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Braynen v. Plumley

Supreme Court of West Virginia

August 25, 2017

Leonard Braynen, Jr., Petitioner Below, Petitioner
v.
Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

         (Ohio County 16-C-151)

          MEMORANDUM DECISION

         Petitioner Leonard Braynen, Jr., pro se, appeals the August 5, 2016, order of the Circuit Court of Ohio County denying his petition for a writ of habeas corpus. Respondent Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Zachary Aaron Viglianco, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         This Court has previously recited the underlying facts of petitioner's case in his first habeas proceeding:

On April 3, 2009, petitioner drove a group of college students to Oglebay Park in Ohio County for a fraternity formal. The victim, who was a passenger in one of the two party buses, consumed too much alcohol on the ride and fell asleep in a cabin once they arrived. Her friends checked on her throughout the night. At one point, one of her friends observed petitioner leaving the room where the victim was sleeping. When she turned on the light, the victim stirred and exclaimed, "What happened? Someone just raped me!" When confronted by the students, petitioner admitted being in the victim's room, but denied that he sexually assaulted her.
During the investigation by the Ohio County Sheriff's Department, petitioner spoke with officers after being given Miranda warnings and signing a waiver. It is undisputed that petitioner also consented to provide biological and physical evidence. A search warrant was also obtained to collect the same evidence. The victim's DNA was found on petitioner's penis.

Braynen v. Plumley, No. 15-0334, 2016 WL 1417688, at *1 (W.Va. April 8, 2016) (memorandum decision) (footnote omitted). Because petitioner allegedly committed two separate sex acts on the victim, he was indicted on two counts of second-degree sexual assault pursuant to West Virginia Code § 61-8B-4, which sets forth the elements of the offense and the sentence of ten to twenty-five years of incarceration if a defendant is found guilty of the same.

         Before trial, the State sought the admission of evidence of prior bad acts pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Following a McGinnis hearing, [1] the circuit court admitted the evidence that petitioner (1) previously assaulted another woman who was incapacitated due to intoxication; and (2) had a prior conviction in the State of Ohio for indecent exposure. Thereafter, the parties entered into a plea agreement, pursuant to which petitioner agreed to enter a Kennedy plea[2] to one count of second-degree sexual assault and the State agreed to dismiss the other count of second-degree sexual assault. Petitioner also agreed to waive his right to a presentence investigation report.

         The circuit court held a plea hearing on November 9, 2009. At the beginning of petitioner's plea colloquy, [3] the circuit court advised petitioner as follows: "If at any time you wish to confer with your attorney, you certainly are free to do so. You can do it either at counsel table, or you can go back to the jury room and take as much time as you need." Then, the circuit court warned petitioner that, as a result of his conviction, he may be subjected to a term of supervised release following his incarceration. When the circuit court asked petitioner whether he understood, he responded, "Can I take a minute?" Thereupon, the hearing transcript reflects that a discussion occurred off the record. Petitioner subsequently told the circuit court, "All right, sir." After the circuit court finished explaining the nature of supervised release, petitioner's trial attorney responded as follows:

Your Honor, if I might interject, I realize Your Honor needs to cover these matters in detail and the detail you're covering them. [Petitioner] is a Bahamian national because he's-if the Court accepts his plea and enters the plea of guilty-considered to have committed [an] offense that, under INS regulations is view[ed] as a deportable offense.
Immediately upon his discharge from the [West Virginia Division of Corrections ("DOC")], he'd be deported back. . . .

         Subsequently, the circuit court examined the plea agreement, noting that it was signed. Petitioner, petitioner's trial attorney, and the State's attorney acknowledged their signatures. The circuit court asked petitioner whether he understood the agreement and had discussed it with his trial attorney. Petitioner responded that he comprehended the agreement and that his trial attorney had answered the questions he had about it. The circuit court queried whether petitioner fully understood "the consequences of this plea agreement." Petitioner answered, "Correct, Sir."

         Next, the circuit court asked petitioner whether he was satisfied with his trial attorney's representation. Petitioner answered, "Yes, sir." The circuit court inquired whether petitioner felt that his trial attorney had done anything improper. Petitioner responded, "No, no, sir." The circuit court specifically asked petitioner whether his trial attorney "explained to [petitioner] all the defenses that [he] would have to this charge?" Petitioner answered, "Yes, sir." Finally, the circuit court queried whether petitioner had any complaints about his trial attorney. Petitioner responded, "No, sir."

         At the end of the plea colloquy, the circuit court asked petitioner whether he still desired to plead guilty, and petitioner answered affirmatively. The State then proffered the evidence it would present at trial. Petitioner's trial attorney responded to the State's proffer by stating that "[t]here's some serious holes in the State's case as far as we're concerned." Petitioner's trial attorney explained in front of petitioner and on the record that, because of inconsistent witness statements, "the time line doesn't add up very well." At ...


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