### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert M., 

### FILED Petitioner Below, Petitioner, November 20, 2015

RORY L. PERRY II, CLERK vs) No

. 15-0002 (Kanawha County 13-P-522) SUPREME COURT OF APPEALS

OF WEST VIRGINIA Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Robert M., by counsel W. Jesse Forbes, appeals the December 5, 2014, order of the Circuit Court of Kanawha County, that denied his amended petition for writ of habeas corpus. Respondent Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s order. Petitioner submitted a reply.

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.

Following a jury trial on June 2-3, 2009, petitioner was convicted of sexual abuse by a parent, guardian, custodian, or person in position of trust (Count One), and third degree sexual assault (Count Two). 1 He was sentenced to an indeterminate term of ten to twenty years on Count One, and an indeterminate term of one to five years on Count Two. The sentences were ordered to run consecutively. Petitioner was also ordered to serve a period of thirty years of supervised release as a convicted sex offender pursuant to West Virginia Code § 62-12-26. 2

Petitioner was represented at trial by attorney John P. Sullivan. Upon a complaint filed by petitioner, the State Bar’s Office of Disciplinary Counsel (“ODC”) admonished Sullivan for not having sufficient contact with petitioner over the course of the proceedings; however, no findings were made as to whether Sullivan provided ineffective assistance of counsel to petitioner at trial. The ODC thereafter closed the complaint.

1 The victim was thirteen years old.

2 Petitioner’s direct appeal of his conviction and sentence was subsequently refused by

this Court.

1Petitioner subsequently filed his first habeas petition in which he alleged ineffective assistance of trial counsel, failure of the State to disclose potentially exculpatory evidence, and improper prejudicial remarks by the prosecutor during closing argument. An omnibus hearing was conducted on September 1, and 8, 2011. Petitioner was represented by habeas counsel Scott Driver. Evidence was presented as to the ineffective assistance claim while the remaining two grounds were submitted on the record as they presented no question of fact.

Petitioner’s first petition for habeas relief was denied by order entered March 21, 2012. Petitioner appealed the circuit court’s order to this Court. This Court subsequently affirmed and adopted the circuit court’s order denying relief. See Robert M. v. Plumley , No. 12-0493 (W.Va. Supreme Court, April 15, 2013) (memorandum decision).

Thereafter, petitioner filed the present habeas petition alleging that prior habeas counsel was ineffective for failing to adequately investigate petitioner’s case prior to the omnibus hearing; failing to call certain witnesses to testify at his omnibus hearing; and failing to collect and present evidence as to two grounds raised in his first habeas petition. He further alleged that, but for these deficiencies, the results of his first habeas petition would have been different. 3 At the omnibus hearing conducted on June 26, 2014, and October 15, 2014, petitioner alleged the additional grounds of first habeas counsel’s failure to offer into evidence a certain medical record of the victim and records from MySpace.com, a social networking site, and counsel’s failure to correct a mistake in the first habeas order. The circuit court again denied habeas relief. This appeal followed.

We review the circuit court’s order under the following standard of review:

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).

On appeal, petitioner raises six assignments of error in which he alleges that the habeas court erred in finding that prior habeas counsel was not ineffective in (1) failing to move to correct an error in the first habeas order entered March 12, 2012, which specifically referenced

3 In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995).

2certain evidence that was not admitted at trial; (2) failing to adequately investigate petitioner’s case; (3) failing to call certain witnesses who could have offered “substantial impeachment evidence” against the victim, her mother, and aunt; (4) failing to call an expert legal witness to testify at the first omnibus hearing for the purpose of demonstrating that, but for trial counsel’s inadequate investigation, a reasonable likelihood exists that the outcome of the trial would have been different; (5) failing to question trial counsel regarding his (a) failure to introduce a certain medical record of the victim at trial, (b) failure to introduce evidence and/or testimony regarding the victim’s alleged recantation of the abuse on MySpace.com, and (c) failure to introduce evidence and/or testimony of prior criminal convictions of the victim’s mother and aunt, who were primary witnesses for the prosecution; and (6) failing to allow petitioner to call Heather M. as a witness during the omnibus hearing in the present matter, as she could have testified regarding the victim’s alleged recantation on MySpace.com.

On appeal, petitioner reasserts several of the same claims that were rejected by the circuit court. However, upon our review, we find that, notwithstanding petitioner’s argument to the contrary, the habeas court’s December 5, 2014, order made no finding with respect to petitioner’s fourth assignment of error—whether prior habeas counsel was ineffective for failing to call an expert legal witness. Moreover, “‘[a]s a general rule “(t)his Court will not consider questions, nonjurisdictional in their nature, which have not been acted upon by the trial court.” Syl. pt. 1, Buffalo Mining Co. v. Martin, 165 W.Va. 10, 267 S.E.2d 721 (1980).’ Syllabus Point
3, Wells v. Roberts, 167 W.Va. 580, 280 S.E.2d 266 (1981).” State ex rel. Farmer v. McBride

, 224 W.Va. 469, 479 n.9, 686 S.E.2d 609, 619 n.9 (2009). In fact, petitioner’s brief makes only a passing reference to this argument. In this regard, and without making any specific citation to the record, petitioner’s brief states, “Mr. Hamilton testified that in his expert opinion that [sic] prior habeas counsel should have called a legal expert in the prior proceeding as it would have helped support Petitioner’s claims of ineffective assistance of trial counsel therein. (AR [Vol.] 2).” See West Virginia Rules of Appellate Procedure 10(c)(7), in relevant part (requiring that argument in appellate brief “must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately supported by specific references to the record on appeal.”). Because the issue is not properly before this Court, it will

not be considered.

Likewise, with regard to petitioner’s contention that the habeas court erred in finding that prior habeas counsel was not ineffective in failing to question trial counsel regarding his failure to present evidence of the criminal convictions of certain prosecution witnesses, we observe that petitioner makes no citation to the record indicating that he raised this issue before the habeas court and that he, thus, preserved the issue for purposes of this appeal. See Evans v. United Bank,
Inc., 235 W.Va. 619, __, 775 S.E.2d 500, 510 (2015) (observing that petitioners’ argument failed to meet requirements of Rule 10(c)(7), and concluding, therefore, “the issue has been waived for purposes of appeal.”).

Finally, with regard to petitioner’s contention that witness Heather M. should have been permitted to testify at the omnibus hearing in the instant matter regarding deleted MySpace posts allegedly written by the victim that recanted her accusations against petitioner, we find no error. Following a proffer of her testimony at the omnibus hearing, the habeas court observed that the witness could not establish that the victim posted the statement and that “it would be hearsay for

3[Heather M.] to report whatever the victim allegedly said on that . . . .” “‘Rulings on the admissibility of evidence are largely within a trial court’s sound discretion and should not be

disturbed unless there has been an abuse of discretion.’ State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599, (1983).” Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

Upon our review and consideration of the circuit court’s final order denying petitioner’s amended petition for writ of habeas corpus, the parties’ arguments, and 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 the errors he assigns on appeal. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error properly raised herein. 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. The Clerk is directed to attach a copy of the circuit court’s December 5, 2014, order.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman Justice Brent D. Benjamin Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis

Justice Menis E. Ketchum

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