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Ray P. v. Ballard

Supreme Court of West Virginia

October 23, 2017

Ray P., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Putnam County 13-C-196

          MEMORANDUM DECISION

         Petitioner Ray P., by counsel Timothy J. LaFon, appeals the Circuit Court of Putnam County's October 31, 2016, order denying his petition for writ of habeas corpus.[1] Respondent David Ballard, Warden, by counsel Zachary Aaron Viglianco, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his petition on the grounds of ineffective assistance of counsel, involuntary guilty plea, excessive sentence, and insufficient evidence of actual guilt upon which to accept 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.

         On July 16, 2008, petitioner was indicted on two counts of sexual abuse by a parent, guardian, or custodian and two counts of incest. Petitioner submitted to a forensic psychological evaluation for purposes of determining his competency to stand trial and criminal responsibility for these charges.

         The evaluator concluded that petitioner was not suffering from a mental disease or defect that would prevent him from appreciating the criminality of his conduct or conforming his behavior to the requirements of the law, found no evidence that he ever suffered from psychosis that would have impaired his functioning or evidence to support a diagnosis of mental retardation, and determined that he was able to assist his attorney with a defense and understand the charges against him.

         The testing did reveal, however, some cognitive limitations. As a result, the evaluator recommended that petitioner "would benefit from repetition and definitions of complex terminology and legal concepts as well as the use of simpl[e] instructions. [Petitioner] will require coaching and education regarding the legal proceedings against him, but with instruction he should be able to understand and recall new data."

         Despite these recommendations, the evaluator also highlighted that petitioner presented with only "limited cooperation" and "denied knowing very basic personal data." Throughout the report, the evaluator noted instances of "a higher level of functioning than he would admit or that his intellectual testing would demonstrate" and "an individual functioning at a higher cognitive level than [he] currently claims." His efforts on the testing were found to be "questionable, " and his approach to the evaluation was found to be "an unsophisticated attempt to present himself in a negative manner for a secondary gain." The evaluator also stated that petitioner's "ineffective and unsophisticated attempt to present himself as impaired demonstrates his awareness that an unpleasant consequence may exist as a result of the instant offense and should be viewed as a primitive attempt to protect himself." In sum, the evaluator found that "[a]lthough cognitive limitations are likely due to the immature, poorly developed and inconsistent approach that he offered, they are not as severe as he projects."

         Petitioner later decided to enter into a plea agreement with the State. Petitioner agreed to plead guilty to two counts of sexual abuse by a parent, guardian, or custodian in exchange for the dismissal of the remaining two incest counts. The State also agreed to recommend that the sentences imposed for the sexual abuse by a parent, guardian, or custodian charges be served concurrently. On November 14, 2008, petitioner was sentenced to an indeterminate term of not less than ten years nor more than twenty years for each sexual abuse by a parent, guardian, or custodian count. The sentences were ordered to run consecutively. Petitioner's trial counsel did not file a direct appeal, but he did file a "Motion for Reconsideration of Sentence, " which was denied on March 24, 2009. Approximately four years later, on March 20, 2013, petitioner submitted a letter to the trial court requesting appointment of counsel to assist him with a petition for writ of habeas corpus. Shortly thereafter, counsel was appointed.

         On June 12, 2013, petitioner filed a petition for writ of habeas corpus. Petitioner asserted in his petition that he received ineffective assistance of counsel on account of his trial attorney's failure to adequately explain and educate him as to his plea agreement and possible sentencing, that his plea was involuntary due to the inadequate explanation of the plea's terms and possible sentencing, and that trial counsel failed to file an appeal. Respondent filed a response in opposition to petitioner's petition. On March 16, 2016, the circuit court held an evidentiary hearing on petitioner's petition. The circuit court considered additional grounds raised in petitioner's Losh list and at the hearing, including whether there was sufficient evidence of guilt upon which the guilty plea could have been accepted, whether petitioner's sentence was more severe than expected, and whether his sentence was excessive.[2] By order dated October 31, 2016, the circuit court denied petitioner's 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).

         Petitioner first assigns as error the circuit court's failure to find that he received ineffective assistance of counsel. Specifically, petitioner contends that his trial counsel failed to spend a sufficient amount of time on his case; properly investigate his case, including speak with a potential witness to whom the victim, his youngest daughter, purportedly recanted; file an appeal; and correctly advise petitioner as to his possible sentence and the possibility of probation.

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, 459 S.E.2d 114 (1995). Furthermore,

[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a ...

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