STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Jason Browning, FILED 

Petitioner Below, Petitioner February 18, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0558 (Mingo County 10-C-248) OF WEST VIRGINIA 

Evelyn Seifert, Warden, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Jason Browning, by counsel Susan J. Van Zant, appeals an order of the Circuit 

Court of Mingo County entered April 26, 2013, which denied his motion for reconsideration of a 

previous circuit court order denying his petition for a writ of habeas corpus. Respondent Evelyn 

Seifert, Warden, by counsel Laura Young, 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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In April of 2005, petitioner was indicted by a Mingo County Grand Jury on sixteen 

counts of sexual abuse by a parent, guardian, or custodian, and sixteen counts of third degree 

sexual assault involving two twelve-year old sisters. Petitioner, who was then twenty-four years 

old, was the boyfriend of the victims’ mother. Both victims contracted a sexually-transmitted 

disease from petitioner and one of the victims became pregnant. The sexual acts at issue occurred 

from March to October of 2004. 

On December 1, 2005, petitioner entered into a plea agreement1 in which he agreed to 

plead guilty to two counts of sexual abuse by a parent, guardian, or custodian, and two counts of 

sexual assault in the third degree. In exchange for the guilty plea, the State agreed to dismiss the 

remaining counts of the indictment. The plea agreement also provided that the State would 

recommend the statutory sentence of not less than ten nor more than twenty years of 

incarceration for each count, and would further recommend the statutory sentence of not less 

than one nor more than five years of incarceration for each count of sexual assault in the third 

degree. Additionally, the plea agreement provided that the State would recommend that the 

1

The plea agreement was not made a part of the appellate record. The relevant facts 

recounted herein regarding the terms of the plea agreement are derived from the Final Order 

Denying Omnibus Petition for Writ of Habeas Corpus, entered January 18, 2013. 

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sentences for sexual abuse by a parent, guardian, or custodian run concurrently to each other and 

that the sentences for third degree sexual assault would run consecutively to each other and 

consecutively to the sentences for sexual abuse by a parent, guardian, or custodian. 

Following the January 9, 2006 sentencing hearing, the circuit court ordered petitioner 

sentenced to not less than ten nor more than twenty years of incarceration for each count of 

sexual abuse by a parent, guardian, or custodian, and not less than one nor more than five years 

of incarceration for each count of sexual assault in the third degree.2 The sentences were ordered 

to run consecutively. Petitioner’s request for probation and alternative sentencing was denied. 

On August 6, 2010, petitioner filed a petition for writ of habeas corpus alleging multiple 

grounds as set forth on the Checklist of Grounds for Post Conviction Habeas Corpus Relief. See 

Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Petitioner filed an amended habeas 

petition on August 22, 2012, alleging, in relevant part, claims of ineffective assistance of counsel 

and lack of mental competency at the time of the crime due to heavy drug use. 

Following an omnibus hearing, the circuit court denied petitioner’s petition for writ of 

habeas corpus by final order entered January 18, 2013. Petitioner’s motion for reconsideration 

was denied by order entered April 26, 2013. This appeal followed. 

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, 377, 701 S.E.2d 97, 99 (2009). 

On appeal, petitioner argues that he was denied effective assistance of counsel during the 

plea proceedings because his previous counsel failed to properly advise him that the circuit court 

was not bound to sentence him strictly according to the terms of the plea agreement; failed to 

effectively communicate the options available to petitioner with regard to trial and entering a 

plea; and failed to communicate the possibility of negotiating the plea to a lesser included 

offense. Petitioner argues that had he been completely informed, he would have chosen a jury 

trial and that, in effect, his guilty plea was entered into involuntarily. 

With regard to claims of ineffective assistance of counsel, this Court has previously held 

as follows: 

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The circuit court also imposed monetary fines. 

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“In the West Virginia courts, claims of ineffective assistance of counsel 

are to be governed by the two-pronged test established in Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) counsel’s 

performance was deficient under an objective standard of reasonableness; and (2) 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different.” Syllabus point [5], State v. 

Miller, 194 W.Va. 3, 459 S.E.2d 114, (1995). 

Syl. Pt. 3, Ballard v. Ferguson, __ W.Va. __, __, 751 S.E.2d 716, 717 (2013). This Court further 

held that 

“In reviewing counsel’s performance, courts must apply an objective 

standard and determine whether, in light of all the circumstances, the identified 

acts or omissions were outside the broad range of professionally competent 

assistance while at the same time refraining from engaging in hindsight or secondguessing of trial counsel’s strategic decisions. Thus, a reviewing court asks 

whether a reasonable lawyer would have acted, under the circumstances, as 

defense counsel acted in the case at issue.” Syl. Pt. 6, State v. Miller, 194 W.Va. 

3, 459 S.E.2d 114 (1995). 

Syl. Pt. 6, State v. Meadows, 231 W.Va. 10, __, 743 S.E.2d 318, 321 (2013). Finally, courts 

“must indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” State v. Miller, 194 W.Va. at 15, 459 S.E.2d at 126 (quoting 

Strickland v. Washington, 466 U.S. at 689). 

In his second and final assignment of error, petitioner argues that, due to heavy drug use, 

he lacked mental competency with respect to his sexual contact with one of the victims.3 

Petitioner contends that although he believes he had sexual contact with the victim, he claims he 

was intoxicated and on drugs at the time and does not remember what occurred. He also argues 

that, when he entered into the plea agreement, he had only been sober for a brief period of time. 

In its forty-five page order denying petitioner’s petition for writ of habeas corpus entered 

January 18, 2013, the circuit court specifically addressed the assignments of error raised in the 

present appeal.4 Our review of the circuit court’s order and the record before us reflects no clear 

3

In contrast, with respect to the victim who became pregnant, petitioner does not claim 

lack of mental competency with regard to his sexual contact with her. 

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In addition to the assignments of error raised in the instant appeal, the circuit court’s 

order also addressed the following issues: double jeopardy; improper venue; pretrial delay; faulty 

indictment; the State’s knowing use of perjured testimony; claims concerning the use of 

informers to convict; constitutional errors in evidentiary rulings; petitioner’s absence from part 

of the proceedings; improper communications between prosecutor or witness and jury; refusal to 

turn over witness notes after witness had testified; excessive sentence; consecutive sentences for 

the same transaction; severer sentence than expected; unfilled plea bargain; sufficiency of the 

evidence; erroneous information in the presentence report; conflict of interest with the 

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error or abuse of discretion. Accordingly, 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 January 18, 2013, Final Order Denying 

Omnibus Petition for Writ of Habeas Corpus to this memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 18, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

prosecuting attorney’s office; language barrier to understanding the proceedings; mistaken 

advice of counsel as to parole or probation eligibility; involuntary guilty plea, coerced 

confession, and question of actual guilt upon an acceptable plea; and suppression of helpful 

evidence by the prosecutor. 

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