                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Donald Wilson,                                                                       FILED
Petitioner Below, Petitioner                                                      June 12, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0831 (Wood County 08-P-169)                                            OF WEST VIRGINIA


David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Donald Wilson, by counsel Joseph T. Santer, appeals the Final Order of the
Circuit Court of Wood County, entered on July 24, 2014, denying his petition for a writ of
habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by
counsel J. Zak Ritchie, filed a response. Petitioner filed a reply. On appeal, petitioner challenges
the habeas court’s rulings with respect to (1) the admission of certain evidence during trial, and
(2) whether petitioner received ineffective assistance of counsel.

        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 September of 2006 petitioner was indicted on one count of first degree robbery and
one count of malicious assault. The case proceeded to a jury trial in December of 2006. The
evidence at trial was that on the evening of April 6, 2006, petitioner, who was thirty-three years
old at the time, met a friend, Mike Nutter, at a local bar, Beef’s 614 Club. Nutter had been at the
bar drinking for a few hours prior to petitioner’s arrival with a recent acquaintance, Nick
Wilcox.1 After drinking until closing time, the three men took a cab south from Parkersburg,
during which the conversation turned to buying marijuana. The cab driver let the three men off
near an apartment complex where petitioner stated that he could buy marijuana. While in the
apartment complex parking lot, Wilcox and petitioner had an altercation, during which Wilcox
insulted petitioner and spit in his face. Petitioner then punched Wilcox in the face several times,
knocking him to the ground. Petitioner then kicked Wilcox while he was on the ground until
Nutter yelled at him to stop. Nutter testified that, while Wilcox was on the ground, petitioner


       1
           Petitioner and Wilcox had never met prior to meeting at the bar.


                                                  1

twisted Wilcox’s arm, rolled him over, took his wallet from his pocket, removed fifteen dollars,
and threw the wallet aside. Petitioner and Nutter then walked away, leaving Wilcox on the
ground. Wilcox was taken to the hospital after a passerby called for an ambulance. Wilcox
testified at the trial that petitioner assaulted him and that his wallet was missing from his pocket
and lying on the ground nearby; however, he was unable to recall petitioner twisting his arm or
taking his wallet. Petitioner testified and denied taking Wilcox’s wallet or money.2

        The jury found petitioner guilty of first degree robbery and malicious assault. The circuit
court sentenced petitioner to consecutive prison terms of sixty years for first degree robbery and
two to ten years for malicious assault. Petitioner filed an appeal with this Court, which was
refused on January 8, 2008.

        Thereafter, petitioner filed the instant petition for a writ habeas corpus, which was
amended following the appointment of counsel. During two days of an omnibus evidentiary
hearing, the circuit court heard testimony from petitioner, petitioner’s trial counsel, F. John
Oshoway, and Jeffrey “Beef” Harris, the owner of Beef’s 614 Club. Petitioner argued that the
circuit court erroneously permitted into evidence (1) an unauthenticated hospital record detailing
Wilcox’s injuries; (2) the sheriff’s department’s rights and waiver form and the deputy’s
testimony thereto; and (3) testimony as to whether petitioner would have continued beating
Wilcox had Nutter not urged him to stop. Petitioner also alleged that his trial counsel was
ineffective. In support of this claim, petitioner contended that, in addition to allowing the three
above-mentioned pieces of evidence to be admitted at trial, his counsel had no real theory of
defense because he believed the only way to resolve the case was through a plea bargain.
Additionally, petitioner contended that his trial counsel failed to obtain a transcript from the
preliminary hearing; to adequately investigate the case; or to secure witnesses to testify in
petitioner’s defense, such as Mr. Harris. By order entered July 24, 2014, the circuit court denied
the habeas petition, and this appeal followed.

        We review the denial of a habeas petition under 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, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771
(2006). Additionally, we have held that ordinary trial errors not involving constitutional
violations are not subject to post-conviction review in a habeas proceeding. See Syl. Pt. 4, State
ex rel. Farmer v. McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009).

       On appeal, petitioner raises four assignments of error, the first three of which challenge
evidentiary rulings by the trial court.3 “The action of a trial court in admitting or excluding



       2
           After being arrested and read his Miranda rights, petitioner gave a statement wherein he
described the evening until the beginning of the beating, at which point he refused to speak any
further.
         3
           We note that respondent contends that, under our holding in Farmer, we could refuse to
consider the petitioner’s first three assignments of error. With the exception of petitioner’s
(continued . . .)
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evidence in the exercise of its discretion will not be disturbed by the appellate court unless it
appears that such action amounts to an abuse of discretion.” Syl. Pt. 1, State v. Harris, 216
W.Va. 237, 605 S.E.2d 809 (2004) (citations omitted). Petitioner argues first that the trial court
erred by allowing testimony that petitioner’s assault on Wilcox would not have stopped but for
Nutter’s intervention. Petitioner asserts that this testimony was improper under Rule 602 of the
West Virginia Rules of Evidence4 because the witness (Wilcox) could not have actually
personally perceived or observed the basis for his testimony. Petitioner argues that the testimony
was speculative because no one knows what would have happened had Nutter not been there.
However, our review of the record reveals that petitioner also testified that he may not have
stopped beating Wilcox had Nutter not intervened. Therefore, we see no error in the habeas
court’s ruling with respect to this alleged trial error.

