January 9, 2017
Jack V., Petitioner Below, Petitioner
Ralph Terry, Warden, McDowell County Correctional Center, Respondent Below, Respondent
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 following
standard of review in habeas appeals:
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).
Virginia, claims of ineffective assistance of counsel are
governed by the two-pronged test established in
Strickland v. Washington, 466 U.S. 668 (1984), which
requires the following: (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. See Syl. Pt.
5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995) (adopting Strickland).
In cases involving a criminal conviction based upon a guilty
plea, the prejudice requirement of the two-part test
established by Strickland . . . and . . .
Miller . . . demands that a habeas petitioner 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.
Syl. Pt. 6, State ex rel. Vernatter v. Warden, W.Va.
Penitentiary, 207 W.Va. 11, 528 S.E.2d 207 (1999).
appeal, petitioner raises one procedural claim and one
substantive claim. Procedurally, petitioner alleges that the
circuit court should have appointed counsel and held an
evidentiary hearing instead of dismissing his habeas
petition. Substantively, petitioner contends that his
attorney, the circuit court, and the State conspired to
coerce him into pleading guilty. Respondent counters that the
circuit court did not err in dismissing petitioner's
habeas petition because his claim of ineffective assistance
of counsel was without merit. We agree with respondent.
that, throughout the March 6, 2007, plea hearing, the circuit
court took steps to ensure that petitioner's guilty pleas
were voluntary. Upon the circuit court's questioning,
petitioner stated that he wanted to withdraw his various
motions and plead guilty, and that he was satisfied with his
attorney's representation. Petitioner affirmatively
indicated that his attorney had the "authority to
negotiate" the parties' plea agreement. However,
petitioner now attempts to support his claim that he was
coerced into pleading guilty by alleging that his attorney
failed to investigate his case and to prepare for trial and
that the plea agreement was not in his best interests. We
find that the plea hearing transcript refutes these
allegations as well. At that hearing, the circuit court found
that petitioner's attorney was "experience[d] in
criminal matters" and confirmed more than once that
petitioner had no complaints regarding his representation.
The circuit court specifically asked petitioner's
attorney whether he received satisfactory discovery from the
State and whether he went over the same with petitioner.
Petitioner's attorney answered in the affirmative to both
both the circuit court and petitioner's attorney noted
that the plea agreement offered petitioner an advantage over
continuing with his trial given that the agreement resulted
in a reduction in the number of counts against him. In this
regard, we find that it is significant that the March 6,
2007, 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). Therefore, we find that, because
petitioner successfully had both counts of second degree
sexual assault and eighty-two out of eighty-seven counts of
third degree sexual assault dismissed, petitioner has failed
to show that there was a reasonable probability that, but for
counsel's errors (assuming, arguendo, that there were
errors), he would have insisted on going to trial.
a defendant “waives significant constitutional rights
by entering into a plea agreement[.]” State ex rel.
Forbes v. Kaufman, 185 W.Va. 72, 77, 404 S.E.2d 763, 768
(1991); see State v. Greene, 196 W.Va. 500, 505, 473
S.E.2d 921, 926 (1996) (Cleckley, J., concurring) (stating
that, “in the absence of special circumstances, a
guilty plea waives all antecedent constitutional and
statutory violations save those with jurisdictional
consequences”) (footnote omitted). The only
jurisdictional claim asserted by petitioner is his allegation
that petitioner's attorney failed to raise the circuit
court's lack of jurisdiction over some of the counts of
the indictment. However, petitioner pled guilty only to
Counts 9, 30, 61, 69 and 77 of the indictment. The State
proffered that it was prepared to show that petitioner
committed third degree sexual assault as charged in those
counts, including that the criminal conduct in each instance
“took place in Pocahontas County.” Petitioner
conceded that the State's proffer was correct. Therefore,
we conclude that the circuit court did not abuse its
discretion in dismissing petitioner's habeas petition
without an evidentiary hearing or appointment of counsel
because all of petitioner's issues can be decided on the
existing record. See Syl. Pt. 1, Perdue v. Coiner,
156 W.Va. 467, 194 S.E.2d 657 (1973) (holding that a circuit
court may deny a habeas petition without a hearing or
appointment of counsel “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”).
foregoing reasons, we affirm the circuit court's August
6, 2015, order dismissing petitioner's petition for a
writ of habeas corpus.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
E. Ketchum, Justice Elizabeth D. Walker.
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);
In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162
(1993); State v. Edward Charles L., 183 W.Va. 641,
398 S.E.2d 123 (1990).
In his underlying habeas petition,
petitioner named Karen Pszczolkowski, Warden of Northern
Correctional Center, as the respondent because he was then
incarcerated at that facility. Due to petitioner's
relocation to the McDowell County Correctional Center, we
substitute the name of Ralph Terry, Warden, McDowell County
Correctional Center, for that of Ms. Pszczolkowski, pursuant
to Rule 41(c) of the West Virginia Rules of Appellate
According to the circuit court,
petitioner's federal convictions were based on his taking
M.P. "across into Virginia . . . and further abusing
Petitioner filed a prior habeas
petition on February 8, 2012. At that time, petitioner was
serving his federal sentence in the State of Texas.
Therefore, the circuit court denied that petition on March 1,
2012, based on a lack of jurisdiction.