STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Jason B., FILED 

Petitioner Below, Respondent April 20, 2018 

EDYTHE NASH GAISER, CLERK 

vs) No. 17-0400 (Mingo County 16-C-90) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Karen Pszczolkowski, Warden, 

Northern Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Jason B.1 pro se, appeals the March 30, 2017, order of the Circuit Court of 

Mingo County denying his petition for writ of habeas corpus. Respondent Karen Pszczolkowski, 

Warden, Northern Correctional Center, by counsel Sarah B. Massey2, filed a response in support 

of the circuit court’s order. Petitioner filed a reply. 

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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In 2004, petitioner was the twenty-three year old boyfriend of a woman who had two 

twelve-year-old daughters. In 2005, a Mingo County grand jury indicted petitioner on sixteen 

counts of sexual abuse by a parent, guardian, or custodian pursuant to West Virginia Code § 

61-8D-5 and sixteen counts of third-degree sexual assault pursuant to West Virginia Code § 

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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. 

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

2 This Court notes that although Sarah Massey filed a response brief on behalf of the State 

of West Virginia, the State is no longer represented by Ms. Massey in this matter. The State is now 

represented by Robert L. Hogan, Deputy Attorney General. 

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61-8B-5 involving his girlfriend’s minor daughters. The sexual acts at issue occurred from March 

to October of 2004 during which time one of the victims became pregnant. 

On December 1, 2005, petitioner and the State entered into a plea agreement. Petitioner 

agreed to plead guilty to one count of sexual abuse by a parent, guardian, or custodian and one 

count of third-degree sexual assault with regard to each victim. In exchange for the guilty pleas, 

the State agreed to dismiss the remaining twenty-eight counts of the indictment. The plea 

agreement provided that the State would recommend the statutory sentence of ten to twenty years 

of incarceration for each count of sexual abuse by a parent, guardian, or custodian and the statutory 

sentence of one to five years of incarceration for each count of third-degree sexual assault. Finally, 

the plea agreement provided that the State would recommend that the sentences for sexual abuse 

by a parent, guardian, or custodian run concurrently to each other and that the sentences for 

third-degree sexual assault would run consecutively to each other and consecutively to the 

sentences for sexual abuse by a parent, guardian, or custodian. 

On December 1, 2005, the circuit court held a plea hearing and read the plea agreement to 

petitioner including the provision that the “sentencing recommendation is not binding upon the 

[c]ourt.” When asked by the court, petitioner testified that he understood that sentencing was “in 

the discretion of the [c]ourt.” Petitioner confirmed that he was not promised anything that was “not 

written down in black and white in this plea[ ] agreement.” Petitioner pled guilty to one count of 

sexual abuse by a parent, guardian, or custodian and one count of third-degree sexual assault with 

regard to each victim. Petitioner provided the factual basis for his pleas by testifying that he had 

sexual intercourse with the first victim and that he engaged in “sexual contact” with the second 

victim. Upon questioning by the court, petitioner explained that he believed that he was guilty of 

each of the four counts to which he was pleading guilty, but that drug use left him unable to 

remember his specific acts when he committed sexual abuse by a parent, guardian, or custodian 

and third-degree sexual assault against the second victim.3 The circuit court cautioned petitioner 

that he could go to trial and “explain the facts as it relates to [the second victim].” Petitioner 

confirmed to the court that he wanted it to accept his pleas with regard to each victim. 

Accordingly, the circuit court accepted petitioner’s guilty pleas including the two pleas involving 

the second victim. 

Following a January 9, 2006, sentencing hearing, the circuit court sentenced petitioner to 

ten to twenty years of incarceration for each count of sexual abuse by a parent, guardian, or 

custodian, and to one to five years of incarceration for each count of third-degree sexual assault. 

The circuit court ordered petitioner to serve his sentences consecutively and denied his request for 

probation and alternative sentencing. Petitioner did not appeal his convictions or sentences. 

3

Pursuant to West Virginia Code § 61-8D-5(a), a person commits sexual abuse by a parent, 

guardian, or custodian by engaging in sexual intercourse, sexual intrusion, or sexual conduct with 

a child under his care, custody, or control. West Virginia Code § 61-8B-5(a)(2) provides that 

third-degree sexual assault is committed by either sexual intercourse or sexual intrusion. 

