                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Ronald Davis,
Petitioner Below, Petitioner                                                         FILED
                                                                                   April 19, 2019
vs.) No. 17-0261 (Jackson County 14-C-22)                                         EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Ronald Davis, by counsel Timothy P. Rosinsky, appeals the December 28, 2016,
order of the Circuit Court of Jackson County denying his petition for writ of habeas corpus.
Respondent Donnie Ames,1 Superintendent, Mt. Olive Correctional Complex, by counsel Holly
M. Flanigan, filed a response in support of the circuit court’s order. On appeal, petitioner alleges
that the circuit court erred in denying him habeas relief because he received ineffective assistance
of counsel, the evidence presented was insufficient to sustain his conviction, he should have been
granted a change of venue due to the fact that his trial was tainted by pretrial publicity, his
sentences are excessive, and the State knowingly used perjured testimony.

       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 September 23, 2010, petitioner barricaded the front door and windows of a home he
shared with the victim, Carol Parsons, and set fire to the home. Ms. Parsons was inside and died
as a result of the fire. Ms. Parsons’s daughter and son-in-law lived beside the mobile home and
reported that they heard pounding and a scream from Ms. Parsons’s home on the night in question.
The victim’s son-in-law reported to police that he saw petitioner bend over on Ms. Parsons’s front
porch immediately before a ball of flames shot up over his head. Witnesses at the scene attempted
to rescue Ms. Parsons but were unsuccessful. Several witnesses stated that while they attempted
to rescue Ms. Parsons, petitioner watched, petted a dog, barked, laughed, and whittled wood. He

       1
         Effective July 1, 2018, the positions formerly designated as “wardens” are now designated
“superintendents.” See W.Va. Code § 15A-5-3. Moreover, petitioner originally listed Ralph Terry
as respondent in this action. Mr. Terry is no longer the warden at Mt. Olive Correctional Complex.
Accordingly, the appropriate public officer has been substituted pursuant to Rule 41 of the Rules
of Appellate Procedure.
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also stated to Ms. Parsons’s family that night that he “burned her alive.” When police arrived on
the scene, petitioner gave inconsistent accounts of his whereabouts when the fire started. Petitioner
was indicted on one count of first-degree murder and one count of first-degree arson. After a jury
trial, by order entered on September 8, 2011, he was convicted and sentenced to life, without
mercy, for first-degree murder and twenty years of incarceration for first-degree arson, said
sentences to run consecutively. Petitioner filed a direct appeal, and this Court affirmed his
convictions. See State v. Davis, 232 W. Va. 398, 752 S.E.2d 429 (2013).

        Petitioner filed a pro se petition for writ of habeas corpus in the circuit court on February
24, 2014. He was appointed counsel and an amended petition was filed. Petitioner argued that his
rights under the Sixth Amendment of the United States Constitution and Article III, Section 17 of
the West Virginia Constitution were violated by the ineffective assistance of counsel, the evidence
presented was insufficient to sustain his conviction, he should have been granted a change of venue
because his trial was tainted by pretrial publicity, his sentences are excessive, and the State
knowingly used perjured testimony. An omnibus hearing was held on November 11, 2016, and
the circuit court denied petitioner habeas corpus relief by order entered on December 28, 2016. 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).

         Petitioner raises five assignments of error on appeal. First, he contends that he is entitled
to habeas corpus relief due to ineffective assistance of counsel. Petitioner acknowledges that
ineffective assistance of counsel claims are governed by the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a claim of
ineffective assistance of counsel, petitioner must show that “(1) [c]ounsel’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.” Syl. Pt. 5, in relevant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Poncho
Morris, one of petitioner’s trial attorneys, testified at the omnibus evidentiary hearing that when
he was preparing for sentencing, he discovered that the forensic expert failed to test a certain ash
mark on petitioner’s boot. Petitioner asserts that this evidence could have been used to corroborate
his defense that he was inside of the house when the fire started, and therefore, the first prong of
Strickland has been met. He further contends that the evidence could possibly have introduced
reasonable doubt, thereby satisfying the second prong of Strickland. Petitioner also alleges that he
received ineffective assistance of counsel because his attorney failed to move for a change of venue
due to pretrial publicity.


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               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.

