                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


Ronald E. Lambert Jr.,
Petitioner Below, Petitioner                                                    FILED
                                                                           November 16, 2018
vs) No. 17-0925 (Boone County 06-C-60)                                       EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Ralph Terry, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Ronald E. Lambert Jr., by counsel Benjamin M. Mishoe, appeals the
September 18, 2017, order of the Circuit Court of Boone County that denied his amended
petition for a writ of habeas corpus following his 2003 guilty plea to one count of kidnapping
and one count of felony murder. Respondent Ralph Terry, Superintendent, Mt. Olive
Correctional Complex,1 by counsel Julianne Wisman, filed a response in support of the circuit
court’s order. Petitioner submitted a reply.

        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.

       On November 23, 2001, Toni and Melissa Sergeant, mother and daughter, were walking
along Mud River in Boone County, when petitioner drove by and offered to give them a ride
home. The women knew petitioner and accepted the ride. Petitioner proceeded to stop at a store
where he purchased duct tape. He then drove the women to a remote location where he tied them
up with the tape and raped them at knifepoint.

       Melissa Sergeant later told police that after the assaults, petitioner appeared to come out

       1
          Effective July 1, 2018, the positions formerly designated as “wardens” are now
“superintendents.” See W.Va. Code § 15A-5-3. At the time of the filing of this appeal, Thomas
McBride was then warden at Mt. Olive Correctional Complex and, as such, was originally listed
as the respondent below. However, the acting warden, now acting superintendent, is Ralph Terry.
Accordingly, the Court has made the necessary substitution of parties pursuant to Rule 41(c) of
the West Virginia Rules of Appellate Procedure.



                                                1

of a blackout because he asked them what had happened and what he had done. When the
women told him, he cut them loose, and they ran away. According to the criminal complaint,
petitioner told the women that he was sorry and that they should call the police. Toni Sergeant,
while attempting to wave down a car, was struck by a vehicle, and killed.

       Police officers responded to the single vehicle accident, found Toni, and attempted to
question Melissa. However, Melissa appeared to be in shock and was only able to advise police
that she had ridden to the area with petitioner. Police officers found petitioner asleep in his
vehicle about one and a half miles up the hollow. Petitioner admitted being with the two women
and also advised that he had taken drugs, blacked out, and needed drug treatment. He also
admitted to having a knife in his pocket. Petitioner was taken to the State Police barracks. He
refused medical treatment and was taken to his parents’ house.

        The next day, Melissa called the police and recounted the abduction and rape by
petitioner from the night before. Police picked up petitioner and took a videotaped statement
from him in which he again admitted to picking up the two women. Officers later found duct
tape in the vehicle. An examination of Toni’s body revealed vaginal bruising consistent with
forcible sex and fragments of duct tape were found on her clothing. DNA testing also revealed
petitioner’s DNA to be in the sperm found in Melissa’s underwear that she was wearing when
she was raped.

       Petitioner gave another voluntary statement to police. According to the criminal
complaint, he “admitted being in the vehicle with [the victims] while they were duct taped. The
accused also stated that he told the victim’s [sic] that he was sorry for what he did and that he
should go to prison for it.” Petitioner was arrested on November 24, 2001, and indicted on
January 25, 2002, on two counts of kidnapping or holding hostage, three counts of first degree
sexual assault, and one count of felony murder.

       On June 19, 2002, petitioner’s appointed counsel, Robert White,2 moved to withdraw.3
Attorney White also filed a motion for a psychiatric and psychological examination (hereinafter
“psychiatric evaluation”) of petitioner. Following a hearing, the circuit court denied the motion
to withdraw and granted the motion for a psychiatric evaluation.

