney agreed that a thirty-year
minimum term of incarceration would be “a substantial amount of time,” he advised petitioner that
a substantial minimum term was a reasonable outcome given the nature of his crime. Finally, the
attorney admonished petitioner never to tell the circuit court judge that he believed that a term of
incarceration would be “inconvenient” because, if that “complete lack of remorse” became known,
“you will virtually guarantee yourself that you will never leave prison.” The March 7, 2000, letter
was signed by both petitioner’s attorney and his co-counsel because they wanted to impress on
petitioner that they “concur[ed] in [the] conclusions and opinions” stated therein.

         We assume, arguendo, that counsel erroneously advised petitioner as to his parole
eligibility under the proposed plea bargain. However, we find that the March 7, 2000, letter reflects
that both of petitioner’s attorneys were concerned that he exhibited a disinclination to accept any
“substantial amount of time” in spite of the facts and circumstances of his case.4 Therefore, we
find that petitioner cannot meet the second—or, prejudice—prong of the Strickland/Miller test
because he cannot show that, if he had been correctly advised as to his parole eligibility, he would
have accepted the plea bargain. Therefore, we conclude that the circuit court did not abuse its



       3
         Petitioner’s attorney’s March 7, 2000, letter indicates the State’s plea offer included
petitioner pleading guilty to aggravated robbery, which was consistent with his theory of the case
that he was trying to scare the victim to rob her.
       4
         Petitioner indicates that he was a very young man at the time of his criminal case, stating
that he was only eighteen years old when he committed his offense.


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discretion in dismissing petitioner’s habeas petition in No. 16-0503.5 Accordingly, we affirm the
circuit court’s April 16, 2016, order.

       For the foregoing reasons, we affirm the circuit court’s February 11, 2016, order in No.
16-0260 and its April 16, 2016, order in No. 16-0503, both of which were dismissals pursuant to
Rule 4(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings.

                                                                                           Affirmed.

ISSUED: February 17, 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




       5
        Respondent notes that, in petitioner’s brief in No. 16-0503, he raises additional claims that
there was ineffective assistance of counsel in the presentation of a motion to bifurcate the guilt and
mercy phases and in the cross-examination of a State’s witness. Upon our review of petitioner’s
habeas petition in that case, we find that petitioner did not make those claims before the circuit
court. Therefore, we decline to address those issues in the first instance. See Syl. Pt. 2, Sands v.
Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958).

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