Fayette County 16-C-277-H
Raymond Allen, pro se, appeals the April 21, 2017, order of
the Circuit Court of Fayette County denying his petition for
writ of habeas corpus. Respondent John T. Murphy, Warden,
Huttonsville Correctional Center, by counsel Gordon L. Mowen,
II, filed a summary response in support of the circuit
court's order. Petitioner filed a reply.
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 2000, a Fayette County grand jury indicted petitioner on
122 counts of third-degree sexual assault. J.B. Rees, then
Chief Public Defender, was appointed to represent petitioner.
Subsequently, petitioner entered into a plea agreement,
whereby he agreed to plead guilty to twelve counts of
third-degree sexual assault. In exchange, the State agreed to
dismiss the remaining 110 counts against petitioner in
Fayette County and to dismiss similar charges against
petitioner in Webster County involving the same victims.
Petitioner entered his guilty pleas at a July 25, 2000,
hearing. However, on October 24, 2000, petitioner filed a pro
se motion to withdraw his guilty pleas. Also, Mr. Rees filed
a motion requesting that he be allowed to withdraw as
petitioner's attorney. The circuit court granted Mr.
Rees' motion to withdraw and appointed Anthony Salvatore
to represent petitioner.
to Mr. Salvatore, he reviewed petitioner's file
immediately following his receipt of the same and requested a
transcript of the July 25, 2000, plea hearing. Mr. Salvatore
first met with petitioner on November 1, 2000, and the two
had a "fairly lengthy" discussion regarding the pro
se motion to withdraw petitioner's guilty pleas.
Petitioner and Mr. Salvatore "discussed the underlying
facts of the case, the nature of the charges against him, and
his concerns concerning the plea[s] which he had entered, and
his concerns with the effectiveness of his prior
counsel." As a result of this discussion, petitioner
informed Mr. Salvatore that he no longer wanted to withdraw
his guilty pleas. However, Mr. Salvatore advised petitioner
that he had not yet received the plea hearing transcript and
that he "wanted to make sure that [the circuit court]
adequately complied with Rule 11 of the West Virginia Rules
of [Criminal] Procedure" and adequately safeguarded his
"West Virginia constitutional and United States
constitutional rights." Mr. Salvatore received the plea
hearing transcript, reviewed it, and advised petitioner that
his guilty pleas were "in all respects proper" and
that "it was in [petitioner's] best interest to ask
[the circuit court] to ignore or withdraw" the pro se
motion to withdraw his pleas. Petitioner agreed with that
advice and Mr. Salvatore filed a notice to withdraw the
motion to withdraw petitioner's guilty pleas on November
November 15, 2000, hearing, the circuit court placed
petitioner under oath to confirm Mr. Salvatore's
representations regarding the withdraw of the motion to
withdraw his guilty pleas:
Q. Have you heard everything your lawyer has just said to me
A. Yes, sir.
Q. And[, ] has he correctly reported to me his meeting with
A. Yes, sir.
Q. Has he correctly reported to me what you have directed him
to tell me?
A. Yes, sir.
Q. Are you fully and completely satisfied with this lawyer?
A. Yes, sir.
Q. . . . Your lawyer says and I know it to be so, because I
can see from here his copy, and I have the original where he
got a full and complete transcript of the entry of your
guilty pleas on July 25, 2000. And[, ] did he talk to you
A. Yes, ...