                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


Joshua J., 
                                                                         FILED
                                                                                         
Petitioner Below, Petitioner                                                     March 12, 2018 

                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.) No. 17-0129 (Randolph County 14-C-189)                                          OF WEST VIRGINIA 


Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                                                          MEMORANDUM DECISION

       Petitioner Joshua J., by counsel Gregory R. Tingler, appeals the Circuit Court of
Randolph County’s January 12, 2017, order denying his amended petition for writ of habeas
corpus.1 Respondent Ralph Terry, Acting Warden of Mt. Olive Correctional Complex, by
counsel Gordon L. Mowen II, filed a response.2 On appeal, petitioner argues that the circuit court
erred in denying his amended petition for writ of habeas corpus without affording him an
evidentiary hearing on his ineffective assistance of counsel claim.

        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 June 25, 2012, petitioner was indicted on three counts of second-degree sexual
assault. Petitioner entered into a plea agreement with the State whereby he agreed to plead guilty
to two counts of second-degree sexual assault in exchange for dismissal of the third count in 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); 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).
  
              2
        Since the filing of the petition in this case, the warden at Mt. Olive Correctional
Complex has changed, and the acting warden is now Ralph Terry. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.



                                                                   1

 
indictment and the State’s agreement to forgo transferring pending juvenile charges to adult
jurisdiction. On August 6, 2012, the circuit court held a plea hearing and accepted petitioner’s
plea. On October 24, 2012, petitioner was sentenced to consecutive indeterminate terms of not
less than ten nor more than twenty-five years for each second-degree sexual assault conviction.

        Petitioner did not file a direct appeal of his convictions; however, he moved for
reconsideration of his sentence on numerous occasions in 2012, 2013, and 2014. At least three
such motions were filed by his trial counsel, including one following a March 1, 2013, letter
from petitioner to the circuit court requesting appointment of new counsel. In this letter,
petitioner stated that his attorney was unresponsive, failed to do certain things he requested, and
was “being a hindrance to [his] case.” The circuit court denied petitioner’s request. In 2014,
petitioner began filing pro se motions for reconsideration of sentence, which the circuit court
denied.

        On November 19, 2014, petitioner filed a pro se petition for writ of habeas corpus.
Petitioner was appointed counsel, and on August 2, 2016, he filed an amended petition asserting
ineffective assistance of counsel, invalid plea agreement and guilty plea, coerced plea agreement,
and failure to Mirandize and coercion. Without conducting an evidentiary hearing, the circuit
court denied petitioner’s amended petition by order entered on January 12, 2017. 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).

       On appeal, petitioner contends that the circuit court erred in not holding an evidentiary
hearing on his ineffective assistance of counsel claim. As detailed in his March 1, 2013, letter
requesting the appointment of new counsel, petitioner argues that he only met with his attorney a
few times outside of court appearances, counsel did not explain his case and options to allow him
to make an informed decision, and counsel did not return calls or “do certain things that were
asked of him.” Petitioner also alleges that his “borderline range of intelligence” renders the
answers given at his plea hearing “suspect because they may have been the equivalent of a young
student trying to get out of trouble after being called to the principal’s office.” Finally, petitioner
takes exception to the circuit court’s citation of the plea hearing transcript because the transcript
“does nothing to reveal the content of any communications between [p]etitioner and his trial
counsel prior to the plea hearing.” Petitioner contends that his trial counsel told him he “would
never see the light of day again” if he did not accept the State’s plea offer.



                                                  2

 
        To begin, petitioner cites no law mandating that an evidentiary hearing be held when
certain claims are pled. Instead, as petitioner acknowledges, evidentiary hearings are not proper
in every case:

               [a] court having jurisdiction over habeas corpus proceedings may deny a
       petition for a writ of habeas corpus without a hearing and without appointing
       counsel for the petitioner 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.

Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). The decision to hold a
hearing rests in the “sound discretion” of the circuit court. Tex S. v. Pszczolkowski, 236 W.Va.
245, 253, 778 S.E.2d 694, 702 (2015) (citation omitted). Although petitioner urges this Court to
conclude that he was entitled to a hearing as we found in State ex rel. Nazelrod v. Hun, 199
W.Va. 582, 486 S.E.2d 322 (1997), our decision in that case was predicated on the finding that
“[a]n examination of the ineffective assistance of counsel claim requires an examination of facts
not developed in the appellant’s trial transcript.” Id. at 584, 486 S.E.2d at 324. As discussed
below, the allegations underpinning petitioner’s ineffective assistance of counsel claims are
adequately developed in his plea hearing transcript. For these reasons, we find no abuse of
discretion in the circuit court’s failure to hold an omnibus hearing.

       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, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed
of for failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky,
195 W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of proof imposed by either
part of the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v.
Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

        Furthermore, in Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we observed
that “[t]he most common issues in [h]abeas corpus cases are whether there were, indeed,
knowing and intelligent waivers, whether there were facts outside the record which improperly
caused the defendant to enter his plea, and whether defendant’s counsel was indeed competent.”
Id. at 196, 220 S.E.2d at 669-70. We found that these issues “can all be finally resolved in the
careful taking of the original plea” and outlined certain inquiries that should be made prior to the
acceptance of a plea. Id. at 196, 220 S.E.2d at 670. Where a plea bargain has been entered into,
“the trial court should spread the terms of the bargain upon the record and interrogate the
defendant concerning whether he understands the rights he is waiving by pleading guilty and
whether there is any pressure upon him to plead guilty other than the consideration admitted on
the record.” Id. at 191, 220 S.E.2d at 667, Syl. Pt. 4. Additionally,

                                                  3

 
               [a] trial court should spread upon the record the defendant’s education,
       whether he consulted with friends or relatives about his plea, any history of
       mental illness or drug use, the extent he consulted with counsel, and all other
       relevant matters which will demonstrate to an appellate court or a trial court
       proceeding in [h]abeas corpus that the defendant’s plea was knowingly and
       intelligently made with due regard to the intelligent waiver of known rights.

Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5.

        At petitioner’s plea hearing, the circuit court began by asking petitioner whether there
was “anything about the proceeding that you don’t understand.” Petitioner replied, “No, ma’am.”
Petitioner stated that he could read and write and had obtained a tenth-grade education. Petitioner
further stated that he had read the plea agreement before he signed it and understood its contents.
To this end, the following exchange ensued:

               Q:      Okay. So today is a Monday, so that means you’ve had six days to
                       think about it?

               A:      Yes, ma’am.

               Q:      Do you feel like you’ve had enough time to think about it?

               A:      Yes, ma’am.

Petitioner also offered the following testimony concerning his attorney’s role in explaining the
plea agreement:

               Q: 	    Did you have an opportunity to ask [trial counsel] any questions
                       before you signed [the plea agreement]?

               A:      	Yes, ma’am.

               Q: 	    And did he answer all of your questions that you have on the
                       document before you signed it?

               A:      	Yes.

                                                      ...

               Q: 	    Okay. Did [trial counsel] read the document to you?

               A:      	Yes, ma’am.

               Q: 	    Okay. Did he read it bit by bit to you?



                                                 4

 
              A:      	Yeah.

              Q: 	    Read the whole thing to you?

              A:      	Yes.

              Q: 	    Okay. So you feel like you understand it?

              A:      	Yes.

After taking a fifteen to twenty minute recess to further discuss the plea agreement with his
family and attorney, petitioner returned to the courtroom and announced that he wished to “[g]o
forward with [the plea agreement].”

       Concerning his trial counsel, petitioner testified as follows:

              Q: 	    Okay. And you and your attorney have talked about this case
                      several times prior to today; is that correct?

              A:      Yes, ma’am.

                                                      ...

              Q:      Okay.

                      [Petitioner], are you satisfied with the legal services provided by
                      your attorney?

              A:      	Yes, ma’am.

              Q: 	    Do you believe that he’s acted in your best interest throughout his
                      representation?

              A:      	Yes, ma’am.

              Q: 	    Has [trial counsel] done everything you’ve asked him to do?

              A:      	Yes, ma’am.

              Q: 	    Anything that he did that you didn’t want him to do?

              A:	     No, ma’am.

              Q: 	    Do you feel like he’s made himself available to meet with you
                      plenty of times?



                                                 5

 
               A:      	Yes, ma’am.

