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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert Ewell Thomas,

Petitioner Below, Petitioner

vs.) No. 20-0844 (Marion County 2020-C-75) 

Donnie Ames, Superintendent, Mt. Olive

Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner was previously convicted of various sex crimes. This Court affirmed his 

convictions and sentences in his direct appeal. Subsequent to that decision, petitioner filed the 

underlying petition for a writ of habeas corpus, which the circuit court summarily denied and 

dismissed on September 2, 2020. Petitioner now appeals the court’s denial of his habeas petition,1

raising four assignments of error, which we review 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 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). 

In petitioner’s first assignment of error, he claims that the counts of his indictment charging

him with sexual abuse by a custodian were defective because they failed to allege that his age 

exceeded that of his victim by at least four years. See W. Va. Code § 61-8D-5(d) (“The provisions 

of this section shall not apply to a custodian . . . whose age exceeds the age of the child by less 

than four years.”). He also argues that the alleged defect in the indictment was not cured by the 

jury instructions. This Court resolved an identical challenge in Mitchell M. v. Ballard, No. 16-

0885, 2017 WL 3643030 (W. Va. Aug. 25, 2017)(memorandum decision), holding that “the 

indictment did not need to include West Virginia Code § 61-8D-5(d)’s language because it is a 

1 Petitioner is self-represented. Respondent appears by counsel Patrick Morrisey and Lara 

K. Bissett.

FILED

October 17, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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limitation on West Virginia Code § 61-8D-5(a)’s scope rather than an element of the offense.” Id.

at *4. Accordingly, the circuit court did not err in denying habeas relief on this ground.

In petitioner’s second assignment of error, he argues that West Virginia Code § 61-8D-5, 

criminalizing sexual abuse by a parent, guardian, custodian, or person in a position of trust to a 

child, is an unlawful bill of attainder because the State is not required to prove lack of consent in 

obtaining a conviction for that crime, whereas that is an element of proof for other sex offenses.

He further asserts that the legislature intended that lack of consent be a required element of all sex 

offenses, including West Virginia Code § 61-8D-5.

We observe initially that although West Virginia Code § 61-8B-2(a) specifies that “it is an 

element of every offense defined in this article that the sexual act was committed without the 

consent of the victim,” “the legislature has clearly and unequivocally declared its intention that 

sexual abuse involving parents, custodians, or guardians, W.Va.Code, 61-8D-5, is a separate and 

distinct crime from general sexual offenses, W.Va.Code, 61-8B-1, et seq.” Syl. Pt. 9, in part, State 

v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992). So, the court correctly found that the legislature 

did not intend for lack of consent to be a required element of the offense criminalized in West 

Virginia Code § 61-8D-5, which is separate and distinct from the general sexual offenses found in 

Article 8B of Chapter 61. See also W. Va. Code § 61-8D-5(a) (criminalizing sexual abuse by a 

parent, guardian, custodian, or person in a position of trust “notwithstanding the fact that the child 

may have willingly participated in such conduct, or the fact that the child may have consented to 

such conduct”).

In determining whether a statute operates as a bill of attainder under Article 

III, Section 4 of the West Virginia Constitution, a functional test will be applied to 

determine whether the statute under challenge, viewed in terms of the type and 

severity of burdens imposed, can be said to further nonpunitive legislative purposes. 

Syl. Pt. 6, Baker v. Civ. Serv. Comm’n, 161 W. Va. 666, 245 S.E.2d 908 (1978). Further, “[t]he 

best available evidence . . . indicates that the Bill of Attainder Clause was intended . . . as an 

implementation of the separation of powers, a general safeguard against legislative exercise of the 

judicial function, or more simply trial by legislature.” Id. at 677, 245 S.E.2d at 914 (citation 

omitted). Petitioner has failed to explain how he was subject to trial by legislature or address the 

nonpunitive purpose the statute serves of protecting children from a type of predator to whom they 

are particularly vulnerable. See also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 471 (1977) 

(citation omitted) (“However expansive the prohibition against bills of attainder, it surely was not 

intended to serve as a variant of the equal protection doctrine, invalidating every Act of Congress 

or the States that legislatively burdens some persons or groups but not all other plausible 

individuals. In short, while the Bill of Attender Clause serves as an important ‘bulwark against 

tyranny[,]’ . . . it does not do so by limiting Congress to the choice of legislating for the universe, 

or legislating only benefits, or not legislating at all.”). The circuit court did not err in denying relief 

on this ground.

Third, petitioner claims that he is “rightfully governed under the mental health laws.” He 

argues that the fact that he is not permitted to receive sex offender treatment while incarcerated 

until he is within five years of parole eligibility is unconstitutional, and he insists that “[i]t is time 

to require the State to take a serious look at ‘early’ treatment and rehabilitation and realistic laws.”
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Petitioner has failed to demonstrate error in the circuit court’s denial of this asserted ground for 

habeas relief. Petitioner fails to provide citations to relevant legal authority to support his claims

or explain how the provision of sex offender treatment at a time other than when he wants it is 

unconstitutional.

Fourth and finally, petitioner argues that trial counsel was ineffective for failing to object 

to the court locking the courtroom doors during his young victim’s trial testimony, failing to object 

to the State’s leading questions, and failing to file certain motions. Petitioner did not raise below

the challenges to his representation he now asserts. We decline to depart from our “general rule . . 

. that nonjurisdictional questions not raised at the circuit court level will not be considered [for] 

the first time on appeal.” State v. Jessie, 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 17, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn