STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Amy Cline, FILED 

Petitioner Below, Petitioner April 13, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0487 (Mingo County 12-C-179) OF WEST VIRGINIA 

Lori Nohe, Warden, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Amy Cline, by counsel Karen Hatfield, appeals the Circuit Court of Mingo 

County’s April 22, 2014, order that denied her petition for writ of habeas corpus. Respondent 

Lori Nohe, Warden, by counsel Derek Knopp, filed a response in support of the circuit court’s 

order. On appeal, petitioner argues that she received ineffective assistance of counsel; that there 

was insufficient evidence to sustain her conviction; and that she received a more severe sentence 

than expected. 

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 2007, a Mingo County Grand Jury indicted petitioner for two counts of first 

degree sexual assault and two counts of sexual abuse by a custodian. Prior to trial, the State 

dismissed both counts of sexual abuse by a custodian. In June of 2007, the circuit court granted a 

mistrial as a result of a hung jury. In August of 2007, the circuit court held petitioner’s second 

trial. At the close of evidence, the jury convicted petitioner guilty of two counts of first degree 

sexual assault in violation of West Virginia Code § 61-8B-3. In September of 2007, the circuit 

court sentenced petitioner to two consecutive terms of fifteen to thirty-five years in prison. 

Thereafter, petitioner filed a direct appeal with this Court, which was refused. In March 

of 2013, petitioner filed a petition for writ of habeas corpus. After holding an omnibus 

evidentiary hearing, the circuit court denied petitioner habeas relief. Petitioner now appeals to 

this Court. 

This Court reviews appeals of circuit court orders denying habeas corpus relief under the 

following standard: 

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“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). 

First, petitioner argues that the circuit court erred in denying her habeas relief because 

she received ineffective assistance of counsel. In support, petitioner alleges that her trial counsel 

failed to call a key witness during trial. Petitioner contends that the witness would have testified 

that petitioner was never left alone with the victim and that petitioner was in a custody dispute 

with her grandmother, who implicated petitioner in the underlying crimes. We have previously 

held that 

“[i]n 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.” Syl. Pt. 5, State v. Miller, 

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

Syl. Pt. 1, State v. Frye, 221 W.Va. 154, 650 S.E.2d 574 (2006). We have further held that 

“[w]here a counsel’s performance, attacked as ineffective, arises from occurrences involving 

strategy, tactics and arguable courses of action, his [or her] conduct will be deemed effectively 

assistive of his client’s interests, unless no reasonably qualified defense attorney would have so 

acted in the defense of an accused.” Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 

(1974). During the omnibus evidentiary hearing, petitioner acknowledged that her trial counsel 

chose not to call this alleged key witness based on his trial strategy. The record is devoid of any 

proof as to what additional information this witness would have testified to at trial beyond 

petitioner’s self-serving statements.1 Nevertheless, a review of the trial transcript reveals that 

petitioner’s trial counsel elicited substantially similar testimony from a different witness during 

the underlying criminal trial. Therefore, we find that the circuit court did not err in denying 

petitioner’s claim that she received ineffective assistance of counsel. 

Next, petitioner argues that there was insufficient evidence to support her conviction for 

first degree sexual assault. Specifically, petitioner argues that the victim’s testimony was 

inconsistent between the first and second trial and that two experts testified that the victim’s 

symptoms of sexual assault could have been caused by other factors. 

We have previously held as follows: 

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Petitioner did not call the alleged key witness during the omnibus evidentiary hearing. 

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“A criminal defendant challenging the sufficiency of the evidence to 

support a conviction takes on a heavy burden. An appellate court must review all 

the evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that of guilt so long as the jury can find 

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not 

an appellate court. Finally, a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could 

find guilt beyond a reasonable doubt. To the extent that our prior cases are 

inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194 

W.Va. 657, 461 S.E.2d 163 (1995). 

Syl. Pt. 1, State v. Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007). 

This Court has stated that “a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could find guilt 

beyond a reasonable doubt.” State v. Guthrie, 194 W.Va. 657, 669-70, 461 S.E.2d 163, 175-76 

(1995). To obtain convictions on the charges for sexual assault in the first degree, the State had 

to prove that petitioner was at least fourteen years old, that she engaged in sexual intercourse or 

intrusion with the victim, and that the victim was younger than twelve years old at the time. The 

State introduced evidence to support each of these elements. The parties do not dispute the 

relevant ages. The victim’s treating physician testified that she stated that petitioner “pushed her 

down on the bed and held her down and started touching her vaginal area,” and that petitioner 

“inserted her fingers into her vaginal area.” Thus, the evidence was sufficient to sustain 

petitioner’s conviction. 

As to petitioner’s contention that the victim’s testimony was inconsistent during the first 

and second trial, this Court has held that “‘[a] new trial will not be granted in a criminal case on 

the ground of insufficiency of the evidence, when the verdict against the defendant is based on 

conflicting oral testimony and the credibility of witnesses is involved, or when the verdict is 

supported by substantial evidence.’ Syllabus point 3 of State v. Vance, 146 W.Va. 925, 124 

S.E.2d 252 (1962).” Syl. Pt. 1, State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990). 

Furthermore, “‘[t]he jury is the trier of the facts and in performing that duty it is the sole judge as 

to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2, State v. Bailey, 151 

W.Va. 796, 155 S.E.2d 850 (1967).” Syl. Pt. 2, State v. Martin, 224 W.Va. 577, 687 S.E.2d 360 

(2009). For the reasons already stated above, it is clear that the evidence was sufficient to support 

petitioner’s conviction. 

Finally, this Court finds no merit to petitioner’s argument that she received a more severe 

sentence than expected. To begin, we note that the circuit court correctly denied petitioner relief 

on this issue, but for the wrong reason. “This Court may, on appeal, affirm the judgment of the 

lower court when it appears that such judgment is correct on any legal ground disclosed by the 

record, regardless of the ground, reason or theory assigned by the lower court as the basis for its 

judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). This Court has 

held that: 

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Under the provisions of Chapter 53, Article 4A, Code of West Virginia, 1931, as 

amended, commonly known as ‘Post-Conviction Habeas Corpus,‘there is a 

rebuttable presumption that petitioner intelligently and knowingly waived any 

contention or ground in fact or law relied on in support of his petition for habeas 

corpus which he could have advanced on direct appeal but which he failed to so 

advance. 

Syl. Pt. 1, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). This Court has also held that 

“[i]n a habeas corpus proceeding under Chapter 53, Article 4A, Code of West Virginia, 1931, as 

amended, the burden of proof rests on petitioner to rebut the presumption that he intelligently 

and knowingly waived any contention or ground for relief which theretofore he could have 

advanced on direct appeal.” Syl. Pt. 2, Id. Here, petitioner failed to assert this claim on her direct 

appeal. Further, petitioner fails to directly state any reason for this failure for the purposes of 

rebutting the presumption of waiver. Accordingly, the Court finds that petitioner, who was 

represented by counsel on direct appeal, could have advanced this claim on direct appeal and did 

not. Therefore, this issue is deemed waived. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: April 13, 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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