Opinion
No. 16-0029
09-19-2016
Harold B., Petitioner Below, Petitioner v. David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent
(Harrison County 13-C-200-3)
MEMORANDUM DECISION
Petitioner Harold B., by counsel Jason T. Gain, appeals the Circuit Court of Harrison County's December 14, 2015, order denying his petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Gordon L. Mowen II, filed a response. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on the grounds of ineffective assistance of counsel and improper remarks by the prosecution.
Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
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.
Petitioner was indicted during the May of 2010 term of court on the following five counts: one count of first-degree sexual assault; two counts of first-degree sexual abuse; and two counts of sexual abuse by a parent, guardian, or custodian. Upon petitioner's motion, one count of first-degree sexual abuse involving a different victim was severed. Following a jury trial, petitioner was convicted in December of 2010 of one count of first-degree sexual assault and one count of sexual abuse by a parent, guardian, or custodian. Petitioner was acquitted of the remaining two charges.
In May of 2011, petitioner was sentenced to a term of incarceration of ten to twenty years for his conviction of sexual abuse by a parent, guardian, or custodian, and a term of incarceration of 25 to 100 years for his conviction of first-degree sexual assault. Thereafter, petitioner appealed his conviction to this Court, and we affirmed the same by memorandum decision in May of 2012. See State v. H.M.B., No. 11-0941, 2012 WL 3079154 (W.Va. May 29, 2012) (memorandum decision).
Thereafter, petitioner filed a petition for writ of habeas corpus in the circuit court in May of 2013. The circuit court appointed counsel to represent petitioner in the proceeding and then held an omnibus hearing in February of 2015. At the hearing, the circuit court addressed all the grounds petitioner raised, which included ineffective assistance of counsel; constitutional errors in evidentiary rulings; allegedly prejudicial statements by the prosecution; sufficiency of the evidence; and improper communications between the prosecution or witnesses and the jury. After a review of petitioner's claims, the circuit court denied the petition by order entered in December of 2015. 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." 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).
On appeal to this Court, petitioner alleges that he was entitled to habeas relief because his prior habeas counsel was ineffective and because the prosecutor made allegedly prejudicial remarks to the jury. The Court, however, does not agree.
Specifically, in his petition for writ of habeas corpus below, petitioner alleged that trial counsel was ineffective for failing to effectively cross-examine the victim. On appeal to this Court, however, petitioner abandons this argument in favor of alleging that he was denied his constitutional right to cross-examine the witness because she was not competent. In support of this argument, petitioner cites the habeas court's finding that he was not denied effective assistance of counsel in regard to the cross-examination of the victim because "it is more than reasonable to believe that a harsh cross-examination of a five[-]year[-]old alleged sexual assault victim would prove distasteful to a jury." According to petitioner, this finding is "legally correct," although he argues that it only highlights the fact that he was denied a meaningful opportunity to confront the victim. As such, he argues that "it is more appropriate for this Court to treat this assignment of error as a denial of a right to effectively cross[-]examine under the plain error doctrine." The Court, however, does not agree. Petitioner admits that the circuit court's ruling on his claim of ineffective assistance of counsel does not constitute error. Moreover, petitioner failed to raise the allegation that he was somehow denied the right to effectively cross-examine the victim because the jury may have found the same "distasteful" in the proceedings below. We have routinely held that "[o]ur general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered." Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). See also, Whitlow v. Board of Education, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993) ("Our general rule in this regard is that, when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal."); Konchesky v. S.J. Groves & Sons Co., Inc., 148 W.Va. 411, 414, 135 S.E.2d 299, 302 (1964) ("[I]t has always been necessary for a party to object or except in some manner to the ruling of a trial court, in order to give said court an opportunity to rule on such objection before this Court will consider such matter on appeal."). As such, we decline to address petitioner's allegation that he was denied a constitutional right to confront the victim on cross-examination, to the extent that this allegation was not raised below. --------
Upon our review and consideration of the circuit court's order, the parties' arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court's decision to deny petitioner post-conviction habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the circuit court's order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court's order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court's findings and conclusions as they relate to petitioner's assignments of error raised herein and direct the Clerk to attach a copy of the circuit court's December 14, 2015, "Order Denying Petition For Habeas Corpus Relief" to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed. ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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