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Landrum R. v. Terry

Supreme Court of West Virginia

June 8, 2018

Landrum R., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Marshall County 16-C-118(H))

          MEMORANDUM DECISION

         Petitioner Landrum R., [1] by counsel Michael B. Baum, appeals the Circuit Court of Marshall County's October 25, 2016, order denying his petition for writ of habeas corpus. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Benjamin F. Yancey, III, filed a summary response in support of the circuit court's order.[2] Petitioner filed a reply. Petitioner argues that the circuit court erred in summarily denying his petition for habeas relief.

         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 8, 2014, a Marshall County Grand Jury returned an indictment against petitioner on fifteen counts of sexual abuse by a parent, guardian, or custodian; ten counts of first degree sexual assault; and five counts of first degree sexual abuse. The indictment alleged that petitioner, who was then over the age of fifty, had sexually abused and assaulted his girlfriend's minor daughter.[3] The abuse reportedly occurred from January of 2009 through May of 2010.[4]

         While petitioner initially denied the victim's allegations and called the victim a "hateful little girl" who knew how to work the system, he later admitted that he had sexual contact with the victim on multiple occasions. As to each of these instances, petitioner claimed that the victim initiated the sexual contact. Specifically, petitioner recalled that on three separate occasions, he woke to find his hand down the front of the victim's pants. Petitioner suggested that the victim placed his hand down her pants. Petitioner further recalled several occasions wherein he awoke to the victim straddling him at the waist and "grinding" on him and other instances where the victim ran into petitioner's bedroom and jumped on top of petitioner, straddling him at the waist. In a series of pre-trial hearings, the circuit court addressed the voluntariness of petitioner's statements. By order dated December 11, 2014, the circuit court found that petitioner's statements occurred without coercion or duress and were freely, willingly, and voluntarily made.

         Following a one-day trial, on February 19, 2015, petitioner was convicted of each of the thirty counts against him. At a March 20, 2015, sentencing hearing, the circuit court, sua sponte, dismissed nine counts of the jury's verdict (five of the sexual abuse by parent, guardian, or custodian charges; two of the first degree sexual assault charges; and two of the first degree sexual abuse charges).[5] At the sentencing hearing, petitioner was afforded the opportunity to speak and stated "I made a bad choice . . . I would change my choices and I apologize." The court enquired as to which choices the petitioner was referencing and petitioner stated, "I wouldn't have let her done what she done. I would have stopped it . . . I think that's why she got mad and she did what she did . . . to revenge on me."

         The circuit court described petitioner's statements as "outrageously disgusting, " and stated "[i]t sickens me today to hear you blame this innocent child of raping you . . . You're blaming her, an eight-year-old little girl, for molesting you." Thereafter, petitioner was sentenced to a cumulative term of imprisonment of 40 to 145 years. Petitioner filed a direct appeal of his convictions, but the appeal was withdrawn at petitioner's request.[6] In the motion to withdraw his direct appeal, petitioner noted his recognition that the direct appeal was "his one opportunity to appeal directly from his conviction, but upon consultation with counsel . . . believes his interests are best served by foregoing an appeal and filing a petition for habeas corpus."

         On July 7, 2016, petitioner, pro se, filed his first petition for writ of habeas corpus, in which he alleged thirty-two instances of ineffective assistance of counsel of his trial and/or appellate counsel. Petitioner contends the ineffective assistance of counsel occurred at the pre-trial, trial, sentencing, and in his direct appeal. By order entered October 25, 2016, the circuit court dismissed petitioner's habeas petition. In its order, the circuit court noted that petitioner's habeas petition alleged "various and sundry grounds for relief." The court found that based upon its "complete review of the underlying criminal case file" it did not find "that probable cause exists to believe that the petitioner may be entitled to any relief whatsoever." Accordingly, the circuit court denied petitioner's habeas petition and dismissed the same. It is from the circuit court's October 25, 2016, order, that petitioner now appeals.

         We review a circuit court's dismissal of a habeas petition 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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). We have further held that "[o]n an appeal to this Court the appellant bears the burden of showing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court." Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

         On appeal, petitioner argues that the circuit court erred in summarily denying his petition for writ of habeas corpus without appointing counsel or holding an omnibus evidentiary hearing, in violation of petitioner's constitutional rights to due process and in contravention of West Virginia Code § 53-4A-7(c).[7] Conversely, respondent argues that given the circuit court's familiarity with the case and the breadth of evidence presented against petitioner, the circuit court's order denying petitioner's writ of habeas corpus was sufficient and must be affirmed by this Court. Given our review of the record before us, under the limited facts and circumstances of this case, we agree with respondent and find no error.

         This Court has long noted that "[w]hen considering whether such a petition requesting post-conviction habeas corpus relief has stated grounds warranting the issuance of the writs, courts typically are afforded broad discretion." State ex rel. Valenine v. Watkins, 208 W.Va. 26, 31, 537 S.E.2d 647, 652. In syllabus point three of Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004), we found that

"[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, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no ...

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