### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Landrum R., 

### FILED Petitioner Below, Petitioner 

### June 8, 2018 vs) No. 16-1095 (Marshall County 16-C-118(H)) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Landrum R., 1 by counsel Michael B. Baum, appeals the Circuit Court of Marshall County’s October 25, 2016, order denying his petition for writ of habeas corpus. Respondent Ralph Terry, Acting Wa rden, Mt. Olive Correctional Complex, by counsel Benjamin

F. Yancey, III, filed a summary response in support of the ci rcuit court’s order. 2 Petitioner filed a reply. Petitioner argues that the ci rcuit court erred in summarily denying his petition for habeas
relief.

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.

On July 8, 2014, a Marshall County Grand Jury returned an indictment against petitioner on fifteen counts of sexual abuse by a parent, gua rdian, or custodian; ten counts of first degree sexual assault; and five counts of first degree sexual abuse. The indictment alleged that

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); Melinda H. v. William R. II , 230 W. Va. 731, 742 S.E.2d 419 (2013); S tate v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles

L. , 183 W. Va. 641, 398 S.E.2d 123 (1990).

2 The warden of Mt. Olive Correctional Complex has changed. The acting warden is now Ralph Terry. The Court has made the necessary subs titution of parties pursua nt to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

1petitioner, who was then over the age of fifty, had sexually abused and assaulted his girlfriend’s minor daughter. 3 The abuse reportedly occurred from January of 2009 through May of 2010. 4

While petitioner initially denied the victim’s allegations and called the victim a “hateful little girl” who knew how to work the system, he later admitted that he had sexual contact with the victim on multiple occasions. As to each of these instances, petitioner claimed that the victim initiated the sexual contact. Specifically, petition er recalled that on three separate occasions, he
woke to find his hand down the front of the victim ’s pants. Petitioner suggested that the victim placed his hand down her pants. Petitioner further recalled several occasions wherein he awoke to the victim straddling him at the waist and “grinding” on him and ot her instances where the victim ran into petitioner’s bedroom and jumped on top of petitioner, straddling him at the waist. In a series of pre-trial heari ngs, the circuit court addressed the voluntariness of petitioner’s statements. By order dated December 11, 2014, the circuit court found that petitioner’s
statements occurred without coercion or dure ss and were freely, willingly, and voluntarily made.

Following a one-day trial, on February 19, 2015, petitioner was convicted of each of the thirty counts against him. At a March 20, 2015, sentencing hearing, the circuit court, sua sponte, dismissed nine counts of the jury’s verdict (f ive of the sexual abuse by parent, guardian, or custodian charges; two of the first degree sexual assault charges; and tw o of the first degree sexual abuse charges). 5 At the sentencing hearing, petitione r was afforded the opportunity to speak and stated “I made a bad choice . . . I would change my choices and I apologize.” The court enquired as to which choices the petiti oner was referencing and petitioner stated, “I
wouldn’t have let her done what she done. I would have stopped it . . . I think that ’s why she got mad and she did what she did . . . to revenge on me.”

The circuit court described pe titioner’s statements as “outrageously disgusting,” and stated “[i]t sickens me today to hear you blame this innocent child of raping you . . . You’re blaming her, an eight-year-old li ttle girl, for molesting you.” Ther eafter, petitione r was sentenced to a cumulative term of imprisonment of 40 to 145 years. Petitioner filed a direct appeal of his convictions, but the appeal was wi thdrawn at petitioner’s request. 6 In the motion to withdraw his direct appeal, petitioner noted hi s recognition that the direct app eal was “his one opportunity to

3 At the time of the abuse, the victim was reportedly between the ag es of nine and ten.

4 The abuse was alleged to have occurred in West Virginia and South Carolina, where the family briefly lived. However, the only instances of abuse at issue herein are those that occurred in West Virginia.

5 The circuit court found dismissal of certa in counts was necessary due to insufficient
evidence.

6 This Court granted petitioner’s motion to withdraw his direct appeal, in State of West Virginia v. Landrum R. , Case No. 15-0354, by order dated July 23, 2015.

2appeal directly from his conviction, but upon consultation with counsel . . . believes his interests are best served by foregoing an appeal a nd filing a petition for habeas corpus.” On July 7, 2016, petitioner, pro se, filed his fi rst petition for writ of habeas corpus, in which he alleged thirty-two instances of ineffective assistance of counsel of his trial and/or appellate counsel. Petitioner cont ends the ineffective assistance of counsel occurred at the pre

trial, trial, sentencing, and in his direct appeal. By order ente red October 25, 2016, the circuit court dismissed petitioner’s habeas petition. In its order, the circuit court noted that petitioner’s habeas petition alleged “various and sundry grounds for relief.” The court found that based upon its “complete review of the underlying criminal cas e file” it did not find “that probable cause exists to believe that the petitioner may be en titled to any relief whatsoever.” Accordingly, the circuit court denied petitioner’s habeas petition and dismissed the same. It is from the circuit court’s October 25, 2016, order, th at petitioner now appeals.

