                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Keith Ray H.,
Petitioner Below, Petitioner
                                                                                    FILED
vs.) No. 19-0186 (Kanawha County 17-P-376)                                        April 6, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
Tom Harlan, Interim Superintendent,                                                OF WEST VIRGINIA

Huttonsville Correctional Center,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Keith Ray H., by counsel Charles R. Hamilton, appeals the Circuit Court of
Kanawha County’s February 5, 2019, order denying his petition for a writ of habeas corpus. 1
Respondent Tom Harlan, Interim Superintendent of the Huttonsville Correctional Center, by
counsel Scott E. Johnson, filed a response. Petitioner filed a reply. On appeal, petitioner argues
that the habeas court erred in finding that his trial counsel was not ineffective.

       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 October of 2011, the grandchildren of petitioner’s girlfriend reported that petitioner had
been sexually abusing them. Both D.R. and B.R., then eleven and thirteen years old, respectively,
were interviewed at the local Child Advocacy Center. Both children made numerous disclosures,
including that petitioner touched B.R.’s vagina, put his mouth on her vagina, and licked her vagina,
and that petitioner frequently tried to play with D.R.’s penis. During the ongoing investigation,
petitioner agreed to present to the police station for questioning. Petitioner drove his own car to


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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the station and was told numerous times that he was free to leave at any time. Petitioner eventually
made “various . . . [s]exual related admissions” and was subsequently arrested.

        By correspondence dated November 20, 2011, the State offered petitioner a plea
agreement. The agreement provided that petitioner would waive his right to be indicted by a grand
jury and proceed to plead guilty by way of information to one count of second-degree sexual
assault and one count of first-degree sexual abuse. In exchange for petitioner’s plea, the State
would agree to refrain from pursuing additional charges against petitioner. The State reserved the
right to recommend consecutive sentences. On December 13, 2011, petitioner signed the plea
agreement.

        The trial court held a plea hearing on January 20, 2012. During the plea colloquy, the trial
court ascertained that petitioner knew the sentences he was facing and that he would be subject to
extended supervision upon his release:

       [Trial court:]          So if I were to order such a penalty, as far as the maximum
                               incarceration, and run them consecutive, you would have to
                               serve at least 15 years in a state correctional facility before
                               you could be released for any further supervision, and then
                               even that would be under some supervised conditions.

       [Petitioner:]           Yes, Your Honor. I understand.

The trial court again questioned petitioner’s counsel about this information:

       [Trial court:]          All right. Now, further, Mr. Schles, what have you explained
                               to your client as far as any additional supervision and the
                               requirement to register?

       [Trial counsel:]        I’ve explained to him that under the laws of West Virginia,
                               he is subject to intensive lifetime supervision upon his
                               release.

Ultimately, petitioner pled guilty to both counts in the information.

        In March of 2012, the trial court held a sentencing hearing. Counsel for petitioner argued
for the imposition of concurrent, rather than consecutive, sentences. The trial court sentenced
petitioner to ten to twenty-five years of incarceration for the count of second-degree sexual assault
and five to twenty-five years of incarceration for the count of first-degree sexual abuse, to be
served consecutively. The circuit court also imposed a twenty-year period of extended supervision.
Petitioner did not file a direct appeal with this Court.

       Thereafter, petitioner, without representation, filed a petition for a writ of habeas corpus in
October of 2017. Petitioner was appointed counsel and filed an amended petition for a writ of
habeas corpus in June of 2019. Relevant to this appeal, petitioner argued that his trial counsel
provided ineffective assistance. Specifically, petitioner claimed that his counsel failed to advise

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him about the extended supervision requirement, proffered the wrong length of time for extended
supervision during the plea hearing, failed to file an appeal or a motion for reconsideration, and
rushed and/or coerced him into accepting the plea without properly investigating the case or
explaining the admissibility of the evidence in the case.

         The habeas court held an omnibus hearing in November of 2018 wherein petitioner was
permitted to testify and present evidence in support of his claims. Petitioner’s trial counsel testified
that he did, in fact, advise petitioner of the extended supervision requirement. Further, trial counsel
testified that, at the plea hearing, he stated that petitioner was subject to “intensive lifetime
supervision” because of petitioner’s advanced age of seventy-one years. Trial counsel noted that
petitioner had pled guilty to two very serious offenses and he anticipated that the trial court would
order the sentences to run consecutively. He stated that he “was speaking as a practical matter
[when he said] that [petitioner] was going to be on supervision for the rest of his life.”

