                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Bruce Marcum,

Petitioner Below, Petitioner                                                              FILED

                                                                                        January 14, 2013
                                                                                     RORY L. PERRY II, CLERK
vs.) No. 11-1329 (Cabell County 08-C-76)                                           SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
Patrick A. Mirandy, Warden,
St. Mary’s Correctional Center,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Bruce Marcum, by counsel Carl J. Dascoli Jr., appeals the August 25, 2011
order re-entering the prior order of the Circuit Court of Cabell County denying his petition for
writ of habeas corpus. The respondent,1 by counsel Laura J. Young, filed a summary response.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        On July 15, 2004, petitioner entered an Alford/Kennedy plea of guilty to one count of
sexual abuse by a parent, guardian, or custodian. He was thereafter sentenced to a term of ten to
twenty years of incarceration. On April 29, 2009, petitioner filed an amended petition for writ of
habeas corpus after having been appointed counsel to represent him in the circuit court habeas
proceeding. On August 11, 2010, the circuit court held an omnibus evidentiary hearing.
Petitioner was denied habeas relief following this hearing by order entered on January 18, 2011.
On August 25, 2011, the circuit court granted petitioner’s motion seeking re-entry of the order
denying his petition for purposes of his appeal.

        On appeal, petitioner alleges that it was an abuse of discretion for the circuit court to
deny his petition for writ of habeas corpus. Petitioner alleges that his trial counsel was ineffective
and that he did not enter his guilty plea knowingly, intelligently, and voluntarily. In support of
his assignments of error, petitioner argues that he was never instructed that he would be unable

       1
        The petition for appeal originally listed the warden of Huttonsville Correctional Center,
Teresa Waid, as the respondent. However, petitioner has subsequently been transferred to St.
Mary’s Correctional Center. Pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure, the appropriate party has been substituted in the style of this matter.
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to withdraw his guilty plea if he did not receive a sentence of probation or home confinement
and that he was under the influence of marijuana during his plea hearing. In response, the State
argues that the circuit court was correct to deny the petition for habeas relief because the record
clearly established that petitioner was aware that he could not withdraw his guilty plea and that
he failed to produce any new evidence on appeal to show that his counsel’s actions fell outside
an objective standard of reasonableness, to contradict the circuit court’s findings.

       This Court has previously held that

       [i]n 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). After careful
consideration of the parties’ arguments, this Court concludes that the circuit court did not abuse
its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit
court’s “Opinion Order Denying Writ of Habeas Corpus Following Omnibus Hearing” entered
on January 18, 2011, 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 find no error in the decision of the circuit court and its
January 18, 2011 order denying the petition for writ of habeas corpus is affirmed.


                                                                                        Affirmed.

ISSUED: January 14, 2013

CONCURRED IN BY:

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




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