                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                     FILED
Arthur C.,
Petitioner Below, Petitioner                                                      July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-0699 (Marshall County 17-C-167-H)                                        OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent




                               MEMORANDUM DECISION



        Petitioner Arthur C., 1 self-represented litigant, appeals the July 9, 2018, order of the
Circuit Court of Marshall County dismissing petitioner’s petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex,2 by counsel Scott E.
Johnson, filed a response in support of the circuit court’s order. 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case

       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).
       2
        Since the filing of the appeal in this case, the superintendent at Mt. Olive Correctional
Complex has changed, and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W. Va. Code § 15A-5-3.

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is remanded to the circuit court for the appointment of counsel and an omnibus habeas corpus
hearing.

        In November of 2015, a Marshall County grand jury indicted petitioner on four counts of
sexual abuse by a guardian (counts one through four) and five counts of first-degree sexual abuse
(counts five through nine) against M.R., a minor. For counts five through eight, the indictment
alleged that the sexual abuse occurred sometime between January 1, 2003, and December 31, 2007.
For count nine, the indictment alleged that the sexual abuse occurred sometime between January
1, 2014, and April 23, 2015.

        In a separate indictment, petitioner was charged with one count of sexual abuse by a
guardian and one count of first-degree sexual abuse against M.C., also a minor. Petitioner chose
to have both indictments tried together. The circuit court held petitioner’s jury trial on May 16 and
17, 2016.

        The evidence at trial revealed that in 1995, an Ohio court granted petitioner’s wife, C.C.,
legal custody of M.R., and her brother, J.M.R. C.C. married petitioner in 1998 in West Virginia.
The family moved to several states, including Pennsylvania, Georgia, and Ohio. However, M.R.’s
school records indicate that from 1997 until 2011, M.R. predominantly resided in Marshall County,
West Virginia.

        M.R. testified that petitioner first sexually abused her when she was eight or nine years old,
while living in Pennsylvania. M.R. testified that petitioner and C.C. held her down and that
petitioner rubbed her vagina and masturbated. M.R. testified that the first time this occurred she
cooperated because she did not know what was going on. M.R. stated that later, she would attempt
to fight back but that C.C. or petitioner would strike her with a fiberglass CB antenna when she
did.

        M.R. testified that in 2003, when she was eleven years old, the family moved back to West
Virginia and lived in the Nixon Ridge area of Marshall County. M.R. testified further that during
this time, petitioner assaulted her every week or every other week by rubbing her vagina,
performing oral sex on her, and masturbating. M.R. testified that during the weeks it occurred, it
happened as many as four times per week. M.R. testified that petitioner would tell her “[y]ou’re
going to be mine” and that C.C. would often tell her that she was going to be petitioner’s wife
when she got older. M.R. further testified that the family moved to the Taylor’s Ridge area of
Marshall County, where the abuse continued. M.R. testified that there were a lot of people staying
in that home, and as a result the abuse occurred less frequently. M.R. testified that when the abuse
occurred, it would happen two or three times per week. M.R. testified that she did not tell anyone
because she was scared. M.R. stated that the abuse stopped when she was fifteen, in 2007, and did
not start again until she was twenty-three.

        In 2007, M.C., petitioner’s other victim, moved into petitioner’s home with her mother
A.B. A.B. was involved in a romantic relationship with petitioner and C.C. A.B. eventually moved
out of the home, leaving M.C. in petitioner and C.C.’s care. M.R. testified that she took over most
of the duties regarding M.C.’s care, including bathing and grooming, and taking her to school.
                                                2
M.C. testified that petitioner sexually abused her once, in 2015, when she was eight years old,
touching her vagina.

        In 2015, M.R. testified that she woke and found petitioner touching her vagina. M.R.
yelled, and C.C. woke up and yelled for petitioner to stop. After this incident, in March of 2015,
M.R. snuck out of the home, went to a police station, and reported the sexual abuse to the Marshall
County Sheriff’s Department. M.R. also reported that petitioner grabbed her and asked her for a
sexual favor and that when she refused, he slammed her against a wall. Based upon this complaint,
petitioner was charged with domestic battery. Days later, M.R. sought and was granted an
emergency domestic violence protective order against petitioner.

        Detective Zachary Allman of the Marshall County Sheriff’s Department investigated the
sexual abuse claims. Detective Allman interviewed M.R. at the end of March of 2015, at which
time M.R. disclosed the verbal, physical, and sexual abuse she experienced from petitioner and
C.C. Detective Allman also arranged for M.R. to be interviewed at Harmony House, a child
advocacy center. M.R. recounted the abuse to a counselor there, in an interview observed by
Detective Allman. In April of 2015, Detective Allman interviewed C.C. and petitioner. C.C. denied
any abuse. Petitioner initially denied the abuse but ultimately admitted that approximately one year
prior, he “did rub [M.R.’s] [vagina] through a blanket.” In July of 2015, Detective Allman arrested
petitioner for the offense of sexual abuse by a guardian.

