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Scott B. v. Terry

Supreme Court of West Virginia

January 8, 2018

Scott B., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Jefferson County CC-19-2013-C-258

          MEMORANDUM DECISION

         Petitioner Scott B., by counsel Tracy Weese, appeals the Circuit Court of Jefferson County's December 23, 2016, order denying his revised petition for writ of habeas corpus. [1]Respondent Ralph Terry, Acting Warden, by counsel Elizabeth Davis Grant, filed a response. On appeal, petitioner argues that the circuit court erred in finding that he was a "custodian" under West Virginia Code § 61-8D-5(a), denying him an omnibus hearing, and failing to consider the cumulative effects of the errors alleged.

         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 December of 2007, B.H. reported to law enforcement that petitioner, B.H.'s neighbor, attempted to engage in sexual contact with him after he went onto petitioner's property to look for his missing dog. During the time that law enforcement was investigating this claim, B.H.'s older brother, G.H. Jr., informed law enforcement that petitioner had sexually abused him repeatedly, between the years of 1995 and 2001, beginning when G.H. Jr. was approximately nine years old. G.H. Jr. recounted that these acts occurred in the woods behind petitioner's house, at an abandoned home nearby, and "on the mountain."

         Also in December of 2007, W.J. Jr. made a report of sexual abuse against petitioner. Per the criminal complaint filed against petitioner, W.J. Jr. recounted to law enforcement that he would go to petitioner's residence to play with his friends and stay the night. During these overnight visits, W.J. Jr. slept in petitioner's bed, and petitioner sexually abused him.

         Petitioner gave two separate interviews to law enforcement. Petitioner admitted to sexually abusing both G.H. Jr. and W.J. Jr., but he could not recall abusing B.H. Petitioner stated that he sexually abused G.H. Jr. "forty or [fifty] times. Maybe [sixty]." With one exception, petitioner stated that the sexual abuse always occurred on his property "out in the field looking for deer[, ]" but not inside his home. The one exception was an evening either at petitioner's or G.H. Jr.'s home, where petitioner woke up with his pants unbuttoned and wet underwear. Although petitioner could not remember any sexual activity with G.H. Jr. at that time, he stated that G.H. Jr. may have performed oral sex on him. Petitioner stated that his sexual abuse of W.J. Jr. always took place in petitioner's bedroom, and he admitted to over twenty instances of sexual abuse of W.J. Jr.

         On January 22, 2009, petitioner was indicted on forty-one counts of sexual abuse by a parent, guardian, or custodian in violation of West Virginia Code § 61-8D-5.[2] Counts one through forty of the indictment were alleged to have been perpetrated against G.H. Jr. The final count was alleged to have been committed against B.H. A criminal information was subsequently filed against petitioner, alleging one count of sexual abuse by a parent, guardian, or custodian. The criminal information pertained to petitioner's sexual abuse of W.J. Jr.

         On April 20, 2009, petitioner waived his right to prosecution by way of indictment with respect to the offense charged in the criminal information and entered into a plea agreement with the State. Petitioner agreed to plead guilty pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987), to counts one and two of the indictment, which were alleged to have been committed against G.H. Jr., and to the single-count information, which alleged an offense committed against W.J. Jr.[3] The State agreed to dismiss the remaining counts in the indictment.

         On June 22, 2009, petitioner was sentenced. For each count of the indictment to which petitioner pled, the circuit court sentenced him to not less than ten nor more than twenty years of incarceration, and ordered these sentences to run concurrently. Petitioner was sentenced to not less than ten nor more than twenty years of incarceration on count one of the information, but this sentence was ordered to run consecutively to the sentences imposed on the counts set forth in the indictment.

         On July 18, 2013, petitioner filed a pro se petition for writ of habeas corpus. Following appointment of counsel, petitioner filed a revised petition alleging involuntary guilty plea, language barrier to understanding the proceedings, ineffective assistance of counsel, defects in the indictment, non-disclosure of grand jury minutes/testimony, sufficiency of the evidence, question of actual guilt upon acceptance of guilty plea, and excessive sentence. On April 16, 2014, the State filed a response. By order entered on December 23, 2016, the circuit court denied petitioner's revised petition. 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's first assignment of error is that the circuit court erred in finding that there was a sufficient factual basis for his plea. Specifically, petitioner claims he was not a custodian of his victims.[4] With respect to G.H., Jr., petitioner maintains that G.H., Jr. "never said, implied, or suggested that [petitioner] was his babysitter or was babysitting him at the time [of the sexual abuse]." Concerning W.J. Jr., although no statements, recordings, or other documentation of W.J. Jr.'s statements were provided to petitioner or his trial counsel, petitioner argues that the investigating officer's summary of the incidents failed to include an allegation that petitioner was a custodian or caretaker of the boy. Finally, petitioner maintains that in his statements to the police, he never admitted to ...


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