        On the scheduled trial date, February 26, 2003, petitioner moved to continue the trial date
in order to obtain individual DNA testing and to complete the psychiatric evaluation. The motion
was granted. However, at the same time, petitioner expressed his desire to proceed to trial
quickly without the benefit of the individual DNA testing and the psychiatric evaluation, against


       2
           Petitioner was also represented by Michael Blevins.
       3
          Petitioner had previously filed an ethics complaint against Attorney White, and also
filed a motion to dismiss him as counsel. Petitioner alleged that White refused to accept phone
calls and violated various rules of professional conduct. Petitioner also sent a letter to this Court
in which he complained about Attorney White.



                                                 2

his lawyer’s advice. Ultimately, however, petitioner agreed to the continuance. A second order
for a psychiatric evaluation was entered on March 6, 2003. Trial was scheduled for June 3, 2003.

       On March 24, 2003, petitioner was evaluated by the Charleston Psychiatric Group.
However, on April 3, 2003, before the psychiatric report was submitted, a plea hearing was
conducted because petitioner and the State had negotiated a plea deal. At the hearing, the State
advised the court that the psychiatric evaluation “was mainly something [petitioner] wanted done
to explore all possible defenses, not something that counsel thought was necessary based on their
observations of [him].” The State further advised the court that it anticipated that the report
would conclude that petitioner was competent. Defense counsel did not disagree with the
purpose of the evaluation as stated by the State nor in any way suggest a belief that, to the
contrary, the evaluators would conclude that petitioner was not competent.

        During the course of the plea hearing, the circuit court conducted a lengthy and detailed
colloquy with petitioner, during which petitioner affirmed that he was satisfied with his counsel,
that counsel did everything he asked them to do in defense of his case, that he had sufficient time
and opportunity to meet with them, and that he did not feel rushed into making a decision to
plead guilty. The circuit court went over the plea agreement and petitioner stated his recollection
of the events for which he was pleading guilty. The court accepted petitioner’s guilty plea to one
count of kidnapping and one count of felony murder.

        Thereafter, the psychiatric report, dated April 8, 2003, was received by the circuit court
on April 11, 2003. The fifteen-page report describes petitioner, his history of complaints and
subjective symptoms, his past medical history, his background (as described by petitioner), his
account of the crimes alleged, and his mental status examination.4 The evaluators reported


       4
          The psychiatric report states that petitioner, who was then twenty-eight years old, had
an injury in 1999 or 2000, “from a fight and a car wreck” and was found to have “[b]lood on the
brain and a busted skull” for which a metal plate was placed in his head. He saw a psychiatrist
from age six to fourteen. (“They tried to say I had different personalities. My family was having
problems with me, it wasn’t me. They said I did things. I wouldn’t take the medicine, it made me
drowsy and sleepy.”) Petitioner also informed evaluators that he had been hospitalized ten years
earlier because “I went off, kicked the door, threatened a boy in a store and family had me locked
up.” He further stated that he suffered from black outs and was a special education student; he
described heavy alcohol and drug use prior to his incarceration, and a history of hearing voices
when he was a teenager. According to the report, “since he had been in jail he has heard them
again.” Petitioner further advised that he had “been arrested twice for driving under the
influence, four or five domestic violence petitions with [his first wife], destruction of
government property, fighting in the courtroom, and . . . ‘[a] few assaults on police officers.’”

        The evaluators found petitioner to be “fully oriented to time, place, and person. Recent
and remote memory were intact and attention span was average. His common sense knowledge
base was good and his social judgment in contrived situations was marginal.” According to the
report, petitioner knew precisely the charges against him, including the penalties; stated that his
attorney and “that prosecutor” would be in charge of the courtroom during the trial; and that
(continued . . .)
                                                3

several diagnoses including “[a]lcohol [d]ependence,” “[a]djustment [d]isorder [w]ith
[d]epressed [m]ood,” “[c]ocaine [a]buse [d]isorder,” “[c]annibis [a]buse [d]isorder,” and
“[l]earning [d]isability in [r]eading and [m]ath.” The evaluators determined that petitioner

       is competent to stand trial. We base this on the fact that he has a rational
       appreciation of the courtroom procedures and the charges against him, as well as
       the possible penalty. While he lacks in fully understanding the factual aspects of
       the role of the judge [sic] can be explained to him by his attorney. He has the
       capacity to assist his attorney in his own defense.

