       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                             JANUARY 2019 TERM

                                                                         FILED
                                                                       May 17, 2019
                                   No. 17-1001                        released at 3:00 p.m.
                                                                  EDYTHE NASH GAISER, CLERK
                                                                  SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA


                               CHRISTOPHER H.,
                            Petitioner Below, Petitioner

                                        V.

             MICHAEL MARTIN, ACTING SUPERINTENDENT,
               HUTTONSVILLE CORRECTIONAL CENTER,
                     Respondent Below, Respondent

        ________________________________________________________

               Appeal from the Circuit Court of Monroe County
                     The Honorable Robert Irons, Judge
                          Civil Action No. 13-C-82

                              AFFIRMED
       _________________________________________________________

                            Submitted: March 6, 2019
                              Filed: May 17, 2019


Matthew Brummond                          Patrick Morrisey
Public Defender Services                  Attorney General
Charleston, West Virginia                 Elizabeth Grant
Attorney for Petitioner                   Assistant Attorney General
                                          Shannon Frederick Kiser
                                          Assistant Attorney General
                                          Charleston, West Virginia
                                          Attorneys for Respondent


JUSTICE JENKINS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “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).



              2.     “Probation is a matter of grace and not a matter of right.” Syllabus

point 3, State v. Jones, 216 W. Va. 666, 610 S.E.2d 1 (2004).



              3.     “In the West Virginia courts, 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.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114

(1995).




                                              i
             4.     “In deciding ineffective . . . assistance claims, a court need not

address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459 S.E.2d

114 (1995), but may dispose of such a claim based solely on a petitioner’s failure to meet

either prong of the test.” Syllabus point 5, State ex rel. Daniel v. Legursky, 195 W. Va.

314, 465 S.E.2d 416 (1995).




                                           ii
Jenkins, Justice:


              Petitioner Christopher H.1 herein appeals the October 18, 2017 order of the

Circuit Court of Monroe County denying his petition for writ of habeas corpus.2

Christopher H. contends that he is entitled to habeas relief because he was denied due

process and effective assistance of trial counsel when he did not receive a sex offender

evaluation pursuant to West Virginia Code § 62-12-2(e) (LexisNexis 2014).3 The State

responds and asserts that the circuit court did not err. Having considered the briefs

submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable

legal authority, we find no error. Accordingly, we affirm the circuit court’s order.




              1
                 It is this Court’s customary practice in cases involving sensitive facts to
refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190
W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n.1 (1993).
              2
                 In the original petition for habeas corpus, the Respondent was styled as
Marvin Plumley, Warden, Huttonsville Correctional Center. Once appealed, the
Respondent was re-styled: Michael Martin, Acting Warden, Huttonsville Correctional
Center. However, effective July 1, 2018, the correctional facility positions formerly
designated as “wardens” are now designated “superintendents.” See W. Va. Code § 15A-
5-3 (LexisNexis 2018). For this reason, the Respondent has been styled as Michael Martin,
Acting Superintendent, Huttonsville Correctional Center for purposes of this Opinion.
Additionally, Mr. Martin, who now holds this position at Huttonsville, has been substituted
for Mr. Plumley. See W. Va. R. App. P. 41(c) (addressing substitution of parties who are
public officials).
              3
                 For the full text of West Virginia Code § 62-12-2(e) (LexisNexis 2014), see
Section III, infra.

                                              1
                                              I.

                       FACTUAL AND PROCEDURAL HISTORY

              In August of 2012, Christopher H. pleaded guilty to one count of sexual

abuse by a parent.4 See generally W. Va. Code § 61-8D-5 (LexisNexis 2014) (defining

crime of sexual abuse by a parent). At the plea hearing, Christopher H. was told that the

statutory sentence for this offense was an indeterminate term of ten to twenty years in

prison unless the court ordered probation. The court also advised Christopher H. that it

had no discretion to grant probation unless he received a satisfactory sex offender

evaluation stating he could receive treatment in the community. Once the court accepted

his guilty plea, Christopher H.’s counsel advised the circuit court that he had spoken with

Christopher H. about his right to a sex offender evaluation under West Virginia Code § 62-

12-2(e),5 and that Christopher H. was “pretty adamant that he wanted to waive those

rights.” The Court verified with Christopher H., and he acknowledged that he wished to

waive the evaluation because he was “financially unable to do anything otherwise.” Citing

his own indigence as a reason for waiving said evaluation, Christopher H. was not informed

by the court, or his own counsel, that such an evaluation could be provided at no cost to

him. See W. Va. Trial Ct. R. 35.05 (requiring West Virginia Department of Health and

Human Resources to pay for evaluations conducted pursuant to W. Va. Code § 62-12-2(e)).

