STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Henry Keith Wykle, FILED 

Petitioner Below, Petitioner February 18, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0621 (Fayette County 06-C-274) OF WEST VIRGINIA 

David Ballard, Warden, Mount Olive Correctional Complex, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Henry Keith Wykle’s appeal, filed by counsel Thomas A. Rist, arises from the 

Circuit Court of Fayette County, which denied petitioner post-conviction habeas corpus relief by 

order entered on May 16, 2013. Respondent David Ballard, Warden, by counsel Benjamin F. 

Yancey III, filed a response. On appeal, petitioner argues that the circuit court erred in failing to 

find that petitioner received ineffective assistance of counsel at his plea hearing. 

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. 

In 1993, petitioner was indicted on one count of first degree murder and one count of 

first degree sexual assault. Following a plea agreement with the State, petitioner pled guilty to 

first degree murder. The plea agreement provided that the State would dismiss the sexual assault 

charge and recommend mercy at petitioner’s sentencing. At sentencing, the circuit court ordered 

petitioner to serve life in prison without mercy. Petitioner first filed for post-conviction habeas 

corpus relief in 1997, which the circuit court denied and this Court refused on appeal. 

In July of 2006, petitioner filed the instant petition for habeas corpus relief and argued 

that certain serology evidence warranted review in light of In re Renewed Investigation of the 

State Police Crime Lab., Serology Div., 219 W.Va. 408, 633 S.E.2d 762 (2006). Petitioner 

argued that he was not provided with the serology test results in his criminal proceedings below 

and that, had he known of these results, he would not have pled guilty to first degree murder. The 

circuit court denied relief and, on appeal, this Court reversed and remanded to the circuit court 

for an evidentiary hearing on the serology test results. In February of 2013, the circuit court held 

a hearing on this matter and, subsequently, denied petitioner habeas corpus relief. From this 

order, petitioner now appeals. 

This Court reviews appeals of circuit court orders denying habeas corpus relief under the 

following standard: 

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“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.” Syllabus point 1, Mathena v. 

Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). 

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). 

Petitioner’s argument on appeal is that his trial counsel was ineffective because he did not 

provide the serology test results to him prior to his plea. Petitioner reiterates his argument below 

that, had he known of these results, he would not have pled guilty. 

Upon our review of the record and the briefs on appeal, we find that the circuit court did 

not abuse its discretion in not finding petitioner’s trial counsel to have been ineffective. In so 

finding, we bear in mind the following: 

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). Moreover, “‘[o]ne who charges 

on appeal that his trial counsel was ineffective and that such resulted in his conviction, must 

prove the allegation by a preponderance of the evidence.’ Syllabus, Point 22, State v. Thomas, 

157 W.Va. 640, 203 S.E.2d 445 (1974).” Syl. Pt. 2, Carrico v. Griffith, 165 W.Va. 812, 272 

S.E.2d 235 (1980). Petitioner has not met his burden in showing that there would be a reasonable 

probability that, but for his trial counsel’s alleged error in not providing the serology test results, 

the result of his criminal proceedings would have been different. He asserts that any criminal 

defendant should be provided all discovery prior to evaluating pleading guilty, but fails to 

discuss how this information would have changed petitioner’s case. The circuit court’s order 

reflects its thorough analysis of petitioner’s same argument presented in circuit court. Having 

reviewed the circuit court’s “Order” entered on May 16, 2013, we hereby adopt and incorporate 

the circuit court’s well-reasoned findings and conclusions as to the assignment of error raised in 

this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this 

memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: February 18, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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