Ricky Vincent Pendleton v. David Ballard, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Ricky Vincent Pendleton, Petitioner FILED vs) No. 12-0653 (Berkeley County 10-C-670) May 24, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS David Ballard, Warden, OF WEST VIRGINIA Mount Olive Correctional Complex, Respondent

MEMORANDUM DECISION

Petitioner Ricky Vincent Pendleton, by counsel Nicholas Forrest Colvin, appeals the April 26, 2012 order of the Circuit Court of Berkeley County denying his petition for writ of habeas corpus. Respondent Ballard, by counsel Cheryl K. Saville, has filed a response and a supplemental appendix.

The 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 Rules of Appellate Procedure.

On May 22, 1996, petitioner was indicted on the following four felony counts: kidnapping, malicious wounding, grand larceny, and aggravated robbery. These charges stemmed from an incident in which petitioner and an accomplice beat Ryan Frankenberry and robbed him of his wallet and vehicle. The beating was so severe that the victim required multiple surgeries to correct complications from his injuries, including the insertion of numerous titanium plates and screws in the victim’s facial bones. Following a jury trial, petitioner was found guilty on all counts, and the jury recommended mercy in regard to his conviction for kidnapping. Petitioner was thereafter sentenced to life imprisonment with mercy for his kidnapping conviction, a term of incarceration of two to ten years for his conviction of malicious wounding, a period of incarceration of one to ten years for his conviction of grand larceny, and a term of incarceration of sixty years for his conviction of aggravated robbery. These sentences were ordered to run consecutively to one another and consecutively to a prior federal sentence. Petitioner appealed his convictions to this Court, which refused the same.

In October of 2003, with the assistance of counsel, petitioner filed a petition for writ of habeas corpus in the circuit court. This petition was dismissed because petitioner was, at the time, serving his federal prison sentence and was, therefore, not under the circuit court’s jurisdiction in regard to habeas relief. On March 1, 2010, petitioner filed another petition for writ of habeas corpus. After being appointed counsel, an amended petition was filed. Thereafter, petitioner filed two more petitions for habeas relief, and the circuit court consolidated all outstanding petitions

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under one case number, 10-C-670. Because the petitions contained material differences, the circuit court dismissed them all and granted petitioner leave to file a single amended petition. On April 27, 2011, with the assistance of counsel, petitioner filed his amended petition for writ of habeas corpus. On April 26, 2012, without holding an omnibus hearing, the circuit court issued an order denying the petition.

On appeal, petitioner alleges that the circuit court erred in failing to hold an omnibus evidentiary hearing in regard to his petition. According to petitioner, he has been denied due process by the circuit court’s summary denial of his petition for writ of habeas corpus. Petitioner argues that, while he raised multiple grounds in his petition, the main focus was on the ineffectiveness of his trial counsel, Keith Wheaton. According to petitioner, his attorney was disbarred following his representation of petitioner. Petitioner cites to Lawyer Disciplinary Board v. Wheaton, 216 W.Va. 673, 610 S.E.2d 8 (2004), to argue that counsel’s serious errors in judgment and misconduct spanned the time frame during which he represented petitioner. As such, petitioner argues this is prima facie evidence of ineffectiveness and that the circuit court erred in failing to fully develop his claim of ineffective assistance in an omnibus hearing.

This Court has previously held that

[i]n 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). Further, West Virginia Code § 53-4A-7(a) states, in relevant part, that

[i]f the petition [for writ of habeas corpus], affidavits, exhibits, records and other documentary evidence attached thereto . . . show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall enter an order denying the relief sought.

After careful consideration of the parties’ arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit court’s “Final Order Denying Amended Petition” entered on April 26, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignment 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 find no error in the decision of the circuit court and its April 26, 2012 order denying the petition for writ of habeas corpus is affirmed.

Affirmed.

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ISSUED: May 24, 2013 CONCURRED IN BY:

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