Nothing further was mentioned regarding Christopher H.’s indigence, and the court



              4
                  Christopher H. allegedly engaged in oral sex with his daughter.
              5
                  See supra note 3.
                                              2
proceeded to sentencing. Christopher H. was sentenced to “not less than ten nor more than

twenty years in prison” in accordance with the statutory sentencing provisions. See W. Va.

Code § 61-8D-5 (establishing sentence for crime of sexual abuse by a parent).



                Christopher H. never directly appealed his sentence; however, in November

of 2013, he filed a pro se petition for a writ of habeas corpus. He was then appointed

counsel, and an amended petition was filed with two grounds raised for relief: (1) due

process violations and (2) ineffective assistance of counsel. Both of these grounds were

based on his allegation that neither his attorney nor the circuit court informed him that the

State would have provided the sex offender evaluation at no cost to him. See W. Va. Trial

Ct. R. 35.05.



                At the hearing on Christopher H.’s petition for a writ of habeas corpus, he

sought the relief of undergoing a sex offender evaluation and having a new sentencing

hearing, if necessary.     By order entered October 18, 2017, the circuit court denied

Christopher H.’s petition for habeas relief finding that even a favorable evaluation would

not mitigate his sentence, and, given the severity of his crime, probation would be grossly

lenient. Further, the court determined that because its sentencing decision was based on

the “heinous nature” of Christopher H.’s crime, “entirely independent of the fact that [he]

was indigent,” fundamental notions of fairness were not violated. As for his claim of

ineffective assistance of counsel, the court simply found that he was not entitled to relief

as he suffered no harm because the sentence imposed by the court would be the same

                                             3
regardless of the outcome of an evaluation. It is from the circuit court’s denial of his

petition for writ of habeas corpus that Christopher H. now appeals.



                                             II.

                               STANDARD OF REVIEW

              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.

Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With this standard

in mind, we now address the issues presented.



                                            III.

                                       DISCUSSION

              The instant proceeding is before this Court upon Christopher H.’s appeal

from the circuit court’s order denying him habeas relief. Christopher H. based his habeas

corpus petition on the State’s failure to provide a sex offender evaluation to him when he




                                             4
said he could not afford to pay for one, even though he never asked for such an evaluation

or requested that one be provided at no cost to him.



              Pursuant to West Virginia Code § 62-12-2(e), a sex offender evaluation is a

prerequisite to consideration for probation for certain crimes, including the offense of

which Christopher H. was convicted:

                      In the case of any person who has been found guilty of,
              or pleaded guilty to, a violation of the provisions of section
              twelve [§ 61-8-12], article eight, chapter sixty-one of this code,
              the provisions of article eight-c [§§ 61-8C-1 et seq.] or eight-b
              [§§ 61-8B-1 et seq.] of said chapter, or under the provisions of
              section five [§ 61-8D-5], article eight-d of said chapter, such
              person shall only be eligible for probation after undergoing a
              physical, mental and psychiatric study and diagnosis which
              shall include an on-going treatment plan requiring active
              participation in sexual abuse counseling at a mental health
              facility or through some other approved program[.]

(Emphasis added).



              In rendering its ruling denying habeas relief, the circuit court rejected

Christopher H.’s argument that denying him an evaluation under West Virginia Code § 62-

12-2(e) denied his right to due process:

                     Based on a review of the pleadings presented by the
              parties, the Court is not persuaded by the arguments set forth
              by Petitioner in support of his Petition for Writ of Habeas
              Corpus. Because Petitioner plead [sic] guilty to engaging in
              sexual intercourse with his biological daughter who was under
              his care, custody and control, the severity and heinous nature
              of the criminal act warranted the administration of the
              maximum penalty under the law. The justification for the
              aforesaid sentence would not have been mitigated even by a

                                             5
              favorable sexual offender evaluation because probation is a
              grossly lenient sentence given the details involved in
              Petitioner’s felony case. Given this sentencing determination
              made at the discretion of the Court, Petitioner’s argument that
              fundamental notions of fairness were violated is rejected, as the
              sentence was determined entirely independent of the fact that
              the Petitioner was indigent.

