                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Ian Smith,                                                                             FILED
Petitioner Below, Petitioner                                                         January 14, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 11-1429 (Cabell County 06-C-144)                                            OF WEST VIRGINIA


West Virginia Regional Jail
And Correctional Facility Authority,
Respondent Below, Respondent

                                MEMORANDUM DECISION

        Petitioner Ian Smith, by counsel Glen Conway, appeals the September 16, 2011 order of
the Circuit Court of Cabell County denying his petition for a writ of habeas corpus. Respondent
West Virginia Regional Jail and Correctional Facility Authority, by counsel Jake Morgenstern,
has filed a summary response.

       The 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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        On June 3, 2003, petitioner entered a guilty plea to one count of attempted robbery and
one count of malicious wounding. He was thereafter sentenced to a determinative sentence of
forty years in prison for attempted robbery and an indeterminate sentence of two to ten years in
prison for malicious wounding, said sentences to run consecutively. Petitioner sought a direct
appeal of that criminal matter, which this Court refused by order entered on September 9, 2010.
On August 25, 2008, petitioner, by counsel, filed an amended petition for a writ of habeas corpus
in the circuit court. An omnibus evidentiary hearing was held on September 23, 2008. The circuit
court thereafter denied the petition for habeas relief.

       On appeal, petitioner alleges that his plea was involuntary because he incorrectly
believed that he was entering into an agreed sentence pursuant to Rule 11(e)(1)(C) of the West
Virginia Rules of Criminal Procedure and because his trial attorney was ineffective because he
incorrectly advised petitioner that the circuit court had agreed to a binding plea agreement.
Respondent argues in support of the circuit court’s denial of habeas relief, and notes that the
record clearly shows that petitioner was told that this was a non-binding plea agreement. Further,
respondent argues that petitioner did not receive ineffective assistance of counsel because his
attorney never promised petitioner a specific sentence.
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       This Court has previously held that

       [i]n 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). After careful
consideration of the parties’ arguments, this Court concludes that the circuit court did not abuse
its discretion in denying the petition for a writ of habeas corpus. Having reviewed the circuit
court’s “Amended Order For Purposes Of Appeal” entered on September 16, 2011, we hereby
adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the
assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 16, 2011 order denying the petition for writ of habeas corpus is affirmed.


                                                                                        Affirmed.

ISSUED: January 14, 2013

CONCURRED IN BY:

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




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