                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Ronald L. Miller,                                                                  FILED
Petitioner Below, Petitioner                                                    February 11, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 11-1533 (Hampshire County 10-C-19)                                     OF WEST VIRGINIA


Patrick Mirandy, Warden
Respondent Below, Respondent


                                 MEMORANDUM DECISION

       Petitioner Ronald L. Miller, by counsel, Lawrence E. Sherman, Jr., appeals the circuit
court’s order entered July 26, 2011, denying his petition for writ of habeas corpus. Warden
Mirandy1 of Saint Marys Correctional Center, by counsel Laura Young, filed a response in
support of the circuit court’s order.

        This Court has considered the parties’ briefs and the appendix 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 Rules of Appellate
Procedure.

        Petitioner entered guilty pleas on April 17, 2008, in the Circuit Court of Hampshire
County, for five counts of first degree sexual abuse. Petitioner was sentenced to five to twenty-
five years of incarceration. On April 19, 2011, petitioner filed a petition for writ of habeas corpus
on twelve different grounds. Petitioner now appeals only two issues: involuntary guilty plea and
ineffective assistance of counsel. The circuit court issued a lengthy order entered on July 26,
2011, denying relief on all counts. Petitioner now appeals the denial of his habeas corpus petition
below.

       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).
1
  Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the
respondent party’s name with Warden Patrick Mirandy. The initial respondent on appeal, William
M. Fox, is no longer the warden of Saint Marys Correctional Center.
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        On appeal, Petitioner first argues his guilty plea was involuntary and a violation of Rule
11 of the West Virginia Rules of Criminal Procedure. Petitioner argues that he was under duress
because of statements made by counsel, as well as assurances and promises that caused him to
plead guilty “out of fear and ignorance of the proceedings” and because the entire plea was not
read into the record pursuant to the West Virginia Rule of Criminal Procedure 11(b)(2). The State
responds that trial counsel properly advised petitioner as to his possible sentence and that
petitioner’s plea was voluntary.

         Additionally, petitioner argues that the circuit court erred in finding no ineffective
assistance of counsel, arguing that counsel was ineffective in: (1) failing to file for a change of
venue, (2) failing to appeal, or inform the petitioner of his right to appeal, the original conviction,
(3) failing to object to a taped and intercepted phone call, (4) failing to insist that the petitioner be
permitted to undertake the 60-day diagnostic evaluation required by the plea agreement before
commencing his sentence, (5) failing to obtain the Grand Jury minutes and challenge the Grand
Jury’s procedures, (6) failing to object to a witness whose testimony inferred improper
communication between prosecution and the witness, and (7) failing to object to the
proportionality of the sentence, as well as reiterating that counsel was ineffective for not pursuing
the alleged Rule 11 violation for not reading the plea into the record.

        The State argues that petitioner did not show an abuse of discretion by the court below.
Specifically, the State argued that the decision to not appeal was a strategic one, and that
petitioner identified no appealable issue. The State also argues that, while counsel did not object
to the taped call, he addressed the issue with the circuit court. The State argues that petitioner
gave insufficient support to explain how or why having a sixty-day diagnostic evaluation would
have led to a lighter sentence and that the petitioner made no showing that there was a
particularized need for the Grand Jury minutes. Finally, the State notes a lack of evidence of
improper communication between prosecution and a witness, and argues that petitioner did not
show that advice he allegedly received regarding the likely length of sentence is a basis for
finding a sentence to be disproportionate.

        The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his petition for appeal. Finding no error in the denial of habeas corpus relief, the Court
incorporates and adopts the circuit court’s detailed and well-reasoned order dated July 26, 2011,
insofar as it addresses the assignments of error appealed herein, and directs the Clerk to attach the
same hereto.

       For the foregoing reasons, we affirm.


                                                                                              Affirmed.




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ISSUED: February 11, 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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