       It is further our opinion that at the time of the alleged crime [petitioner] was
       criminally responsible for his action. He had no mental disease or defect which
       would have preventing [sic] him from appreciating the wrongfulness of his
       conduct, nor which would have prevented him from conforming his conduct to
       the requirements of law.

       [Petitioner] is being treated for his Adjustment Disorder with Depression with
       Elavil and that should continue. His substance abuse problems are in remission
       due to incarceration.

        It was later discovered that the psychiatric report contained an error—that is, the written
assessment (consisting of seven pages) from a portion of another patient’s report (a patient with
the same first and last name as petitioner but with a different middle name) had been erroneously
inserted into petitioner’s evaluation. However, the evaluation of the other patient concluded that
he was not competent to stand trial while the ultimate conclusion from petitioner’s report was
that petitioner was competent to stand trial.

       A sentencing hearing was held on December 3, 2003, during which petitioner denied
responsibility for the crimes. He was sentenced to two life sentences, with mercy, that were
ordered to run consecutively.

        On April 6, 2006, petitioner, pro se, filed a petition for a writ of habeas corpus, after
which protracted habeas proceedings ensued. Petitioner, by newly appointed counsel, filed a
“verified petition for Omnibus Writ of Habeas Corpus” on February 28, 2007, in which he
alleged claims of ineffective assistance of counsel, double jeopardy, and insufficiency of the
evidence. Evidentiary hearings were held on November 3, 2009, and April 14, 2011.

       At the latter hearing, the error in the psychiatric report submitted to the circuit court in
April of 2003 was explained by the evaluators in a “Memo to Record” dated December 16, 2009



       [w]hen asked the role of the judge, he said “He tells us to do this or that.” When
       asked the role of the jury, he said “Says if you’re innocent or guilty.” He said the
       prosecutor’s role was to prosecute and his attorney was “[s]upposed to defend me,
       but he don’t know what he’s doing, lets the prosecutor do what he wants.”


                                                4
as follows:

       At one time in competency evaluations, the Court stipulated that both the
       psychiatric and psychological evaluations be combined into one report. This
       procedure was completed after the psychiatrist had reviewed the psychological
       evaluation, his psychiatric examination, reviewed all accompanying records,
       conferred with the psychologist, completed his conclusions, and dictated his
       report.

        In this case, the memo states, the psychological evaluation of one Ronald Ray Lambert
(performed on February 10, 2003) was erroneously inserted into the report of petitioner, who was
evaluated on March 24, 2003. Further, the memo stated,

       [t]his procedure was performed by the transcriptionist after all dictation was
       completed. Unfortunately, the examiners did not notice this discrepancy when
       signing the final report of [petitioner]. The correct psychological evaluation report
       which was used to formulate the conclusions and opinions is retained in
       [petitioner’s] file.

         Finally, the memo stated, in petitioner’s case, “all conclusions were made before the
reports were combined; therefore, all conclusions by the evaluators are correct and based on the
correct data even though the incorrect psychological report was incorporated into the report
submitted to the Court.” (Emphasis added). Dr. Rosemary Smith, the evaluating psychologist,
testified at the April 14, 2011, habeas hearing and similarly explained the error in the report.

       Petitioner filed an amended habeas petition on or about May 18, 2016, in which he
alleged that his constitutional due process right to avoid being tried while mentally incompetent
was violated and that he received ineffective assistance of counsel. Following yet another
hearing, the circuit court denied petitioner’s request for habeas relief. This appeal followed.

       Our review of the circuit court’s order denying respondent’s petition for a writ of habeas
corpus is governed by 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).

