Gerald R. v. Michael Martin, Acting Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Gerald R., Petitioner Below, Petitioner FILED May 14, 2018 vs.) No. 17-0339 (Webster County 16-P-2) EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Michael Martin, Acting Warden, Huttonsville Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Gerald R., by counsel Andrew Chattin, appeals the Circuit Court of Webster County’s February 9, 2017, order denying his petition for writ of habeas corpus.1 Respondent Michael Martin, Acting Warden, by counsel Gordon L. Mowen II, filed a response in support of the circuit court’s order.2 On appeal, petitioner argues that the circuit court erred in denying his habeas petition on the following grounds: (1) judicial conflict; (2) ineffective assistance of counsel; (3) improper preliminary hearing; (4) failure to receive pre-sentence investigation report; (5) prosecutorial conflict; (6) failure to disclose victim impact statement; (7) abuse of discretion and plain error; and (8) violation of plea agreement. 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 2013, petitioner was indicted on the following three charges: first-degree sexual 1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). 2 Petitioner originally listed Marvin Plumley as respondent in this matter. However, Michael Martin is now the Acting Warden of Huttonsville Correctional Center. Accordingly, pursuant to Rule 41(c) of the Rules of Appellate Procedure, the appropriate public officer has been substituted in the style of this matter. 1 assault; incest; and sexual abuse by a parent, guardian, or custodian. The victim of these crimes was eleven years old at the time the crimes were committed. The parties reached an agreement in November of 2013 whereby petitioner would plead no contest to one count of incest and the State would recommend that any sentence imposed be ordered to run concurrently with a sentence petitioner was already serving for an unrelated criminal conviction. Thereafter, the circuit court held a hearing and accepted petitioner’s plea. Following the completion of a presentence investigation report, petitioner was sentenced to a term of incarceration of five to fifteen years in May of 2014. The circuit court further ordered that the sentence run consecutively to a sentence petitioner was already serving for conviction of an unrelated crime. Moreover, petitioner was required to register as a sex offender for life upon his release and undergo fifteen years of supervised release.3 During the hearing, the State honored its agreement and recommended the imposition of concurrent sentences. It did, however, notify the circuit court that the sentencing order in the unrelated criminal case indicated that the judge who imposed that sentence indicated that it should be served consecutively to any other sentence imposed upon petitioner. In February of 2016, petitioner filed a petition for writ of habeas corpus. Thereafter, the circuit court appointed petitioner counsel and eventually held an omnibus evidentiary hearing in November of 2016. In his petition below, petitioner raised the following grounds for relief: (1) judicial conflict; (2) ineffective assistance of counsel; (3) improper preliminary hearing; (4) failure to receive pre-sentence investigation report; (5) prosecutorial conflict; (6) failure to disclose victim impact statement; (7) abuse of discretion and plain error; and (8) violation of plea agreement. Additionally, following the omnibus hearing, the circuit court noted that petitioner also raised another ground for relief predicated on a lack of jurisdiction. Ultimately, the circuit court denied 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). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). 3 On appeal, petitioner asserts that the trial court imposed a fifty-year period of supervised release. Similarly, the order on appeal indicates that the term of supervised release was fifty years. However, the sentencing order included in the appendix indicates that the term of supervised release was for only fifteen years. 2 On appeal, petitioner simply alleges anew the same arguments he presented to the circuit court. Namely, he asserts that he is entitled to habeas relief upon the following grounds: (1) judicial conflict; (2) ineffective assistance of counsel; (3) improper preliminary hearing; (4) failure to receive pre-sentence investigation report; (5) prosecutorial conflict; (6) failure to disclose victim impact statement; (7) abuse of discretion and plain error; and (8) violation of plea agreement. Indeed, petitioner fails to even allege how he believes the circuit court erred in denying his petition.4 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 these alleged errors, which were 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, as it relates to these assignments of error, 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 assignments of error and direct the Clerk to attach a copy of the circuit court’s February 9, 2017, “Final Order On Petition For Writ Of Habeas Corpus” to this memorandum decision. 4 In fact, petitioner’s brief is deficient in relation to several of his assignments of error, wherein his arguments in support of the assignments of error simply reiterate, sometimes in as little as one sentence, the assignment of error itself. For example, under his assignment of error alleging a failure to disclose the victim impact statement, the entirety of his argument is as follows: “Petitioner was denied an opportunity to review the victim’s impact statement.” Many of these assignments of error contain no citation to any controlling authority. Additionally, many of these assignments of error fail to cite specifically to the record on appeal and, instead, simply direct the Court to “[s]ee [p]etitioner’s testimony at the evidentiary hearing.” This is in direct contradiction to the applicable rules and this Court’s prior directions. Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that [t]he brief must contain an argument exhibiting clearly the points of fact and law presented, the standard of review applicable, and citing the authorities relied on . . . [and] must contain appropriate and specific citations to the record on appeal[.] The Court may disregard errors that are not adequately supported by specific references to the record on appeal. Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E. Ketchum specifically noted that “[b]riefs that lack citation of authority [or] fail to structure an argument applying applicable law” are not in compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the argument presented and do not ‘contain appropriate and specific citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, petitioner’s brief in regard to several assignments of error is inadequate as it fails to comply with West Virginia Rule of Appellate Procedure 10(c)(7) and our December 10, 2012, administrative order. 3 For the foregoing reasons, we affirm. Affirmed. ISSUED: May 14, 2018 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Menis E. Ketchum Justice Allen H. Loughry II Justice Elizabeth D. Walker 4
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