### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

James Luther Blackford III, 

### FILED

Petitioner Below, Petitioner May 18, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 14-0448 (Berkeley County 11-C-463)

OF WEST VIRGINIA

Debra Minnix, Warden, Pruntytown Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner James Luther Blackford III, by counsel James P. Riley IV, appeals the Circuit Court of Berkeley County’s April 9, 2014, order that denied his petition for writ of habeas corpus. Respondent Debra Minnix, Warden, by counsel Christopher C. Quasebarth, filed a response. On appeal, petitioner argues that the circuit court erred in denying his petition for writ of habeas corpus because he received ineffective assistance of counsel.

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 October of 2009, the Grand Jury of Berkeley County returned a three-count indictment against petitioner for (1) first-degree arson in violation of West Virginia Code § 61-3-1; (2) setting fire to lands in violation of West Virginia Code § 61-3-6; and (3) causing serious injury during an arson-related crime in violation of West Virginia Code § 61-3-7. In August of 2010, prior to trial, the State offered petitioner a plea agreement through his trial counsel. Under the plea agreement, if petitioner pled guilty to first-degree arson and causing serious injury during an arson-related crime, the State would dismiss the count of setting fire to lands and agree to a binding concurrent sentence on any prison term imposed. Petitioner’s trial counsel sent him a letter the following day explaining the plea agreement and stating that, under the plea agreement, he could receive a maximum twenty-year prison term. He also wrote, “[a]s we discussed previously, a twenty year sentence would really be a 2 1⁄2 to 10 year sentence.” In mid-August of 2010, petitioner signed the plea agreement.

Three months later, in November of 2010, the circuit court held a plea hearing at which

1petitioner pled guilty as reflected in the August of 2010 agreement. 1 Clearly handwritten on his plea paperwork, signed by him, are the maximum determinate sentences for each crime—twenty years in prison for one count of first-degree arson and fifteen years in prison for one count of causing serious injury during an arson-related crime. The circuit court sentenced petitioner to the maximum determinate terms for each crime to run concurrently to each other. The State dismissed the remaining count of setting fire to lands. Petitioner did not appeal that conviction

and sentence.

According to petitioner, he filed a pro se petition for writ of habeas corpus in June of

2011. 2 Between 2011 and 2013, petitioner was appointed counsel who, in April of 2013, filed an amended habeas petition and Losh list. 3 The amended petition raised three grounds for relief: (1) defective indictment; (2) ineffective assistance of trial counsel; and (3) more severe sentence than expected. In October of 2013, the State filed its response and a motion to dismiss petitioner’s habeas petition, and petitioner thereafter filed a reply to both the response and the

motion to dismiss.

The circuit court held a hearing in January of 2014, at the conclusion of which it dismissed all of petitioner’s habeas claims except for ineffective assistance of trial counsel due to mistaken advice as to the parole eligibility date. The circuit court asked petitioner’s habeas counsel if he wished to have an omnibus evidentiary hearing on the ineffective assistance claim. Petitioner’s habeas counsel offered his client’s verified amended habeas petition, which included a statement that petitioner would not have pled guilty if he had known he was not parole eligible for five years, and trial counsel’s letter from August of 2010. Both were admitted into evidence. Upon inquiry by the circuit court as to whether he wished to have another hearing on the ineffective assistance claim, counsel conceded that he had no additional evidence to provide on

the issue. The circuit court took the matter under advisement.

By order entered on April 9, 2014, the circuit court denied petitioner’s claim of ineffective assistance of counsel. This appeal followed. 4

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

1 Notably, the parties did not include any transcripts of pertinent hearings in the record on appeal.

2 The parties also did not include the 2011 pro se habeas petition in the record on appeal.

3 See Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981)(providing an extensive, though not exhaustive, checklist of grounds potentially employed in habeas corpus proceedings, commonly referred to as “the Losh list.”).

4 It appears that petitioner received parole after his appeal became mature for review by

this Court.

2review 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).

On appeal, petitioner’s sole issue is the same as that presented to and considered by the circuit court—that he is entitled to habeas relief because his trial counsel was constitutionally ineffective for providing him a letter with the incorrect minimum parole eligibility period. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on the error he assigns in this appeal, which was also argued below. Having reviewed the circuit court’s “Order Denying Petition for Writ of Habeas Corpus,” entered on April 9, 2014, we hereby adopt and incorporate the circuit court’s well-reasoned findings of fact and conclusions of law 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.

ISSUED: May 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

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