                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Eric F.,
Petitioner Below, Petitioner                                                        FILED
                                                                                  June 26, 2015
                                                                              RORY L. PERRY II, CLERK
vs) No. 14-0834 (Tyler County 12-C-18)                                      SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
Marvin Plumley, Warden, Huttonsville
Correctional Complex, Respondent Below,
Respondent

                               MEMORANDUM DECISION

      Petitioner Eric F., 1 appearing pro se, appeals the order of the Circuit Court of Tyler
County, entered on August 12, 2014, that denied his petition for writ of habeas corpus. Respondent
warden,2 by counsel Laura Young, filed a response, and petitioner filed a reply.

        The Court has considered the parties’ briefs and the records in each case. 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 records
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.

        Petitioner was charged3 with thirteen counts of sexual misconduct with regard to the minor
daughters of the woman with whom he was living.4 The victims, J.R.R. and T.R.K., were both
thirteen years old when the abuse began and fifteen and sixteen years old at the time it ceased.
Petitioner and the State entered into a binding plea agreement pursuant to Rule 11(e)(1)(C) of the
West Virginia Rules of Criminal Procedure. The parties agreed that petitioner would plead guilty

       1
         Consistent with our practice in cases involving sensitive facts, we use only petitioner’s
first name and last initial, and identify the minor victims only by their initials. See State ex rel.
W.Va. Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1
(1987).
       2
         Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current
public officer has been substituted as the respondent in this action.
       3
         Petitioner waived indictment, and the case proceeded on the information filed by the
prosecutor.
       4
         While his attorney referred to the victims’ mother as petitioner’s “paramour,” petitioner
contends that their relationship was not sexual. See Discussion infra.
                                                 1
to two counts of sexual abuse by a parent, guardian, custodian, or other person of trust pursuant to
West Virginia Code § 61-8D-5 (one count per victim) and that the State would dismiss the
remaining counts. The agreement further provided, in pertinent part, that petitioner would (1)
serve concurrent sentences of ten to twenty years in prison for his crimes; (2) decline to seek any
“modification, reduction, expungement, stay, pardon[,] executive clemency of the sentence
imposed . . . as a result of [the] guilty plea entered . . . in accordance with the terms of this plea
agreement”; and (3) be subject, upon petitioner’s discharge from prison, to supervised release for a
period of fifty years. The plea agreement informed petitioner that the terms of his supervised
release “shall include, but not be limited to,” the following conditions: (a) not residing or working
within 1,000 feet of any school or childcare facility, or either of his victims; (b) participating in
appropriate treatment programs or counseling; (c) being subject to “all customary conditions of
release on probation, and such other conditions that may be imposed by the supervising authority”;
and (d) paying the required $50 per month supervision fee, contingent on petitioner’s ability to
pay.

        At a November 18, 2010, plea hearing, the circuit court confirmed that petitioner’s
signature was on the plea agreement and inquired whether petitioner signed the agreement only
“after having an opportunity to ask [his counsel] any and all questions you may have had about the
written plea agreement . . . [a]nd only after having any questions you may have had answered.”
Petitioner responded, “Yes, sir.” The circuit court also received an affirmative answer when the
court asked petitioner whether he was “pleading voluntarily and of your own free will.” Petitioner
also answered affirmatively when the circuit court inquired whether petitioner’s attorney reviewed
the charging document with him and explained the elements of the offense of sexual abuse by a
parent, guardian, custodian, or other person of trust. Petitioner stated “yes, sir” when the circuit
court asked whether counsel “has done anything and everything you believe reasonable and
necessary to both protect and promote your best interest.” Petitioner indicated that counsel
performed satisfactorily. Accordingly, the circuit court found that “[petitioner] has . . . been
effectively represented . . . throughout these proceedings, as well as here today.”

        On the first count of sexual abuse by a parent, guardian, custodian, or other person of trust,
the prosecutor stated that the evidence would show the incident took place in the summer of 2006
when the victim, J.R.R., was thirteen. Petitioner explained that J.R.R., her sisters, and her mother
were all sleeping side-by-side in a pop-up camper5 (with petitioner on one end and the mother on
the other) and J.R.R. “rolled over on top of me and said she wanted to have sex.”

         On the second count of sexual abuse by a parent, guardian, custodian, or other person of
trust, the prosecutor indicated that the evidence would show that the incident regarding T.R.K.
occurred in the spring of 2008 while both victims were under petitioner’s care, custody, and
control. According to petitioner, J.R.R. and T.R.K. were already playing with his penis when TR.K
put her mouth on it. The guardian ad litem (“GAL”) appointed to represent the victims’ interests in
petitioner’s criminal case objected that petitioner was still attempting “to blame the victims for the
conduct that has taken place” and “greatly minimizing . . . what he’s done to these children.”

         5
             Apparently, the incident occurred during a camping trip, but the record is unclear on this
point.
                                                    2
Petitioner’s counsel clarified that petitioner “acknowledges four-square that responsibility rests
totally, completely[,] and one hundred percent on his shoulders for what transpired.” At another
point in the hearing, petitioner stated without prompting that he “was the adult”6 and that he
“should have never . . . .”

