William Echard II v. Marvin Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS William Echard II, Petitioner Below, Petitioner FILED vs) No. 15-0441 (Harrison County 14-C-235-2) Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent February 16, 2016 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA MEMORANDUM DECISION Petitioner William Echard II, by counsel Matthew S. Delligatti, appeals the Circuit Court of Harrison County’s April 14, 2015, order denying his petition for writ of habeas corpus. Respondent Marvin Plumley, Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on the ground of ineffective counsel. 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 circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In January of 2010, the Harrison County grand jury indicted petitioner on one count of murder of a child by a parent, one count of death of a child by a parent, six counts of child abuse resulting in injury, three counts of child neglect resulting in injury, and one count of presentation of false information regarding child’s injuries. Following petitioner’s trial in June of 2010, the jury returned a verdict of guilty on one count of death of a child by a parent, four counts of child abuse resulting in injury, and three counts of child neglect resulting in injury. Petitioner was acquitted of the remaining counts. In July of 2010, petitioner’s counsel filed a post-verdict motion for a new trial on the ground of newly discovered evidence - an alibi witness - Mr. Barrackman. During the hearing on petitioner’s motion, the circuit court heard proffers from counsel that she contacted Mr. Barrackman during the underlying criminal trial and subpoenaed him as a character witness. The circuit court also heard testimony from Mr. Barrackman that he was delivering telephone books with petitioner on July 7, 2009, from approximately 8:30 a.m. until 9:30 p.m.1 Further, Mr. 1 At least two of the thirteen counts were alleged to have occurred “on or about the 7th day of July 2009.” 1 Barrackman testified that he did not have any knowledge of petitioner’s whereabouts on any other date. Importantly, Mr. Barrackman testified that while he was confident that he told petitioner’s family about petitioner’s whereabouts on July 7, 2009, he was uncertain whether he disclosed this information to petitioner’s counsel prior to petitioner’s criminal trial. Finally, the circuit court heard evidence that two witnesses testified at petitioner’s criminal trial that would have been consistent with Mr. Barrackman’s testimony regarding petitioner’s whereabouts on July 7, 2009. Ultimately, the circuit court denied petitioner’s motion for a new trial. In September of 2010, the circuit court sentenced petitioner to a term of incarceration of forty years for death of a child by a parent, a term of incarceration of two to ten years for each of the four counts of child abuse resulting in injury, and a term of incarceration of one to three years for each of the three counts of child neglect resulting in injury. Petitioner’s sentences were to be served consecutive to each other. This Court affirmed petitioner’s direct appeal by memorandum decision entered November 26, 2013. See State v. Echard II, No. 12-1386 (W.Va. Supreme Court, November 26, 2013)(memorandum decision).2 In May of 2014, petitioner filed a pro se petition in the circuit court seeking habeas relief. Thereafter, the circuit court appointed petitioner counsel. Several months later, with the assistance of counsel, petitioner filed an amended petition seeking habeas relief on the grounds of ineffective trial and appellate counsel and erroneous evidentiary rulings. Specifically, petitioner argued that trial counsel failed to conduct a sufficient investigation or call an alibi witness - Mr. Barrackman - during his criminal trial. The circuit court held an omnibus evidentiary hearing on February 6, 2015. During the hearing, the circuit court heard testimony from petitioner and his trial counsel Nancy Ulrich. According to Ms. Ulrich’s testimony, she believes that if petitioner would have revealed an alibi witness prior to trial that she would have subpoenaed the witness. Petitioner testified that he notified Ms. Ulrich of Mr. Barrackman as an alibi witness regarding his whereabouts on July 7, 2009, prior to his trial. On cross-examination, petitioner stated that two witnesses testified during his criminal trial as to his whereabouts on July 7, 2009, which was consistent with Mr. Barrackman’s testimony during the hearing on petitioner’s motion for a new trial. Ultimately, the circuit court issued an order denying petitioner relief. It is from this order that petitioner appeals 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). 2 The Supreme Court of the United States denied petitioner’s petition for writ of certiorari by order entered March 31, 2014. 2 Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). On appeal to this Court, petitioner alleges that he was entitled to habeas relief because of newly discovered evidence in the form of Mr. Barrackman’s testimony regarding his whereabouts on July 7, 2009. We, however, do not agree. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on this alleged error, which was also argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments 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 April 14, 2015, “Final Order Denying William Echard II’s Petition For Writ Of Habeas Corpus Ad Subjiciendum” to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: February 16, 2016 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II 3
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