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Mitchell M. v. Ballard

Supreme Court of West Virginia

August 25, 2017

Mitchell M., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         (Raleigh County 16-C-527-K)

          MEMORANDUM DECISION

         Petitioner Mitchell M., [1] pro se, appeals the August 22, 2016, order of the Circuit Court of Raleigh County denying his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, 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.

         Petitioner was convicted of sexual offenses against his disabled stepdaughter, first, following a jury trial in Fayette County in 2005 and, second, following the entry of his guilty pleas in Raleigh County in 2006. The victim was born in 1983, and petitioner married her mother in 1986. Although a divorce occurred in 1995, petitioner continued to see the victim. In a November 14, 2003, statement to the West Virginia State Police, petitioner admitted to numerous sexual offenses against the victim in both Fayette and Raleigh Counties during the time that the victim was a minor.[2]

         Petitioner sought review of his Fayette County convictions before this Court in Case No. 052157; however, this Court refused his appeal.[3] At an October 16, 2006, hearing in petitioner's Raleigh County case, the parties entered into a plea agreement pursuant to which petitioner agreed to plead guilty to nine of the thirty-three counts of that indictment: two counts of incest pursuant to West Virginia Code § 61-8-12, one count of first-degree sexual assault pursuant to West Virginia Code § 61-8B-3, two counts of first-degree sexual abuse pursuant to West Virginia Code § 61-8B-7, one count of second-degree sexual assault pursuant to West Virginia Code § 61-8B-4, and three counts of sexual abuse by a custodian pursuant to West Virginia Code § 61-8D-5(a). The plea agreement provided that all of petitioner's Raleigh County sentences would be served concurrently with each other and with petitioner's aggregate sentence of forty to eighty years of incarceration in the Fayette County case, with the exception of his sentence for first-degree sexual assault. The plea agreement provided that petitioner's sentence for first-degree sexual assault would be served consecutive to all of his other sentences.

         During petitioner's plea colloquy, [4] the Circuit Court of Raleigh County inquired whether petitioner understood that "this proposed sentence is more or less a life sentence." Petitioner answered "yes" and also indicated that he discussed the plea agreement with his attorney. The circuit court questioned whether petitioner and his attorney discussed the indictment, and petitioner responded that they did. Petitioner further responded that his attorney did "everything reasonably possible" to represent him in this case and that he did not have any complaints about his attorney's performance. Petitioner answered "no" to the question of whether "anybody put pressure on [him] to force [him] to enter these pleas." Based on petitioner's representations and responses, the circuit court found that petitioner "freely, voluntarily, intelligently, knowingly[, ] and understandingly" entered his guilty pleas to the nine counts at issue and that he did so competently and understandingly of "all of the ramifications of his actions in regard to this proceeding."

         The circuit court further found that there was a factual basis for petitioner's guilty pleas. With regard to the State's proffer of evidence, petitioner disagreed that the victim was as young as five years old when he began molesting her. Consequently, the circuit court specifically questioned petitioner whether he agreed that the victim was "eleven [years old] or . . . younger than eleven [years old] whenever all of this business started." Petitioner answered, "Yes, Your Honor." The circuit court found that "the record is clear that all of the elements for all the counts are now satisfied." Thereafter, the circuit court imposed sentences as outlined by the State in its explanation of the plea agreement. Given petitioner's sentences in both Raleigh and Fayette Counties, he is serving an aggregate term of 55 to 115 years of incarceration. Petitioner did not appeal his convictions in his Raleigh County case.

         In 2016, petitioner requested a copy of the Raleigh County record because he wanted to file a petition for a writ of habeas corpus. The circuit court found that the record was mailed to petitioner on March 1, 2016. Petitioner filed his habeas petition and a motion for appointment of counsel on August 10, 2016. However, according to petitioner, he did not receive the hearing transcripts until after the circuit court denied his habeas petition by order entered on August 22, 2016.[5] The circuit court found that petitioner's request for the record was honored because it was mailed to him. The circuit court further found that it was unnecessary to appoint an attorney for petitioner because he "very clearly articulated his arguments in the [p]etition[.]"

         As to petitioner's substantive claims, the circuit court first rejected his contention that the State improperly presented evidence to the grand jury through the testimony only of the investigating officer; the circuit court found that the practice was not contrary to West Virginia law.[6] Next, the circuit court grouped petitioner's claims of ineffective assistance of trial counsel together and found that they were contradicted by his testimony at the October 16, 2006, hearing, where he testified that he was satisfied with his attorney and that the attorney did everything reasonable to represent him. The circuit court further found that many of the alleged issues that underlay petitioner's ineffective assistance claims were resolved by his knowing and intelligent decision to plead guilty, which waived most of his constitutional rights and any "pre-trial defects."[7] Finally, the circuit court noted that, while petitioner raised numerous challenges to the adequacy of the indictment, the indictment was valid on its face. The circuit court explained that the indictment set forth the charges in "separate counts" and had "all" information required by law.

         Petitioner now appeals the circuit court's August 22, 2016, order denying his habeas petition. We apply the following standard of review in habeas cases:

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).

         On appeal, petitioner contends that the circuit court made findings insufficient to support its denial of habeas relief regarding his various claims alleging ineffective assistance of counsel and a defective indictment. Petitioner further contends that his ineffective assistance claims entitled him to appointment of counsel and an evidentiary hearing. With regard to this last contention, petitioner asserts that he was prejudiced by the fact that he did not receive the transcript of the October 16, 2006, hearing in his Raleigh County case until after the circuit court denied his habeas petition. Because petitioner's assignments of error are interrelated, we address them together.

         As a preliminary matter, to the extent that petitioner objects to the circuit court's grouping related claims together, we concern ourselves not with the manner in which an order was drafted, "but with whether the findings adopted by the circuit court accurately reflect the existing law and the trial record." State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). We reject petitioner's contention that the circuit court's findings were insufficient ...


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