                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Edgar F.,                                                                         FILED
Petitioner Below, Petitioner
                                                                              October 28, 2016
                                                                                RORY L. PERRY II, CLERK
vs) No. 15-1210 (Fayette County 15-C-182)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Edgar F.,1 pro se, appeals the November 12, 2015, order of the Circuit Court of
Fayette County denying his petition for a writ of habeas corpus. Respondent State of West
Virginia, by counsel Zachary Aaron Viglianco, filed a summary response, and 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 2002, petitioner was convicted by a jury of one count of first degree sexual
abuse and three counts of sexual abuse by a custodian. The circuit court sentenced petitioner to one
to five years of incarceration for first degree sexual abuse, pursuant to West Virginia Code §
61-8B-7, and ten to twenty years of incarceration for each of his convictions for sexual abuse by a
custodian, pursuant to West Virginia Code § 61-8D-5. However, by subsequent order entered
March 20, 2009, the circuit court corrected petitioner’s sentences for sexual abuse by a custodian
by reducing each of those sentences to five to fifteen years of incarceration in accordance with the

       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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version of West Virginia Code § 61-8D-5 in effect at the time of petitioner’s crimes. The circuit
court left unchanged its order that petitioner serve his sentences consecutively.

        Petitioner filed a petition for a writ of habeas corpus in 2010. The circuit court denied that
habeas petition by order entered August 3, 2010, and appointed an attorney to represent petitioner
on appeal. In [Edgar F.] v. Ballard (“Edgar F. I”), No. 11-0564, 2012 WL 3055451, at *2 (W.Va.
June 22, 2012) (memorandum decision), this Court affirmed the circuit court’s August 3, 2010,
order on the ground that the circuit court did not err in ruling on petitioner’s habeas petition
without an evidentiary hearing and appointment of counsel for such a hearing. However, this Court
directed the circuit court to rule on ten grounds for habeas relief that, due to an oversight, the
circuit court failed to address in its August 3, 2010, order. Id.

         By order entered December 12, 2012, the circuit court found that each of the ten remaining
grounds for habeas relief was without merit. One of the ten grounds of relief was a claim by
petitioner that his sentences under West Virginia Code § 61-8D-5 were unconstitutionally
disproportionate to his offenses. The circuit court rejected this claim, finding that “[t]he sentences
originally imposed, and subsequently corrected, clearly comply with [West Virginia Code §
61-8D-5], [and] do not violate any provisions of the West Virginia or United States Constitutions.”
The circuit court explained that petitioner was previously a school principal and a school teacher
who “was convicted of sexually abusing male children” and that “[t]he sentences imposed for
those crimes were . . . clearly appropriate given the seriousness of the crimes[.]” The circuit court
appointed an attorney to represent petitioner in an appeal of its December 12, 2012, order denying
habeas relief. In [Edgar F.] v. Ballard (“Edgar F. II”), No. 13-0031, 2013 WL 5967036, at *4
(W.Va. November 8, 2013) (memorandum decision), this Court affirmed the denial of habeas
relief. This Court again rejected petitioner’s claims that an evidentiary hearing was necessary and
that appointment of counsel was required for such a hearing. Id. at *2. In so ruling, this Court
adopted and incorporated the circuit court’s December 12, 2012, order, by reference, finding it to
be “well-reasoned.” Id. at *3.

        Petitioner filed a second habeas petition in 2014, alleging that his appellate counsel in
Edgar F. I was ineffective. The circuit court denied the second habeas petition by order entered
July 7, 2014. In [Edgar F.] v. Ballard (“Edgar F. III”), No. 14-0815, 2015 WL 3680998, at *3
(W.Va. June 12, 2015) (memorandum decision), this Court affirmed the denial of habeas relief,
finding that the circuit court correctly rejected petitioner’s claim that his attorney in Edgar F. I was
ineffective.

        Petitioner filed the instant habeas petition on July 16, 2015, alleging that West Virginia
Code § 61-8D-5 was unconstitutional for numerous reasons, including that (1) convictions
obtained under West Virginia Code § 61-8D-5 violate double jeopardy; (2) a person convicted
pursuant to West Virginia Code § 61-8D-5 does not have adequate notice of the conduct that is
criminalized thereunder; (3) sentences imposed pursuant to West Virginia Code § 61-8D-5 are
unconstitutionally disproportionate; and (4) at the time of petitioner’s crimes, the title of West
Virginia Code § 61-8D-5 failed to state that it meant to prohibit sexual abuse of children. The
circuit court denied the habeas petition by order entered November 12, 2015, finding that
petitioner’s many attacks on West Virginia Code § 61-8D-5’s constitutionality were “frivolous
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and without merit.”2

      Petitioner now appeals the circuit court’s November 12, 2015, order denying habeas relief.
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 syllabus point 1 of
Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), we held that a court having jurisdiction
over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing
and without appointment of counsel “if the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to no
relief.”

