### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Kurt M. Ray, Petitioner Below, Petitioner 

### February 17, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 16-0022 (Brooke County 13-C-75)

OF WEST VIRGINIA

Karen Pszczolkowski, Warden, Northern Regional Correctional Facility, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Kurt M. Ray, pro se, appeals the December 7, 2015, order of the Circuit Court of Brooke County denying his amended petition for a writ of habeas corpus. Respondent Karen Pszczolkowski, Warden, Northern Regional Correctional Facility, by counsel Julie A. Warren, filed a response.

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.

On March 3, 2008, petitioner was indicted on the following offenses: burglary, wanton endangerment, assault during the commission of a felony, sexual assault in the first degree, sexual assault in the second degree, kidnaping, and threats to kidnap. The charges stemmed from an occurrence during the night of January 11, 2008, when petitioner entered the home of his former girlfriend and forced her to leave with him. When the police later encountered the two, the victim was wearing nothing but a flannel jacket. She screamed for help, and the police arrested petitioner without incident. The police transported the victim to a hospital to receive treatment for her injuries.

On March 18, 2009, the circuit court held a hearing at which the parties presented a plea agreement. Petitioner agreed to plead guilty to burglary, wanton endangerment, and assault during the commission of a felony, kidnaping, and threats to kidnap. In exchange, the State agreed to dismiss the counts charging sexual assault in the first degree and sexual assault in the second

1degree. The parties further agreed that sentencing would be at the circuit court’s discretion and that the State would be permitted to argue that the court should impose an aggregate sentence under which petitioner would not be eligible for parole for thirty years. The circuit court found that petitioner understood both the terms of the plea agreement and his constitutional rights and that he voluntarily entered his guilty pleas. The circuit court accepted petitioner’s pleas and convicted him of the counts to which he pled guilty.

On April 24, 2009, the circuit court held petitioner’s sentencing hearing. Petitioner’s father, cousin, and friend made statements indicating that petitioner’s crimes were not consistent with his normal character. Petitioner’s attorney stated that other individuals came to support petitioner at sentencing and submitted letters on his behalf, but that those individuals did not desire to make oral statements. The State presented the statements of the victim and of the nurse who treated the victim at the hospital. Prior to the nurse’s statement, petitioner’s attorney objected to the State’s questioning of the nurse. The circuit court ruled that neither party could question the nurse, but that she could give a statement like every other witness at the sentencing hearing. The nurse gave a statement detailing the victim’s injuries on the night of January 11, 2008.

Following the witness statements, the circuit court imposed sentences of one to fifteen years of incarceration for burglary; 1 five years of incarceration for wanton endangerment; two to ten years of incarceration for assault during the commission of a felony; a life term of incarceration for kidnaping with the possibility for parole after ten years; 2 and twenty years of incarceration for threats to kidnap. With regard to petitioner’s conviction for threats to kidnap, for which West Virginia Code § 61-2-14c sets no maximum sentence, the State previously recommended that the circuit court impose a term of sixty-four years of incarceration. Therefore, in sentencing petitioner to twenty years of incarceration for threats to kidnap, the circuit court rejected the State’s sentencing recommendation with regard to that conviction. The circuit court ordered that petitioner serve his sentences consecutively. Petitioner filed a direct appeal on December 8, 2009, alleging that his sentence for threats to kidnap was unconstitutionally disproportionate to the character of the offense. By order entered March 4, 2010, this Court refused petitioner’s appeal.

Petitioner filed a petition for a writ of habeas corpus on June 3, 2013. The circuit court subsequently appointed habeas counsel for petitioner and directed the filing of an amended habeas petition. Petitioner’s habeas attorney filed the amended petition on November 18, 2013, alleging the following grounds for relief: (1) incompetency at the time of petitioner’s plea hearing due to drug and alcohol abuse; (2) coerced and involuntarily entered guilty pleas; (3) excessive sentence and a sentence more severe than expected; (4) violation of double jeopardy with regard to

1 Based on an error in the presentence report, the circuit court initially sentenced petitioner to a term of one to ten years of incarceration for burglary. However, after counsel for both parties alerted the circuit court of the error, the court imposed a sentence of one to fifteen years of incarceration, as required. See W.Va. Code § 61-3-11(a).

2 West Virginia Code § 62-12-13(c) provides that, generally, “[a]n inmate sentenced for life may not be paroled until he or she has served ten years.”

2petitioner’s convictions for kidnaping and threats to kidnap; (5) denial of petitioner’s right to confront the victim’s nurse at his sentencing hearing; and (6) ineffective assistance of trial counsel, including that his attorney mistakenly advised him regarding the possibilities of probation and parole. In alleging ineffective assistance, petitioner asserted that his trial attorney (a) failed to raise the issue of his intoxication on the night of his offenses; (b) pressured petitioner into accepting the parties’ plea agreement; (c) failed to raise petitioner’s depression and the fact the he was on medication for his depression; (d) failed to correct errors in the presentence report; and (e) failed to present all of petitioner’s witnesses at his sentencing hearing.

With his amended habeas petition, petitioner filed a Losh checklist of grounds waived. 3
Respondent filed a response on October 8, 2015. Following the filing of petitioner’s amended petition and respondent’s response, the circuit court determined that the record was sufficient for it to adjudicate the claims raised by petitioner and canceled the habeas hearing previously scheduled for November 16, 2015. On December 7, 2015, the circuit court entered a twenty-six page order denying petitioner’s amended habeas petition after refuting all of his grounds of relief, including the sub-grounds petitioner raised as part of his ineffective assistance claim.

Petitioner now appeals the circuit court’s December 7, 2015, order denying his amended habeas petition. We apply the following standard of review in habeas appeals:

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, 633 S.E.2d 771 (2006). A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing “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).

On appeal, petitioner challenges the circuit court’s finding that the record was sufficient for it to adjudicate the claims raised by petitioner without the necessity of an evidentiary hearing. Respondent counters that the circuit court correctly found that the record allowed it to summarily deny petitioner’s amended habeas petition. We agree with respondent and note that the circuit court found that it could deny the amended petition after reviewing “the court files [and] the transcripts.” We have reviewed the plea and sentencing transcripts, petitioner’s indictment and the parties’ plea agreement in his criminal case, his amended habeas petition filed in the instant case, and other documents included by petitioner in his appendix. Based on our review of the record, we

3 See Losh v. McKenzie , 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).

3conclude that the circuit court did not err in finding that the record was sufficient for it to adjudicate petitioner’s habeas claims without a hearing.

Having reviewed the circuit court’s December 7, 2015, “Order Denying Petitioner’s Amended Petition For [Post-]Conviction Habeas Corpus Relief,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the issues raised by petitioner in this appeal. 4 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. We conclude that the circuit court did not abuse its discretion in denying petitioner’s amended petition for a writ of habeas corpus.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED : February 17, 2017

CONCURRED IN BY :

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

4 To the extent that petitioner raises issues not presented in his amended habeas petition, we find that such issues are not cognizable on appeal. See Syl. Pt. 2, Sands v. Sec. Trust Co. , 143 W.Va. 522, 102 S.E.2d 733 (1958) (holding that “[t]his Court will not pass on a non[-]jurisdictional question which has not been decided by the trial court in the first instance”).

4