STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED Neil W.,
 

Petitioner Below, Petitioner February 2, 2018
 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS vs) No. 17-0383 (Ohio County 17-C-85) OF WEST VIRGINIA 

Patrick Mirandy, Warden,
 

St. Marys Correctional Center,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Neil W.,1 pro se, appeals the March 27, 2017, order of the Circuit Court of Ohio 

County denying his seventh petition for a writ of habeas corpus. Respondent Patrick Mirandy, 

Warden, St. Marys Correctional Center, by counsel Robert L. Hogan, filed a summary 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. 

On September 14, 1998, an Ohio County grand jury indicted petitioner on fifty-two counts 

relating to child sexual offenses. Specifically, the indictment included the following: 

Seventeen counts of sexual assault in the third degree; nineteen counts of sexual 

abuse in the third degree; seven counts of exhibiting obscene material to a minor; 

five counts of photographing a minor in sexually explicit conduct; three counts of 

sexual abuse by a parent, guardian, or a custodian; and one count of sexual abuse in 

the first degree. 

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). 

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The indictment stated that the offenses occurred in July of 1998 as to forty-three counts. As to the 

remaining nine counts, the offenses were said to have occurred between October of 1997 and 

December of 1997. No victim was identified by name. Instead, the indictment noted that each 

victim’s name was known to the grand jury. 

On November 17, 1998, petitioner entered guilty pleas to fourteen counts of the indictment 

pursuant to a plea agreement. The fourteen counts included twelve felonies and two 

misdemeanors. Specifically, petitioner pled guilty to eight counts of sexual assault in the third 

degree; one count of sexual abuse in the third degree; two counts of sexual abuse by a parent, 

guardian, or a custodian; one count of exhibiting obscene material to a minor; one count of sexual 

abuse in the first degree; and one count of photographing a minor in sexually explicit conduct. The 

remaining counts of the indictment were dismissed. 

On December 30, 1998, the circuit court held a hearing on a request by petitioner to 

withdraw his guilty pleas based on the claim that, at the time of his pleas, medical conditions 

affected his ability to make intelligent decisions regarding complex issues. However, following 

petitioner’s testimony, the State offered the testimony of petitioner’s next door neighbor, Jean S., 

who visited with petitioner in jail several times following the November 17, 1998 plea hearing. 

Jean S. testified that petitioner’s motivation in filing his motion to withdraw his guilty pleas was 

that “if he kept it up long enough, . . . they would reduce [his] sentence.” Accordingly, the circuit 

court reaffirmed its prior determination that petitioner’s guilty pleas were intelligently, knowingly, 

and voluntarily made. By order entered on January 8, 1999, the circuit court denied petitioner’s 

motion to withdraw his guilty pleas. 

The circuit court held petitioner’s sentencing hearing on February 2, 1999. At the start of 

the hearing, petitioner’s trial attorney presented a second motion to withdraw the guilty pleas 

alleging that the State’s non-disclosure of exculpatory evidence affected petitioner’s decision to 

plead guilty. The circuit court agreed with trial counsel that a medical report, which showed that 

one of the victims had no physical signs of being sexually assaulted, constituted helpful evidence 

for the defense. However, the circuit court denied the motion finding that the medical report was 

not exculpatory because the lack of physical evidence was not determinative of petitioner’s guilt or 

innocence. 

After the circuit court denied the second motion to withdraw the guilty pleas, it inquired 

whether the parties were ready to proceed to sentencing. Petitioner’s trial attorney responded by 

waiving petitioner’s right to a presentence investigation report and noting petitioner’s 

authorization to do so. The circuit court first heard argument from petitioner’s counsel and then 

directly from petitioner. During his allocution, petitioner criticized his trial attorney’s advice and 

stated that trusting him was a mistake. The circuit court then heard argument from the State and a 

statement by the victims’ therapist. Ultimately, the circuit court imposed the sentence to which the 

parties agreed in the plea agreement, which was an aggregate term of twenty-eight to eighty years 

of incarceration. 

Following the pronouncement of petitioner’s sentence, the circuit court agreed with his 

attorney’s argument that it was required to give petitioner credit for time served. The circuit court 

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further advised petitioner of his right to appeal its judgment. Petitioner requested appointment of 

appellate counsel. Petitioner’s trial attorney requested to withdraw and not be appointed appellate 

counsel. Counsel explained that “it would appear [that] there is now a conflict of interest between 

myself and my client” and that he would be a witness in any post-conviction proceeding about the 

plea negotiations and the advice that he provided to petitioner. Petitioner did not object to his trial 

attorney’s motion to withdraw. Accordingly, the circuit court appointed a new attorney to 

represent petitioner on appeal. 