        Petitioner’s trial counsel also testified regarding the strength of the State’s case against
petitioner and the admissibility of petitioner’s confession to police officers. Trial counsel stated
that petitioner “gave a long detailed statement, which included statements directly incriminating
him in the two offenses to which he pleaded guilty” and that “there was no viable argument that
[petitioner] was in custody at the time he gave the statement, nor that the statements were
involuntary.” Trial counsel also testified that he advised petitioner of his appellate rights, including
that he could hire him to file an appeal for petitioner, hire other counsel, or file an appeal on his
own. Further, trial counsel said he did not file a motion for reconsideration because no grounds for
such a motion existed.

        The habeas court denied petitioner’s amended petition for a writ of habeas corpus. After
setting forth the applicable law, the habeas court found that, where the testimony of petitioner and
his trial counsel conflicted, trial counsel’s testimony was more credible based upon his and
petitioner’s respective demeanors, petitioner’s self-interest in the outcome of the proceedings, and
the irreconcilable conflict between petitioner’s testimony and the transcript of the plea hearing.
Specifically, the habeas court found that petitioner’s trial counsel affirmatively stated at the plea
hearing that he had advised petitioner of the requirements of both the sexual offender registration
and extended supervision. Petitioner agreed that his counsel had discussed these issues with him.
Moreover, petitioner did not object or question the trial court when extended supervision was
included in his sentence. To the extent petitioner claimed prejudice regarding his trial counsel’s
proffer that petitioner would be subject to “lifetime” supervision, the habeas court noted that
petitioner “was perfectly willing to plead guilty under the belief that he would be subject to lifetime
supervision” and that “[t]he fact that the period of supervision was only twenty years inures to his
benefit.” Accordingly, the circuit court found that petitioner was not prejudiced by counsel’s
statement.

        The habeas court also found that, in his petition, petitioner mentioned only in passing that
trial counsel did not file an appeal or a motion for reduction of sentence. The habeas court noted
that petitioner did not argue any prejudice as a result of these alleged failures, nor did he
demonstrate any prejudice at the omnibus hearing. Nevertheless, the habeas court noted that trial
counsel had, in fact, properly informed petitioner of his right to appeal. Lastly, the habeas court
found that petitioner’s claims that trial counsel “rushed” him into taking the plea and failed to

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investigate the admissibility of his statements were without merit. Petitioner signed the plea
agreement nearly one month after receiving it, and his plea hearing was not held for another month
after that. At the plea hearing, petitioner denied that he had been coerced in any way and
voluntarily entered into the plea. The habeas court also found that petitioner waived his right to
raise any issue with the admissibility of evidence when he pled guilty. Even so, the habeas court
explained that trial counsel testified at the omnibus hearing that he saw no grounds upon which to
attack petitioner’s voluntary statements, but would have filed a motion to suppress if petitioner
had chosen to proceed with trial. As such, the habeas court determined that petitioner failed to
prove that his counsel had been ineffective. Petitioner appeals the February 5, 2019, order denying
his petition for a writ of habeas corpus.

       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.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner argues that the habeas court abused its discretion in determining that
his trial counsel was not ineffective. First, petitioner claims that his trial counsel failed to
investigate his case, thereby coercing him into pleading guilty. Petitioner contends that his counsel
coerced him into pleading guilty by informing him that a “quick information plea was [his] only
option” and by rushing the plea process. Petitioner argues that if his counsel had taken more time
to look into the case, he could have argued that petitioner’s statements to police officers were
inadmissible. Further, petitioner argues that his counsel did not interview his victims or their
family. Second, petitioner claims that his counsel was ineffective for failing to inform him of the
extended supervision he faced by pleading guilty. Petitioner claims that his counsel wrongfully
proffered to the trial court that he had explained the requirements of extended supervision to
petitioner and further notes that extended supervision was not included in the plea agreement.
Petitioner also takes issue with his counsel’s proffer to the trial court at the plea hearing that
petitioner was subject to “lifetime” supervision. Third, petitioner claims his counsel was
ineffective for failing to advise him that a sexual offender psychiatric evaluation would be
necessary to receive alternative sentencing such as probation. Lastly, petitioner contends that his
trial counsel was ineffective for failing to advise him of his appellate rights and for failing to file
a motion for reduction of sentence. Petitioner concludes that he has met the requirements to show
ineffective assistance of counsel and avers that the habeas court’s findings to the contrary are
erroneous. We find that petitioner is entitled to no relief in this regard.

