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Bethea v. Ames

Supreme Court of West Virginia

April 19, 2019

Tony Bethea, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Monongalia County 17-C-45


         Petitioner Tony Bethea, by counsel Edmund J. Rollo, appeals the Circuit Court of Monongalia County's February 2, 2018, order denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, by counsel Julianne Wisman, filed a response.[1] On appeal, petitioner argues that the circuit court erred in denying his habeas petition without affording him a hearing in regard to his claims of ineffective assistance of counsel, improper introduction of prior bad acts evidence, and Brady violation, and in concluding that his double jeopardy claim lacked merit.

         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 2002, following a jury trial, petitioner was convicted of three counts of second-degree sexual assault arising from his forced vaginal, anal, and oral intercourse with his victim. Petitioner, a recidivist, received an enhanced sentence of not less than twenty nor more than twenty-five years of incarceration for one conviction of second-degree sexual assault, and he was sentenced to not less than ten nor more than twenty-five years for each remaining second-degree sexual assault convictions. Petitioner filed a direct appeal, which was refused by this Court on February 11, 2004.

         Petitioner, by counsel, filed a petition for a writ of habeas corpus with the circuit court on January 27, 2017. Petitioner asserted several grounds for relief, including ineffective assistance of counsel due to trial counsel's alleged failure to call witnesses at trial, object to a photo array, and raise a defense regarding levels of consent.[2] Petitioner also asserted suppression of Brady[3]material, wrongful admission of evidence of prior bad acts, and violation of the Double Jeopardy Clause.

         Following receipt of a response from the respondent, but without holding a hearing, the habeas court denied petitioner habeas relief on February 2, 2018. The habeas court undertook a review of the records from petitioner's underlying proceedings and concluded that petitioner was not denied effective assistance of counsel. Two witnesses whom petitioner claimed his counsel should have called at trial had testified at his bond hearing and the court determined that they had no "relevant, pertinent information regarding the sexual assault crimes committed against the victim." Regarding the two other witnesses petitioner contends should have been called, the record reflected that counsel, in fact, hired a private investigator to locate them, but the private investigator was unsuccessful in doing so. Further, although petitioner averred that his counsel erred in not calling an expert witness to rebut one of the State's witnesses, the habeas court found that there was no need as the State's witness testified as to what petitioner wanted to prove - that there were no major injuries to the victim. Regarding the photo array, the habeas court found that petitioner's argument lacked merit due to the fact that he never contested identity or that he was with the victim that night. Rather, his argument during trial was that the sexual acts he engaged in with the victim were consensual. Additionally, the habeas court found that petitioner's argument that his counsel failed to pursue a "levels of non-consent" defense was erroneous as the record demonstrated that his counsel did, in fact, make those arguments during closing argument. The habeas court concluded that, even if counsel's representation had been deficient in the ways claimed by petitioner, "it would not have made a difference in the outcome of the trial."

         The habeas court also denied petitioner's claims regarding the admission of his prior bad acts due to the fact that it was in the trial court's discretion to admit that evidence, petitioner had raised that ground in his direct appeal, and such evidentiary rulings are not cognizable in habeas proceedings. The habeas court dismissed petitioner's Brady claim, finding that petitioner failed to state what evidence was withheld by the State. Finally, the habeas court denied petitioner's claims that his sentence violated the Double Jeopardy Clause, stating that petitioner was convicted of three counts of second-degree sexual assault for three distinct sexual acts: "vagina[l] sexual intercourse, oral sex, and anal sex." As such, petitioner was prosecuted, convicted, and appropriately sentenced based upon three separate and distinct offenses. 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." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

         On appeal, petitioner contends that the habeas court erred in dismissing his petition without holding a hearing on his claims of ineffective assistance of counsel, a Brady violation, and improper introduction of his prior bad acts. In the alternative, he argues that the habeas court should have dismissed his petition without prejudice in order to allow him to amend the petition.

         We have previously held that 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). Indeed,

[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) (emphasis added); see also Gibson v. Dale, 173 W.Va. 681, 688, 319 S.E.2d 806, 813 (1984) ("In essence, then, the post-conviction habeas corpus statute leaves the decision of whether to conduct an evidentiary hearing or to compel the State to produce evidence in its possession in large part to the sound ...

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