The initial sentencing order was entered on February 3, 1999. However, the circuit court 

resentenced petitioner on August 26, 1999, for the purposes of appeal. On appeal, petitioner 

argued that the circuit court erred in accepting his guilty pleas. By order entered March 23, 2000, 

this Court refused petitioner’s appeal. Petitioner filed his first petition for a writ of habeas corpus 

on October 22, 2000. Subsequently, in a July 21, 2005, agreed order to correct sentence, the circuit 

court held that under the statute in effect at the time, the applicable sentence for sexual abuse by a 

parent, guardian, or a custodian was five to fifteen years. Thus, the circuit court found that 

petitioner had been sentenced to two illegal ex post facto terms of ten to twenty years under the 

current version of the statute for the two convictions for sexual abuse by a parent, guardian, or a 

custodian. The court resentenced petitioner to two five to fifteen terms on each of those counts, to 

be served consecutively to each other. Petitioner subsequently filed five additional habeas 

petitions, all of which were either denied or dismissed. 

Petitioner filed his seventh habeas petition on March 17, 2015, claiming that his trial 

attorney withdrew at the beginning of the February 2, 1999, hearing and left him unrepresented 

during sentencing. By order entered on March 27, 2017, the circuit court found that, after 

“review[ing] the pleadings, evidence, and pertinent legal authorities,” petitioner’s claim was 

devoid of merit. Accordingly, the circuit court denied the petition. 

Petitioner now appeals the circuit court’s March 27, 2017, order. We apply the following 

standard of review in habeas appeals: 

“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). In syllabus point 3 of Anstey, 

we held as follows: 

“‘A court having jurisdiction over habeas corpus proceedings may deny a 

petition for a writ of habeas corpus without a hearing and without appointing 

counsel for the petitioner if the petition, exhibits, affidavits or other documentary 

evidence filed therewith show to such court’s satisfaction that the petitioner is 

entitled to no relief. Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 

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657 (1973).’ Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004) [(per 

curiam)].” 

237 W.Va. at 412, 787 S.E.2d at 866. 

On appeal, petitioner reiterates his claim that his trial attorney withdrew at the beginning of 

the February 2, 1999, hearing and left him unrepresented during sentencing. Petitioner argues that 

his claim rises to the level of constitutional magnitude because sentencing constituted a critical 

stage of his criminal proceedings. Respondent concedes that the right to assistance of counsel 

during sentencing is a fundamental right. See State ex rel. Hicklin v. Boles, 149 W.Va. 163, 

163-64, 139 S.E.2d 182, 183 (1964) (granting habeas relief on a claim that the petitioner was 

sentenced without benefit of counsel). However, respondent asserts that the February 2, 1999, 

sentencing hearing transcript unequivocally shows that petitioner’s trial attorney did not withdraw 

until the end of the hearing. Upon our review of the sentencing hearing transcript, we agree with 

respondent and find that petitioner’s trial attorney represented him throughout the hearing. 

Therefore, we find that the circuit court did not err in denying the instant habeas petition.2 

For the foregoing reasons, we affirm the circuit court’s March 27, 2017, order denying 

petitioner’s seventh petition for a writ of habeas corpus. 

Affirmed. 

ISSUED: February 2, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

2

Though petitioner makes a magnitude of complaints regarding his criminal proceedings, 

the circuit court found that he raised only one issue in the instant petition—that being his spurious 

claim that he was unrepresented during sentencing. Petitioner did not include a copy of his habeas 

petition in his appendix. Consequently, respondent asserts that nothing in the appellate record 

indicates that petitioner raised any other issue before the circuit court. We agree. Therefore, we 

decline to address the other issues that petitioner raises on appeal. Syl. Pt. 2, Sands v. Sec. Trust 

Co., 143 W.Va. 522, 102 S.E.2d 733 (1958) (holding that “[t]his Court will not pass on a 

non[-]jurisdictional question which has not been decided by the trial court in the first instance”); 

see also W.Va.Rul.App.Proc. 10(c)(7) (providing that an argument must include citations that 

pinpoint when and how issues were presented to the circuit court and that this Court “may 

disregard errors that are not adequately supported by specific references to the record on appeal”). 

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