### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Aron Joseph Freeland, Petitioner Below, Petitioner 

### FILED

April 5, 2013 

### vs.) No. 11-0126 (Monongalia County 07-C-237) RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Aron Joseph Freeland, by Scott A. Shough, his attorney, appeals the circuit court’s order, entered December 17, 2010, dismissing his petition for a writ of habeas corpus. The respondent warden, by Laura Young, his attorney, filed a summary response to which petitioner replied pro se

. 1

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, 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 September 5, 2003, petitioner was indicted on two counts of second degree sexual assault involving two different victims on two different days. On October 1, 2004, petitioner entered into a plea agreement with the State in which he agreed to plead guilty to one count of second degree sexual assault in exchange for the State’s promise to dismiss the second count. Petitioner would then be sentenced to a term of ten to twenty-five years in prison. The circuit court accepted the plea agreement but did not immediately sentence petitioner.

On February 8, 2005, petitioner filed a motion to withdraw the guilty plea arguing that he had insufficient time to consider the plea agreement and breach of the plea agreement. The circuit court granted the motion. 2 A jury trial was held in April of 2005, following which petitioner was convicted on both counts of the indictment. On May 18, 2005, petitioner was sentenced to two

1 On June 22, 2012, this Court granted petitioner’s counsel’s motion for leave to file petitioner’s pro se reply.

2 Petitioner’s previous counsel had withdrawn from the case. The new trial counsel represented petitioner in his motion to withdraw the guilty pleas and in subsequent proceedings.

1consecutive sentences of ten to twenty-five years in prison. Petitioner’s subsequent appeal was refused by this Court on February 16, 2006.

On June 6, 2005, petitioner filed a motion for reconsideration of sentence. The circuit court denied the motion. When petitioner appealed, this Court refused his petition on October 11, 2007.

Subsequently, petitioner filed a petition for a writ of habeas corpus. Counsel was appointed, and an amended petition was filed on June 9, 2009. 3 The circuit court noted that while petitioner raised forty-four grounds of relief, only eight of those grounds warranted discussion. 4 In a sixteen page order, the circuit court addressed those grounds and explained why the petition did not merit a hearing. Petitioner appealed the circuit court’s order dismissing his petition.

On April 15, 2011, Petitioner’s counsel filed an Anders brief. See Anders v. California , 386

U.S. 738 (1967). Counsel subsequently moved this Court for leave to file affidavits sworn by petitioner in support of his appeal. The Court granted the motion. Once the respondent warden filed a summary response, counsel moved for leave to file petitioner’s pro se reply. This Court granted the motion.

STANDARD OF REVIEW

We review the circuit court’s order dismissing 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 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).

DISCUSSION

3 The respondent warden filed an answer on March 15, 2010.

4 The eight grounds were as follows: (1) constitutional errors in evidentiary rulings; (2) prejudicial joinder of charges/denial of motion to sever; (3) ineffective assistance of counsel; (4) prejudicial statements by prosecutor; (5) more severe sentence than expected/excessive sentence; (6) sufficiency of evidence; (7) mistaken advice of counsel as to sentencing; and (8) irregularities in

arrest.

2In the Anders brief, counsel notes that petitioner would assert ten assignments of error 5 and states his conclusion that “the petitioner’s arguments for appeal are without merit.” In the summary response, the respondent warden argues that the circuit court did not err in summarily dismissing petitioner’s habeas petition.

In his pro se reply, petitioner makes arguments based upon two instances where he alleges trial counsel was ineffective. In West Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Petitioner argues that his conviction on at least one of the counts of second degree sexual assault should be reversed because trial counsel was ineffective in not calling a witness. Petitioner further argues that counsel was ineffective by advising him to admit responsibility for the offenses in connection with his motion for reconsideration of sentence. The circuit court noted petitioner’s expectation that the witness counsel did not call would have testified that the first victim reported that no coercion or force had been used. In resolving this and all other claims of ineffective assistance, the circuit court found it was clear that counsel was not ineffective. The circuit court also considered petitioner’s claim that petitioner admitted responsibility for the offenses only in the belief that he would receive an alternative or concurrent sentence if he admitted guilt. The circuit court found the claim to be without merit noting that “[a]lthough the Court did not reduce Petitioner’s sentence, offering remorse and accepting responsibility was Petitioner’s only option for possibly getting the statutory sentences run concurrently.”

After careful consideration, this Court finds that the two instances petitioner raises do not

meet the Strickland/Miller standard for showing ineffective assistance of counsel. First, petitioner had only an expectation of what the witness would have testified to, and even if petitioner’s expectation was correct, the jury might not have believed the witness in light of the other evidence including the victim’s trial testimony. Second, it was not was not ineffective assistance to advise that petitioner admit responsibility in connection with his motion for reconsideration; other than petitioner’s own assertions, there is no evidence that counsel advised him to lie.

This Court concludes that the circuit court did not abuse its discretion in dismissing the petition. We hereby adopt and incorporate the circuit court’s well-reasoned findings and

5 Petitioner’s assignments of error are the same as the eight grounds of relief the circuit court found warranted discussion, plus failure to hold an evidentiary hearing and failure to strike the respondent warden’s answer because it was filed late. However, an evidentiary hearing is not always required. See W.Va. Code 53-4A-7(a); Syl. Pt. 1, Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657 (1973). In addition, deciding a case on its merits is a desirable legal objective. See

Toler v. Shelton , 157 W.Va. 778, 204 S.E.2d 85 (1974). Therefore, after careful consideration, this Court concludes that the two issues regarding the circuit court’s conduct of the habeas proceeding lack merit. As to the other eight assignments of error, this Court incorporates the circuit court’s

order. See infra.

3conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. 6

For the foregoing reasons, we find no error in the decision of the Circuit Court of Monongalia County and affirm its order dismissing 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

6 Certain names have been redacted. See State ex rel. West Virginia Dept. of Human Services v. Cheryl M. , 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).

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