STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

December 7, 2015 Thomas Eugene Gardner, Jr., RORY L. PERRY II, CLERK 

Petitioner Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 15-0356 (Marion County 14-C-639) 

David Ballard, Warden,
 

Mount Olive Correctional Complex,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Thomas Eugene Gardner, Jr., pro se, appeals the March 24, 2015, order of the 

Circuit Court of Marion County summarily dismissing his petition for a writ of habeas corpus. 

Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Shannon 

Frederick Kiser, filed a response. Petitioner filed a reply. 

The 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. 

In the underlying criminal case, petitioner was indicted on one count of distribution or 

exhibition of obscene material to a minor in violation of West Virginia Code § 61-8A-2(a). The 

indictment stemmed from allegations that petitioner telephoned a girl he knew to be thirteen years 

old, engaged her in a sexually explicit conversation, and then played a recording depicting the 

rape of a child. Defense counsel filed a motion to dismiss the indictment on the ground that the 

telephone call did not fit the definition of “distribute” found in West Virginia Code § 61-8A-1, 

which was denied. Petitioner pled guilty to the charge on January 19, 2011, but reserved the right 

to appeal. 

On the same day that petitioner entered his guilty plea, the State filed a recidivist 

information against petitioner based on his guilty plea and his prior felony convictions for 

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statutory rape, involuntary deviate sexual intercourse, kidnapping, and failure to register as a 

sexual offender. Petitioner pled guilty to the recidivist information despite the circuit court’s 

warning that “[a]n admission that you were convicted of three or more prior felonies prior to the 

alleged felony will result in you being sentenced to the penitentiary for the remainder of your 

natural life.” At his sentencing hearing, petitioner argued that his prior convictions were too 

remote in time to be used as the basis for a life sentence and that his conduct related to his 

conviction for distribution or exhibition of obscene material to a minor was not violent and did 

not contain the threat of violence. Thus, petitioner claimed that it was unconstitutional to sentence 

him to life in prison under the recidivist statute. The circuit court rejected these arguments, and 

sentenced petitioner to a life in prison pursuant to the recidivist statute. 

Petitioner appealed to this Court. In State v. Gardner, No. 11-0714, 2012 WL 2892240 

(W.Va. Supreme Court, February 13, 2012) (memorandum decision) (“Gardner I”), we affirmed 

petitioner’s convictions and sentence. Petitioner first argued that the circuit court erred in ruling 

that an obscene telephone call was a “distribution” as defined by West Virginia Code § 61-8A-1.1 

Id. at *1-2. This Court rejected petitioner’s argument, finding that “[t]he term ‘distribute’ as used 

in the statute includes ‘transmit’ and this telephone call falls within that definition, as petitioner 

used the telephone to ‘transmit’ obscene materials to a minor.” Id. at *2. Second, Petitioner 

argued that his life recidivist sentence pursuant West Virginia Code § 61-11-18 violated the 

proportionality principle of the West Virginia Constitution because the felony which triggered the 

recidivist statute was not a violent crime, and it had been at least nineteen years since he was 

convicted of a violent crime. Id. This Court rejected petitioner’s argument, finding that the use of 

the recidivist statute did not constitute error because of “petitioner’s history of sex-based crimes, 

and the fact that the telephone conversation in question dealt with explicit discussions of rape.” 

Id. at *3. 

Petitioner filed his first petition for a writ of habeas corpus in Gardner v. Ballard, No. 13­

1301, 2014 WL 5546202 (W.Va. Supreme Court, November 3, 2014) (memorandum decision) 

(“Gardner II”). Petitioner received appointment of counsel, and an omnibus hearing was held on 

October 25, 2013. Id. at *2. On November 26, 2013, the circuit court denied petitioner’s petition. 

Id. When he appealed the denial of habeas relief, petitioner raised the following four assignments 

of error: (1) the State breached the terms of his written plea agreement, or, by its actions, led 

petitioner to believe that it would not file a recidivist information against him if he pled guilty to 

distribution or exhibition of obscene material to a minor; (2) the circuit court lacked jurisdiction 

to impose a life sentence upon petitioner because it failed to follow the strict procedural 

requirements set forth in West Virginia Code § 61-11-19 regarding recidivist proceedings; (3) 

trial counsel was ineffective in failing to identify the procedural defect in the information 

charging petitioner as a recidivist; and (4) the cumulative effect of various errors prevented 

petitioner from receiving a fair trial. Id. at *2-5. This Court rejected petitioner’s arguments and 

affirmed the denial of his habeas petition. Id. 

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Prior to West Virginia Code § 61-8A-1’s amendment in 2012, the definition of 

“distribute” was found at West Virginia Code § 61-8A-1(d). Now, it is found at West Virginia 

Code § 61-8A-1(e) and is substantively unchanged. 

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Petitioner filed the instant habeas petition on January 20, 2015, raising the following 

grounds for relief: (1) this Court’s affirmation in Gardner I of the circuit court’s ruling that an 

obscene telephone call was a “distribution” as defined by West Virginia Code § 61-8A-1 was 

erroneous either because it involved an ex post facto application of the 2012 amendment to West 

Virginia Code § 61-8A-1 or the statute’s 2012 amendment showed that an obscene telephone call 

was not a “distribution” prior to its enactment; (2) the Legislature has provided prosecutors 

insufficient guidance as to what offense may be appropriately charged because, while West 

Virginia Code § 61-3C-14a, West Virginia Code § 61-8-16, and West Virginia Code § 61-8A-2 

prohibit similar conduct, only § 61-8A-2 provides for a felony conviction; and (3) petitioner’s 

Pennsylvania conviction for involuntary deviate sexual intercourse was improperly used as one of 

the predicate offenses in the recidivist information against petitioner. The circuit court rejected 

petitioner’s grounds for relief and summarily dismissed his petition by an order entered on March 

24, 2015. Petitioner now appeals to this Court. 