2 
 

 

On August 6, 2010, petitioner filed a petition for writ of habeas corpus alleging multiple 

grounds for relief as set forth on the checklist of grounds for post-conviction habeas corpus relief.4 

The circuit court appointed an attorney to represent petitioner who filed an amended habeas 

petition. On August 13, 2012, the circuit court heard petitioner’s testimony at an evidentiary 

hearing. Petitioner testified that his trial attorney and the State “ambushed” him with a different 

plea agreement than the one that he originally signed. According to petitioner, the original plea 

agreement was a “C-type” agreement that required the circuit court to impose the parties’ 

sentencing recommendation pursuant to which the sentences for sexual abuse by a parent, 

guardian, or custodian would be served concurrently to each other.5 Petitioner testified that, 

shortly before the plea hearing, his trial attorney produced a new “B-type” plea agreement for him 

to sign that left the circuit court free to impose consecutive sentences for each conviction.6 

Petitioner testified that he would not have pled guilty if he realized that there was no guarantee of 

at least some concurrent sentencing. Petitioner explained that, while he did have sexual intercourse 

with the first victim who became pregnant, he did not have sexual intercourse with the second 

victim. 

On cross-examination, respondent’s attorney questioned petitioner as to whether his 

testimony at the habeas hearing meant that he committed perjury at the plea hearing. Petitioner’s 

attorney objected. But the circuit court overruled the objection, finding that petitioner had denied 

the accuracy of the plea hearing transcript. Respondent’s attorney again asked if petitioner lied at 

the plea hearing. Petitioner responded that he pled guilty to charges involving both victims “just to 

get [his] plea.” Consistent with petitioner’s testimony at the habeas hearing, his attorney requested 

permission to continue the hearing and to subpoena the second victim with whom petitioner stated 

that he did not have sexual intercourse. Petitioner’s attorney explained that she did not feel it 

appropriate to subpoena the second victim without the court’s approval. The circuit court rejected 

4In Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981), we 

compiled a non-exclusive list of potential grounds that a circuit court should address with a habeas 

petitioner as to whether each ground was being either waived or raised in the proceeding. 

5

A plea agreement entered into pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of 

Criminal Procedure is known as a “C-type” agreement and is binding on the circuit court in that, if 

the court accepts a “C-type” agreement, it must impose the sentence that the agreement states is the 

appropriate disposition of the case. See State v. Allman, 234 W.Va. 435, 437-38, 765 S.E.2d 591, 

593-94 (2014) (citing State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 76, 404 S.E.2d 763, 767 

(1991)). 

6An agreement by the State to make a sentence recommendation comes under Rule 

11(e)(1)(B) and is known as a “B-type” agreement. Allman, 234 W.Va. at 437, 765 S.E.2d at 593. 

Rule 11(e)(2) provides that a “B-type” agreement is not binding on the circuit court and that, if the 

sentence recommendation is rejected, “the defendant nevertheless has no right to withdraw the 

plea.” See also Allman, 234 W.Va. at 437-38, 765 S.E.2d at 593-94 (same). 

3 
 

 

 

 

 

the request to subpoena the second victim, finding that petitioner testified that he had “no idea” 

that the victim would “say anything that is relevant.”7 

By order entered January 18, 2013, the circuit court rejected twenty-seven grounds of relief 

(including ineffective assistance of trial counsel and the voluntariness of his guilty pleas) and 

denied habeas relief. Petitioner filed a motion for reconsideration of the January 18, 2013, order. 

Also, some confusion existed as to whether petitioner’s attorney was appointed to represent him in 

any appeal from the denial of habeas relief. By letter dated February 7, 2013, the circuit court 

clarified the matter by stating that petitioner’s habeas attorney shall represent him should he 

choose to appeal. On May 28, 2013, petitioner’s habeas attorney filed an appeal following the 

denial of the motion for reconsideration on April 26, 2013. 

In [Jason B.] v. Seifert, No. 13-0558, 2014 WL 629356, at *3 (W.Va. February 18, 2014),8 

we affirmed the denial of habeas relief. We found that, though petitioner argued on appeal that he 

lacked mental competency regarding his conduct with the second victim, he conceded that “he had 

sexual contact with [that] victim.” Id. As reflected in the January 18, 2013, order, which we 

incorporated into our decision,9 petitioner testified at the plea hearing that he was guilty of 

offenses regarding each victim and that he understood that sentencing was in the circuit court’s 

discretion. 