Miller, 194 W. Va. at 6, 459 S.E.2d at 117, syl. pt. 6. This Court “always . . . presume[s] strongly
that counsel’s performance was reasonable and adequate[,]” and

       [t]he test of ineffectiveness has little or nothing to do with what the best lawyers
       would have done. Nor is the test even what most good lawyers would have done.
       We only ask whether a reasonable lawyer would have acted, under the
       circumstances, as defense counsel acted in the case at issue. We are not interested
       in grading lawyers’ performances; we are interested in whether the adversarial
       process at the time, in fact, worked adequately.
Id. at 16, 459 S.E.2d at 127. Certainly, with the benefit of hindsight, “one always may identify
shortcomings, but perfection is not the standard for ineffective assistance of counsel.” Id. at 17,
459 S.E.2d at 128.

        We find that petitioner has failed to satisfy the first prong set forth in the Strickland test.
The only evidence petitioner introduced to support his contention that his attorneys provided
ineffective assistance was the testimony of Mr. Morris at the omnibus hearing. Mr. Morris stated
that an ash mark on petitioner’s boot should have been forensically tested. However, petitioner
provided no evidence as to what the ash mark actually was or when it appeared on his boot. Further,
the record indicates that, at trial, defense counsel attempted to discredit the fire investigation, as
well as evidence of gasoline on petitioner’s boot. Mr. Morris even argued during a motion for a
new trial that the ash mark on petitioner’s boot was evidence that he was inside the home when it
caught fire. Petitioner also failed to show that he should have had a change of venue, as discussed
further below. Based on the evidence, the circuit court concluded that petitioner failed to show that
his counsel’s performance was deficient under an objective standard of reasonableness. We agree.

         Petitioner’s second assignment of error, that the evidence presented was insufficient to
sustain his conviction, is also without merit. Petitioner asserts that no one saw him in possession
of a gas canister or any other accelerant on the night in question. He states that firefighters and
police arrived shortly after the fire started and found no evidence of a container containing a fire
accelerant. Petitioner contends that this, combined with the defense’s fire expert’s testimony that
the fire started inside the house, is prima facie proof of reasonable doubt.

        Claims regarding the sufficiency of evidence to support a criminal conviction are governed
by syllabus point 3 of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), which states that

              [a] criminal defendant challenging the sufficiency of the evidence to support
       a conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the

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       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

       Petitioner was convicted of one count of first-degree murder. West Virginia Code §61-2-1
provides that

       [m]urder by poison, lying in wait, imprisonment, starving, or by any willful,
       deliberate and premeditated killing, or in the commission of, or attempt to commit,
       arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape
       from lawful custody, or a felony offense of manufacturing or delivering a controlled
       substance as defined in article four, chapter sixty-a of this code, is murder of the
       first degree.

       Petitioner was also convicted of first-degree arson. West Virginia Code §61-3-1(a)
provides, in part, that

       [a]ny person who willfully and maliciously sets fire to or burns, or who causes to
       be burned, or who aids, counsels, procures, persuades, incites, entices or solicits
       any person to burn, any dwelling, whether occupied, unoccupied or vacant, or any
       outbuilding, whether the property of himself or herself or of another, shall be guilty
       of arson in the first degree and, upon conviction thereof, be sentenced to the
       penitentiary for a definite term of imprisonment which is not less than two nor more
       than twenty years.

         The State presented numerous witnesses at trial who were present on the night of the fire.
They presented consistent accounts of the evening, indicating that petitioner was observed standing
on the front porch, crouching down, and then fire “shot up over his head.” After the fire started,
he remained at the scene and was overheard saying that he burned the victim alive. Witnesses
incarcerated with petitioner prior to the fire testified that he stated his intent to burn the victim.
The circuit court found that there was evidence an accelerant was used, and that petitioner had
gasoline on his pants, as well as a lighter in his possession. The doors and windows of the home
were barricaded, and petitioner gave varying accounts of where he was when the fire started. The
circuit court concluded that the evidence was sufficient to sustain petitioner’s conviction. We agree
with the court’s conclusion.

        Petitioner’s third assignment of error, that his trial was tainted by pretrial publicity, is
similarly without merit.2 We have held that

       2
         Pursuant to West Virginia Rules of Appellate Procedure 10(c)(10)(b), Petitioner’s counsel
admits that he cannot ethically argue that the trial court abused its discretion by denying Petitioner
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       [t]o warrant a change of venue in a criminal case, there must be a showing of good
       cause therefor, the burden of which rests upon defendant[.]… The good cause
       aforesaid must exist at the time application for a change of venue is made. Whether,
       on the showing made, a change of venue will be ordered, rests in the sound
       discretion of the trial court; and its ruling thereon will not be disturbed, unless it
       clearly appears that the discretion aforesaid has been abused.
Syl. Pt. 2, in part, State v. Wooldridge, 129 W. Va. 448, 40 S.E.2d 899 (1946).