        After M.R. reported the abuse to the sheriff’s department, M.C. was removed from
petitioner’s home and placed in foster care. In April or May of 2015, M.C. was receiving services
from a court appointed special advocate, Susan Harrison, and disclosed that petitioner touched her
vagina when she was living with him. Ms. Harrison reported this disclosure to Detective Allman,
who interviewed M.C. M.C. disclosed the same to Detective Allman.

       Petitioner did not testify on his own behalf. Petitioner was convicted on all counts. In Case
No. 15-F-65, where M.R. was listed as the victim, petitioner was sentenced to four concurrent
terms of ten to twenty years of incarceration for his conviction of sexual abuse by a guardian
pursuant to West Virginia Code § 61-8D-5(a) and four concurrent terms of five to twenty-five
years of incarceration for his convictions of first-degree sexual abuse pursuant to West Virginia
Code § 61-8B-7(c). For the remaining conviction for first-degree sexual abuse, petitioner was
sentenced to one to five years of incarceration, pursuant to West Virginia Code § 61-8B-7(b),
because M.R. was over twelve years of age at the time of that abuse.3

        3
            Amended as of October 1, 2006, West Virginia Code § 61-8B-7 provides:

                 (a) A person is guilty of sexual abuse in the first degree when:

                 (1) Such person subjects another person to sexual contact without
                 their consent, and the lack of consent results from forcible
                 compulsion; or

(continued . . .)
                                                  3
        In Case No. 15-F-66, where M.C. was listed as the victim, petitioner was sentenced to ten
to twenty years of incarceration for his conviction of sexual abuse by a guardian pursuant to West
Virginia Code § 61-8D-5(a) and five to twenty-five years of incarceration for his conviction of
first-degree sexual abuse pursuant to West Virginia Code § 61-8B-7(c). The sentences in the two
cases were ordered to run consecutively for an aggregate sentence of thirty-one to ninety-five years
of incarceration. Petitioner filed an appeal in State v. [Arthur] C., No. 16-0656, 2017 WL 2210147
(W. Va. May 19, 2017) (memorandum decision). This Court affirmed petitioner’s convictions,
finding sufficient evidence of his guilt. Id. *3-4.

        On August 11, 2017, petitioner filed a petition for a writ of habeas corpus in the circuit
court, raising the following grounds for relief: (1) improper admission of res gestae evidence; (2)
erroneous instruction regarding use of res gestae evidence; (3) ex parte communication between
the court and the jury during deliberations; (4) unconstitutional indictment; (5) unconstitutionality
of West Virginia Code § 61-8D-5(a); (6) retroactive application of the 2006 version of West
Virginia Code § 61-8B-7 in violation of the ex post facto clause; and (7) ineffective assistance of
counsel (both at trial and on appeal).4 By order entered July 9, 2018, the circuit court dismissed
the habeas petition:

               (2) Such person subjects another person to sexual contact who is
               physically helpless; or

               (3) Such person, being fourteen years old or more, subjects another
               person to sexual contact who is younger than twelve years old.

               (b) Any person who violates the provisions of this section shall be
               guilty of a felony, and, upon conviction thereof, shall be imprisoned
               in a state correctional facility not less than one year nor more than
               five years, or fined not more than ten thousand dollars and
               imprisoned in a state correctional facility not less than one year nor
               more than five years.

               (c) Notwithstanding the provisions of subsection (b) of this section,
               the penalty for any person violating the provisions of subsection (a)
               of this section who is eighteen years of age or older and whose
               victim is younger than twelve years of age, shall be imprisonment
               for not less than five nor more than twenty-five years and fined not
               less than one thousand dollars nor more than five thousand dollars.
       4
          On appeal, petitioner further alleges that his arraignment was constitutionally defective,
and in so alleging, invokes this Court’s original jurisdiction. However, this case arises under our
appellate jurisdiction, not our original jurisdiction. Therefore, we decline to address this issue. See
Watts v. Ballard, 238 W. Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (stating that “[t]his
Court will not pass on a nonjurisdictional question which has not been decided by the trial court
in the first instance”) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102 S.E.2d 733
(1958)).
                                                    4
              Petitioner filed his Petition For Writ of Habeas Corpus wherein he alleges
       in the 55-page filing various and sundry grounds for relief. The undersigned
       presided over the litigation that ultimately culminated in [p]etitioner’s complained-
       of convictions, sentences[,] and current incarceration. [Citation to Arthur C.
       omitted.]

                Based upon the undersigned’s comprehensive familiarity with the
       underlying criminal proceedings, the breadth of evidence presented at trial against
       [p]etitioner, as well as complete re-review of the underlying criminal case files, this
       Court DOES NOT FIND that probable cause exists to believe that [p]etitioner may
       be entitled to any relief whatsoever. [Citation omitted.]

