STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Wendell K. Ash, FILED 

April 5, 2013 Petitioner Below, Petitioner RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 vs.) No. 12-0470 (Kanawha County 11-C-136) 

David Ballard, Warden, Mt. Olive Correctional Complex, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Wendell K. Ash, pro se, appeals the order of the Circuit Court of Fayette County, 

entered November 23, 2011, denying his petition for a writ of habeas corpus. The respondent 

warden by Laura Young, his attorney, filed a summary 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,1 the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

On June 3, 2011, petitioner filed a petition for a writ of habeas corpus seeking review of his 

conviction and sentence for second degree sexual assault pursuant to his guilty plea in Felony No. 

95-F-73. At the time of the incident, June 1995, petitioner was already an inmate at Mt. Olive 

Correctional Complex. The indictment charged him with four separate offenses relating to the 

sexual assault of a female prison employee. As part of the plea agreement, the three other counts 

were dismissed. 

At an October 16, 1996 sentencing hearing, the parties presented arguments as to whether 

petitioner’s sentence in the case at bar should be concurrent with or consecutive to the sentence he 

already was serving.2 After hearing arguments of counsel, the circuit court sentenced petitioner to 

1 Certain documents were attached to petitioner’s brief. Also, on May 14, 2012, the respondent 

warden filed a motion to dismiss the appeal, or in the alternative, to supplement the record. By an 

order entered June 6, 2012, this Court refused the motion to dismiss but granted the motion to 

supplement. 

2 Petitioner had been convicted of first degree murder in Wood County. He was sentenced to life 

in prison without parole. 

-1­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ten to twenty-five years in prison “to run after you have served your sentence out of Wood 

County.” 

On November 23, 2011, in an order containing numerous findings of fact and conclusions 

of law, the circuit court addressed various grounds of relief and denied the petition. On appeal, 

petitioner makes numerous assignments of error including that the circuit court should have 

appointed him habeas counsel. But see Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 

657 (1973) (“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.”). The respondent warden argues that the 

circuit court did not err in denying the petition. 

We review the circuit court’s denial of a habeas petition under an abuse of discretion 

standard. See Syl. Pt. 1, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). After 

careful consideration of the parties’ arguments, this Court concludes that the circuit court did not 

abuse its discretion in denying the petition. We hereby adopt and incorporate the circuit court’s 

well-reasoned findings and conclusions as to the assignments of error raised in this appeal.3 The 

Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. 

For the foregoing reasons, we find no error in the decision of the Circuit Court of Fayette 

County and affirm its November 7, 2011 order denying petitioner’s petition for a writ of habeas 

corpus. 

Affirmed. 

ISSUED: April 5, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

3 As his final assignment of error, petitioner alleges that his conviction should be set aside because 

counsel failed to inform him of the details of the victim’s written statement. The circuit court did 

not address this issue because petitioner did not raise it below. This Court will not pass on the issue 

in the first instance. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 

(1958). 

-2­