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Below v. Ballard

Supreme Court of West Virginia

September 5, 2017

Larry B., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Mercer County 15-C-370-DS

          MEMORANDUM DECISION

         Petitioner 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.[1] 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.

         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.

         During 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.

         In 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.

         In May 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.

         In 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.

         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 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.

         For the foregoing reasons, we affirm.

         Affirmed.

          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.

         IN THE CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA

         STATE OF WEST VIRGINIA EX REL., LARRY B

         v.

         DAVID BALLARD, WARDEN, MOUNT OLIVE CORRECTIONAL COMPLEX, Civil Action No. 15-C-370-DS

          DEREK C. SWOPE, JUDGE.

         ORDER DENYING THE PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND REMOVING THIS ACTION FROM THE ACTIVE DOCKET OF THIS COURT

         On 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.

         The 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.

         Whereupon, 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.

         In support of the aforementioned ruling, the Court makes the following General Findings of Fact and Conclusions of Law:

         I. FACTUAL/PROCEDURAL HISTORY OF MERCER COUNTY CRIMINAL CASE NUMBER 03-F-244

         A. The Indictment

         By a 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.

         B. Pre-Trial Proceedings

         On July 9, 2003, the Petitioner was arrested for allegedly sexually abusing his step daughter, K.B.[1] 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.[2] 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. .

         By 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.[3]

         C. The Plea Agreement

         At a 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.

         D. Sentencing

         Having 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.[4]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.

         E. Post-Sentencing Matters

         On May 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.[5] 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.[6]

         II. 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

         A. The Petition: Civil Action No. 15-C-370

         On 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:

         1. 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 interest"; and
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.

         2. 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.

         3. Disproportionate Sentence

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 offenses; and
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 imposed.

         4. Deficient Indictment

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.

         In 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.

         B. THE LOSH CHECKLIST

         Counsel also filed the Losh Checklist contemporaneously with the Petition:

         Waived Grounds:

         In his Losh Checklist, the Petitioner waived the following grounds for relief:

- Lack of trial court jurisdiction.
- Unconstitutionality of statute under which conviction obtained.
- Indictment showing on its face that no offense was committed.
- 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 procedures.
- Failure to provide a copy of the indictment to the defendant.
- 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 testified.
- 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 jury.
- Amount of time served on sentence, credit for time served. Asserted Grounds:
- 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 eligibility.

         C. THE STATE'S RESPONSE TO THE PETITION

         On 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 trial.

         The 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.

         The 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.

         In closing, the Respondent asks the Court to deny the Petition for habeas relief.

         D. THE OMNIBUS HABEAS CORPUS HEARING

         On February 2, 2016[7], 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 proceeding.

         The 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.

         The 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 child victims:

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: Yes, sir.
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 upset her?
Petitioner: Yes, sir.[8]

         Additionally, 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 you were
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.[9]
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 right?
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.[10]

         In 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 ...

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