STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Kenneth Riley,
Petitioner Below, Petitioner FILED
April 12, 2016
vs) No. 15-0885 (Randolph County 12-C-181) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
William J. Vest, Warden,
Beckley Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Kenneth Riley, by counsel Gerald E. Blair Jr., appeals the Circuit Court of
Randolph County’s August 7, 2015, order denying his petition for writ of habeas corpus.
Respondent William J. Vest, Warden, by counsel Lara Kay Omps-Botteicher, filed a response.1
On appeal, petitioner alleges that the circuit court erred in denying his petition for writ of habeas
corpus because he received ineffective assistance of counsel and the State failed to fulfill its plea
agreement.
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 1998, the Randolph County grand jury indicted petitioner on one count
each of delivering a controlled substance to an inmate, attempting to transport into prison a
controlled substance, conspiracy, and possession with intent to deliver a controlled substance.
The indictment was based upon an investigation of several recorded jailhouse telephone calls
wherein it was believed that petitioner orchestrated a plan to smuggle marijuana into the
Huttonsville Correctional Complex for personal consumption and/or distribution.
In January of 1999, Petitioner pled guilty to one count each of delivering a controlled
substance to an inmate, conspiracy, and possession with intent to deliver. As part of the plea
agreement the State agreed to recommend concurrent sentences for these crimes and that these
1
Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original respondent, David Jones, with William J. Vest, who is the current warden
of the Beckley Correctional Center where petitioner is incarcerated.
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sentences be served consecutively to petitioner’s underlying convictions.2 During the plea
hearing, petitioner set forth the factual basis for his plea stating that he “help [sic] arrange get
[sic] some marijuana dropped off to be brought into Huttonsville” and that it was for “personal
use and [to] probably sell some.” Thereafter, the circuit court held a sentencing hearing during
which the State indicated its recommendation regarding sentencing was contained in the plea
agreement. The circuit court sentenced petitioner to three consecutive terms of incarceration of
one to five years. Further, the circuit court ordered that petitioner’s sentences were to be served
consecutive to his underlying convictions.
In August of 1999, the circuit court held a hearing on petitioner’s motion for reduction of
sentence made pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. When
asked for the State’s position in regard to petitioner’s motion, the State argued that petitioner’s
sentence was “quite appropriate, and should stand” primarily because petitioner was “one of the
major players and coordinators of this event as opposed to some of the other co-defendants[.]”
Accordingly, the circuit court denied petitioner’s motion for reduction of sentence.
Petitioner filed a pro se petition for habeas corpus relief on November 19, 2012.
Thereafter, the circuit court appointed counsel for petitioner and directed that an amended
petition for habeas corpus relief be filed. As directed, petitioner, by counsel, filed an amended
petition for writ of habeas corpus alleging that he was entitled to relief because the State failed to
fulfill the plea bargain and a general “omnibus clause” that specifically preserved all other
grounds for relief.
In January of 2014, the circuit court held an omnibus evidentiary hearing during which
the circuit court allowed petitioner to assert the following additional grounds for relief: 1)
consecutive sentences for the same transaction; 2) unfulfilled plea bargain; 3) ineffective
assistance of counsel; 4) double jeopardy; 5) no preliminary hearing; and 6) severer sentence
than expected. During a continued omnibus hearing in December of 2014, the circuit court heard
testimony from petitioner’s former counsel responsible for negotiating the plea agreement.
Again, the circuit court continued that matter to allow the parties to secure additional discovery
material from the underlying criminal matter. By ordered entered August 7, 2015, the circuit
court denied petitioner’s petition for habeas corpus. It is from this order that petitioner appeals
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).
2
Petitioner was incarcerated for several larceny related offenses at the time of the
indictment.
2
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
In his first assignment of error, petitioner argues that the circuit court erred in denying
habeas relief based on his claim of ineffective assistance of trial counsel. Specifically, petitioner
argues that his trial counsel was ineffective because counsel allowed him to plead guilty to
offenses that were “impossible” to commit. Petitioner devotes only one short paragraph of
argument to this assignment of error. He does not cite to a single case in support of his argument
that it was factually “impossible” to plead guilty or that his trial counsel was ineffective. This is
in direct contradiction to this Court’s Rules of Appellate Procedure and specific directions issued
by administrative order.3
Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires
that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on .
. . [and] must contain appropriate and specific citations to the record on appeal[.]
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
(emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, Chief Justice Menis E.
Ketchum specifically noted in paragraph two that “[b]riefs that lack citation of authority [or] fail
to structure an argument applying applicable law” are not in compliance with this Court’s rules.
Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the
argument presented and do not ‘contain appropriate and specific citations to the record on appeal
. . . as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, petitioner’s
brief is woefully inadequate. While it does appropriately cite to the applicable standard of review
on appeal, it lacks citations to any relevant legal authority. Thus, petitioner’s assignment of error
was not properly developed on appeal. However, despite petitioner’s failure to preserve this issue
for appeal, this Court has reviewed the record in this matter and determined that the circuit court
committed no error in regard to petitioner’s first assignment of error. See Syl. Pt. 8, in part, State
v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) (holding “a person may be convicted of a
crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a
principal in the second degree, or as a principal in the first degree in the commission of such
offense.”); see also Syl., in part, State v. Dameron, 172 W.Va. 186, 304 S.E.2d 339 (1983)
(holding “an accessory before the fact is a person who being absent at the time and place of the
crime, procures, counsels, commands, incites, . . . another person to commit the crime[.]”
(internal citations omitted)).
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Petitioner’s conclusory reference to that it was “impossible” to commit these crimes is
deficient as it is unsupported by citations to the appendix record on appeal or by meaningful
argument. As this Court has explained, “[a] skeletal ‘argument,’ really nothing more than an
assertion, does not preserve a claim . . . .” State v. Kaufman, 227 W.Va. 537, 555 n. 39, 711
S.E.2d 607, 625 n. 39 (2011) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir.1991)).
3
Petitioner also reasserts his claim that the trial court erred in denying him habeas relief
based on the State’s failure to fulfill its plea bargain. Specifically, petitioner argues that the State
failed to recommend concurrent sentencing at the hearing on his motion for reduction of sentence
filed pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. We do not agree.
Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the
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 this alleged error, which was also argued below. Indeed, the circuit
court’s order includes well-reasoned findings and conclusions as to the assignments of error
raised on appeal. Given our conclusion that the circuit court’s order and the record before us
reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s
findings and conclusions as they relate to petitioner’s assignments of error raised herein and
direct the Clerk to attach a copy of the circuit court’s August 7, 2015, “Final Order Denying
Post-Conviction Writ of Habeas Corpus” to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 12, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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