        On appeal, petitioner contends that he is entitled to an evidentiary hearing and appointment
of counsel based on the decision of the Supreme Court of the United States in Martinez v. Ryan, __
U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Respondent counters that the Supreme Court’s
decision in Martinez does not apply to petitioner’s case. We agree with respondent and find that
Martinez is distinguishable. In petitioner’s habeas petition, he did not make the same allegation
that was at issue in Martinez (that ineffective assistance of counsel was inadequately raised in the
first habeas proceeding). Instead, petitioner made a series of constitutional arguments on which the
circuit court was able to rule without a hearing or appointment of counsel.

        We find that, in ruling that petitioner’s many arguments were frivolous and without merit,
the circuit court noted that several of the challenges to West Virginia Code § 61-8D-5’s
constitutionality were rejected by this Court in prior decisions. See Edgar F. II, 2013 WL 5967036,
at *10-11 (rejecting petitioner’s claim that his sentences under West Virginia Code § 61-8D-5
were unconstitutionally disproportionate);3 State v. Cook, 228 W.Va. 563, 571-72, 723 S.E.2d
388, 396-97 (2010) (rejecting defendant’s claims that (1) his right to due process was violated
because he was not on notice that his conduct would constitute a crime at the time of his offenses;
and (2) his sentence pursuant to West Virginia Code § 61-8D-5 was unconstitutionally
disproportionate); State v. Gill, 187 W.Va. 136, 143-44, 416 S.E.2d 253, 260-61 (1992) (rejecting
defendant’s contention that West Virginia Code § 61-8D-5 violated double jeopardy by subjecting

       2
         Contrary to petitioner’s contention, we find that the circuit court’s determination that his
habeas petition was without merit constituted a sufficient basis on which to deny the petition given
the frivolity of the arguments made therein. See infra.
       3
       We note that, pursuant to Rule 21(a) of the West Virginia Rules of Appellate Procedure,
our memorandum decision in Edgar F. II constitutes a decision on the merits.

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him to multiple punishments).

        We further find that nearly all of petitioner’s other arguments regarding the
constitutionality of West Virginia Code § 61-8D-5 are based on a premise we rejected in Gill. In
syllabus point 9 of Gill, we held that the offense of sexual abuse by a custodian pursuant to West
Virginia Code § 61-8D-5, “is a separate and distinct crime from [the] general sexual offenses [set
forth in Chapter 61, Article 8B of the West Virginia Code].” 187 W.Va. at 138, 416 S.E.2d at 255.
Therefore, we find that petitioner ignores syllabus point 9 of Gill by repeatedly referring to West
Virginia Code § 61-8D-5 as an “enhancement statute” that allows the State to bring a “companion”
charge in addition to a “base offense” found in Chapter 61, Article 8B.

         Finally, we find that the only argument not refuted by our reasoning in Gill is petitioner’s
contention that, at the time of petitioner’s crimes, the title of West Virginia Code § 61-8D-5 failed
to state that it meant to prohibit sexual abuse of children in violation of Article VI, § 30 of the West
Virginia Constitution. However, petitioner concedes that, at the time of his offenses, West Virginia
Code § 61-8D-5’s title included the phrase “sexual abuse by a parent, guardian, or custodian.”
Petitioner complains only that the title did not refer to the sexual abuse of “a child.” We find that an
argument that such an omission violated Article VI, § 30 of the West Virginia Constitution is
frivolous. See Syl. Pt. 2, State ex rel. City of Charleston v. Bosely, 165 W.Va. 332, 268 S.E.2d 590
(1980) (“When the principal object of an act of the legislature is expressed in the title, and the act
embraces, along with such principal object other incidental or auxiliary objects germane to the
principal object, the act is not repugnant to [Article VI, § 30] of the constitution[.]”) (internal
quotations and citations omitted). Therefore, we find that the circuit court did not err in finding that
petitioner’s many attacks on West Virginia Code § 61-8D-5’s constitutionality were frivolous and
conclude that the circuit court did not abuse its discretion in denying petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s November 12, 2015, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                             Affirmed.

ISSUED: October 28, 2016

CONCURRED IN BY:

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

DISQUALIFIED:

Justice Margaret L. Workman


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