The circuit court also found that Christopher H. had not demonstrated ineffective assistance

of trial counsel, ruling as follows:

                     Further, the Court rejects the Petitioner’s second
              argument that he was deprived of effective assistance of
              counsel. Even if the failure of Petitioner’s counsel to inform
              him of his right to obtain a sexual offender evaluation at State
              expense fell below a reasonable standard of professional
              competence, the inaction fails to satisfy the second prong of
              [State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), which
              adopted Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
              2052, 80 L. Ed. 2d 674 (1984)] because, as stated above, the
              outcome of the case would not have been different.



              On appeal, Christopher H. argues that the denial of the sex offender

evaluation amounts to a deprivation of due process as well as ineffective assistance of

counsel. The State responds by arguing that the circuit court did not err by rejecting

Christopher H.’s due process argument or by finding that his trial counsel provided him

effective representation.



              With respect to Christopher H.’s first assignment of error alleging that the

denial of a sex offender evaluation effectively denied his right to due process, we reject

this contention. Christopher H. has not demonstrated a deprivation of due process insofar


                                             6
as probation, the alternative sentence that he might have received had he undergone a sex

offender evaluation, is not guaranteed, but, rather, is solely a matter of grace within the

circuit court’s discretion. As to this point, we have held that “[p]robation is a matter of

grace and not a matter of right.” Syl. pt. 3, State v. Jones, 216 W. Va. 666, 610 S.E.2d 1

(2004). In other words, “a defendant convicted of a crime has no absolute right to

probation.” State v. Loy, 146 W. Va. 308, 318, 119 S.E.2d 826, 832 (1961). This is so

because “[p]robation is not a sentence for a crime but instead is an act of grace upon the

part of the State to a person who has been convicted of a crime.” Syl. pt. 2, State ex rel.

Strickland v. Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968). This is so because “probation

[i]s ‘simply one of the devices of an enlightened system of penology which has for its

purpose the reclamation and rehabilitation of the criminal.’” Id., 152 W. Va. at 506, 165

S.E.2d at 94. Accordingly, “the decision as to whether the imposition of probation is

appropriate in a certain case is entirely within the circuit court’s discretion.” State v. Duke,

200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). See also W. Va. Code § 62-12-3

(LexisNexis 2014) (granting court discretion to suspend sentence and release offender on

probation); Duke, 200 W. Va. at 364, 489 S.E.2d at 746 (“W. Va. Code § 62-12-3 specifies

the discretionary nature of the circuit court’s authority to suspend either the imposition or

execution of a sentence of incarceration and to place the defendant on a period of

probation[.]”); State v. Miller, 172 W. Va. 718, 720, 310 S.E.2d 479, 481 (1983) (“[T]he

matter of probation is within the sound discretion of the trial court.”). In light of the

foregoing authorities, we find that Christopher H.’s first assignment of error has no merit,

and the circuit court did not err by denying him habeas relief in this regard.

                                              7
              Christopher H. additionally argues that he was denied effective assistance of

trial counsel because he was not informed that the State would provide him a sex offender

evaluation at no cost to him. However, because we agree with the circuit court’s conclusion

that, given the egregious nature of his underlying offense the result of his sentencing

proceedings would not have been different, we also find that Christopher H. is not entitled

to habeas relief on this basis.



              In West Virginia,

              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, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). To prevail under the

second prong of this test, a defendant must “demonstrate prejudice” and “prove there is a

‘reasonable probability’ that, absent the errors, the [proceedings] would have reached a

different result.” Id. at 15, 459 S.E.2d at 126 (citing Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068, 80 L. Ed. 2d 674). Further, as this Court held in State ex rel. Daniel v. Legursky,

195 W. Va. 314, 465 S.E.2d 416 (1995):

                     In deciding ineffective . . . assistance claims, a court
              need not address both prongs of the conjunctive standard of
              Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
              L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459
              S.E.2d 114 (1995), but may dispose of such a claim based
              solely on a petitioner’s failure to meet either prong of the test.

                                              8
Syl. pt. 5, Legursky, 195 W. Va. 314, 465 S.E.2d 416.



             In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the

United States Supreme Court applied the Strickland test to a conviction based upon a

defendant’s guilty plea. The Supreme Court explained that the second prong of the test

regarding prejudice

             focuses on whether counsel’s constitutionally ineffective
             performance affected the outcome of the plea process. In other
             words, in order to satisfy the “prejudice” requirement, the
             defendant must show that there is a reasonable probability that,
             but for counsel’s errors, he would not have pleaded guilty and
             would have insisted on going to trial.

Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d 203. Accord Slonaker v. Minnix, No.

13-0474, 2014 WL 1673029 (W. Va. Apr. 25, 2014) (memorandum decision).



             During the August 20, 2012 plea hearing, Christopher H. pleaded guilty to

engaging in sexual intercourse with his daughter who was under his care, custody, and

control. Then, when the circuit court inquired about a possible date for sentencing,

Christopher H.’s counsel noted that Christopher H. wished to proceed directly to

sentencing. Specifically, his counsel stated that he had discussed with Christopher H. his

rights to a sex offender evaluation, but that Christopher H. was “pretty adamant” that he

wished to waive such evaluation. Moreover, when questioned by the court, Christopher H.

said that he was “financially unable to do anything otherwise.”




                                            9
               Pursuant to West Virginia Code § 62-12-2(e), anyone guilty of sexual

offenses shall be eligible for probation only after undergoing a sex offender evaluation.

Furthermore, Rule 35.05 of the West Virginia Trial Court Rules requires the West Virginia

Department of Health and Human Resources to pay for such an evaluation, but such

information does not appear to have been communicated to Christopher H. because he

claims he refused an evaluation under the mistaken belief that he would have to pay for it.

Christopher H. does not claim that, but for his counsel’s allegedly defective representation,

he would not have pleaded guilty. See Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d

203. Instead, Christopher H. contends that, but for his mistaken belief that he would have

to pay for the sex offender evaluation, himself, “his sentence could have been mitigated by

a sexual offender evaluation,” and, thus, a different outcome would have been achieved

because the evaluation could have rendered him eligible to be considered for probation.

We disagree.



               As noted previously, a claim of ineffective assistance of counsel may be

defeated by the failure to prove either prong of the Strickland/Miller test. See Syl. pt. 5,

Legursky, 195 W. Va. 314, 465 S.E.2d 416. See also Syl. pt. 5, Miller, 194 W. Va. 3, 459

S.E.2d 114 (“In the West Virginia courts, 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



                                            10
that, but for counsel’s unprofessional errors, the result of the proceedings would have been

different.”).



                Here, though, Christopher H. has failed to prove the second prong of the

Strickland/Miller test: but for his counsel’s deficient performance, the outcome of his case

would have been different.



                At the outset, we note that Christopher H. has not claimed that he would have

changed his guilty plea but for his counsel’s allegedly ineffective representation. See Hill,

474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d 203.             Accordingly, we find that

Christopher H. has not satisfied the prejudice requirement of the second prong of the

Strickland/Miller test by showing that the outcome of the plea proceedings would have

been different, and, thus, the circuit court correctly denied habeas relief on this basis.



                Instead, Christopher H. argues that his counsel’s allegedly ineffective

representation negatively affected the ultimate sentence that he received for his crime. The

crime under West Virginia Code § 61-8D-5 that Christopher H. admitted to committing

against his own daughter was abhorrent and in a category of the most loathsome of crimes.

At the time of sentencing, the circuit court was presented with two options for

Christopher H.’s sentence: probation or incarceration.         The circuit court sentenced

Christopher H. to incarceration, and, while presiding over his habeas proceeding, observed

that, because “the severity and heinous nature of [Christopher H.’s] criminal act warranted

                                             11
the administration of the maximum penalty,” the results of the proceeding would not have

been different even if Christopher H. had undergone a sex offender evaluation. Thus, it is

apparent that the court would have sentenced Christopher H. to a period of incarceration

regardless of the outcome or favorability of any diagnostic evaluation. Given that the only

other possible outcome would have been an extremely lenient sentence in the form of

probation, which the circuit court said it would not have granted, Christopher H.’s

contention that the circuit court’s finding was “entirely speculative” is not supported by

the record evidence.



              Under Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771, we view the

findings of the lower court under a presumption of correctness, and may only reverse the

decision of the court if we find that the court abused its discretion or made a clearly

erroneous finding of fact. Based upon Christopher H.’s failure to prove that he was denied

fundamental fairness amounting to a deprivation of due process by his failure to undergo a

sex offender evaluation, or that the outcome of his sentencing hearing would have been

different so as to establish a claim of ineffective assistance of counsel, this Court finds that

the habeas court’s order should be affirmed.




                                              12
                                         IV.

                                  CONCLUSION

            For the reasons set forth above, we affirm the October 18, 2017 order of the

Circuit Court of Monroe County denying Christopher H.’s petition for writ of habeas

corpus.



                                                                              Affirmed.




                                         13
