Larry B., by counsel Paul Cassell, appeals the Circuit Court
of Mercer County's June 22, 2016, order denying his
petition for writ of habeas corpus. Respondent David Ballard,
Warden, by counsel Julie A. Warren, filed a response. On
appeal, petitioner argues that the circuit court erred in
denying his habeas petition on the grounds of ineffective
assistance of trial counsel and that his guilty plea was not
knowingly, intelligently, and voluntarily made.
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.
the October of 2003 term of court, a grand jury indicted
petitioner on fourteen counts of first-degree sexual assault,
eight counts of incest, and sixteen counts of sexual abuse by
a custodian. According to the indictment, petitioner was
alleged to have engaged in sexual misconduct with three minor
children in his care.
March of 2004, petitioner pled guilty, pursuant to a plea
agreement, to three counts of first-degree sexual assault,
three counts of incest, and two counts of sexual abuse by a
custodian. In exchange, the State agreed to dismiss the
remaining counts from the indictment. Thereafter, the circuit
court held a sentencing hearing and imposed the following
sentence: not less than fifteen nor more than thirty-five
years for the offense of first-degree sexual assault as set
forth in counts one, nine, and thirty-five of the indictment;
not less than five nor more than fifteen years for the
offense of incest as set forth in counts eleven, seventeen,
and thirty-six of the indictment; and not less than ten nor
more than twenty years for the offense of sexual abuse by a
custodian as set forth in counts twenty-one and thirty-three
of the indictment. The sentences were ordered to run
consecutively to one another. Additionally, the circuit court
suspended the sentences imposed for counts nine, seventeen,
twenty-one, thirty-three, thirty-five, and thirty-six and
ordered that petitioner be placed on probation for five years
following the completion of his term of incarceration.
Petitioner did not appeal this order.
of 2013, petitioner filed a pro se petition for writ of
habeas corpus and a motion to be resentenced for purposes of
appeal. After the circuit court appointed him counsel,
petitioner filed a renewed motion to be resentenced for
purposes of appeal. The circuit court thereafter entered two
orders resentencing petitioner, although he eventually
decided not to pursue a direct criminal appeal in light of
his pending habeas action in circuit court.
November of 2015, petitioner, by counsel, filed his petition
for writ of habeas corpus. The petition raised the following
grounds: ineffective assistance of counsel, involuntary
guilty plea, disproportionate sentence, and deficient
indictment. After respondent filed a brief, the circuit court
held an omnibus evidentiary hearing in February of 2016.
Following the hearing, the circuit court entered an order in
June of 2016 denying the petition for writ of habeas corpus.
It is from this order that petitioner appeals.
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).
appeal to this Court, petitioner argues that he was entitled
to habeas relief due to trial counsel's ineffective
representation and his allegation that his guilty plea was
not knowingly, intelligently, and voluntarily made. The
Court, however, does not agree. Upon our review and
consideration of the circuit court's order, the
parties' arguments, and the record submitted on appeal,
we find no error or abuse of discretion by the circuit court.
Our review of the record supports the circuit court's
decision to deny petitioner post-conviction habeas corpus
relief based on these alleged errors, which were also argued
below. Indeed, the circuit court's order includes
well-reasoned findings and conclusions as to the assignments
of error raised on appeal. Given our conclusion that the
circuit court's order and the record before us reflect no
clear error or abuse of discretion, we hereby adopt and
incorporate the circuit court's findings and conclusions
as they relate to petitioner's assignments of error
raised herein and direct the Clerk to attach a copy of the
circuit court's June 22, 2016, "Order Denying The
Petitioner's Petition For Writ of Habeas Corpus Ad
Subjiciendum And Removing This Action From the Active Docket
Of This Court" to this memorandum decision.
foregoing reasons, we affirm.
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.
CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA
OF WEST VIRGINIA EX REL., LARRY B
BALLARD, WARDEN, MOUNT OLIVE CORRECTIONAL COMPLEX, Civil
Action No. 15-C-370-DS
C. SWOPE, JUDGE.
DENYING THE PETITIONER'S PETITION FOR WRIT OF HABEAS
CORPUS AD SUBJICIENDUM AND REMOVING THIS ACTION FROM THE
ACTIVE DOCKET OF THIS COURT
February 2, 2016, this matter came before the Court, the
Honorable Judge Derek C. Swope presiding, for a hearing on
the Petitioner's Petition for Post-Conviction Habeas
Corpus Relief, brought pursuant to the provisions of Chapter
53, Article 4A, of the West Virginia Code, as amended, which
was filed by the Petitioner through his court-appointed
counsel, Paul R. Cassell, Esq. The Petitioner and his counsel
appeared. John McGinnis, IV, Esq., Assistant Prosecuting
Attorney for Mercer County, appeared on behalf of the State
of West Virginia.
Petitioner is seeking post-conviction habeas corpus relief
from his May 21, 2004 sentence of not less than fifteen (15)
years nor more than thirty-five (35) years each as provided
by law for the offense of Sexual Assault - First Degree for
three counts of such offense; no less than five (5) years nor
more than fifteen (15) years each as provided by law for the
offense of Incest for three counts of such offense; and not
less than ten (10) years nor more than twenty (20) years each
as provided by law for the offense of Sexual Abuse by a
Custodian for two coiants of such offense. The Court ordered
that these sentences all run consecutively, but suspended the
bulk of such sentences, providing that the Petitioner be
placed on probation after he served fifteen (15) to
thirty-five (35) years for one count of Sexual Assault -
First Degree and ten (10) to twenty (20) years for one count
of Sexual Abuse by a Custodian, absent a sbowing that he is
being unlawfully detained due to prejudicial constitutional
errors in the underlying criminal proceeding.
the Court, having reviewed and considered the Petition, the
State's Response thereto, the Court files, the
transcripts, the arguments of counsel, and the pertinent
legal authorities, does hereby deny the Petitioner's
Petition for Habeas Corpus Relief.
support of the aforementioned ruling, the Court makes the
following General Findings of Fact and Conclusions of Law:
FACTUAL/PROCEDURAL HISTORY OF MERCER COUNTY CRIMINAL
CASE NUMBER 03-F-244
True Bill returned in the October 2003 term by the Mercer
County Grand Jury, the Petitioner, Larry B' . was
indicted in a thirty-eight count indictment for fourteen (14)
counts of Sexual Assault - First Degree, eight (8) counts of
Incest, and sixteen (16) counts of Sexual Abuse by a
Custodian. It was alleged that Larry B engaged in sexual
misconduct with three minor children under his care. Out of
the thirty-eight count indictment, Counts 1, 3, 5, 9, 12, 15,
18, 20, 22, 26, 29, 32, 35, and 37 were for Sexual Assault -
First Degree, Counts 2, 4, 6, 7, 8, 10, 13, 16, 19, 21, 23,
24, 25, 27, 30, and 33 were for Sexual Abuse by a Custodian,
and Counts 11, 14, 17, 28, 31, 34, 36 and 38 were for Incest.
All counts in the indictment arise from events which
allegedly occurred over a long span of time: between March
18, 1990 and March 18, 1991; during the Fall and Winter
months of 2002; and during the Spring months of 2003.
9, 2003, the Petitioner was arrested for allegedly sexually
abusing his step daughter, K.B. The Petitioner was placed
on a $40, 000 10% cash and surety bond. On July 15, 2003, the
Petitioner had a preliminary hearing in Mercer County
Magistrate Court, however, it was continued to July 22, 2003
upon the Petitioner's waiver of the ten (10) day time
limit for same. Upon the return of the
above-referenced indictment, the Circuit Clerk of Mercer
County sent a written Notice to the Petitioner to appear for
arraignment on October 20, 2003, for which the Petitioner
appeared with his appointed counsel, Ward Morgan, Esq. On
October 30, 2003, the Petitioner, by his counsel, Mr. Morgan,
filed a. standard Motion for Discovery and Inspection
pursuant to Rule 16 of the West Virginia Rules of Criminal
Procedure. On November 12, 2003, the Petitioner filed a
Motion to Suppress Confession; the Petitioner also filed a
Motion to Sever the offenses . contained in the Indictment.
By Order entered on December 10, 2003, the Court deferred
hearing the Petitioner's Motions pending his competency
evaluation. A defense motion to continue the trial in the
matter was granted on January 12, 2004. .
Order entered on March 4, 2004, the Court found that the
Petitioner was competent to stand trial and/or enter a plea
based on the competency evaluation report.