On March 13, 2016, petitioner filed a second habeas petition, alleging that his habeas 

attorney provided ineffective assistance by (1) failing to subpoena the second victim to testify that 

petitioner did not have sex with her; (2) failing to obtain the victims’ medical records which would 

have established petitioner’s “actual innocence”; (3) failing to retain a medical expert with 

experience in sexual assault cases; (4) failing to retain a legal expert in the area of ineffective 

assistance of counsel; (5) inadequately developing his claim that he believed that his sentences 

would run concurrently; and (6) denying that she was responsible for filing the appeal from the 

denial of habeas relief prior to the circuit court’s letter clarifying the matter. By order entered 

March 30, 2017, the circuit court again denied habeas relief, finding that “the petition, exhibit(s), 

record(s)[,] and other documentary evidence in [petitioner’s criminal and first habeas cases] 

demonstrate that [petitioner] is entitled to no relief.” 

Petitioner now appeals the circuit court’s March 30, 2017, order. We apply the following 

standard of review in habeas appeals: 

7

On appeal, petitioner references a notarized statement allegedly by the second victim. 

Respondent counters that petitioner fails to include any such statement in his appendix. We agree 

with respondent and disregard petitioner’s reference to a document not in the appellate record 

pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. 

8

We take judicial notice of the appellate record in [Jason B.]. 

9

See Id. 

4 
 

“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). 

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). “A prior omnibus habeas 

corpus hearing is res judicata as to all matters raised and as to all matters known or which with 

reasonable diligence could have been known; however, an applicant may still petition the court on 

the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing.” 

Syl. Pt. 4, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 

On appeal, petitioner raises the following issues: (1) the circuit court judge who denied the 

instant habeas petition should have been disqualified from this case because of a conflict of 

interest; (2) his trial counsel provided ineffective assistance and committed fraud; (3) the circuit 

court breached a binding “C type” plea agreement; (4) he was convicted and sentenced under the 

wrong statutes; and (5) his habeas attorney provided ineffective assistance. Respondent counters 

that petitioner’s claim that his attorney in the first habeas proceeding was ineffective lacks merit 

and that we need not address the other issues. We agree with respondent. 

With regard to the alleged necessity of the circuit court’s disqualification, we note that 

petitioner neither states that he filed a motion pursuant to West Virginia Trial Court Rule 17 which 

governs the disqualification of judges nor includes such a motion in his appendix. Therefore, we 

decline to address this issue pursuant to Rule 10(c)(7) of the Rules of Appellate Procedure which 

provides that we “may disregard errors that are not adequately supported by specific references to 

the record on appeal.” See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) 

(stating that insufficiently briefed issues will not be considered). 

We find that the next three issues were adjudicated and/or waived in petitioner’s first 

habeas proceeding. In that proceeding, the circuit court rejected petitioner’s dubious testimony at 

the habeas hearing that his trial attorney and the State “ambushed” him with a plea agreement that 

did not require the court to impose the parties’ sentencing recommendation. The circuit court 

found that it read the plea agreement to petitioner, including the provision that the “sentencing 

recommendation is not binding upon the [c]ourt,” and that petitioner understood that sentencing 

was “in the discretion of the [c]ourt.” The circuit court further rejected various claims based on the 

applicable statutes including that petitioner’s sentences exceeded statutory limits. Therefore, we 

conclude that the claims that trial counsel provided ineffective assistance and committed fraud, 

that the circuit court breached a binding plea agreement, and that petitioner was convicted and 

sentenced under the wrong statutes are barred by the doctrine of res judicata pursuant to syllabus 

point four of Losh. 

With regard to the claim that petitioner’s attorney in the first habeas proceeding provided 

ineffective assistance, we note that such claims are governed by the two-pronged test established 

in Strickland v. Washington, 466 U.S. 668 (1984), which requires the following: (1) counsel’s 

5 
 

 

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) 

(adopting Strickland). Here, the habeas attorney sought the circuit court’s permission to subpoena 

the second victim and also represented petitioner in his appeal from the denial of relief. The circuit 

court’s denial of permission and the failure of petitioner’s prior habeas appeal does not mean that 

counsel was ineffective. Upon our review of the habeas hearing transcript, petitioner placed his 

attorney in a difficult position because he denied the accuracy of the plea hearing transcript. As the 

trier of fact, the circuit court was free to find that petitioner’s testimony at the habeas hearing was 

the less credible testimony given the record made when he entered his guilty pleas. State v. 

Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (finding that “[a]n appellate 

court may not decide the credibility of witnesses or weigh evidence as that is the exclusive 

function and task of the trier of fact”). Based on our review of the record, we find that nothing that 

habeas counsel did or failed to do changed the result of that proceeding. Therefore, we conclude 

that the circuit court did not abuse its discretion in denying the instant habeas petition. 

For the foregoing reasons, we affirm the circuit court’s March 30, 2017, order denying the 

instant petition for writ of habeas corpus. 

Affirmed. 

ISSUED: April 20, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

6