Kevin E.E. v. Evelyn Seifert, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Kevin E. E., Petitioner Below, Petitioner FILED October 1, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-1285 (Hampshire County 10-C-15) Evelyn Seifert, Warden, Northern Correctional Facility, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Kevin E. E. s 1 appeal, filed by counsel Brain Vance, arises from the Circuit Court of Hampshire County, wherein petitioner s amended petition for writ of habeas corpus was denied by order entered on October 18, 2012. Respondent Warden Evelyn Seifert,2 by counsel Marland Turner, filed a summary response in support of the circuit court s decision. On appeal, petitioner alleges that the circuit court erred in denying his amended petition for writ of habeas corpus because he received ineffective assistance of counsel, his confession was coerced, and he did not knowingly and voluntarily enter into an Alford plea. 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. On September 7, 2004, petitioner was indicted on six counts of sexual abuse by a parent, one count of first degree sexual assault, and five counts of first degree sexual abuse against his six-year-old daughter. Following petitioner s Alford3 plea to one count of sexual abuse by a parent and five counts of first degree sexual abuse, the circuit court sentenced petitioner to a term of incarceration of ten to twenty years for sexual abuse by a parent and one to five years for each 1 Because of the sensitive nature of the facts alleged in this case, we use the initials of the affected parties. See State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) ("Consistent with our practice in cases involving sensitive matters, we use the victim s initials. Since, in this case, the victim . . . [is] related to the appellant, we have referred to the appellant by his last name initial." (citations omitted)). 2 Petitioner named David Ballard, Warden of the Mount Olive Correctional Complex, as the respondent in this case. However, because petitioner is presently incarcerated in the Northern Correctional Facility, pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have substituted Evelyn Seifert as the party respondent. 3 North Carolina v. Alford, 400 U.S. 25. (1970). 1 of the five counts of first degree sexual abuse. Petitioner s sentences were ordered to run consecutively, which resulted in a cumulative term of incarceration of fifteen to forty-five years. Petitioner filed his pro se petition for writ of habeas corpus in the circuit court on February 5, 2010. After being appointed counsel, petitioner filed his amended petition for writ of habeas corpus on June 23, 2011, alleging eight counts of ineffective assistance of counsel and twentytwo individual grounds for relief. Without holding an evidentiary hearing, the circuit court entered its order denying petitioner habeas corpus relief. This appeal followed. On appeal, petitioner reasserts assignments of error that he raised in circuit court. Petitioner argues that the circuit court erred in denying his petition for writ of habeas corpus because (1) he received ineffective assistance of counsel, (2) his confession was coerced, and (3) he did not knowingly and voluntarily enter into an Alford plea. Respondent argues that that petitioner s brief fails to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure in that it is devoid of any specific citations to the appendix. Respondent argues that petitioner s counsel was not ineffective and that petitioner failed to prove that there was a reasonable probability that, but-for counsel s alleged errors, he would not have pleaded guilty. Additionally, respondent argues that the circuit court conducted a proper colloquy with petitioner pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), prior to accepting petitioner s Alford plea. Finally, respondent argues that a review of the record fails to show that a State agent coerced petitioner into making a confession and the circuit court excluded any portion of petitioner s statement that was made prior to the reading of his Miranda4 rights. 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). Based on our review of the record, we find no error in the circuit court s decision to deny petitioner s habeas corpus relief. The circuit court s order reflects its thorough findings of fact and conclusions of law concerning petitioner s arguments, the same arguments petitioner now raises on appeal. The record on appeal reveals no support for any of petitioner s assignments of error. Having reviewed the circuit court s Order Denying Petitioner s Petition for Writ Of Habeas Corpus entered on October 18, 2012, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this 4 See Miranda v. Arizona, 384 U.S. 436 (1966). 2 appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision.5 For the foregoing reasons, we affirm. Affirmed. ISSUED: October 1, 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 5 Consistent with the first footnote of this Memorandum Decision, we have redacted the circuit court s order to protect the victim s identification, using an initial for petitioner s last name and only initials to reference other family members. 3
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