Joshua J., by counsel Gregory R. Tingler, appeals the Circuit
Court of Randolph County's January 12, 2017, order
denying his amended petition for writ of habeas
corpus. Respondent Ralph Terry, Acting Warden of
Mt. Olive Correctional Complex, by counsel Gordon L. Mowen
II, filed a response. On appeal, petitioner argues that the
circuit court erred in denying his amended petition for writ
of habeas corpus without affording him an evidentiary hearing
on his ineffective assistance of counsel claim.
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.
25, 2012, petitioner was indicted on three counts of
second-degree sexual assault. Petitioner entered into a plea
agreement with the State whereby he agreed to plead guilty to
two counts of second-degree sexual assault in exchange for
dismissal of the third count in the indictment and the
State's agreement to forgo transferring pending juvenile
charges to adult jurisdiction. On August 6, 2012, the circuit
court held a plea hearing and accepted petitioner's plea.
On October 24, 2012, petitioner was sentenced to consecutive
indeterminate terms of not less than ten nor more than
twenty-five years for each second-degree sexual assault
did not file a direct appeal of his convictions; however, he
moved for reconsideration of his sentence on numerous
occasions in 2012, 2013, and 2014. At least three such
motions were filed by his trial counsel, including one
following a March 1, 2013, letter from petitioner to the
circuit court requesting appointment of new counsel. In this
letter, petitioner stated that his attorney was unresponsive,
failed to do certain things he requested, and was "being
a hindrance to [his] case." The circuit court denied
petitioner's request. In 2014, petitioner began filing
pro se motions for reconsideration of sentence, which the
circuit court denied.
November 19, 2014, petitioner filed a pro se petition for
writ of habeas corpus. Petitioner was appointed counsel, and
on August 2, 2016, he filed an amended petition asserting
ineffective assistance of counsel, invalid plea agreement and
guilty plea, coerced plea agreement, and failure to Mirandize
and coercion. Without conducting an evidentiary hearing, the
circuit court denied petitioner's amended petition by
order entered on January 12, 2017. It is from this order that
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).
appeal, petitioner contends that the circuit court erred in
not holding an evidentiary hearing on his ineffective
assistance of counsel claim. As detailed in his March 1,
2013, letter requesting the appointment of new counsel,
petitioner argues that he only met with his attorney a few
times outside of court appearances, counsel did not explain
his case and options to allow him to make an informed
decision, and counsel did not return calls or "do
certain things that were asked of him." Petitioner also
alleges that his "borderline range of intelligence"
renders the answers given at his plea hearing "suspect
because they may have been the equivalent of a young student
trying to get out of trouble after being called to the
principal's office." Finally, petitioner takes
exception to the circuit court's citation of the plea
hearing transcript because the transcript "does nothing
to reveal the content of any communications between
[p]etitioner and his trial counsel prior to the plea
hearing." Petitioner contends that his trial counsel
told him he "would never see the light of day
again" if he did not accept the State's plea offer.
begin, petitioner cites no law mandating that an evidentiary
hearing be held when certain claims are pled. Instead, as
petitioner acknowledges, evidentiary hearings are not proper
in every case:
[a] court having jurisdiction over habeas corpus proceedings
may deny a petition for a writ of habeas corpus without a
hearing and without appointing counsel for the petitioner if
the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court's
satisfaction that the petitioner is entitled to no relief.
Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973). The decision to hold a hearing rests in
the "sound discretion" of the circuit court.
Tex S. v. Pszczolkowski, 236 W.Va. 245, 253, 778
S.E.2d 694, 702 (2015) (citation omitted). Although
petitioner urges this Court to conclude that he was entitled
to a hearing as we found in State ex rel. Nazelrod v.
Hun, 199 W.Va. 582, 486 S.E.2d 322 (1997), our decision
in that case was predicated on the finding that "[a]n
examination of the ineffective assistance of counsel claim
requires an examination of facts not developed in the
appellant's trial transcript." Id. at 584,
486 S.E.2d at 324. As discussed below, the allegations
underpinning petitioner's ineffective assistance of
counsel claims are adequately developed in his plea hearing
transcript. For these reasons, we find no abuse of discretion
in the circuit court's failure to hold an omnibus
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, in part, State v. Miller, 194 W.Va. 3,
459 S.E.2d 114 (1995). A claim may be disposed of for failure
to meet either prong of the test. Syl. Pt. 5, in part,
State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465
S.E.2d 416 (1995). "Failure to meet the burden of proof
imposed by either part of the
Strickland/Miller test is fatal to a habeas
petitioner's claim." State ex rel. Vernatter v.
Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d
207, 213 (1999) (citation omitted).
in Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665
(1975), we observed that "[t]he most common issues in
[h]abeas corpus cases are whether there were, indeed, knowing
and intelligent waivers, whether there were facts outside the
record which improperly caused the defendant to enter his
plea, and whether defendant's counsel was indeed
competent." Id. at 196, 220 S.E.2d at 669-70.
We found that these issues "can all be finally resolved
in the careful taking of the original plea" and outlined
certain inquiries that should be made prior to the acceptance
of a plea. Id. at 196, 220 S.E.2d at 670. Where a
plea bargain has been entered into, "the trial court
should spread the terms of the bargain upon the record and
interrogate the defendant concerning whether he understands
the rights he is waiving by pleading guilty and whether there
is any pressure upon him to plead guilty other than the
consideration admitted on the record." Id. at
191, 220 S.E.2d at 667, Syl. Pt. 4. Additionally,
[a] trial court should spread upon the record the
defendant's education, whether he consulted with friends
or relatives about his plea, any history of mental illness or
drug use, the extent he consulted with counsel, and all other
relevant matters which will demonstrate to an appellate court
or a trial court proceeding in [h]abeas corpus that the
defendant's plea was knowingly and intelligently made
with due regard to the intelligent waiver of known rights.
Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5.
petitioner's plea hearing, the circuit court began by
asking petitioner whether there was "anything about the
proceeding that you don't understand." Petitioner
replied, "No, ma'am" Petitioner stated that he
could read and write and had obtained a tenth-grade
education. Petitioner further stated that he had read the
plea agreement before he signed it and understood its
contents. To this end, the following exchange ensued:
Q: Okay. So today is a Monday, so that means you've had
six days to think about it?
A: Yes, ma'am.
Q: Do you feel like you've had enough time to think about
A: Yes, ma'am.
also offered the following testimony concerning his