               Q: 	    Okay. And do you understand that – I should ask. Do you have any
                       complaints about [trial counsel] whatsoever at this time?

               A:	     No, ma’am.

       Petitioner’s trial counsel also offered testimony:

               [Q]: 	 Mr. Hall [trial counsel], about how many times have you met with
                      your client to discuss this case?

               [A]:	   All totaled from the time of the original charge, which for the
                       [c]ourt’s information, it was a little – the original charge on him
                       had the wrong years and the ages didn’t work out for – I think he
                       was charged originally with first degree sexual assault. We got it
                       dismissed in magistrate court. However, the prosecution brought a
                       new criminal complaint in magistrate court before he ever even got
                       back to the regional jail to check out.

                       So I would say all total, we have probably met ten times between
                       visits to the jail, meetings in magistrate court, that sort of thing.

               [Q]: 	 Have you discussed with him the nature of the charges, all possible
                      defenses, and the constitutional rights that he’ll be giving up if he
                      pleads guilty today?

               [A]: 	 Yes, I have, your Honor.

               [Q]: 	 Do you believe there would be any benefit to [petitioner]
                      proceeding to trial?

               [A]: 	 No, your Honor. . . . And I think with all of that out there, with the
                      disclosures and his confession, I think this is by far in his best
                      interest.

Petitioner did not dispute this testimony at the hearing.

        The circuit court proceeded to explain petitioner’s right to trial and the potential that a
jury could return a not guilty verdict or a guilty verdict to a lesser included offense. Petitioner
indicated that he understood those possibilities, but that trial was not a risk he was willing to
take. The circuit court nonetheless further instructed him on his right to a jury and that, prior to a
guilty verdict, all twelve jurors would need to find his guilt unanimously. He was instructed on
the burden of proof, his right to testify, his right to call witnesses, and various other rights
attendant to proceeding to trial. Petitioner stated that he understood these rights and was waiving
them by entering into the plea agreement. The circuit court also informed petitioner that he could

                                                  6

 
plead not guilty. Again, petitioner demonstrated an understanding of these rights and options, but
he testified that he wished to enter into the plea agreement, had no questions for the circuit court,
and had no questions for his attorney. After the circuit court concluded explaining petitioner’s
rights, it asked,

                             Q: 	           You’re absolutely certain you want to plead guilty?

                             A:             	Yes, ma’am.

                             Q: 	           You’re absolutely certain you want to give up your right to a trial
                                            on these charges and all of the rights that I have explained to you?

                             A:             	Yes, ma’am.

                             Q: 	           Do you feel like this is in your best interest?

                             A:             	Yes, ma’am.

                             Q: 	           Do you need any more time to think about this at all?

                             A:	            No, ma’am.

                             Q: 	           And you’re sure you don’t want to change your mind?

                             A:             	Yes, ma’am.

        The preceding plea hearing excerpts support the trial court’s denial of petitioner’s
amended petition. These excerpts reveal that petitioner was adequately apprised of his options
and the effects of his choice to enter into the plea agreement, and that he was not confused by or
hesitant to enter the plea agreement. Importantly, petitioner does not assert that he did not wish
to enter into the plea agreement, thereby failing to establish that the proceedings below would
have been different even if petitioner could establish that he was not properly informed of the
plea agreement or the consequences of entering into it.

        Petitioner also testified to his satisfaction with counsel’s representation. Although
petitioner argues that he brought his dissatisfaction with counsel’s representation to the circuit
court’s attention, he did so nearly five months after his plea hearing and after counsel had filed
several motions on petitioner’s behalf to reduce his sentence. Assuming that trial counsel, in fact,
had become unresponsive to petitioner, petitioner fails to outline what more trial counsel could
have done.3 Accordingly, we find no error in the circuit court’s conclusion that denial was
warranted because petitioner’s petition and records showed that he was entitled to no relief.

        For the foregoing reasons, we affirm the circuit court’s January 12, 2017, order denying
petitioner’s amended petition for writ of habeas corpus.

                                                            
              3
                  There is no evidence that petitioner wanted counsel to file a direct appeal on his behalf.
                                                                       7

 
                                         Affirmed.

ISSUED: March 12, 2018

CONCURRED IN BY:

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




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