       We have previously held that




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              [i]n 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.

Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). “Failure to meet the burden of
proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner’s claim.”
State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 17, 528 S.E.2d 207, 213
(1999) (citing State ex rel. Daniel v. Legursky, 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995)).
The Strickland test also applies to a conviction based upon a defendant’s guilty plea. See Hill v.
Lockhart, 474 U.S. 52 (1985). Regarding the second prong of Strickland in cases involving plea
agreements, the test

       focuses on whether counsel’s constitutionally ineffective performance affected the
       outcome of the plea process. In other words, in order to satisfy the “prejudice”
       requirement, the defendant must show that there is a reasonable probability that,
       but for counsel’s errors, he would not have pleaded guilty and would have insisted
       on going to trial.

Hill, 474 U.S. at 59.

        At the outset, we note that petitioner has attempted to raise an issue with this Court that
was not presented to the habeas court below—that trial counsel failed to advise petitioner that a
psychiatric evaluation was necessary to receive probation. Petitioner’s petition lacks any language
asserting this claim, and petitioner cites to no portion of the record demonstrating that he alerted
the habeas court to his claim at the omnibus hearing. We have previously held that “‘[o]ur general
rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704
n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650,
653 (2009). Accordingly, we decline to address this issue on appeal.

        We now turn to petitioner’s remaining claims of ineffective assistance of counsel. In
looking at the first prong of the Strickland/Miller test, we cannot find that petitioner’s trial
counsel’s assistance was deficient under an objective standard of reasonableness. Although
petitioner claims that his counsel was ineffective for failing to advise him of his appellate rights,
his petition was woefully inadequate in providing either facts or relevant law to support his
contention. The extent of his argument below was that “trial counsel did not file an appeal to the
West Virginia Court Supreme of Appeals. [Petitioner’s] trial counsel informed [petitioner] it would
cost $12,000 to file an appeal. No motion for consideration was filed.” Despite finding that
petitioner failed to adequately address this issue in his petition, the habeas court nevertheless
addressed his claim, finding that trial counsel did, in fact, advise petitioner of his appellate rights.
Specifically, petitioner’s trial counsel testified at the omnibus hearing that he informed petitioner
that he had a right to appeal and that petitioner could hire him, hire another attorney, or request
appointed counsel in seeking a direct appeal. Trial counsel also testified that there were no grounds

                                                   5
to file a motion for reduction of sentence. To the extent petitioner argues that the circuit court
erroneously found that trial counsel’s testimony was more credible than his own, we have
consistently held that “[a] reviewing court cannot assess witness credibility through a record. The
trier of fact is uniquely situated to make such determinations and this Court is not in a position to,
and will not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381,
388, 497 S.E.2d 531, 538 (1997). Accordingly, we decline to disturb the habeas court’s credibility
determination in this matter and agree with the habeas court’s conclusion that petitioner was
properly informed of his appellate rights, but simply chose not to proceed with a direct appeal.
Therefore, petitioner has failed to satisfy either prong of Strickland/Miller as it relates to this
specific claim.

        Petitioner likewise fails to establish that his counsel inadequately investigated his case and
coerced him into pleading guilty. Petitioner completely fails to state what evidence his trial counsel
would have uncovered if he had spoken to the victims and their family and, therefore, does not
satisfy either prong of Strickland/Miller. Further, there is no evidence to support petitioner’s
contention that his trial counsel should have raised the admissibility of his statements. The record
is clear that petitioner arrived at the police station of his own volition and was informed several
times that he was free to leave, but continued speaking to officers, ultimately confessing to the two
incidents charged in the information. Although petitioner contends his statements were taken in
violation of Miranda v. Arizona, 384 U.S. 436 (1966), we have previously explained that “the
Miranda right to counsel has no applicability outside the context of custodial interrogation,” that
“until the defendant [is] taken into custody, any effort on his part to invoke his Miranda rights [is],
legally speaking, an empty gesture,” and that “the ‘window of opportunity’ for the assertion of
Miranda rights comes into existence only when that right is available.” State v. Bradshaw, 193 W.
Va. 519, 530, 457 S.E.2d 456, 467 (1995). The evidence is clear that petitioner was not in custody
when he gave his statements to police officers and, therefore, his Miranda rights had not attached.
Accordingly, petitioner cannot establish that his trial counsel was deficient for refraining from
raising an issue with the admissibility of his statements. Further, there is no indication that
petitioner’s counsel “rushed” him into accepting the plea. As the circuit court noted, petitioner
signed the plea agreement one month after it was offered, and the plea hearing was held one month
after petitioner signed the plea agreement. During the plea colloquy, petitioner acknowledged that
his plea was knowing and voluntary. Therefore, there is no indication that petitioner’s trial
counsel’s actions fell below an objective standard of reasonableness with regard to the plea
process.

