                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Robert W.,
Petitioner Below, Petitioner                                                       FILED
                                                                                April 12, 2016
vs) No. 14-1047 (Marshall County 14-C-103)                                      RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Dennis Dingess, Warden,
Stevens Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Robert W., by counsel Kevin L. Neiswonger, appeals the Circuit Court of
Marshall County’s June 30, 2014, order denying his petition for writ of habeas corpus.1
Respondent Dennis Dingess, Warden, by counsel Laura Young, filed a response. On appeal,
petitioner alleges that the circuit court erred in denying his habeas petition, summarily, without
the authority to do so.

        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.

        In November of 2011, the grand jury indicted petitioner on two counts of sexual abuse by
a custodian, parent, or person in a position of trust in violation of West Virginia Code § 61-8D­
5(a). Peter Kurelac was appointed to represent petitioner.

        Sometime in January of 2012, petitioner filed a complaint against Mr. Kurelac with the
West Virginia Office of Disciplinary Counsel and Mr. Kurelac filed a motion to withdraw as
counsel. On January 27, 2012, the circuit court held a hearing on Mr. Kurelac’s motion to
withdraw. At the hearing, petitioner testified that he did not oppose the motion. The circuit court
noted that petitioner’s trial was scheduled for the week of February 6, 2012, and that retaining or
appointing new counsel would likely delay petitioner’s trial. Petitioner testified that he wanted
new counsel appointed and that he understood that resetting his trial might delay it until the next
term of court. The circuit court asked petitioner if he was waiving his right to a speedy trial and
petitioner answered in the affirmative. At the close of the hearing, Mr. Kurelac was permitted to

       1
         “We follow our past practice in juvenile and domestic relations cases which involve
sensitive facts and do not utilize the last names of the parties.” State ex rel. West Virginia Dep’t
of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987).
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withdraw from representing petitioner. Petitioner’s current counsel, Kevin L. Neiswonger, was
subsequently appointed to represent petitioner and the trial was scheduled for January 31, 2012.

       At a status hearing on January 31, 2012, petitioner’s trial was rescheduled for February
21, 2012. Before that date, the State filed a notice of intent to use 404(b) evidence.

        In April of 2012, petitioner entered into a Kennedy2 plea to the offense of incest in
violation of West Virginia Code § 61-8-12. On May 14, 2012, petitioner was sentenced to a term
of incarceration of not less than five years nor more than fifteen years for incest. The circuit
court further imposed a fifteen-year period of supervised release and a lifetime sex offender
registration requirement.

        In June of 2014, petitioner filed a petition for writ of habeas corpus arguing that he
waived his right to a speedy trial without the assistance of counsel. The circuit court reviewed
petitioner’s petition, his underlying criminal file, and the transcript of the January 27, 2012,
hearing, and found that “[p]etitioner herein clearly and after prolonged intelligent dialogue with
the undersigned consented to his prior counsel’s Motion to Withdraw as Counsel and waived his
right to a speedy trial as a result of the court having to appoint new counsel.” The circuit court
denied the petition for writ of habeas corpus by order entered on June 30, 2014. 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 alleges that the circuit court erred in summarily dismissing his petition for habeas
corpus. We do not agree.

        Specifically, petitioner argues that the circuit court did not correctly dismiss his petition
pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Relief, as it should
have ordered respondent to file a response and then render a decision on the merits. Upon review
of the record on appeal, we find no error in the circuit court’s order summarily dismissing
petitioner’s petition for writ of habeas corpus.

       Rule 4 (c) states that




       2
           See Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).
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       [t]he petition shall be examined promptly by the judge to whom it is assigned.
       The court shall prepare and enter an order for summary dismissal of the petition if
       the contentions in fact or law relied upon in the petition have been previously and
       finally adjudicated or waived. The court's summary dismissal order shall contain
       specific findings of fact and conclusions of law as to the manner in which each
       ground raised in the petition has been previously and finally adjudicated and/or
       waived . . . .

However, petitioner’s reliance on Rule 4 is misplaced, as the circuit court did not dismiss the
petition on the grounds that the contentions in the petition had been previously or finally
adjudicated or waived. Instead, the circuit court relied on West Virginia Code § 53-4A-7(a)
which provides, in part, that

       [i]f the petition, affidavits, exhibits, records and other documentary evidence
       attached thereto, or the return or other pleadings, or the record in the proceedings
       which resulted in the conviction and sentence, or the record or records in a
       proceeding or proceedings on a prior petition or petitions filed under the
       provisions of this article, or the record or records in any other proceeding or
       proceedings instituted by the petitioner to secure relief from his conviction or
       sentence, show to the satisfaction of the court that the petitioner is entitled to no
       relief, or that the contention or contentions and grounds (in fact or law) advanced
       have been previously and finally adjudicated or waived, the court shall enter an
       order denying the relief sought . . . .

Based upon its review, the circuit court found that “[p]etitioner herein clearly and after
prolonged intelligent dialogue with the undersigned consented to his prior counsel’s Motion to
Withdraw as Counsel and waived his right to a speedy trial as a result of the court having to
appoint new counsel.” Accordingly, the circuit court was satisfied that no probable cause existed
“to believe that the petitioner is entitled to any relief whatsoever.” For these reasons, the record
conclusively demonstrates that petitioner knowingly and intelligently waived his right to a
speedy trial, and we find no error in the circuit court’s order denying petitioner habeas relief.

       For the foregoing reasons, we find no error in the circuit court’s decision, and its June 30,
2014, order denying the petition for writ of habeas corpus is affirmed.

                                                                                          Affirmed
ISSUED: April 12, 2016

CONCURRED IN BY:

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



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