### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Mark S., Petitioner Below, Petitioner 

### FILED

vs) No. 15-0728 (Kanawha County 14-P-639) 

### March 7, 2016

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS David Ballard, Warden, OF WEST VIRGINIA Mount Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Mark K. S., by counsel Jennifer D. Roush, appeals the Circuit Court of Kanawha County’s July 1, 2015, order denying his petition for writ of habeas corpus. 1
Respondent David Ballard, Warden, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on the ground of ineffective assistance of counsel and finding that he was competent during the plea negotiations.

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 May of 2008, a Kanawha County grand jury indicted petitioner on one count of firstdegree sexual assault, two counts of first-degree sexual abuse, and three counts of sexual abuse by a parent, guardian, or custodian. Thereafter, petitioner pled guilty to one count of first-degree sexual assault and one count of sexual abuse by a parent, guardian, or custodian. The circuit court sentenced petitioner to a term of incarceration of fifteen to thirty-five years for first-degree sexual assault and a consecutive term of ten to twenty years for sexual abuse by a parent, guardian, or custodian.

In December of 2014, petitioner filed a petition for writ of habeas corpus alleging that he received ineffective assistance of trial counsel and lacked the mental competency at the time of his guilty plea to knowingly and intelligently enter a guilty plea. The circuit court held an

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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

1omnibus evidentiary hearing in April of 2015, during which the circuit court heard testimony from petitioner and his trial counsel. According to petitioner’s testimony, he voluntarily arranged to meet with a detective wherein he gave an inculpatory statement regarding the underlying crimes. Petitioner testified that he was aware that he did not have to meet with the detective, that he disclosed his mental health issues to his trial counsel, and confirmed that he gave a consistent inculpatory statement to the probation department as part of his presentence report. 2 Trial counsel testified that he did not request a psychological evaluation because he felt that petitioner was perfectly competent at the time of his representation and had memory of the past events. Further, trial counsel stated that he “didn’t see anything in his description that would go towards a defense of a mental illness or any kind of criminal responsibility issues relating to the case.” Ultimately, the circuit court denied petitioner’s petition for writ of habeas corpus by order entered July 1, 2015. 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, petitioner alleges that the circuit court erred in finding that he received effective assistance of counsel and finding that he was competent at the time he entered his plea agreement. We do not agree.

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 this alleged error, which was also argued below. Indeed, 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 findings and conclusions as they relate to petitioner’s assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s July 1, 2015, “Final Order” to this memorandum

decision.

For the foregoing reasons, we affirm.

2 Petitioner was involuntarily committed to Mildred Bateman Hospital for suicidal thoughts, depression, and substance abuse/dependence approximately six months before being indicted. After receiving approximately fourteen days of inpatient therapy, petitioner was discharged as being stabilized on medication.

2Affirmed.

ISSUED: March 7, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II

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