J.L. v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED J.L., Petitioner Below, Petitioner June 7, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-0431 (Webster County 08-P-13) David Ballard, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner J.L.1, by counsel, Andrew Chattin, appeals the Circuit Court of Webster County s order entered on October 4, 2010, granting in part and denying in part post-conviction habeas relief. Warden Ballard, by the office of the Attorney General, has filed a response. 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 Rules of Appellate Procedure. Petitioner was indicted by the Webster County Grand Jury during the May of 2004 Term on seventeen counts, including seven counts of sexual assault in the first degree, five counts of sexual abuse by a parent, guardian, or custodian, and five counts of incest. He was accused of molesting his son, and states that the allegations arose after he informed his ex-wife and mother of his children that the son was engaging in inappropriate sexual conduct with the son s younger brother. The victim indicated that his father had subjected him to numerous acts of anal penetration from the time he was almost four until he was seven years old. After interviews by CPS and the police, petitioner was arrested. Petitioner pled not guilty but after a trial in October of 2004, he was found guilty of four counts of first degree sexual assault, four counts of sexual abuse by a parent, guardian or custodian, and four counts of incest. On June 6, 2005, petitioner was sentenced to fifteen to thirty-five years in prison on each of the four counts of sexual assault in the first degree; not less than ten years but not more than twenty years on each of the four counts of sexual abuse by a parent, guardian or custodian; and five to fifteen years on each count of incest. The effective sentence was twenty to fifty years of incarceration. Defense counsel filed post-trial motions, but prior to a hearing on those motions, disagreements between petitioner and counsel arose and his counsel was relieved. Petitioner has 1 Consistent with our practice in cases involving sensitive matters, we use the parties initials as per State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 1 since had approximately seven attorneys appointed, with attorney-client relations deteriorating each time. Petitioner s direct appeal was refused by this Court. Thereafter, petitioner, by counsel, filed a petition for writ of habeas corpus. An omnibus hearing was held on March 19, 2010. On October 4, 2010, the circuit court entered a thirty-six page order granting in part and denying in part post-conviction habeas relief. 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, petitioner argues that his trial counsel and appellate counsel were ineffective in various aspects of their representation of petitioner. Petitioner also argues that he was denied his right to a fair trial because the prosecution was not fair and impartial. Finally, he argues that the actions and rulings of the trial court violated the ex post facto principles of the United States and West Virginia Constitutions. In response, Warden Ballard argues that nether petitioner s trial counsel nor his appellate counsel were ineffective, as their actions could be explained by trial strategies and did not rise to the level of ineffectiveness. Warden Ballard also contends that the argument that the prosecution was unfair and impartial is without merit. As to the final assignment of error, Warden Ballard categorizes this error as an attempt to re-frame all of the prior arguments. Moreover, the trial court recognized the original sentence imposed was improper, and petitioner s sentence was reduced. Petitioner makes no less than thirty-five allegations of ineffective assistance of trial counsel and appellate counsel. Many are in the nature of failing to confront witnesses regarding inconsistent statements, failing to call certain witnesses, and failing to object to statements made by the prosecuting attorney. The circuit court satisfactorily addressed each allegation in detail. Most of the conduct challenged involved trial strategy where alternating and potentially conflicting considerations were present. Many are instances where petitioner s allegations are simply incorrect or unfounded. The overwhelming majority involve the discretion that must be ceded to counsel. Our review of the record reflects no clear error or abuse of discretion by the circuit court. Having reviewed the circuit court s Order Granting in Part and Denying in Part Post-Conviction Habeas Corpus Petition entered on October 4, 2010, 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. 2 For the foregoing reasons, we affirm. Affirmed. ISSUED: June 7, 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 3
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