The Plea Agreement
plea hearing held on March 8, 2004, the Petitioner pled
guilty to Counts 1, 9, and 35 of the Indictment, charging
" Sexual Assault - First Degree"; to Counts 11, 17,
and 36, .charging "Incest"; and to Counts 21 and
33, charging "Sexual Abuse by a Custodian." In
exchange for his plea, the State agreed to dismiss the
remaining counts of the Indictment. The Court tentatively
accepted the Petitioner's guilty plea, pending receipt
.of the pre-sentence investigation report. The Petitioner and
the State acknowledged that there was no agreement with
regard to sentencing.
previously adjudged the Petitioner guilty of the
aforementioned offenses during the plea hearing, on May 17,
2004, the Court sentenced the Petitioner as follows: Not less
than fifteen (15) years nor more than thirty-five (35) years
as provided by law for the offense of "Sexual Assault -
First Degree" for Counts 1, 9, and 35; not less than
five (5) nor more than fifteen (15) years as.provided by law
for the offense of "Incest" for Counts 11, 17, and
36; and not less than ten (10) nor more than twenty (20)
years as provided by law for the offense of "Sexual
Abuse by a Custodian" for Counts 21 and
33.These sentences were ordered to run
consecutively with one another and the Petitioner received
jail credit for 284 days. The Court further ordered that the
sentences imposed for Counts 9, 35, 17, 36, 21, and 33 be
suspended and that the Petitioner be placed on probation for
five years after completion of the indeterminate sentences of
15 - 35 years that were imposed for Count 1, and 10-20 years
that were imposed for Count 21.
6, 2013, the Court received the Petitioner's handwritten
correspondence requesting his file and appointment of counsel
in order to prosecute a writ of habeas corpus, as well as a
request to be resentenced in order to preserve his appeal
rights. On July 11, 2013, the Court appointed Paul R.
Cassell, Esq. to represent the Petitioner to pursue these
causes. On September 23, 2013, the Petitioner, by counsel,
filed his Motion to Resentence; on January 22, 2014, the
Court resentenced the Petitioner to the same sentences as
imposed earlier for appeal purposes. Ultimately, due to
the Petitioner's impending habeas action wherein certain
challenges would be made, an appeal in the underlying
criminal matter was not pursued by the Petitioner
and his counsel.
THE PETITION FOR WRIT OF HABEAS CORPUS; THE LOSH
CHECKLIST; THE RESPONSE OF STATE TO PETITION FOR WRIT OF
HABEAS CORPUS; AND THE OMNIBUS HEAKING
The Petition: Civil Action No. 15-C-370
November 2, 2015, the Petitioner, by counsel, filed his
Petition for Writ of Habeas Corpus in the Circuit Court of
Mercer County. The Petition raised the following . grounds:
Ineffective assistance of counsel:
a. Counsel was ineffective with regard to allowing the
Petitioner to enter a guilty plea to the charges due to the
Petitioner's alcoholism, mental health issues, as well as
his mental comprehension deficits;
b. Counsel was ineffective due to recommending that the
Petitioner accept the unfavorable "best interest"
plea, wherein the Petitioner was subjected to a potential
sentence of eighty (80) to one hundred and ninety (190)
years, which resulted in the given sentence of not less than
twenty-five (25) nor more than fifty-five (55) years, despite
the Petitioner's age of 43 years old at the time, where
he would first be eligible for parole at age 68 - Petitioner
was essentially given a life sentence as a "best
c. Counsel was ineffective for not fully exploring the
Petitioner's mental health state because he had been
suffering from a well-documented mental defect long before
the plea hearing.
Involuntary Guilty Plea
a. The guilty plea was involuntary and due to the
Petitioner's mental illness; alcoholism and poor
intellectual functioning, he was unable to make a knowing,
intelligent entry of a guilty plea; and
b. The Petitioner was also illiterate and could not
understand the full ramifications of the guilty plea.
a. The Petitioner's age at the time of the plea
agreement, and the subsequent sentencing, effectively gave
the Petitioner to a life sentence for these offenses;
b. The sentence shocks the conscience because even defendants
convicted of muxder in Mercer County have received less
prison time than the Petitioner did for these alleged
c. The Petitioner's lack of a prior felony conviction,
coupled with his history of alcoholism and mental issues,
underscore the disproportionate nature of the sentences
a. The Indictment against the Petitioner was constitutionally
inadequate to identify the conduct charged with sufficient
specificity to allow the Petitioner to challenge future
potential charges on double jeopardy grounds.
