Charles E. v. David Ballard, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Charles E., Petitioner Below, Petitioner FILED February 21, 2017 vs) No. 16-0045 (Gilmer County 14-C-16) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden,

Mount Olive Correctional Complex, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Charles E., by counsel Bryan S. Hinkle, appeals the Circuit Court of Gilmer County’s December 14, 2015, order that denied his petition for writ of habeas corpus.1 The State, by counsel Jonathan E. Porter, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying petitioner’s request for habeas relief because his trial counsel was constitutionally ineffective.

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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2012, a Gilmer County grand jury indicted petitioner on two counts of first-degree sexual abuse in violation of West Virginia Code § 61-8B-7(a)(3), and two counts of first-degree sexual assault in violation of West Virginia Code § 61-8B-3(a)(2).2 The victim was his great- nephew, J.S., who was four years old at the time of the alleged crimes and six years old at the time of trial.

1 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). 2 According to West Virginia Code § 61-8B-7(a)(2) and § 61-8B-7(a)(3), “[a] person is guilty of sexual abuse in the first-degree when [s]uch person subjects another person to sexual contact who is physically helpless; or [s]uch person, being fourteen years old or more, subjects another person to sexual contact who is younger than twelve years old.”

In November of 2012, petitioner’s criminal trial began. Respondent’s primary evidence against him was the victim’s testimony.3 The victim testified at trial that petitioner touched the victim’s penis on one occasion and digitally penetrated his anus on more than two occasions. A social worker, who was qualified by the circuit court as an expert in the area of whether children exhibit characteristics of being abused, testified about an interview she conducted of the victim and testified that the victim described and demonstrated the sexual acts on a doll, the victim identified petitioner as the perpetrator who committed those acts; and that the victim’s statements to her were consistent. Petitioner did not testify at trial or present any evidence in his defense. Following the jury trial, petitioner was convicted of one count of first-degree sexual abuse and one count of first-degree sexual assault; the remaining counts were dismissed by the circuit court. On April 5, 2013, the circuit court denied petitioner’s post-trial motion for a judgment of acquittal or new trial and sentenced petitioner to an indeterminate term of incarceration of not less than five nor more than twenty-five years for first-degree sexual abuse and not less than twenty-five nor more than 100 years for first-degree sexual assault. The circuit court ordered the sentences to run consecutively to one another and further ordered that petitioner register as a sex offender for a term of fifty years following his release from incarceration.

In 2014, petitioner filed a direct appeal with this Court alleging that the circuit court erred (1) when it denied his motion for judgment of acquittal at the close of respondent’s case-in-chief; (2) when it did not grant his motion for a new trial on the grounds that respondent produced a witness statement only after that witness testified at the trial and prior to cross-examination; (3) and that the sentence imposed upon petitioner violated the proportionality principle found in Article III, Section 5 of the West Virginia Constitution. By ordered entered on April 25, 2014, this Court affirmed petitioner’s conviction. See State v. Charles E., No. 13-0571 (W.Va. Supreme Court, April 25, 2014)(memorandum decision). Thereafter, this Court refused petitioner’s petition for rehearing.

In June of 2015, Petitioner filed a petition for writ of habeas corpus alleging that he received ineffective assistance of counsel at trial. In August of 2016, following an omnibus evidentiary hearing, the circuit court entered an order denying petitioner’s petition for writ of habeas corpus. This appeal followed.

This Court reviews a circuit court order 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).

3 Petitioner’s trial counsel, Kevin C. Duffy, had his law license temporarily suspended in June of 2016. See Office of Disciplinary Counsel v. Duffy, 237 W.Va. 295 787 S.E.2d 566 (2016), No. 16-0156 (W.Va. Supreme Court, June 2, 2016)(memorandum decision).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

On appeal, petitioner argues that the circuit court erred in denying habeas relief based on his claim that his trial counsel was constitutionally ineffective. We do not agree. Petitioner claims that his counsel failed to meet with him, to investigate his case, or prepare a defense for trial. Our review of the record supports the circuit court’s decision to deny petitioner post- conviction habeas corpus relief based on the error alleged in this appeal, which was also argued below. According to the record on appeal, petitioner’s own testimony establishes that his counsel met with him approximately twelve to fourteen times between the preliminary hearing and the jury trial. Contrary to petitioner’s own argument, he testified below that he met with counsel several times, that counsel communicated all plea agreements to petitioner, and advised him on all the plea offers presented. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignment 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 assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s December 14, 2015, “Final Opinion and Order on Petition Writ of Habeas Corpus Relief” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: February 21, 2017 CONCURRED IN BY:

Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker