Jack V.,  pro se, appeals the August 6, 2015, order
of the Circuit Court of Pocahontas County dismissing his
petition for a writ of habeas corpus. Respondent Ralph Terry,
Warden, McDowell County Correctional Center,  by counsel
Jonathan E. Porter, filed a response, and petitioner filed a
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.
August 2, 2005, petitioner was indicted on two counts of
sexual assault in the second degree and eighty-seven counts
of sexual assault in the third degree. The victim was M.P.,
who was thirteen years old when petitioner, a family friend,
began abusing her. At the time, petitioner was thirty-five
trial began on March 6, 2007. However, prior to the
conclusion of voir dire, petitioner decided to plead guilty.
Consequently, the parties entered into a plea agreement on
that same day. The plea agreement reflects that it was first
proposed in January of 2006 and that one of the changes to
which the parties agreed was that petitioner would plead
guilty to five counts of third degree sexual assault (not
seven counts, as originally envisioned). In exchange, the
State agreed to dismiss the remaining counts of the
March 6, 2007, plea hearing, petitioner was sworn in to give
testimony, at which time the circuit court addressed a number
of pro se motions filed by petitioner that alleged that a new
trial should be granted, that the circuit court judge should
be recused, and that petitioner's attorney should be
ordered to withdraw from the case because he failed to
subpoena defense witnesses. Upon questioning from the circuit
court, petitioner withdrew his pro se motions, and indicated
that he was satisfied with his attorney's representation
and did not have "any complaints" about the actions
the attorney undertook for his benefit. More specifically,
petitioner answered "yes, sir" when the circuit
court inquired whether petitioner's attorney had the
"authority to negotiate this agreement."
the circuit court entered into a plea colloquy with
petitioner pursuant to Call v. McKenzie, 159 W.Va.
191, 220 S.E.2d 665 (1975). The circuit court confirmed that
petitioner's mind was clear and that he was not being
"threatened . . . or coerced . . . to take this plea
agreement." When the circuit court asked petitioner
whether the decision to plead guilty was his alone,
petitioner answered, "Mine." The circuit court
followed up by inquiring whether the decision was
petitioner's "own free and voluntary act."
Petitioner responded that it was.
circuit court asked petitioner whether his attorney went over
the indictment with him, including Counts 9, 30, 61, 69 and
77 to which petitioner was agreeing to plead guilty.
Petitioner responded in the affirmative to both questions.
The circuit court also questioned petitioner regarding his
constitutional rights and informed petitioner that his guilty
pleas would waive many of those rights. However, the circuit
court noted that petitioner "always [has] a right to
challenge the jurisdiction of the [c]ourt[, ] and that
relates to whether or not these events occurred in Pocahontas
County, West Virginia." While the original complaint
filed by police indicated that petitioner committed criminal
conduct in more than one county, at this point in the plea
hearing, neither petitioner nor his attorney interrupted the
circuit court to question whether the acts alleged in Counts
9, 30, 61, 69 and 77 occurred outside of Pocahontas County.
circuit court also asked petitioner's attorney a number
of questions. Petitioner's attorney indicated that he did
not know of any meritorious defense to the five counts to
which petitioner was pleading guilty. Petitioner's
attorney further indicated that he received satisfactory
discovery from the State and that he went over the same with
petitioner. The circuit court inquired whether, having the
benefit of knowing the State's case, petitioner's
attorney believed there would be any advantage to petitioner
if he proceeded with his trial. Petitioner's attorney
answered, "Absolutely none." The circuit court
noted that the primary advantage petitioner was receiving
from the plea agreement was a reduction in the number of
counts against him, but again inquired of petitioner whether
he was satisfied with his attorney's representation.
Petitioner responded, "Yes, sir." The circuit court
found that petitioner's attorney was "experience[d]
in criminal matters."
circuit court asked petitioner whether he was offering to
plead guilty "free[ly] and voluntary[ily]."
Petitioner answered, "Yes, sir." Petitioner also
responded "yes, sir, " when the circuit court noted
that it would be free to impose consecutive terms of
incarceration at sentencing. The circuit court thereafter
permitted petitioner to enter guilty pleas to five counts of
third degree sexual assault. The circuit court then directed
the State to establish the factual foundation for
petitioner's pleas. The State answered that it was
prepared to show that petitioner committed third degree
sexual assault as charged in Counts 9, 30, 61, 69 and 77 of
the indictment, including that the criminal conduct in each
instance "took place in Pocahontas County."
circuit court inquired of petitioner whether the conduct
described in the State's proffer occurred as alleged.
Petitioner answered in the affirmative. Therefore, the
circuit court found that petitioner "freely,
voluntarily, [and] intelligently" entered his guilty
pleas. The circuit court further found that petitioner
"knowingly and intelligently waived" all rights
capable of being waived by pleading guilty. Accordingly, the
circuit court adjudicated petitioner guilty of five counts of
third degree sexual assault. Upon the State's motion, the
circuit court dismissed the remaining counts of the
sentencing hearing on August 24, 2007, the circuit court
sentenced petitioner to one to five years of incarceration on
each conviction for third degree sexual assault. The circuit
court ordered petitioner to serve his sentences consecutively
to one another and consecutive to a federal sentence of
incarceration petitioner received for federal convictions
involving the same victim.Petitioner appealed his sentence in Case
No. 080749, but this Court refused that appeal by order
entered June 11, 2008.
filed the instant petition for a writ of habeas corpus on
July 7, 2014. Petitioner alleged ineffective assistance
of counsel, including the claim that petitioner's
attorney failed to raise the circuit court's lack of
jurisdiction over some of the counts of the indictment. By a
dismissal order, entered August 6, 2015, the circuit court
found that petitioner's habeas petition lacked merit
based on his guilty pleas. The circuit court found that by
pleading guilty, petitioner waived any issue allegedly
inadequately raised or investigated by his attorney. The
circuit court further found that a factual basis was
established at the March 6, 2007, plea hearing for each of
the five counts to which petitioner pled guilty, which
included establishing that each of those counts was based on
conduct that occurred in Pocahontas County.
now appeals the circuit court's August 6, 2015, order
dismissing his habeas petition. We apply the ...