        The circuit court allowed petitioner to plead guilty to two counts of sexual abuse by a
parent, guardian, custodian, or other person of trust pursuant to West Virginia Code § 61-8D-5
Both the GAL and the prosecutor recommended that the circuit court accept the binding plea
agreement because it adequately addressed the interests of the victims and the State in that the
agreement was the best way to allow the victims to move on with their lives.7 Also, the prosecutor,
petitioner’s counsel, and petitioner noted that the plea agreement provided that he be on supervised
release for fifty years following his incarceration. Based on the GAL’s and the State’s joint
recommendation, the circuit court accepted the binding plea agreement, adjudged petitioner guilty
of two counts of sexual abuse by a parent, guardian, custodian, or other person of trust, and
sentenced him to concurrent terms of ten to twenty years in prison. The circuit court entered its
sentencing order, which included a section designated “terms and conditions of supervised
release” that informed petitioner of twenty-five conditions of such release following his discharge
from prison, on December 15, 2010.

        On May 14, 2012, petitioner filed a petition for writ of habeas corpus alleging (1)
ineffective assistance of counsel; (2) abuse of discretion by the circuit court in accepting
petitioner’s guilty pleas; (3) lack of a factual basis for petitioner’s guilty pleas; and (4)
prosecutorial misconduct. Petitioner later added new allegations, but the circuit court found that
the same were subsumed in the four initial grounds of relief. The circuit court declined to appoint
habeas counsel or hold a hearing, finding that petitioner’s grounds were frivolous. The circuit
court explained as follows:

               . . . Petitioner’s assignments of error all advanced allegations of factual
       deficiencies and potential defenses which he concludes prove that he is “not
       guilty”. Additionally, [petitioner] claims to have lacked a full understanding and
       appreciation of the provisions of the Plea Agreement and its specific consequences.
       However, the Court finds that such allegations are insufficient to rise to the
       standard of a successful challenge of [petitioner’s] guilty plea conviction[.]

The circuit court determined that “[petitioner] freely, voluntarily, intelligently, and knowingly
entered into the plea agreement, wherein he was advised of his rights on the record[.]”8

       6
           At the plea hearing, petitioner stated that he was forty-seven years old.
       7
         The circuit court had noted its concern that the plea agreement did not adequately
represent the interests of the victims and of the State because of (1) the possibility that petitioner
would reoffend after he was discharged from prison; and (2) petitioner’s lack of remorse.
       8
         The circuit court also determined that petitioner waived his right to file a petition for writ
of habeas corpus in the plea agreement. Having found that the circuit court properly found that
                                                   3
         Petitioner now appeals the circuit court’s August 12, 2014, order denying his habeas
petition. We review a circuit court’s order denying a habeas petition 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, 418, 633 S.E.2d 771, 772 (2006).

        On appeal, petitioner asserts that petitioner’s counsel performed ineffectively, the
prosecutor committed misconduct, and the circuit court abused its discretion in accepting his
guilty pleas based on his substantive arguments that (1) no factual basis existed for his pleas of
guilty to two counts of sexual abuse by a parent, guardian, custodian, or other person of trust
pursuant to West Virginia Code § 61-8D-5; (2) the circuit court did not deem petitioner a “sexually
violent predator” pursuant to West Virginia Code § 15-12-2a, which is a prerequisite to imposing a
term of supervised release; and (3) the circuit court did not adequately inform petitioner of the
terms and conditions of supervised release such that petitioner’s guilty pleas were not voluntarily
and knowingly made. We address these arguments in turn.

        First, petitioner contends that he was never the victims’ custodian because he and their
mother did not have a romantic relationship. Respondent warden counters that petitioner
cohabitated with the victims’ mother, noting that petitioner’s counsel referred to the mother as
petitioner’s “paramour.” We find that we need not resolve this dispute because the issue of
cohabitation with the victims’ mother is not determinative of whether petitioner was their
custodian. For the purposes of West Virginia Code § 61-8D-5,9 a “custodian” means “a person
over the age of fourteen years who has or shares actual physical possession or care and custody of
a child on a full-time or temporary basis[.]” See W.Va. Code § 61-8D-1(4) (setting forth applicable
definitions for chapter 61, article 8D of the West Virginia Code).10 Petitioner does not dispute that

petitioner’s allegations did not merit the granting of habeas relief, see discussion infra, we do not
address this issue.
       9
           We note that, in 2005, the Legislature amended West Virginia Code § 61-8D-5 to expand
the offense from sexual abuse by a parent, guardian, or custodian to sexual abuse by a parent,
guardian, custodian, or other person of trust. However, while the offenses to which petitioner pled
guilty occurred in 2006 and 2008, the record reflects that the State never alleged, in the alternative,
that petitioner was an “other person of trust” with regard to his victims.
       10
          West Virginia Code § 61-8D-1(4) continues, in pertinent part, that a “‘[c]ustodian’ shall
also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person
cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where
such spouse or other person shares actual physical possession or care and custody of a child with
                                                  4
he “was [an] adult” or that the victims and their mother resided in his home. Furthermore,
according to petitioner, the sexual misconduct11 with J.R.R. occurred when the entire “family”
was sleeping in very close proximity to each other. Given these facts, we easily determine that
petitioner was the victims’ custodian, who had “actual physical possession or care and custody of
[each] child on a full-time or temporary basis.”12

