### 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 Ce nter, by counsel Sarah B. Massey 2 , 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 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 2004, petitioner was the twenty-three year old boyfriend of a woman who had two twelve-year-old daughters. In 2005, a Mingo Count y grand jury indicted petitioner on sixteen counts of sexual abuse by a parent, guardian, or custodian pursuant to We st Virginia Code §

61-8D-5 and sixteen counts of th ird-degree sexual assault pursuan t 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 represen ted by Ms. Massey in this matter. The State is now represented by Robert L. H ogan, Deputy Attorney General.

161-8B-5 involving his girlfriend’s minor daughter s. 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 assaul t with regard to each victim. In exchange for the guilty pleas, the State agreed to dismiss the remaining tw enty-eight counts of the indictment. The plea agreement provided that the State would recommend th e 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 concurren tly to each other and that the sentences for third-degree sexual assault would run consecutiv ely to each other and consecutively to the sentences for sexual abuse by a pa rent, 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 cour t, petitioner tes tified that he understood that sentencing was “in the discretion of the [c]ourt.” Pe titioner confirmed that he was not promised anything that was “not written down in black and white in this plea[ ] ag reement.” 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 fact ual basis for his pleas by testifying that he had

sexual intercourse with the first victim and that he engaged in “sexual c ontact” with the second victim. Upon questioning by the court, petitioner e xplained that he believed that he was guilty of each of the four counts to which he was pleadi ng 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 assaul t against the second victim. 3 The circuit court cautioned petitioner that he could go to trial and “ex plain 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 sent enced petitioner to ten to twenty years of incarceration for each c ount of sexual abuse by a parent, guardian, or custodian, and to one to five years of incarcerati on for each count of third-degree sexual assault. The circuit court ordered petitione r to serve his sentences consecutiv ely and denied his request for probation and alternative senten cing. 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 interc ourse, sexual intrusion, or sexual conduct with a child under his care, custody, or control. West Virg inia Code § 61-8B-5 (a)(2) provides that third-degree sexual assault is committed by e ither sexual intercourse or sexual intrusion.

2On August 6, 2010, petitioner filed a petition fo r 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 ci rcuit court heard petitioner’s testimony at an evidentiary hearing. Petitioner testifie d that his trial attorney and the State “ambushed” him with a different plea agreement than the one that he originally signed. According to petitione r, the original plea agreement was a “C-type” agreement that require d the circuit court to impose the parties’ sentencing recommendation pursuan t to which the sentences for sexual abuse by a parent, guardian, or custodian would be serv ed concurrently to each other. 5 Petitioner testified that, shortly before the plea hearing, his trial attorn ey produced a new “B-type” plea agreement for him to sign that left the circui t court free to impose consecutiv e 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 expl ained that, while he did have sexual intercourse with the first victim who became pregnant, he di d 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 co mmitted 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. Responde nt’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 atto rney requested permission to continue the hearing and to subpoena the second victim with whom petitioner stated

that he did not have sexual interc ourse. Petitioner’s attorney expl ained that she did not feel it appropriate to subpoena the second victim without the court’s approval. The circuit court rejected

4 In Losh v. McKenzie , 166 W.Va. 762, 768-70, 277 S. E.2d 606, 611-12 (1981), we compiled a non-exclusive list of pot ential grounds that a circuit cour t 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” agreemen t and is binding on the circ uit court in that, if the court accepts a “C-type” agreement, it must im pose 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)).

6 An 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).

3the request to subpoena the second victim, finding that petitioner te stified that he had “no idea” that the victim would “say anything that is relevant.” 7
By order entered January 18, 2013, the circuit co urt rejected twenty-seven grounds of relief (including ineffective assistance of trial counsel and the voluntar iness of his guilty pleas) and

denied habeas relief. Petitioner filed a motion fo r reconsideration of the January 18, 2013, order. Also, some confusion existed as to whether petiti oner’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 th at petitioner’s habeas attorney shall represent him should he choose to appeal. On May 28, 2013, petitioner’s habe as 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 w ith 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 unders tood 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) faili ng to subpoena the second victim to testify that petitioner did not have sex with he r; (2) failing to obtain the vict ims’ medical records which would have established petitione r’s “actual innocence”; (3) failing to retain a medical expert with experience in sexual assault cases; (4) failing to re tain 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) de nying that she was responsible for filing the appeal from the denial of habeas relief prior to the circuit cour t’s letter clarifying the matter. By order entered March 30, 2017, the circuit court again denied habeas relief, finding that “the peti tion, 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 includ e any such statement in his appendix. We agree with respondent and disregard pe titioner’s reference to a document not in the appellate record pursuant to Rule 10(c)(7) of the West Vi rginia Rules of A ppellate Procedure.

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

.

9 See Id.

4“In reviewing challenges to the findings and conclusi ons 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 st andard; and qu estions 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; howev er, an applicant may still petition the court on the following grounds: ineffective assistance of c ounsel at the omnibus ha beas 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 issu es: (1) the circuit cour t judge who denied the instant habeas petition should have been disqualif ied from this case because of a conflict of interest; (2) his trial counsel provided ineffec tive assistance and committed fraud; (3) the circuit court breached a binding “C t ype” plea agreement; (4) he was c onvicted and sentenced under the wrong statutes; and (5) his habeas attorney provi ded ineffective assistan ce. 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 ot her issues. We agree with respondent.

With regard to the alleged necessity of the circ uit court’s disqualifi cation, 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 proc eeding, the circuit court rejected petitioner’s dubious testimony at the habeas hearing that his trial attorney and th e State “ambushed” him with a plea agreement that did not require the court to impose the partie s’ sentencing recommenda tion. The circuit court found that it read the plea agreem ent to petitioner, including th e provision that the “sentencing recommendation is not binding upon the [c]ourt,” and that petitione r understood that sentencing was “in the discretion of the [c]ourt.” The circuit court further rejected va rious claims based on the applicable statutes including that petitioner’s se ntences exceeded statutory limits. Therefore, we conclude that the claims that trial counsel pr ovided 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 th e doctrine of res judicata pursuant to syllabus point four of Losh

.

With regard to the claim that petitioner’s attorney in the fi rst 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 require s the following: (1) counsel’s

5performance was deficient under an objective sta ndard 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 th e circuit court’s permission to subpoena the second victim and also represen ted petitioner in his appeal from the denial of relief. The circuit court’s denial of permission and th e failure of petitioner’s prior ha beas 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 th e accuracy of the plea hear ing transcript. As the trier of fact, the circuit court wa s free to find that petitioner’s te stimony 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) (findi ng that “[a]n appellate court may not decide the credibi lity of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact”). Based on ou r review of the record, we find that nothing that habeas counsel did or failed to do changed the re sult of that proceeding. Therefore, we conclude that the circuit court did not abuse its discretion in denying the instan t 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