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Ronald C. v. Terry

Supreme Court of West Virginia

November 17, 2017

Ronald C., Petitioner Below, Petitioner
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Greenbrier County 15-C-12


         Petitioner Ronald C., [1] pro se, appeals the November 18, 2016, order of the Circuit Court of Greenbrier County dismissing his petition for a writ of habeas corpus. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order.

         The 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 October 3, 2001, petitioner was indicted on ninety counts of various felony sex crimes against five females, who were minors at the time of the alleged offenses.[2] The indictment also charged petitioner with one count of misdemeanor intimidation of a witness because he allegedly attempted to intimidate one of the victims into recanting her statements to the police. Among the five alleged victims were petitioner's daughter and niece as well as a woman, S.W.C., whom he eventually married. Petitioner and S.W.C. were separated by the time of the indictment.[3]

         Petitioner and the State reached a plea agreement whereby he pled guilty to two counts of sexual assault by a parent, guardian, or custodian; one count of incest; and one count of intimidation of a witness pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).[4]The remaining counts were dismissed, and none of the counts to which petitioner pled guilty alleged misconduct involving S.W.C.

         Pending sentencing, petitioner underwent a sex offender evaluation by Susan McQuaid, who was retained by the defense. Ms. McQuaid deemed petitioner a poor candidate for treatment based on the following: (1) his low I.Q. would make it difficult for him to process information provided in treatment; (2) he minimized his conduct; and (3) S.W.C. claimed that, after her marriage to petitioner, he eventually lost interest in their adult sexual relations, which suggested that he tended toward exclusive pedophilia-a type of pedophilia that is particularly difficult to treat.

         The State presented the testimony of both Ms. McQuaid and S.W.C. at petitioner's November 21, 2002, sentencing hearing. During Ms. McQuaid's testimony, she explained the difference between exclusive and non-exclusive pedophilia:

If a person has ongoing adult sexual relationships while they are molesting children, they are considered at less risk [of reoffending]. If you consider sexual groups, homosexuality, heterosexuality, pedophilia, our view of pedophilia is [that] people who target children only . . . we do not treat people who target children only.
Because it's kind of a sexual preference and you can't steer them towards having sexual relationships with adults so if you're not going to be able to help them then it doesn't make a lot of sense putting them into a treatment program.

         Petitioner objected to S.W.C.'s testimony on the ground that Rule 32(f)(1) of the West Virginia Rules of Criminal Procedure excluded her from its definition of "victim" because none of the counts to which he pled guilty involved S.W.C.[5] The circuit court overruled the objection finding that, though S.W.C. was not a "victim" as defined by Rule 32(f)(1), she could testify as to petitioner's conduct that was "relevant to the issue of sentencing." S.W.C. testified that, when she was twelve-years-old, petitioner got her drunk and began having sexual relations with her.[6]S.W.C. further testified that petitioner's conduct towards her caused her not to have trusting relationships with men.

         At the sentencing hearing's conclusion, the circuit court found that petitioner engaged in similar conduct with regard to his victims:

It was exactly the same thing down to the drinking, daring, playing games, touching, fondling, statements of love and devotion that lead to betrayal of sexual abuse and him-not just his own selfish carnal pleasure that he found in these children but the even-perhaps even worse offense of making them feel like they were participants and as much responsible for the behavior as he was even though they were just children.

         The circuit court rejected petitioner's request for concurrent sentencing, finding that he "would almost certainly re-offend if [he] were sexually active upon being released from the penitentiary" and that it was ordering consecutive sentencing so that he would be "less inclined to be preying on children [than he] would be at any time sooner than that."

         The circuit court imposed consecutive sentences with regard to petitioner's sexual offense convictions for an aggregate term of twenty-five to fifty-five years of incarceration.[7] Petitioner desired to appeal his sentence, but his trial attorney focused on filing a motion for resentencing. The circuit court denied the motion for resentencing on May 19, 2003. No criminal appeal was filed at that time.

         On June 7, 2005, petitioner filed pro se a petition for a writ of habeas corpus alleging that his trial attorney was ineffective and that he was denied his right to appeal his sentence. The circuit court appointed an attorney to represent petitioner and held a habeas corpus hearing on May 19, 2006. By order entered on July 28, 2006, the circuit court found that petitioner's trial attorney was not ineffective. The circuit court determined that petitioner's trial attorney's conduct at the sentencing hearing was based on legitimate strategic decisions and that, even if they were in error, the outcome of the hearing would still be the same. On the other hand, the ...

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