        Second, petitioner argues that the circuit court had to find that petitioner was a “sexually
violent predator” pursuant to West Virginia Code § 15-12-2a in order to sentence him to a period
of supervised release following his incarceration, but did not so find. Respondent warden counters
that the circuit court did not need to utilize West Virginia Code § 15-12-2a in order to sentence
petitioner to fifty years of supervised release. We agree with respondent warden because the
supervised release statute, West Virginia Code § 62-12-26, 13 provides that a child abuser
convicted of a felony under chapter 61, article 8D of the West Virginia Code “shall” serve a term
of supervised release after discharge from prison. W.Va. Code § 62-12-26(a); State v. James, 227
W.Va. 407, 415 n. 17, 710 S.E.2d 98, 106 n.17 (2011). The only time West Virginia Code §
62-12-26(a) requires a finding pursuant to West Virginia Code § 15-12-2a is when supervised
release is imposed for a life term. See James, 227 W.Va. at 414-15, 710 S.E.2d at 105-6. Petitioner
does not dispute that his term of supervised release was for only fifty years; therefore, we find that
petitioner’s argument under this issue is meritless.

       Finally, petitioner asserts that he was not fully informed of the terms and conditions of
supervised release such that petitioner’s guilty pleas were not voluntarily and knowingly made.
Respondent warden counters that the pleas were voluntarily and knowingly made with a complete
understanding that petitioner would serve a period of supervised release with various terms and
conditions. We note that the plea agreement outlined certain of the conditions to be imposed
during supervised release and petitioner then received a comprehensive list of the terms and
conditions in the sentencing order.14 Petitioner alleges that once he reviewed the sentencing order,

the parent, guardian or custodian.” (emphasis added).
       11
            Petitioner does not dispute that he had sex with both minors.
       12
           In this regard, we note that we have held that it is permissible for a jury to find that a
babysitter is a “custodian” for the purposes of West Virginia Code § 61-8D-5. See Syl. Pt. 1, State
v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999).
       13
           We note that the Legislature has recently amended West Virginia Code § 62-12-26, but
that such amendments do not apply to petitioner’s case.
       14
           In his reply brief, petitioner raises West Virginia Code § 62-12-26(h), which requires
that a defendant be provided with a comprehensive list of terms and conditions of his supervised
release at sentencing. We determine that West Virginia Code § 62-12-26(h) is not pertinent to the
issue petitioner is raising because petitioner entered his guilty pleas prior to his sentencing. Even if
the statute was applicable, we find that the sentencing order fulfilled West Virginia Code §
62-12-26(h)’s requirement.
                                                   5
he was surprised at the number of strict conditions imposed with supervised release. We cannot
accept the veracity of petitioner’s allegation. Petitioner already knew from the plea agreement that
the terms of supervised release “shall include, but not be limited to,” not being able to reside or
work within 1,000 feet of any school or childcare facility and having to live in accordance with “all
customary conditions of release on probation, and such other conditions that may be imposed by
the supervising authority.” Because the plea agreement informed petitioner (1) that he would not
be allowed near children or the areas children normally congregate; and (2) that additional
conditions would be forthcoming, we find that petitioner understood the type and breadth of
post-confinement supervision to which he was consenting when he signed the plea agreement.15
Therefore, we conclude that the circuit court did not clearly err in finding that petitioner freely,
voluntarily, and knowingly entered his guilty pleas.

        As noted supra, petitioner bases his claims that counsel performed ineffectively,16 that the
prosecutor committed misconduct, and that the circuit court abused its discretion in accepting his
guilty pleas on his substantive arguments which we have now found meritless. Accordingly, we
reject all of petitioner’s arguments and determine that the circuit court did not abuse its discretion
in denying petitioner’s habeas petition.

       For the foregoing reasons, we find no error in the decision of the Circuit Court of Tyler
County and affirm its August 12, 2014, order that denied petitioner’s petition for writ of habeas
corpus.

                                                                                           Affirmed.
ISSUED: June 26, 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

       15
          We note that West Virginia Code § 62-12-26(a) allows for both the modification and/or
discharge of a defendant’s period of supervised release in accordance with the provisions of West
Virginia Code § 62-12-26(g). See James, 227 W.Va. at 414-15, 710 S.E.2d at 105-6.
       16
          Petitioner alleges that counsel performed ineffectively because, if counsel conducted an
adequate investigation, he would have formed the conclusion that petitioner was not the victims’
“custodian.” For reasons given supra, that claim lacks merit. It is unclear whether petitioner
alleges that counsel’s investigation into other aspects of the case was also deficient. However,
counsel stated at the plea hearing that an arrangement was reached with the State, under which the
State provided the defense with discovery. Thus, we find that an adequate investigation was
conducted.
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