We apply the following standard of review in habeas cases: 

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. 

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). 

On appeal, petitioner reiterates the three issues raised in his habeas petition. First, 

petitioner contends that an obscene telephone call was not a “distribution” as defined by West 

Virginia Code § 61-8A-1 despite our finding in Gardner I that it was. We initially note that, 

contrary to petitioner’s allegation in his petition, there is no possibility that the Ex Post Facto 

Clauses2 were violated in this case because West Virginia Code § 61-8A-1 was not amended until 

after our decision in Gardner I. However, petitioner further asserts that the subsequent 

amendment to West Virginia Code § 61-8A-1 casts doubt on whether our determination was 

consistent with the statute as it then read. We construe petitioner’s argument as one based on due 

process of law as discussed in Bouie v. City of Columbia, 378 U.S. 347 (1964). See State ex rel. 

Lorenzetti v. Sanders, 235 W.Va. 353, __, 774 S.E.2d 19, 32 (2015) (stating that “[i]f a judicial 

construction of a criminal statute is unexpected and indefensible by reference to the law which 

had been expressed prior to the conduct in issue, it must not be given retroactive effect.”) (quoting 

Bouie, 378 U.S. at 353-54) (internal quotations omitted). Respondent argues that the 2012 

amendment merely clarified what conduct West Virginia Code § 61-8A-1 prohibits. Having 

reviewed our ruling in Gardner I, we agree with respondent that it was neither unexpected or 

indefensible by reference to the language West Virginia Code § 61-8A-1 used at the time of 

2

Article 1, section 9, clause 3 of the United States Constitution provides that “[n]o . . . ex 

post facto Law shall be passed.” Article 3, section 4 of the West Virginia Constitution also 

provides that “[n]o . . . ex post facto law . . . shall be passed.” 

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petitioner’s offense. Therefore, we find no merit in this assignment of error. 

Next, petitioner contends that while West Virginia Code § 61-3C-14a, West Virginia Code 

§ 61-8-16, and West Virginia Code § 61-8A-2 prohibit similar conduct,3 only § 61-8A-2 provides 

for a felony conviction. Petitioner asserts that charging him pursuant to West Virginia Code § 61­

8A-2 was both an abuse of discretion by the prosecutor and disproportionate to the nature of the 

act committed because West Virginia Code § 61-3C-14a and West Virginia Code § 61-8-16 

provide that petitioner’s conduct should have been a misdemeanor. Respondent counters—and the 

circuit court ruled—that a critical difference exists between West Virginia Code § 61-8A-2, on 

the one hand, and West Virginia Code § 61-3C-14a and West Virginia Code § 61-8-16. Unlike 

the other two statutes, West Virginia Code § 61-8A-2 has as its purpose the protection of minors 

against the distribution of obscene material. We agree with respondent and the circuit court that 

petitioner’s victim’s status as a minor constituted a legitimate justification for treating otherwise 

analogous conduct differently. See Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993) (stating 

that conduct that is thought to inflict greater individual and societal harm may be punished more 

severely). Therefore, we reject this assignment of error. 

Finally, petitioner contends that he should not have received a life sentence pursuant to the 

recidivist statute. In Gardner I, we determined that petitioner’s recidivist life sentence was not 

unconstitutionally disproportionate. 2012 WL 2892240, at *2-3. In Gardner II, we found that the 

imposition of petitioner’s recidivist life sentence was not procedurally deficient pursuant to West 

Virginia Code § 61-11-19. 2014 WL 5546202, at *3-4. In the present appeal, petitioner attacks the 

eligibility of his prior convictions utilized as predicate offenses in the recidivist information 

against him. See W.Va. Code § 61-11-18(c) (“When it is determined, as provided in section 

nineteen of this article, that such person shall have been twice before convicted in the United 

States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be 

confined in the state correctional facility for life.”). We note that a review of petitioner’s habeas 

petition shows that in the circuit court, petitioner challenged only the use of his Pennsylvania 

conviction for involuntary deviate sexual intercourse as a predicate offense. Accordingly, the 

circuit court ruled that, because three other convictions were relied upon by the State as predicate 

offenses, even if petitioner could show that the challenged offense should not have been used, a 

recidivist life sentence would still be permitted by West Virginia Code § 61-11-18(c). “This Court 

will not pass on a nonjurisdictional question which has not been decided by the trial court in the 

first instance.” Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733, 734 (1958). 

We decline to address petitioner’s arguments regarding his other predicate offenses because those 

offenses were not challenged in the circuit court. Therefore, we find that the circuit court did not 

err in determining that a recidivist life sentence was properly imposed pursuant to West Virginia 

Code § 61-11-18.4 We conclude that the circuit court did not abuse its discretion in summarily 

3

West Virginia Code § 61-3C-14a prohibits obscene, anonymous, harassing and 

threatening communications by various electronic devices, while West Virginia Code § 61-8-16 

prohibits obscene telephone calls. 

4

Consistent with Sands, we also decline to address respondent’s argument that the instant 

habeas petition is barred by the doctrine of res judicata. 

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dismissing petitioner’s petition for writ of habeas corpus. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: December 7, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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