Opinion
No. 11-1264 Morgan County 05-P-2 Morgan County 08-P-46
10-22-2012
Benny K., Petitioner Below, Petitioner v. Marvin Plumley, Warden, Respondent Below, Respondent
MEMORANDUM DECISION
This appeal with accompanying record, filed by counsel Nicholas Forrest Colvin on behalf of Petitioner K., arises from the Circuit Court of Morgan County, wherein petitioner's petition for writ of habeas corpus was denied by order entered on August 5, 2011. Respondent Plumley, by counsel Benjamin Yancey III, filed a response in support of the circuit court's decision.
Because the victim in the underlying case is petitioner's stepdaughter, who was a minor at the time, we follow our traditional practice in cases involving sensitive facts and use only petitioner's last initial. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, we have replaced the respondent party's name with Warden Marvin Plumley. The initial respondent on appeal, Adrian Hoke, is no longer the warden at Huttonsville Correctional Center.
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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 is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.
In April of 2003, petitioner was convicted by jury of three counts of sexual abuse by a guardian, three counts of incest, and three counts of third degree sexual assault. At sentencing, the trial court ordered petitioner to serve ten to twenty years in prison for each conviction for sexual abuse by a guardian, five to fifteen years in prison for each incest conviction, and one to five years in prison for each third degree sexual assault conviction, all sentences were to run concurrently for a total of ten to twenty years in prison. Petitioner's appeal of his convictions was refused by this Court in July of 2003. Petitioner thereafter filed a petition for writ of habeas corpus in circuit court. Following an omnibus evidentiary hearing and a review of the record of the underlying proceedings, the habeas court refused petitioner's petition for relief. 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).
Nearly all of petitioner's assignments of error on appeal were issues raised in, and addressed by, the habeas court. On appeal, petitioner argues (1) that he received ineffective assistance of counsel; (2) that he was denied his right to a speedy trial; (3) that his mental competency, or lack thereof, compromised his ability to assist counsel; (4) exculpatory evidence regarding the alleged victim's recantation was impermissibly withheld from him; (5) the State's impeachment using the victim's purported letter was admitted in error; (6) petitioner's bail was revoked without sufficient cause; (7) the trial court erred by allowing the State to present evidence under West Virginia Rule of Evidence 404(b); (8) the State misquoted the evidence in its closing; (9) there was insufficient evidence to support his convictions; (10) petitioner received a far more severe sentence than expected; (11) that the sentence was excessive; (12) venue was not established; (13) there is cumulative effect of all the errors; (14) the indictment was defective; (15) the trial court lacked jurisdiction; (16) the trial court engaged in improper sentencing and used an improper verdict form; (17) the indictment contained multiplicity of charges and lacked specificity, which also created double jeopardy; (18) the grand jury minutes were not provided; (19) petitioner's counsel did not file a bill of particulars; (20) there was prosecutorial misconduct; (21) there was suppression of helpful evidence by lack of statement from the victim; (22) the State knowingly used perjured testimony; (23) the composition of the grand jury was compromised; and (24) the State unjustly altered documents.
For the few among all of petitioner's arguments that were not discussed in the circuit court order, we conduct our review with the following in mind: "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).
Accordingly, our review of the appellate record included a review for petitioner's arguments pertaining to the verdict form and the trial court's permission to allow the State to present evidence under West Virginia Rule of Evidence 404(b). Respondent contends that the circuit court did not abuse its discretion or commit any errors in these respects. Based on our review of the record, we find no abuse of discretion by the habeas court's refusal to grant petitioner habeas corpus relief. Further, we find the habeas court did not fail in laying out findings and conclusions in its order pursuant to West Virginia code § 53-4A-7, nor was there a cumulative effect of error. Having reviewed the circuit court's "Opinion Order Refusing Petition for Writ of Habeas Corpus Ad Subjiciendum" entered on August 5, 2011, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.
For the foregoing reasons, we affirm the circuit court's decision denying habeas corpus relief.
Affirmed.
CONCURRED IN BY:
Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 4