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. 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
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.
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.
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
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
MS. WILLIAMS: I believe that that would be paragraph six,