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Harry G. v. Mirandy

Supreme Court of West Virginia

September 5, 2017

Harry G., Petitioner Below, Petitioner
v.
Patrick Mirandy, Warden, St. Marys Correctional Center, Respondent Below, Respondent

         Lewis County 14-C-119

          MEMORANDUM DECISION

         Petitioner Harry G., by counsel G. Phillip Davis, appeals the Circuit Court of Lewis County's September 6, 2016, order denying his petition for writ of habeas corpus.[1] Respondent Patrick Mirandy, Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner argues that the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of counsel and breached plea agreement.

         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 June of 2011, petitioner was indicted on one count of sexual abuse by a person in a position of trust and seven counts of incest. Petitioner later entered into a plea agreement whereby he agreed to plead guilty to four counts of incest in exchange for the State's dismissal of one count of incest and its agreement to not re-indict petitioner on the other counts, which had been previously dismissed without prejudice. The State also agreed that it would not object to petitioner's request for home incarceration.

         On April 16, 2012, a sentencing hearing was held. During this hearing, the circuit court asked the State whether it had anything to say, and the following exchange ensued:

MR. MORRIS [Prosecuting attorney]: I do, Your Honor, and have - pursuant to the plea agreement, I have some things I need to do. There are three victims that would like to address the Court. Would you like them to go first or would you like me to -
BY THE COURT: The victims are next.
MR. MORRIS: Okay. Well, Your Honor, the State's recommendation is that Mr. Goldsmith be confined in the penitentiary, that's based on the recommendation of the Court's Probation Officer, the official statement of Corporal Clark and -
BY THE COURT: Mr. Morris, didn't you agree in the plea agreement to recommend home confinement?
MR. MORRIS: No, I did not, Your Honor, and the State would recommend that any and all sentences pronounced -
BY THE COURT: Well, that's what I read.
MS. WILLIAMS [Defense counsel]: Your Honor, I -
MR. MORRIS: - by the Court run concurrently.
MS. WILLIAMS: I believe the State has agreed not to object to our motion to home confinement within the plea agreement.
BY THE COURT: I don't want to get into anything here that's -
MS. WILLIAMS: I believe that that would be paragraph six, ...

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