b. There was insufficient evidence in the record during the
plea hearing to prevent future prosecution insofar as the
limited number of counts -provided insufficient details to
differentiate among the various' actions- the factual
basis for the plea agreement was too vague.
short, the Petitioner requested habeas relief for all these
grounds, and for those asserted in the Losh
Checklist. The Petitioner contends that he has maintained his
innocence with regard to victims, K.B. and L.B.J., and though
he acknowledged some limited conduct with W.J.B., it did not
rise to the seriousness of the offenses to which he pled.
also filed the Losh Checklist contemporaneously with
Losh Checklist, the Petitioner waived the following
grounds for relief:
- Lack of trial court jurisdiction.
- Unconstitutionality of statute under which conviction
- Indictment showing on its face that no offense was
- Denial of speedy trial right.
- Incapacity to stand trial due to drug use.
- Language barrier to understand the proceedings.
- Denial of counsel.
- Coerced confession.
-Suppression of helpful evidence by prosecutor.
- State's knowing "use of perjured testimony.
- Falsification of a transcript by prosecutor.
- Unfulfilled plea bargains.
- Information in pre-sentence report erroneous.
- Double jeopardy.
- Irregularities in arrest.
- Excessiveness or denial of bail.
- No preliminary hearing.
- Illegal detention prior to arraignment.
- Irregularities or errors in arraignment.
- Challenges to the composition of grand jury of its
- Failure to provide a copy of the indictment to the
- Improper venue.
- Pre-indictment delay.
- Refusal of continuance.
- Refusal to subpoena witnesses.
- Prejudicial joinder of defendants.
- Lack of full public hearing.
- Nondisclosure of Grand Jury minutes.
- Refusal to turn over witness notes after witness has
- Claims concerning use of informers to convict.
- Constitutional errors in evidentiary rulings.
- Instructions to the jury.
Claims by prejudicial statements by trial judges.
- Claims by prejudicial statements by prosecutor.
- Acquittal of co-defendant on same charge.
- Defendant's absence from part of the proceedings.
- Improper communications between prosecutor or witnesses and
- Amount of time served on sentence, credit for time served.
- Prejudicial pretrial publicity.
- Involuntary guilty plea.
- Mental competency at the time of crime.
- Mental competency at the time of trial.
- Failure of counsel to take an appeal.
Consecutive sentences for same transaction.
- Ineffective assistance of counsel.
- Defects in indictment
- Claim of incompetence at time of the offense, as opposed to
time of trial.
-Sufficiency of evidence.
- Question of actual guilt upon an acceptable guilty plea.
Severer sentence than expected.
- Excessive sentence.
- Mistaken advice of counsel as to parole or probation
THE STATE'S RESPONSE TO THE PETITION
February 1, 2016, the Respondent, by and through Assistant
Prosecutor John H. McGinnis, IV, Esq., filed a Response
addressing the Petitioner's. Petition for Writ of Habeas
Corpus. The Respondent -agrees with the Petition's legal
standard as set forth therein, but disputes the
Petitioner's contention that he received ineffective
assistance of counsel for recommending an unfavorable best
interest plea. The Respondent contends that the underlying
record does not indicate that the Petitioner would have
received a more favorable result had the matter proceeded to
Respondent contends that the record concerning the plea
demonstrates that the Petitioner made a voluntary, knowing,
and intelligent entry of his guilty plea. The record is clear
that the Petitioner was not suffering under any mental defect
or alcoholism that affected his ability to participate in the
proceedings, and further, that the Petitioner acknowledged
that some of the responses written in the paperwork in
support of his petition to enter a plea were in his own hand.
During the colloquy with the Court, the Respondent contends
that the record is clear that the Petitioner met with his
counsel numerous times and that the plea was the result of a
free and voluntary decision hy the Petitioner.
Respondent argues that the Petitioner's sentence is
within the statutory authority for the offenses to which he
pled guilty and does not offend constitutional constructs or
shocks the conscience.
closing, the Respondent asks the Court to deny the Petition
for habeas relief.
