Roger Simmons v. Marvin Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Roger Simmons, Petitioner Below, Petitioner November 16, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-0759 (Webster County 06-P-10) Marvin Plumley, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner, Roger Simmons, by counsel, Steven B. Nanners, appeals from the Order Denying Post-Conviction Habeas Corpus Petition entered by the Circuit Court of Webster County on April 7, 2011. Respondent, Marvin Plumley,1 Warden of the Huttonsville Correctional Center, appears by counsel, Thomas W. Rodd. 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. On January 4, 2001, petitioner was arrested by the Webster County Sheriff s Department on charges that he had engaged in sexual acts with his step-daughter, who was born on June 5, 1988. Petitioner gave a tape-recorded statement to the investigating officer, and he was arraigned before the magistrate court later that day. Following a preliminary hearing, the matter was bound over to the grand jury. On March 27, 2001, an abuse and neglect petition was filed in the circuit court asserting many of the same allegations contained in the arrest warrant. The abuse and neglect case ran concurrently with the criminal proceedings and were both heard by the same circuit judge.2 Petitioner states that there were significant factual inconsistencies between the statements the victim 1 Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, we have replaced the respondent s name with Marvin Plumley, Warden. The initial respondent on appeal, Teresa Waid, is no longer the warden at Huttonsville Correctional Center. 2 Petitioner filed a motion to recuse the circuit judge in the abuse and neglect case. The Chief Justice of this Court found no justification for the recusal and permitted the judge to remain on the case. 1 gave during the criminal investigation and those she gave in the abuse and neglect proceeding. Petitioner adds that during the course of the proceedings, the victim recanted the sexual abuse allegations. The victim then retracted her recantation and indicated that her mother made her recant to help petitioner get out of jail. On May 8, 2001, the grand jury returned a thirty-two count indictment charging petitioner with eleven counts of first degree sexual assault in violation of West Virginia Code § 61-8B-3, ten counts of sexual abuse by a parent, guardian or custodian in violation of West Virginia Code § 61 8D-5, nine counts of incest in violation of West Virginia Code § 61-8-12, and two counts of second degree sexual assault in violation of West Virginia Code § 61-8B-4. On May 16, 2001, petitioner filed a motion to suppress the tape-recorded statement he gave to law enforcement, as well as all evidence recovered during the execution of search warrants of petitioner s home and the home of a family member. Following an evidentiary hearing, the motion was denied. Thereafter, the State made a plea offer to allow petitioner to plead guilty to one count of second degree sexual assault and one count of incest with the remaining thirty counts to be dismissed. The plea agreement provided that the State would stand silent regarding how the sentences for those two crimes would be imposed. Petitioner accepted the plea offer and pled guilty to those charges. Following a psychological evaluation of petitioner and a presentence investigation, the circuit court sentenced petitioner to ten to fifteen years in the penitentiary on the second degree sexual assault conviction and five to fifteen years in the penitentiary on the incest conviction for a total of fifteen to forty years with credit for time served. Petitioner s motion to reconsider sentencing was denied. Petitioner filed a pro se petition for a writ of habeas corpus. The circuit court appointed habeas counsel for petitioner. Habeas counsel filed an amended petition for a writ of habeas corpus. An evidentiary hearing was held before the circuit court during which petitioner testified. Petitioner also presented the testimony of an expert witness to address the quality of the tape-recording of the statement petitioner gave to law enforcement following his arrest. Petitioner s trial counsel also testified in response to petitioner s allegations of ineffective assistance of counsel. On April 7, 2011, the circuit court entered a thirty-three page order denying habeas relief on all grounds asserted. In his second amended brief filed with this Court, petitioner asserts as his only assignment of error that the circuit court improperly denied his petition for habeas relief. We note, however, that petitioner addresses multiple issues related to his sole assignment of error in his second amended brief: ineffective assistance of counsel; irregularities in arrest; illegal detention prior to arraignment; excessiveness or denial of bail; sufficiency of the evidence; prosecutorial misconduct; constitutional errors in evidentiary rulings; trial court s refusal of a continuance; the question of actual guilt upon an acceptable guilty plea; the falsification of the transcript of petitioner s statement to law enforcement following his arrest; involuntary guilty plea; mental competency at the time of the crime; ability to understand the proceedings due to educational level and reading ability; coerced confession; challenges to the composition of the grand jury or its procedure; defects 2 in the indictment; and incompetence at the time of the offense, as opposed to at the time of trial. All of these issues were addressed in the circuit court s April 7, 2011, order. The Court has previously stated 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). The Court has considered the merits of the arguments set forth in petitioner s amended brief and in respondent s brief, and it has reviewed the designated appendix. Having reviewed the circuit court s Order Denying Post-Conviction Habeas Corpus Petition entered on April 7, 2011, we hereby adopt and incorporate the circuit court s 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. Affirmed. ISSUED: November 16, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 3
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