### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Larry David Tomblin, 

### FILED

Petitioner Below, Petitioner 

### April 10, 2017

RORY L. PERRY II, CLERK vs) No. 16-0432 (Cabell County 07-C-766) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Patrick A. Mirandy, Warden, St. Marys Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Larry David Tomblin, by counsel Shawn Bartram, appeals the Circuit Court of Cabell County’s March 3, 2016, order denying his petition for writ of habeas corpus. Respondent Patrick A. Mirandy, Warden, by counsel Shannon Frederick Kiser, filed a response. 1 On appeal, petitioner alleges that the circuit court erred in denying his habeas petition and in failing to hold an evidentiary hearing.

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 October of 2005, petitioner was arrested and charged with the first-degree murder of Jason Wilson. Thereafter, he was indicted on one count of first-degree murder. In May of 2006, petitioner pled guilty to one count of first-degree murder. Subsequently, on June 21, 2006, he was sentenced to a term of incarceration of life with mercy.

In August of 2007, petitioner filed a petition for writ of mandamus. 2 Subsequently, on July 1, 2015, petitioner, by counsel, filed an amended petition for writ of habeas corpus alleging four substantive grounds for relief: (1) involuntary guilty plea; (2) ineffective assistance of counsel; (3) severer sentence than expected; and (4) questions of actual guilt upon an acceptable

1 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the original respondent, Marvin Plumley, with Patrick A. Mirandy, Warden of the St. Marys Correctional Center, because petitioner is currently incarcerated at the St. Marys

Correctional Center.

2 Petitioner’s petition for writ of mandamus appears to have been treated by the circuit court as a petition for writ of habeas corpus.

1guilty plea.

By order entered on March 3, 2016, the circuit court denied petitioner’s petition for habeas relief without conducting an omnibus evidentiary hearing. The circuit court found that the underlying record demonstrated that petitioner was not induced to enter a guilty plea; that he understood that the circuit court had the sole discretion to determine petitioner’s sentence; and that he “recognized and accepted all the elements of his guilty plea.” The circuit court also found that petitioner’s own statements at the plea hearing indicated that he was satisfied with his counsel’s representation, and his sentence was “expected for such a serious crime” and legislatively prescribed. The circuit court further found that, despite petitioner’s claims to the contrary, the State provided testimony with evidence at the plea hearing that he was involved with a premeditated murder-for-hire scheme. It is from this order that petitioner appeals.

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

On appeal to this Court, petitioner alleges that he was entitled to an omnibus evidentiary hearing, because the circuit court could not appropriately rule on his habeas petition without a full evidentiary record. The Court, however, does not agree. We have previously held that

“[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.” Syllabus Point 1, Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 3, Markley v. Coleman , 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter, petitioner argues simply that it was error to deny his petition because he alleged several claims which, he argues, can only be properly decided after conducting an evidentiary hearing.

Pursuant to Rule 9(a) of Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia, “the circuit court, after the answer is filed, shall, upon a review of the record, if any, determine whether an evidentiary hearing is required.” The clear language of this rule gives circuit courts the discretion to hold an evidentiary hearing. As the circuit court correctly determined, petitioner failed to allege any facts that would warrant an evidentiary hearing. Indeed, the circuit court’s order supports its finding that an evidentiary hearing was not required

2based upon a thorough review of the underlying criminal case and the petition and memorandum in support. As such, it is clear that the circuit court did not err in denying the petition for writ of habeas corpus.

Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on errors alleged in the petition, which were also argued below. The circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s March 3, 2016, “Order Denying Writ of Habeas Corpus” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Elizabeth D. Walker

DISSENTING:

Justice Margaret L. Workman

Justice Menis E. Ketchum

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