       Next, petitioner contends that the trial court erred by allowing the admission of Wilcox’s
emergency room records without proper authentication. Petitioner argues that, as a result, the
State was allowed to paint the attack as vicious and brutal. Upon our review of the record, it is
clear that petitioner’s assault of Wilcox was vicious and brutal, the hospital records
notwithstanding. Moreover, Wilcox testified to his own injuries. Thus, his hospital records did
not contain any information that would have affected the outcome of the trial.

         Petitioner’s third assignment of error is that the trial court permitted the deputy sheriff
who interviewed petitioner to reference that petitioner refused to give a statement. Specifically,
petitioner argues that the deputy testified to petitioner’s Miranda rights waiver form, and that
after giving part of a statement, petitioner “didn’t wish to go any further.” Petitioner contends
that such testimony is tantamount to using his silence against him in violation of the Fifth
Amendment to the United States Constitution. Upon our review of the record, we reject
petitioner’s argument. The deputy did not comment or elaborate on petitioner’s silence.
However, although petitioner did not confess to the assault in his statement, he did so during his
trial testimony. Therefore, the introduction of the waiver form and the deputy’s testimony in
connection therewith did not violate petitioner’s right to remain silent. The habeas court properly
rejected petitioner’s argument in this regard.

         Petitioner’s final assignment of error is that he received ineffective assistance of counsel
at his trial. Petitioner contends that Mr. Oshoway made little effort to investigate the case or to
secure witnesses for petitioner. Petitioner argues that, contrary to Mr. Oshoway’s testimony at


contention that the State elicited testimony relating to his choice to remain silent during the
investigation, respondent is correct. Nevertheless, we will address the merits of petitioner’s
arguments.
       4
           Rule 602 states that

       [a] witness may testify to a matter only if evidence is introduced sufficient to
       support a finding that the witness has personal knowledge of the matter. Evidence
       to prove personal knowledge may consist of the witness's own testimony. This
       rule does not apply to a witness's expert testimony under Rule 703.


                                                 3

the omnibus hearing, Mr. Harris and the cab driver could have testified that, all through the
night, petitioner was the only one with money and was buying the drinks. Petitioner asserts that
this testimony is relevant because it would show that petitioner would not rob someone who had
professed to have no money. Petitioner argues further that Mr. Oshoway failed to make stronger
objections to the introduction of the evidence challenged in the first three assignments of error.
Petitioner concedes that Mr. Oshoway raised timely objections, but claims that he was not
sufficiently vigilant to keep the evidence from being admitted.

       In Syllabus Points 3, 4, and 5 of State ex rel. Vernatter v. Warden, West Virginia State
Penitentiary, 207 W.Va. 11, 528 S.E.2d 207 (1999), we held as follows:

        3. “In the West Virginia courts, claims of ineffective assistance of counsel are to
       be governed by the two-prong 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).

       4. “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.” Syllabus point 6, State v. Miller, 194 W.Va. 3, 459
       S.E.2d 114 (1995).

       5. “The fulcrum for any ineffective assistance of counsel claim is the adequacy of
       counsel’s investigation. Although there is a strong presumption that counsel's
       conduct falls within the wide range of reasonable professional assistance, and
       judicial scrutiny of counsel's performance must be highly deferential, counsel
       must at a minimum conduct a reasonable investigation enabling him or her to
       make informed decisions about how best to represent criminal clients. Thus, the
       presumption is simply inappropriate if counsel's strategic decisions are made after
       an inadequate investigation.” Syllabus point 3, State ex rel. Daniel v. Legursky,
       195 W.Va. 314, 465 S.E.2d 416 (1995).

         Upon our review of the record and the applicable case law, we see no error in the habeas
court’s conclusion that petitioner received effective assistance of counsel. Contrary to
petitioner’s argument, Mr. Oshoway retained a private investigator to investigate the case, met
with petitioner in advance of trial, and adequately discussed the case with him. As Mr. Oshoway
testified, “the issue of who paid for [the drinks] didn’t seem to be particularly germane to the
main issue of whether or not . . . [petitioner had] taken the wallet . . . .” The habeas court was
correct not to second-guess Mr. Oshoway’s determination that neither Mr. Harris nor the cab
driver would provide relevant testimony because neither were present at the time of the assault.

                                                4

As for petitioner’s assertion that Mr. Oshoway failed to prevent the admission of the evidence at
issue in the first three assignments error, the record demonstrates that Mr. Oshoway did object to
this evidence, but the objection was overruled. We fail to see what more Mr. Oshoway could
have done on petitioner’s behalf in this regard. Petitioner has failed to meet his burden that he
received ineffective assistance of counsel.

          For the foregoing reasons, we affirm the circuit court’s order denying petitioner habeas
relief.

                                                                                        Affirmed.

ISSUED: June 12, 2015

CONCURRED IN BY:

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




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