                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Charles Kenneth Stone,                                                               FILED
Petitioner Below, Petitioner                                                       June 15, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0715 (Fayette County 13-C-325)                                         OF WEST VIRGINIA


David Jones, Warden,

Salem Correctional Center,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Charles Kenneth Stone, by counsel J.B. Rees, appeals the Circuit Court of
Fayette County’s June 27, 2014, order denying his petition for writ of habeas corpus. Respondent
David Jones, Warden, by counsel Laura Young, filed a response and a supplemental appendix.
On appeal, petitioner alleges that the circuit court erred in denying him habeas relief without
appointing counsel or holding an omnibus evidentiary hearing because he was denied effective
assistance of counsel and because a law enforcement officer committed perjury during his trial.1

        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.

        Following a mistrial caused by a juror’s medical issue during voir dire, petitioner’s
second jury trial commenced in May of 2011. Ultimately, petitioner was found guilty of
conspiracy to commit a felony, entry of a dwelling, and second-degree robbery. Petitioner was
also found guilty of the misdemeanor offense of impersonating a law enforcement officer. The
circuit court held a sentencing hearing in June of 2011. The circuit court denied petitioner’s
application for probation and sentenced him to the following terms of incarceration: (1) one to
five years for conspiracy to commit a felony; (2) one to ten years for entry of a dwelling; and (3)
five to eighteen years for second-degree robbery. The circuit court ordered the sentences for
conspiracy to commit a felony and second-degree robbery to run consecutively, with the
sentence for entry of a dwelling to be served concurrently. Petitioner was also fined $100 for the

       1
         In his circuit court petition for writ of habeas corpus, petitioner alleged several
additional grounds for relief that the circuit court addressed in the order on appeal. However,
petitioner alleges no error in regard to the circuit court’s denial of habeas relief in regard to these
additional grounds. As such, the Court will address only the circuit court’s rulings relating to
ineffective assistance of counsel and alleged perjury during petitioner’s criminal trial.
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crime of impersonating a law enforcement officer.

         In July of 2011, petitioner filed a notice of intent to appeal to this Court. By
memorandum decision issued on November 16, 2012, we affirmed petitioner’s conviction. See
State v. Stone, No. 11-1120 (W.Va. Supreme Court, November 16, 2012) (memorandum
decision). Thereafter, in December of 2013, petitioner filed a pro se petition for writ of habeas
corpus in the circuit court. The circuit court, which presided over petitioner’s criminal trial,
summarily dismissed the petition without appointing counsel by order entered on June 27, 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).

       To begin, we find no error in the circuit court denying the petition for writ of habeas
corpus without first appointing an attorney to represent petitioner or holding an omnibus
evidentiary hearing. We have previously held that a circuit court

       “may deny a petition for a writ of habeas corpus without a hearing and without
       appointing counsel for the petitioner if the petition, exhibits, affidavits or other
       documentary evidence filed therewith show to such court’s satisfaction that the
       petitioner is entitled to no relief.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va.
       467, 194 S.E.2d 657 (1973).

Syl. Pt. 3, in part, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). According to the
record, petitioner filed no documentation to support his assertion that a law enforcement officer
committed perjury during the criminal trial. Further, the circuit court found that the evidence
submitted in support of petitioner’s claim of ineffective assistance of counsel established that
petitioner was entitled to no relief. For these reasons, the Court finds no error in the circuit court
denying the petition for writ of habeas corpus without appointing counsel to represent petitioner
or holding an omnibus evidentiary hearing.

       Finally, on appeal to this Court, petitioner simply reasserts his claims that a law
enforcement officer committed perjury during his trial and that he received ineffective assistance
of counsel below. In support, petitioner submits to this Court a letter dated January 6, 2013, from
the West Virginia Department of Military Affairs and Public Safety that indicates that Officer
Richard Brown of the Smithers Police Department was not certified as a West Virginia law
enforcement officer. During trial, Officer Brown testified that he was a certified law enforcement

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officer, though the question was not specific to any particular state in which that certification was
obtained. The letter petitioner has now presented on appeal indicates that Officer Brown did
receive his law enforcement certification in the State of North Carolina. However, it does not
appear that this letter was ever presented to the circuit court in support of the petition for writ of
habeas corpus.

        Specifically, in regard to this ground for relief, the circuit court found that petitioner
submitted “no evidence or any support whatsoever for this claim and offer[ed] only mere
allegations.” On appeal to this Court, respondent similarly states that this letter was not a part of
the record below. Pursuant to Rule 7(c)(2)(a) of the West Virginia Rules of Appellate Procedure,
“an appendix must contain a certification page signed by counsel or unrepresented party
certifying that . . . the contents of the appendix are true and accurate copies of items contained in
the record of the lower tribunal.” As such, it is clear that the letter upon which petitioner relies
was improperly included in the record on appeal to this Court and we are not bound to consider
the same.

        As to his claims of ineffective assistance of counsel, petitioner argues that counsel failed
to provide the State with a timely notice of an alibi defense, thereby preventing the defense from
being presented to the jury. The Court, however, does not agree. Upon our review and
consideration of the circuit court’s order, the parties’ arguments, and record submitted on appeal,
we find no error or abuse of discretion by the circuit court. Our review of the record supports the
circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on his
claims of perjury and ineffective assistance of counsel, which was also argued below. Indeed, the
circuit court’s order includes well-reasoned findings and conclusions as to this assignment of
error raised on appeal. Given our conclusion that the circuit court’s order and the record before
us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s claim of ineffective assistance of
counsel and alleged perjury, and direct the Clerk to attach a copy of the circuit court’s June 27,
2014, “Order” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 15, 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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