        Here, petitioner’s self-serving statements that, but for trial counsel’s alleged errors, he
would not have pled guilty, are insufficient to establish prejudice. Indeed, a “defendant’s mere
allegation that he would have insisted on trial but for his trial counsel’s errors, although necessary,
is ultimately insufficient to entitle him to relief. Rather, we look to the factual circumstances
surrounding the plea to determine whether defendant would have proceeded to trial.” Lloyd v.
Terry, No. 16-1166, 2018 WL 1319187, at *8 (W. Va. Mar. 14, 2018)(memorandum decision)
(quoting United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)). Petitioner’s counsel’s
testimony at the omnibus hearing provided clear, reasonable explanations for his actions of seeking
a plea deal for petitioner from the beginning. His trial counsel testified at the omnibus hearing that
petitioner “gave a long detailed statement, which included statements directly incriminating him
in the two offenses to which he pleaded guilty,” both of which were serious charges. Accordingly,

                                                  6
we find that petitioner’s statements that he would have proceeded to trial are without merit given
the strength of the case against him. Based on the foregoing, there is no evidence lending itself to
the idea that trial counsel’s actions were somehow defective under an objective standard of
reasonableness or that but for trial counsel’s alleged errors, petitioner would have insisted in
proceeding to trial. See Miller, 194 W. Va. at 6, 459 S.E.2d 117, syl. pt. 5. Therefore, we find that
petitioner has failed to establish that his trial counsel was ineffective with regard to his claims that
his trial counsel coerced him into pleading guilty by rushing the plea process and failing to
investigate the case.

        Lastly, we find that petitioner failed to establish that his trial counsel was ineffective for
allegedly failing to inform petitioner regarding the requirements of extended supervision.
Petitioner’s entire argument regarding this claim is essentially based upon his disagreement with
the habeas court’s assessment that trial counsel’s testimony was more credible than petitioner’s.
As noted above, we will not disturb credibility determinations in situations such as this. In any
event, the record at the plea hearing clearly establishes that the trial court and trial counsel advised
petitioner of the requirements of extended supervision:

       [Trial court:]          So if I were to order such a penalty, as far as the maximum
                               incarceration, and run them consecutive, you would have to
                               serve at least 15 years in a state correctional facility before
                               you could be released for any further supervision, and then
                               even that would be under some supervised conditions.

       [Petitioner:]           Yes, Your Honor. I understand.

Trial counsel also proffered on the record that he had explained to petitioner that he would be
subject to “lifetime supervision” upon his release. It is clear that petitioner indicated to the trial
court that he understood his release would be subject to supervision. To the extent petitioner
contends that his counsel misinformed him that he would be subject to “lifetime” supervision, the
habeas court found that he established no prejudice as he was sentenced to only twenty years of
extended supervision, which inures to his benefit. Further, petitioner’s counsel explained that he
described the extended supervision requirement as “lifetime” given petitioner’s advanced age of
seventy-one as of the plea hearing. Trial counsel noted that “practically speaking,” petitioner
would be subject to extended supervision for the remainder of his life. Once again, the evidence is
simply insufficient to support a claim that petitioner’s trial counsel’s actions were deficient under
an objective standard of reasonableness and that petitioner would have insisted on going to trial if
not for trial counsel’s alleged mistakes. Therefore, we find that petitioner failed to satisfy either
prong of Strickland/Miller, and his entire assignment of error regarding ineffective assistance of
counsel fails. Accordingly, we find no error.

        For the foregoing reasons, we affirm the circuit court’s February 5, 2019, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                             Affirmed.

ISSUED: April 6, 2020

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CONCURRED IN BY:

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




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