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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Brandon S.,

Petitioner Below, Petitioner

vs.) No. 21-0395 (Hardy County 2019-C-30)

Donnie Ames, Superintendent, Mt. Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Brandon S. appeals the order of the Circuit Court of Hardy County, entered on 

April 15, 2021, denying his amended petition for a writ of habeas corpus. Mr. S. is serving a 

sentence of twenty to forty years of incarceration for his plea of guilty to two counts of sexual 

abuse by a custodian. His conviction was affirmed on direct appeal in State v. Brandon S., No. 18-

0606, 2020 WL 1231634 (W. Va. Mar. 13, 2020) (memorandum decision).

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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 review2, 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 order of the circuit court is appropriate under Rule 21 of 

the Rules of Appellate Procedure.

Mr. S. argues that the circuit court erred in denying habeas relief without first conducting 

an evidentiary hearing to determine whether he was prejudiced by the ineffective assistance of trial

counsel. The omission of a hearing is not reversible error on its face, because a circuit court has 

some discretion, albeit limited, in determining whether circumstances require that it conduct an 

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Mr. S. appears by counsel Jeremy B. Cooper. Respondent State of West Virginia appears 

by counsel Patrick Morrisey and Mary Beth Niday.

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In Syllabus Point 1 of Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006), we 

explained:

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. 

FILED

August 30, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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evidentiary hearing. Gibson v. Dale, 173 W. Va. 681, 688, 319 S.E.2d 806, 813 (1984). We 

evaluate the circuit court’s discretionary exercise with the following precept.

“A court having jurisdiction over habeas corpus proceedings may deny a 

petition for a writ of habeas corpus without a hearing and without appointing 

counsel for the petitioner if the petition, exhibits, affidavits or other documentary 

evidence filed therewith show to such court’s satisfaction that the petitioner is 

entitled to no relief.” Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 

(1973).

Syl. Pt. 3, Tex S. v. Pszczolkowski, 236 W. Va. 245, 778 S.E.2d 694 (2015).

The circuit court was sufficiently acquainted with the circumstances that preceded the entry 

of Mr. S.’s guilty plea. Mr. S. was indicted in the Circuit Court of Hardy County on one count of 

obstructing an officer, four counts of incest, four counts of sexual abuse by a custodian, and four 

counts of third-degree sexual assault. At the pretrial hearing, the State moved to dismiss the 

indictment after informing the court that eight counts of the indictment reported the site of the 

crime as Grant (rather than Hardy) County. The assistant prosecuting attorney informed the circuit 

court that the defect was brought to his attention by petitioner’s counsel. The circuit court granted 

the motion and dismissed the indictment without prejudice. The State reindicted Mr. S. on the 

same charges in the next term of court. Soon after, Mr. S. agreed to plead guilty to two counts of 

sexual abuse by a custodian in exchange for the dismissal of the other eleven counts of the 

indictment and the State’s assurance that it would not file a recidivist information. 

Mr. S. argues that had his trial counsel stood silent about the defective indictment, there 

was “a reasonable probability that [he] would have gone to trial under the original indictment 

rather than accept . . . [the] plea agreement.” This suggested “probability[,]” however, disregards 

extensive jurisprudence explaining that a variance (that is, “[w]hen the evidence at trial differs 

from the allegations in the indictment”) only requires reversal when the variance is prejudicial to 

the defendant. State v. Corra, 223 W. Va. 573, 580, 678 S.E.2d 306, 313 (2009). This Court has 

held that

[i]f an indictment alleges that an offense was done in a particular way, the proof 

must support such charge or there will be a fatal variance. However, if such 

averment can be omitted without affecting the charge in the indictment against the 

accused, such allegation may be considered and rejected as surplusage if not 

material. Syllabus point 8, State v. Crowder, 146 W.Va. 810, 123 S.E.2d 42 (1961).

Syl. Pt. 2, State v. Scarberry, 187 W. Va. 251, 418 S.E.2d 361 (1992). Further, “[t]he variance 

between the indictment and the proof is considered material only where the variance misleads the 

defendant in making his defense and exposes him to the danger of being put in jeopardy again for 

the same offense.” Id. at 255-56, 418 S.E.2d at 365-66 (internal quotation and citation omitted).
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Mr. S. has stated in conclusive fashion that the indictment was defective, but that is where 

his argument stops. He has not claimed that it was prejudicial to him.3 He has not argued that the 

incorrect information in the indictment was material, or fatal. He has cited no legal authority for 

the proposition that the defect in his indictment could not have been corrected. Having failed to 

analyze his own circumstances under our legal framework, Mr. S. has failed to persuade us that 

his counsel was ineffective in acknowledging an apparently clerical error.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: August 30, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

3 Mr. S.’s counsel’s awareness of the reference to the incorrect county suggests that Mr. S. 

did not suffer the type of surprise that would create prejudice and render a variance material.