1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

James Forest Tincher, Petitioner Below, Petitioner

vs) No. 15-0295 (Kanawha County 15-P-86)

Dennis Dingus, Warden, McDowell County Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Pro se petitioner James Forest Tincher app eals the Circuit Court of Kanawha County’s March 12, 2015, order summarily denying his petiti on for writ of habeas corpus. Respondent Dennis Dingus, Warden, by counsel Benjamin F. Yancey III, filed a response. 1 On appeal, petitioner alleges that the circui t court erred in summarily denyi ng his habeas petition and in making insufficient findings of fact.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In April of 2010, a grand jury indicted petitioner on one count of bank robbery and one count of conspiracy. Thereafter, petitioner ente red a guilty plea to one count of bank robbery without a handgun. Pursuant to the pl ea, the circuit court then sent enced petitioner to a term of

incarceration of ten to tw enty years. In Novemb er of 2010, petitioner’s c ounsel filed a motion for reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court ultimately denied this moti on. Petitioner did not appeal this sentence.

In March of 2015, petitioner filed a pro se petition for writ of habeas corpus. Petitioner alleged that his sentence was di sproportionate to the crime and th at his counsel was ineffective for failing to file an appeal of his sentence. Thereafter, the ci rcuit court summarily denied the petition. It is from this or der that petitioner appeals.

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

1 Pursuant to Rule 41(c) of the Rules of A ppellate Procedure, the name of the current public officer has been substituted as the respondent in this action. 

### FILED

October 20, 2015

RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2 “In reviewing challenges to the findi ngs and conclusions of the circuit court in a habeas corpus action, we appl y a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard; the underlyi ng factual findings under a cl early 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 alle ges that he was entitle d to further habeas proceedings below, including an omnibus evidenti ary hearing, because the circuit court could not appropriately rule on his 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 w ithout a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary

evidence filed therewith show to such c ourt’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 simply alleges that it was error to deny his petition because he alleged ineffective assistance of counsel for failure to appeal his se ntence, and that his sentence is disproportionate. However, the circuit court clearly ruled that petitioner’s argument in regard to his sentence was previously raised on a Rule 35(b) motion, which was denied.

Further, petitioner alleges that his counsel’s failure to appeal his conviction constitutes

ineffective assistance of counsel because he wa s denied his right to an appeal. However, counsel’s failure to appeal a conviction, in and of itself, doe s not necessarily constitute ineffective assistance, especially in light of the fact that petiti oner does not allege any facts that would support such a finding. Given petitioner’s entry of a guilty plea in the criminal proceedings below and his failure to allege any facts that would give rise to an ineffective assistance claim in this regard, such as incompet ent advice of counsel or an involuntary plea, the circuit court clearly did not err in denying pet itioner relief on his ineffective assistance of counsel claim. As such, it is cl ear that the circuit court did not err in summarily denying the petition for writ of habeas corpus.

Upon our review and consideration of the ci rcuit 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 th ese alleged errors, which were al so argued below. Indeed, the

circuit court’s order includes we ll-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 erro r or abuse of discretion, we hereby adopt and incorporate the circuit3 court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of th e circuit court’s March 12, 2015, “Final Order Dismissing Petition For Writ Of Habeas Co rpus” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 20, 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