STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Kevin E. E.,
Petitioner Below, Petitioner
FILED
October 1, 2013
vs) No. 12-1285 (Hampshire County 10-C-15) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Evelyn Seifert, Warden,
Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Kevin E. E.’s 1 appeal, filed by counsel Brain Vance, arises from the Circuit
Court of Hampshire County, wherein petitioner’s amended petition for writ of habeas corpus was
denied by order entered on October 18, 2012. Respondent Warden Evelyn Seifert,2 by counsel
Marland Turner, filed a summary response in support of the circuit court’s decision. On appeal,
petitioner alleges that the circuit court erred in denying his amended petition for writ of habeas
corpus because he received ineffective assistance of counsel, his confession was coerced, and he
did not knowingly and voluntarily enter into an Alford plea.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
On September 7, 2004, petitioner was indicted on six counts of sexual abuse by a parent,
one count of first degree sexual assault, and five counts of first degree sexual abuse against his
six-year-old daughter. Following petitioner’s Alford3 plea to one count of sexual abuse by a
parent and five counts of first degree sexual abuse, the circuit court sentenced petitioner to a term
of incarceration of ten to twenty years for sexual abuse by a parent and one to five years for each
1
Because of the sensitive nature of the facts alleged in this case, we use the initials of the
affected parties. See State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990) ("Consistent with our practice in cases involving sensitive matters, we use the
victim’s initials. Since, in this case, the victim . . . [is] related to the appellant, we have referred
to the appellant by his last name initial." (citations omitted)).
2
Petitioner named David Ballard, Warden of the Mount Olive Correctional Complex, as the
respondent in this case. However, because petitioner is presently incarcerated in the Northern
Correctional Facility, pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure,
we have substituted Evelyn Seifert as the party respondent.
3
North Carolina v. Alford, 400 U.S. 25. (1970).
1
of the five counts of first degree sexual abuse. Petitioner’s sentences were ordered to run
consecutively, which resulted in a cumulative term of incarceration of fifteen to forty-five years.
Petitioner filed his pro se petition for writ of habeas corpus in the circuit court on February 5,
2010. After being appointed counsel, petitioner filed his amended petition for writ of habeas
corpus on June 23, 2011, alleging eight counts of ineffective assistance of counsel and twenty-
two individual grounds for relief. Without holding an evidentiary hearing, the circuit court
entered its order denying petitioner habeas corpus relief. This appeal followed.
On appeal, petitioner reasserts assignments of error that he raised in circuit court.
Petitioner argues that the circuit court erred in denying his petition for writ of habeas corpus
because (1) he received ineffective assistance of counsel, (2) his confession was coerced, and (3)
he did not knowingly and voluntarily enter into an Alford plea. Respondent argues that that
petitioner’s brief fails to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure in that it is devoid of any specific citations to the appendix. Respondent argues that
petitioner’s counsel was not ineffective and that petitioner failed to prove that there was a
reasonable probability that, but-for counsel’s alleged errors, he would not have pleaded guilty.
Additionally, respondent argues that the circuit court conducted a proper colloquy with petitioner
pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), prior to accepting
petitioner’s Alford plea. Finally, respondent argues that a review of the record fails to show that a
State agent coerced petitioner into making a confession and the circuit court excluded any
portion of petitioner’s statement that was made prior to the reading of his Miranda4 rights.
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 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).
Based on our review of the record, we find no error in the circuit court’s decision to deny
petitioner’s habeas corpus relief. The circuit court’s order reflects its thorough findings of fact
and conclusions of law concerning petitioner’s arguments, the same arguments petitioner now
raises on appeal. The record on appeal reveals no support for any of petitioner’s assignments of
error. Having reviewed the circuit court’s “Order Denying Petitioner’s Petition for Writ Of
Habeas Corpus” entered on October 18, 2012, we hereby adopt and incorporate the circuit
court’s well-reasoned findings and conclusions as to the assignments of error raised in this
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision.5
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 1, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
5
Consistent with the first footnote of this Memorandum Decision, we have redacted the circuit
court’s order to protect the victim’s identification, using an initial for petitioner’s last name and
only initials to reference other family members.
3