       In his first assignment of error, petitioner argues that the circuit court denied him an




                                                5

adequate procedure to determine his mental competency to enter a plea5 by accepting his plea
before it received the psychiatric report and then later relying on the report in denying habeas
relief because the report included erroneous findings (i.e., written assessments from another
patient’s report). Petitioner further contends that because the circuit court entered multiple orders
in which it found that a competency evaluation was necessary, it was error for the court to later
conclude that there was no basis upon which to order such an evaluation in the first place.
Petitioner argues that the court’s failure to hold a competency hearing violated his right to
procedural due process.6

       We find no error. “A defendant has both a substantive and a procedural due process right
to avoid being tried while mentally incompetent.” State v. Sanders, 209 W. Va. 367, 377, 549
S.E.2d 40, 50 (2001). See also Id. at 370, 549 S.E.2d at 43, at syl. pt. 1 (“It is a fundamental
guaranty of due process that a defendant cannot be tried or convicted for a crime while he or she
is mentally incompetent” (internal citations omitted).). In this case, petitioner does not claim that
he was incompetent at his plea hearing. See Id. at 377, 549 S.E.2d at 50 (“In order to bring a
successful substantive competency claim, a defendant must prove that he or she was, in fact,
incompetent at trial.”). Rather, he argues that the procedures to determine his competency to
make a plea were inadequate. “As for a procedural due process claim . . . a defendant need only
demonstrate that he or she was denied an adequate procedure for determining mental
competency after the trial court was presented with evidence sufficient to prompt good faith
doubt regarding incompetency.” Id.

       5
         “The test for mental competency to stand trial and the test for mental competency to
plead guilty are the same.” Syl. Pt. 2, State v. Cheshire, 170 W. Va. 217, 292 S.E.2d 628 (1982).
Thus, “the procedures specified in [West Virginia Code §§ 27-6A-2 and -3] are . . . applicable to
a determination of a defendant’s competence to enter a guilty plea.” Cheshire, 170 W. Va. at
220, 292 S.E.2d at 630.
       6
          Petitioner also attempts to argue that the State agreed to a competency evaluation during
the underlying criminal proceedings and is now estopped from arguing that such an evaluation
was unnecessary. However, petitioner fails to cite to a single legal authority in support of this
argument. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that “[t]he
brief must contain an argument exhibiting clearly the points of fact and law presented, the
standard of review applicable, and citing the authorities relied on . . . [and] must contain
appropriate and specific citations to the record on appeal[.] The Court may disregard errors that
are not adequately supported by specific references to the record on appeal.” (Emphasis added).
See December 10, 2012, Administrative Order (stating that “[b]riefs that lack citation of
authority [or] fail to structure an argument applying applicable law” are not in compliance with
this Court’s rules. . . . and “[b]riefs with arguments that do not contain a citation to legal
authority to support the argument presented and do not ‘contain appropriate and specific
citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this
Court’s rules. (Emphasis added)). Here, petitioner’s argument that the State is estopped from
arguing that a psychiatric evaluation was unnecessary is inadequate as it fails to comply with
Rule 10(c)(7) and our December 10, 2012, administrative order. Therefore, the Court will not
address it.



                                                  6

        The habeas court determined that petitioner failed to present sufficient evidence
suggesting that he was not competent to stand trial, that the record was devoid of such evidence,
and that “there was nothing to indicate to the [c]ourt before or during his plea that he was
incompetent.” The habeas court emphasized that “a defendant is entitled to the pr[e]scribe[d]
procedure for a competency evaluation after the trial court is presented with evidence to prompt
a good faith doubt regarding competency. . . . There was no evidence presented by [petitioner] to
suggest that he was not competent to stand trial.” (Emphasis in original). In support of this
finding, the habeas court determined that the head injury petitioner sustained in childhood was
“insignificant” relative to his competency; that “there was no evidence of irrational behavior
other than the crimes [he] committed” in this case; that “[t]he record reveals no prior history of
severe behavioral abnormalities[;]” and that defense counsel believed petitioner to be competent.
Furthermore, the habeas court noted that, during the course of the proceedings prior to and
including the plea hearing, petitioner

       demonstrated that he was fully aware of courtroom procedures, the role of his
       counsel, the burden of the State, the penalties he was facing, and other aspects of
       the judicial system; further, he communicated to the Court multiple times on the
       record about being moved from a jail facility to a DOC facility. There was no
       evidence that any of his behaviors while incarcerated would lead one to believe he
       was suffering from a mental disorder or defect that would leave his competency in
       doubt.

       The habeas court also noted that the record below showed that petitioner “had the
capacity to assist his attorney in his own defense. These conclusions are further evidenced in the
many motions he drafted and filed on his own, and by his interactions with the [c]ourt at the
hearings which can be seen in the transcripts.”

       Notwithstanding petitioner’s argument to the contrary, the purpose behind petitioner’s
request for a psychiatric evaluation was not necessarily to determine competency. At the plea
hearing, the State represented to the court that

       there was a motion for a psych eval granted, and counsel and I have discussed the
       issue roundly. It was mainly something [petitioner] wanted done to explore all
       possible defenses, not something that counsel thought was necessary based on
       their observations of the defendant. He has been evaluated by Dr. Ralph Smith.
       We have every anticipation that he’ll be found competent.

Petitioner did not refute this representation. In fact, at the November 3, 2009, habeas hearing,
defense counsel confirmed that he requested a psychiatric evaluation because he “was exploring
whether or not [petitioner] had a diminished capacity defense[,]” and that “that’s a routine
motion to file in situations like this.”

        Finally, this Court cannot ignore the fact that petitioner was evaluated by a psychiatrist
and a psychologist, who concluded, without equivocation, that he was competent to stand trial.
The “Memo to Record” by the evaluators and Dr. Rosemary Smith’s testimony clarified that the
ultimate conclusion of competency was made before the transcriptionist erroneously inserted into
petitioner’s psychological report a portion of another patient’s evaluation. This clerical error was
                                                 7

harmless insofar as it did not impact the critical conclusion that petitioner was competent.

      Therefore, we conclude that the habeas court did not abuse its discretion in denying
habeas relief on the ground that petitioner was denied procedural due process regarding
competency or was entitled to a competency hearing prior to entry of his guilty plea.

        In his second assignment of error, petitioner argues that the habeas court erred in failing
to find that his defense counsel was ineffective. In syllabus points five and six of State v. Miller,
194 W. Va. 3, 459 S.E.2d 114 (1995), this Court held:

              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.

               In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel's strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

         Petitioner states that defense counsel failed to prepare an adequate defense by submitting
DNA evidence to his expert only six days before trial; “forg[etting] that . . . a psychological
evaluation was ordered and necessary[;]” failing to request a competency hearing; and failing to
realize that the psychiatric report submitted after petitioner entered a plea contained erroneous
findings. In support of his claim that defense counsel was inadequate under the Strickland/Miller
test, petitioner states simply that “it is difficult to conclude Mr. Lambert’s counsel acted within
the ‘broad range of professionally competent assistance[.]’” This argument is clearly inadequate.
Furthermore, petitioner fails to present any argument that the second prong of the
Strickland/Miller test is satisfied – that is, that “but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Miller, 194 W. Va. at 6, 459 S.E.2d at 117, at syl.
pt. 5, in part. This Court has cautioned that “[a] skeletal ‘argument,’ really nothing more than an
assertion, does not preserve a claim[.] Judges are not like pigs, hunting for truffles buried in
briefs.” State, Dept. of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995). See also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although
we liberally construe briefs in determining issues presented for review, issues which are . . .
mentioned only in passing but are not supported with pertinent authority, are not considered on
appeal.”). As we have explained,

       [a]n appellant must carry the burden of showing error in the judgment of which he
       complains. This Court will not reverse the judgment of a trial court unless error
       affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.
                                                   8

Syl. Pt. 4, in part, State v. Myers, 229 W.Va. 238, 728 S.E.2d 122 (2012) (internal quotations and
citations omitted). As a result of petitioner’s failure to adequately brief this issue, we decline to
consider it.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 16, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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