        Petitioner alleges that Jackson County newspapers ran at least eighteen stories regarding
his case and that the story was one of the top ten most popular stories in 2010 in one of those
newspapers. This Court has held that “[w]idespread publicity, of itself, does not require change of
venue, and neither does proof that prejudice exists against an accused, unless it appears that the
prejudice against him is so great that he cannot get a fair trial.” Syl. Pt. 1, State v. Gangwer, 169
W. Va. 177, 286 S.E.2d 389 (1982). The circuit court concluded that even if petitioner’s assertions
are true, he did not show good cause for a change of venue. Jurors were asked during voir dire if
they had prior knowledge of the case and if such knowledge would render them unable to fairly
and impartially judge the case, thereby addressing any issues of pretrial publicity. We find that
petitioner has failed to show that good cause existed for a change of venue.

         Petitioner’s fourth assignment of error, that the circuit court erred in denying him habeas
corpus relief on the basis that his sentences are excessive, is also without merit.3 There are two
tests for determining whether a sentence is so disproportionate to the crime that it violates Article
III, Section 5 of the West Virginia Constitution. “The first is subjective and asks whether the
sentence for the particular crime shocks the conscience of the court and society. If a sentence is so
offensive that it cannot pass a societal and judicial sense of justice, the inquiry need not proceed
further.” State v. Adams, 211 W. Va. 231, 233, 565 S.E.2d 353, 355 (2002). To determine whether
a sentence shocks the conscience, this Court considers all of the circumstances surrounding the
offense. Id. If a sentence is found not to shock the conscience, this Court proceeds to the objective
test. Id. Under the objective test, to determine whether a sentence violates the proportionality
principle, “consideration is given to the nature of the offense, the legislative purpose behind the
punishment, a comparison of the punishment with what would be inflicted in other jurisdictions,
and a comparison with other offenses within the same jurisdiction.” Id. at 232, 565 S.E.2d at 354,
syl. pt. 2, in part. (citation omitted).

       In the instant case, petitioner was found guilty of barricading the exits of the home he
shared with the victim and intentionally setting the home on fire with the intent to kill the victim.
He was convicted of first-degree murder, and under West Virginia Code § 61-2-2, the penalty is

habeas relief on the ground that he failed to establish a factual and legal basis for this habeas
challenge because there was no evidence given on this issue at the omnibus hearing.
       3
          Petitioner’s counsel admits that given the circumstances of the case, it cannot be argued
that the trial court abused its discretion in sentencing. Petitioner’s counsel admits that the length
of the arson sentence does not matter since petitioner was sentenced to life without mercy for the
first-degree murder conviction.
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confinement in the penitentiary for life. This Court has held in prior cases that life without mercy
is not an excessive sentence for first-degree murder. See State v. Wilson 237 W. Va. 288, 787
S.E.2d 559 (2016) (finding that a sentence of life without mercy for first-degree murder was within
the court’s discretion and justified given the facts of the case); State v. Shafer 237 W. Va. 616, 789
S.E.2d 153 (2015) (finding that defendant’s sentence of life without mercy for first-degree murder
was not excessive); State v. Blevins 231 W. Va. 135, 744 S.E.2d 245 (2013) (holding that
defendant’s consecutive life sentences without mercy were not excessive). Petitioner’s conviction
of life without mercy was not excessive given the nature of his crime.

         Petitioner was also convicted of first-degree arson, which carries a penalty of not less than
two nor more than twenty years of incarceration. W. Va. Code § 61-3-1. We have found that
“‘[s]entences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.’ Syllabus Point 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. Georgius, 225 W. Va. 716, 696 S.E.2d
18 (2010). On appeal, Petitioner does not allege that his sentence for this crime was based on any
impermissible factors. As such, we find that petitioner’s sentence of twenty years of incarceration
for first-degree arson falls within the statutory limits and is, therefore, not subject to appellate
review.

       Lastly, petitioner argues that the circuit court erred in denying his petition for habeas relief
on the basis that the State knowingly used perjured testimony. Pursuant to West Virginia Rule of
Appellate Procedure 10(c)(7),

       [t]he argument must contain appropriate and specific citations to the record on
       appeal, including citations that pinpoint when and how the issues in the assignments
       of error were presented to the lower tribunal. The Court may disregard errors that
       are not adequately supported by specific references to the record on appeal.

The circuit court found that petitioner presented no evidence regarding the issue below. Petitioner
also failed to present evidence to support his assertion to this Court. We, therefore, find that this
argument has no merit.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: April 19, 2019

CONCURRED IN BY:

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



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