THE OMNIBUS HABEAS CORPUS HEARING
February 2, 2016, the Court conducted the omnibus
habeas corpus proceeding in this action. The Petitioner
appeared in person, and by counsel, Paul R. Cassell, Esq. The
State of West Virginia was represented by John H. McGinn is,
IV, Esq., Assistant Prosecuting Attorney. The Petitioner was
sworn and the Court reviewed his rights in an omnibus habeas
corpus proceeding. The Petitioner was advised that he had to
raise all grounds in his Petition or be forever barred from
raising the same, absent those special exceptions set forth,
infra. In response to the Court's inquiry, the
Petitioner stated that he was not under the influence of
alcohol or drugs at the time of the hearing that would have
affected his ability to understand the proceedings. The Court
reviewed the Losh Checklist with the Petitioner in
detail, ensuring that every ground that he wished to raise
was before the Court in this proceeding. The Petitioner
testified on his own behalf. The parties stipulated to all
the evidence and agreed to admit the entire criminal file as
evidence and therefore part of the record in this habeas
Petitioner testified that he and his appointed counsel, Paul
Cassell, Esq., worked together on this haheas proceeding for
a long time and had numerous meetings at the prison before
the omnibus hearing.. The Petitioner testified that he met
with his habeas counsel and reviewed the Losh
Checklist with him.
Petitioner testified that Ward Morgan, Esq. was appointed as
his counsel in the underlying criminal matter. The Petitioner
testified that he entered a guilty plea to sexual offenses
that related to all three child victims. The Petitioner
testified that with regard to his nephew, he admitted to
committing certain acts with him, but not with the other two
Mr. Cassell: You taught your nephew how to masturbate. Is
that fair to say?
Petitioner: Yes, sir.
Mr. Cassell: Did you ever commit any offense with regard to
the other two children?
Petitioner: No, sir.
Mr. Cassell: And have you always maintained that you were
innocent with regard to those two?
Petitioner: Yes, sir.
Mr. Cassell: And in fact, in your plea paperwork you put down
that you were doing it for your best interest. Petitioner:
Mr. Cassell: Now when you - - when you're talking about
your best interest in entering that plea, are you talking
about your best interest or somebody else's?
Petitioner: Well, it was over my step-daughter.
Mr. Cassell: All right. Describe that for the Court, what - -
what was in your mind at the time you entered your plea of
guilty about your step-daughter?
Petitioner: Well, I didn't want her to go thru [sic]
court then when she was small because I thought maybe she
would take a fit, start crying, you know.
Mr. Cassell: So you did enter your - - are you - - were you
thinking about her when you entered your plea of guilty then?
Is that why you were doing it because you didn't want to
Petitioner: Yes, sir.
the Petitioner testified that he had a severe drinking
problem at the time of the crimes, back in 2003:
Mr. Cassell: Did that affect your ability to understand what
doing? Petitioner: Yeah.
Mr. Cassell: How much did you drink hi a day?
Petitioner:' Two or three cases, or more.
Mr. Cassell: All right. And do you have to. drink? If you
didn't drink what would happen to you?
Petitioner: I'd - -1 had "what you'd say
depression and stuff like that
Mr. Cassell: All right Were you on any other medication
back' in 2003?
Petitioner: Just depression medication then.
Mr. Cassell: Who had diagnosed you with depression?
Petitioner: I don't remember that doctor's name.
Mr. Cassell: We've tried to figure that out and you
can't remember that, who - - which doctor it was. Is that
Petitioner: That's right.
Mr. Cassell: But you had been diagnosed with mental health
issues and you were on medication for those issues?
Petitioner: Yes, sir.
addition to depression and alcoholism, the Petitioner
testified that he had a learning disability:
Mr. Cassell: Now on top of the alcoholism and the mental
health issues that you've faced, you've always had
difficulty with learning. Is that fair to say?
Petitioner: Yes, sir.
Mr. Cassell: Describe for the Court [ ] what happened to you?
Petitioner:' When I was a little baby I had rheumatic
fever when I was little. It settled on my brains and in my
joints and it's got my brains - - it takes five years for
my brains to catch up with my body.
Mr. Cassell: Have you always had difficulty reading?
Petitioner: " Yes, sir.
Mr. Cassell: Can you read real well now?
Petitioner: I can read but I still don't ...