(Raleigh County 18-C-311-D)
Michael R.,  pro se, appeals the July 12, 2018, order
of the Circuit Court of Raleigh County dismissing his
petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,
counsel Holly M. Flanigan, filed a 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.
and 2015, petitioner perpetuated various sexual acts on his
nine-year-old adopted daughter and also photographed her in
engaging sexually explicit conduct. On September 15, 2015,
petitioner was indicted on four counts of first-degree sexual
assault, four counts of incest, seven counts of sexual abuse
by a parent, three counts of first-degree sexual abuse, and
fourteen counts of filming a minor child engaging in sexually
explicit conduct. In an additional count of the indictment
(count thirty-three), the grand jury alleged that the victim
was a child under twelve years of age, that petitioner was an
adult over twenty-one years of age, and that petitioner
employed forcible compulsion in his perpetuation of the
charged offenses. According to respondent, if petitioner was
convicted of all the offenses alleged in the indictment,
petitioner would have received an aggregate sentence of 205
to 815 years of incarceration.
October 7 and 20, 2015, petitioner underwent a court-ordered
psychological evaluation to determine his criminal
responsibility for the alleged acts and his competency to
stand trial. In a report dated November 18, 2015, the
forensic psychologist opined that petitioner suffered from no
mental disease or defect which would have rendered him unable
to appreciate the wrongfulness of the alleged acts and/or
conform his conduct to the requirements of the law. The
psychologist further opined that petitioner was competent
either to stand trial or enter into a plea agreement with the
. . . [petitioner] has the capacity to assist his attorney in
his defense with a reasonable degree of rational and factual
understanding of the charges against him, their potential
consequences, and the nature and object of the adjudicatory
process. He has the capacity to understand and agree to the
terms of a plea agreement if one is offered to him and should
be able to follow the directives of the [c]ourt.
January 6, 2016, petitioner and the State entered into a plea
agreement, under which petitioner agreed to plead guilty to
counts one and four of the indictment charging him with
first-degree sexual assault. Petitioner further agreed to
admit the facts alleged in count thirty-three rendering him
ineligible for alternative sentencing. In exchange, the State
agreed to dismiss the other thirty counts of the indictment.
Under West Virginia Code § 61-8B-3(c), counts one and
four each subjected petitioner to a sentence of 25 to 100
years of incarceration; under the plea agreement, the circuit
court would decide whether petitioner would serve those
sentences concurrently or consecutively with each party free
to argue that issue.
beginning of the February 11, 2016, plea hearing, the circuit
court noted that "the only issue at sentencing will be
whether the sentences are to run concurrently . . . or
consecutively[.]" After petitioner was sworn, the
circuit court advised him to let the court know if he needed
clarification on any issue during the hearing.
petitioner is illiterate, the court confirmed that
petitioner's counsel read the indictment and the plea
form to him in their entirety. The court noted that
petitioner faced a sentence of 25 to 100 years of
incarceration for each count to which he was pleading guilty,
emphasizing that the only issue at sentencing would be a
determination of whether those sentences would run
concurrently or consecutively. Petitioner acknowledged that
he understood the limited issue that his sentencing would
circuit court asked petitioner whether he had sufficient time
to discuss the matter with his counsel, and petitioner
answered, "Yes, sir." Petitioner further testified
that he did not have any present complaints regarding
counsel's performance. The court further inquired:
"Do you feel that, at least up until now, [counsel] has
done everything reasonably possible to represent you in this
matter?" Petitioner responded, "Yes, sir."
circuit court then asked petitioner if he suffered from any
mental health issues, and petitioner answered that he had
previously been diagnosed with a learning disability. When
the court inquired about any medications petitioner was
taking, petitioner responded that he was taking Lithium. The
court followed up by asking petitioner the number of times he
took his medication daily and its potential effects on him:
Q. All right. Is Lithium the only medication you're
A. Yeah. It's the only one they will give me.
Q. Are you taking that in the morning? Or at the evening
time? Or at both times?
A. Both times, sir.
Q. Have you taken one medication dose today?
A. Yes, sir.
Q. Do you take this Lithium pursuant to your prescribed