1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

John P.
, Petitioner Below, Petitioner

vs.) No. 18

- 0518 ( Gilmer County 16

- C

- 21 )

Charles Williams

, Superintendent,

Huttonsville Correctional Center

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner John P. , by counsel Brian W. Bailey , appeals the April 16

, 2018 , order of the

Circuit Court of Gilmer C ounty denying his petition for a writ of habea s corpus

. 1 Respondent

Charles Williams , Superintendent, Huttonsville Correctional Center

, by counsel Holly M. Flanigan

, filed a response in support of the circuit court’s order. 2 On appeal, petitioner argues that the circuit

court erred in den ying his claims of ineffective assistance of counsel and in finding that he was competent to understand his criminal and habeas corpus proceedings.

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 affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In May of 2014, the Gilmer County Child Protective Services (“CPS”) office received a referral alleging that pe titioner had sexually abused his daughters. A CPS worker initiated an interview with petitioner while law enforcement was present. A l aw enforcement officer informed petitioner of his Miranda 3 rights prior to the interview. Petitioner indicated that he und erstood those

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 listed Ralph Terry, former Warden of Mt. Olive Correctional Complex, as respondent in this matter. However, petitioner is now housed at the Huttonsville Correctional Center, where Charles Williams is the superintendent . Accordingly, the appropriate party has been substituted per Rule 41(c) of the West Virginia Rules of Appellate Procedure.

3 Miranda v. Arizona , 384 U.S. 486 (1966). 

### FILED
January 17, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

rights and proceeded with the interview. Throughout the course of the interview , petitioner admitted to sexually abusing his daughters as alleged and was subsequently arrested.

In November of 2014, petitioner was indicted on three counts of first

- degree sexual assault, three counts of sexual abuse by a parent, guardian, or custodian, and three counts of incest. Petitioner was appointed counsel and was ordered to participate in a competency evaluation. Following the receipt of petitioner’s com petency evaluation, the circuit court found that he was competent to stand trial. Specifically, the circuit court found that “the results of the Wechler Adult Intelligence Scale

- IV showed [petitioner’s] intellection [sic] functioning to be in the Intellect ual Disability Range; ho wever, this is an underestimat[ion] of the true abilities due to inconsistent effort [by the petitioner] on the tasks;” “[t]hat [petitioner] suffers from intellectual disability, mild, versus Borederling [sic] Intellectual Functioni ng; Malingering, Provisional, Adjustment Disorder with depressed mood[;]” and petitioner was “competent to stand trial in that he has an adequate factual and rational appreciation of the procedure against him and is able to assist in his own defense.”

Neit her party challenged the circuit court’s finding that petitioner was competent to stand trial.

In February of 2015, petitioner entered a no contest plea to two counts of incest

. In April of 2015, the circuit court sentenced petitioner to an aggregate ter m of ten

- to

- thirty years of incarceration. Further, the circuit court ordered petitioner be subject to for fifty years of extended supervision upon his release from incarceration pursuant to West Virginia Code § 62

- 12

- 26

. Petitioner did not appeal this ord er.

Petitioner, by counsel, filed a petition for a writ of habeas corpus in August of 2016. Among the grounds raised, petitioner asserted the following claims that are relevant to t his appeal : “Involuntary Guilty plea,” alleging that previous counsel pres sured petitioner into pleading guilty; “Competency to Stand Trial,” alleging that he was intellectually incapable of standing trial; “Language Barrier to Understand Proceedings,” alleging that he was unable to follow the basic courtroom terminology and pro cedures; “Unintelligent Waiver of Counsel,” alleging that he was unable to understand that he had a right not to waive his Miranda rights; and “Ineffective Assistance of Counsel” alleging, based on the totality of his allegations, “as well as other good and sufficient evidence which may be adduced during an Omnibus Habeas Corpus proceeding,” that he was

denied effective assistance of counsel.

In March of 2017, the circuit court held an omnibus hearing and heard testimony from petitioner, his trial counsel, the investigating law enforcement officer, and the investigating CPS worker. Ultimately, the circuit court denied petitioner reli ef by a detailed twenty

- eight page order entered on April 16, 2018. It is from this order that petitioner appeals.

Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas corpus is governed by 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 law3

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).

On appeal, petitioner argues that the circuit court erred in denying him relief based on his ineffective assistance of counsel claim because it is unclear whether a motion to suppress his statements to law enforcement was filed. However, we find that petitioner is entitled to no relief on

this claim because he failed to show that he raised this particular ineffective assistance of counsel

claim below

. T he circuit court noted that petitioner raised ineffective assistance of counsel based

on allegations that counsel “did not file an appeal, did not subpoena witnesses, and based on the

cumulative effect of all errors raised in the petition,” but does not mention an assertion that counsel failed to file a motion to suppress petitioner’s stateme nts to law enforcement. Moreover, petitioner

fails to cite to a place in the record to show that he did

, in fact

, preserve this claim. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides that

[t]he argument must contain appropriate a nd specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately supported by specific referenc es to the record on appeal.

Further, t his Court has previously held that “ ‘[o] ur general rule is that nonjurisdictional questions .

. . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.

, 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). ” Noble v. W. Va. Dep’t of Motor

Vehicles , 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, we decline to address

this assignment of error.

Petitioner next argues that the circuit court erred in denying him relief based on his inability to comprehend the proceedings. However, the circuit court fully addressed this argument below

. Because we find no clear error or abuse of discretion in the circuit court’s order or the record before us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignment of error raised on appeal and direct the Clerk to attach a copy of the circuit

court’s April 16, 2018, “Final Order on Petition for Writ of Habeas Corpus” t o this memorandum

decision.

For the foregoing reasons, we affirm the circuit court’s denial of petitioner’s petition for a writ of habeas corpus

. Affirmed.

ISSUED : January 17, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison