Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tracy W. v. Ballard

Supreme Court of West Virginia

September 5, 2017

Tracy W., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         (Mineral County 09-C-56)

          MEMORANDUM DECISION

         Petitioner Tracy W., [1] by counsel Jonathan G. Brill, appeals the Circuit Court of Mineral County's February 2, 2016, order denying his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner argues that the circuit court erred in denying his habeas petition without conducting an evidentiary hearing and in failing to find that he received ineffective assistance of counsel and involuntarily entered a guilty plea.

         This 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.

         In September of 2007, petitioner was indicted on five counts of sexual abuse by a custodian, three counts of sexual abuse in the first degree, and two counts of sexual assault in the first degree. Subsequently, in a separate case, petitioner was indicted on six counts of failure to register as a sex offender and five counts of soliciting a minor via computer. Petitioner entered into a plea agreement whereby he pled guilty to two counts of sexual abuse by a custodian and one count of sexual abuse in the first degree in exchange for dismissal of the remaining charges and cases. In June of 2008, petitioner was sentenced to ten to twenty years on each count of sexual abuse by a custodian and five to twenty-five years on the sexual abuse in the first degree count. The sentences were ordered to run consecutively.

         Petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Following appointment of counsel, petitioner filed an amended petition on April 21, 2014, alleging that he was denied effective assistance of trial counsel, that his plea was not entered voluntarily or willingly, prosecutorial misconduct, excessive bail, and that petitioner was denied his right to appeal. The circuit court did not hold an evidentiary hearing; instead, finding each ground to be meritless, it denied the request for habeas relief by order entered February 2, 2016. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief 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." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal to this Court, petitioner first argues that he was entitled to habeas relief due to trial counsel's ineffective representation. Specifically, petitioner argues that counsel failed to provide him with the State's evidence, adequately investigate his case, seek a bail reduction, request a psychological exam or competency exam, advise him that he could receive consecutive sentencing, and file a notice of appeal.

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995).

         Petitioner first claims that counsel failed to provide him with the State's evidence. During proceedings held on February 28, 2008, [2] petitioner's counsel informed petitioner that he had given petitioner all the evidence he had to give. Petitioner has not identified any evidence that counsel failed to provide him or, importantly, how such failure would have changed the outcome of the proceedings. Likewise, petitioner has failed to articulate what investigation counsel failed to pursue or what evidence counsel failed to discover that would have changed the outcome of the proceedings. Thus, we find that the circuit court's findings that counsel was not ineffective and that, even if ineffectiveness could be presumed, the proceedings would not have been different are not clearly erroneous.

         Next, petitioner claims that counsel failed to seek a reduction in bail. At the February 28, 2008, hearing, counsel stated that he chose not to ask the court for a bail reduction because the prosecuting attorney indicated that he would object to it and because petitioner "had no money with which to post a bail with so it would have been a useless motion." "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 643, 203 S.E.2d 445, 449 (1974). Counsel considered moving for a bail reduction but ultimately determined such motion to be fruitless. Consequently, the circuit court's conclusion that counsel did not render ineffective assistance in this regard is not clearly erroneous.

         Petitioner also claims that counsel should have sought a psychological evaluation or competency examination. This claim stems from the fact that petitioner sought treatment around the time of his arrest for a nervous breakdown that resulted from the investigation into his unlawful conduct. The record reflects that, at the February 28, 2008, hearing, petitioner asserted that neither the treatment nor the medication prescribed (an anti-depressant) affected his ability to understand the proceedings. In fact, petitioner even corrected the circuit court when it misstated the sentence for sexual assault in the first degree. At that time, the circuit court recognized petitioner's mental health issue but concluded that petitioner was prescribed an anti-depressant that was not a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.