            Accordingly, it is the ORDER of this [c]ourt that the relief sought is
       DENIED[,] and the action is DISMISSED.

(Emphasis in original).

       Petitioner now appeals the circuit court’s July 9, 2018, order. In Syllabus Points 1 and 2 of
Watts v. Ballard, 238 W. Va. 730, 798 S.E.2d 856 (2017), we held:

               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).

               “West Virginia Code section 53-4A-7(c) (1994) requires a circuit court
       denying or granting relief in a habeas corpus proceeding to make specific findings
       of fact and conclusions of law relating to each contention advanced by the
       petitioner, and to state the grounds upon which the matter was determined.” Syl. Pt.
       1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).

        On appeal, petitioner argues that the circuit court erred in dismissing his habeas petition
without the appointment of counsel and an evidentiary hearing. Petitioner further argues that we
have previously held that a claim of ineffective assistance of counsel often must be developed in
a habeas proceeding. See Syl. Pt. 10, in part, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511
(1992) (holding that “[t]he prudent defense counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal
if such relief is denied”); Losh v. McKenzie, 166 W. Va. 762, 767, 277 S.E.2d 606, 610 (1981)
(stating that certain issues, “such as incompetency of counsel, of which [the inmate] would have
been unaware at trial, must be litigated in a collateral proceeding”).

        Based on our review of the circuit court’s July 9, 2018, order, we find that the circuit court
failed to make findings regarding each contention raised by petitioner, but set forth the grounds on
                                                 5
which it dismissed the habeas petition: (1) that the presiding judge was sufficiently familiar with
petitioner’s case, given that the judge also presided in the underlying criminal proceeding, to rule
on the petition summarily; and (2) that there was no probable cause to believe that petitioner was
entitled to “any relief whatsoever.” We find that neither ground justified the dismissal of the habeas
petition.

        We note that it is well established that “‘“[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.”
Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).’ Syl. Pt. 2, White v.
Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).” Syl. Pt. 3, Anstey v. Ballard, 237 W. Va. 411, 787
S.E.2d 864 (2016). In the instant case, however, in keeping with our longstanding practice of
holding pro se pleadings and motions “to less stringent standards than those drafted by lawyers,”
James M.B. v. Carolyn M., 193 W. Va. 289, 294 n.9, 456 S.E.2d 16, 21 n.9 (1995), we conclude
that the petitioner’s allegations are sufficient to require a hearing on the ineffective assistance
claim, and accordingly, the circuit court was not justified in summarily dismissing the habeas
petition. The court’s ruling was based on the fact that it was familiar with the case, having presided
in the underlying criminal proceeding; however, some of the allegations made by the petitioner
call into question “the motive and reason behind [counsel’s] trial behavior,” a matter that cannot
be determined where “the most significant witness, the trial attorney, has not been given the
opportunity to explain.” Watson, 200 W. Va. at 204, 448 S.E.2d at 479 (quoting State v. Miller,
194 W. Va. 3, 14-15, 459 S.E.2d 114, 125-26 (1995)).

        We further determine that the circuit court’s finding that petitioner was not entitled to “any
relief whatsoever” was erroneous because of respondent’s concession that petitioner’s first four
sentences for first-degree sexual abuse involving M.R. likely violate the ex post facto clause,5
explaining:

        Established principles suggest that [petitioner] cannot be sentenced under [West
        Virginia Code § 61-8B-7(c)]. M.R.’s birthday [was in] 1992, so she was younger
        than 12 no later than . . . 2004[.] Therefore[,] any conduct that might have triggered
        the . . . sentence [set forth in West Virginia Code § 61-8B-7(c)] occurred before
        October 1, 2006, the effective date of [West Virginia Code § 61-8B-7(c)].



        5
            In Syllabus Point 2 of State v. Deel, 237 W. Va. 600, 788 S.E.2d 741 (2016), we held:

                           “Under ex post facto principles of the United States and West
                  Virginia Constitutions, a law passed after the commission of an
                  offense which increases the punishment, lengthens the sentence or
                  operates to the detriment of the accused, cannot be applied to him.”
                  Syl. Pt. 1, Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885
                  (1980).
                                                     6
Given that respondent concedes that petitioner is likely entitled to relief on one of his claims, and
petitioner’s allegations are sufficient to require a hearing on another claim, we find that the circuit
court abused its discretion in dismissing the habeas petition.

        For the foregoing reasons, we reverse the circuit court’s July 9, 2018, order dismissing
petitioner’s petition for a writ of habeas corpus and remand this case for the appointment of counsel
and an omnibus habeas corpus hearing.

                                                           Reversed and Remanded with Directions.



ISSUED: July 30, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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