We review a circuit court’s dismissal of a habeas petition under the following standard:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standa rd; 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). We have further held that “[o]n an appeal to this Court th e appellant bears the burden of show ing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in
favor of the correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2,
Perdue v. Coiner , 156 W. Va. 467, 194 S.E.2d 657 (1973).

On appeal, petitioner argues that the circuit court erred in summarily denying his petition for writ of habeas corpus without appointing coun sel or holding an omnibus evidentiary hearing, in violation of petitioner’s constitutional rights to due process and in contravention of West Virginia Code § 53-4A-7(c). 7 Conversely, respondent argues th at given the circuit court’s familiarity with the case and the breadth of evidence presented against petitioner, the circuit court’s order denying petitioner’s writ of habeas corpus was sufficient and must be affirmed by

7 West Virginia Code § 53-4A-7(c), provides, in pertinent part, that

any order entered in accordance with the pr ovisions of this section, the court shall make specific findings of fact and conclusi ons of law relating to each contention . . . and grounds (in fact or law) adva nced, shall clearly state the grounds upon which the matter was determined, and sha ll state whether a federal and/or state right was presented and decided. Any order entered in accordance with the provisions of this section shall constitute a final judgment, and, unless reversed,
shall be conclusive.

3this Court. Given our review of the record before us , under the limited facts and circumstances of this case, we agree with respondent and find no error.

This Court has long noted that “[w]hen cons idering whether such a petition requesting post-conviction habeas corpus re lief has stated grounds warranti ng the issuance of the writs, courts typically are affo rded broad discretion.” State ex rel. Valenine v. Watkins , 208 W. Va. 26, 31, 537 S.E.2d 647, 652. In sy llabus point three of Markley v. Colema n, 215 W. Va. 729, 601 S.E.2d 49 (2004), we found 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, affidavits or other documentary evidence
filed therewith show to such court’s satisfa ction that the petitioner is entitled to no relief.” Syllabus Point 1, Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657 (1973).

In his writ for petition of habeas corpus here in, petitioner alleges ine ffective assistance of trial and appellate counsel that caused jury bias, prosecutorial misconduct, improper use of evidence admitted at trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the circuit court’s finding that petitioner’s statem ents were voluntary in nature, and improper instruction of the ju ry. However, the circuit co urt did not provide specific findings of fact and conclusions of law relating to ea ch contention advanced by petitio ner, as referenced in West Virginia Code § 53-4A-7(c), in denying petitioner’s writ. Rather, the court stated that based upon the “complete review of the underlying criminal cas e file” that “probable ca use” did not exist to believe that petition was “entitle d to any relief whatsoever.”

Here, the record reveals that the court, which denied petitioner’s writ of habeas corpus, was intimately familiar with all facets of petiti oner’s underlying criminal case, as the circuit court judge presiding over petitioner’s criminal tr ial was the same judge who denied petitioner’s petition for writ of habeas corpus. As the circu it court judge heard all of the evidence introduced at trial, he possessed sufficient knowledge to render a decision on the merits of petitioner’s claims without the necessity of an omnibus heari ng. In fact, the circuit ju dge was so familiar with the facts of the case that he, sua sponte, dismissed many of th e convictions returned against petitioner following the trial, fi nding that the same were unsuppor ted by the evidence presented
at trial. 8

This Court has long held that “there is a rebuttable presump tion that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he coul d have advanced on direct appeal but which he failed to so advance.” Syl. Pt 1, in part, Ford v. Coiner , 156 W. Va. 362, 196 S.E.2d 91 (1972).

8 During the March 20, 2015, post-trial motions hearing, the circuit court judge advised counsel that in dismissing a number of the convict ions returned against petitioner that the judge had “carefully combed through [his] copious notes that [he] took duri ng the course of the litigation.”

4We further held that “the burde n of proof rests on petitioner to rebut the presumption that he intelligently and knowingly waived any contenti on or ground for relief which theretofore he could have advanced on direct appeal.” Syl. Pt. 2, in part, id. Here, petitioner alleges jury bias, prosecutorial misconduct, improper use of eviden ce admitted at trial pursuant to Rule 404(b), improper admission of his statements, and improper instruction of the ju ry. However, petitioner did not pursue any of these claims on direct app eal. In moving to withdraw his notice of direct appeal, petitioner noted his recogn ition that “this is his one opportunity to appeal directly from his conviction, but upon consultation with counsel, [p]etitioner believes his interests are best served by foregoing an appeal and filing a petition for habeas corpus.” Accordingly, we find that in failing to raise these i ssues on direct appeal, per Ford , petitioner cannot now rely upon these facts in support of his pe tition for habeas corpus.

Under the limited facts and circumstances of this case, given the substantial evidence of petitioner’s guilt, includ ing the compelling testimony of his young victim, and the circuit court’s actions in dismissing petitioner’s factually unsupported convictions, we find no error and affirm
the circuit court’s Oc tober 25, 2016, order.

Affirmed.

ISSUED: June 8, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Menis E. Ketchum Justice Allen H. Loughry II
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis

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