STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Gerald R.,
Petitioner Below, Petitioner FILED
May 14, 2018
vs.) No. 17-0339 (Webster County 16-P-2) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Michael Martin, Acting Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Gerald R., by counsel Andrew Chattin, appeals the Circuit Court of Webster
County’s February 9, 2017, order denying his petition for writ of habeas corpus.1 Respondent
Michael Martin, Acting Warden, by counsel Gordon L. Mowen II, filed a response in support of
the circuit court’s order.2 On appeal, petitioner argues that the circuit court erred in denying his
habeas petition on the following grounds: (1) judicial conflict; (2) ineffective assistance of
counsel; (3) improper preliminary hearing; (4) failure to receive pre-sentence investigation
report; (5) prosecutorial conflict; (6) failure to disclose victim impact statement; (7) abuse of
discretion and plain error; and (8) violation of 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 2013, petitioner was indicted on the following three charges: first-degree sexual
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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner originally listed Marvin Plumley as respondent in this matter. However,
Michael Martin is now the Acting Warden of Huttonsville Correctional Center. Accordingly,
pursuant to Rule 41(c) of the Rules of Appellate Procedure, the appropriate public officer has
been substituted in the style of this matter.
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assault; incest; and sexual abuse by a parent, guardian, or custodian. The victim of these crimes
was eleven years old at the time the crimes were committed. The parties reached an agreement in
November of 2013 whereby petitioner would plead no contest to one count of incest and the
State would recommend that any sentence imposed be ordered to run concurrently with a
sentence petitioner was already serving for an unrelated criminal conviction. Thereafter, the
circuit court held a hearing and accepted petitioner’s plea. Following the completion of a pre-
sentence investigation report, petitioner was sentenced to a term of incarceration of five to fifteen
years in May of 2014. The circuit court further ordered that the sentence run consecutively to a
sentence petitioner was already serving for conviction of an unrelated crime. Moreover,
petitioner was required to register as a sex offender for life upon his release and undergo fifteen
years of supervised release.3 During the hearing, the State honored its agreement and
recommended the imposition of concurrent sentences. It did, however, notify the circuit court
that the sentencing order in the unrelated criminal case indicated that the judge who imposed that
sentence indicated that it should be served consecutively to any other sentence imposed upon
petitioner.
In February of 2016, petitioner filed a petition for writ of habeas corpus. Thereafter, the
circuit court appointed petitioner counsel and eventually held an omnibus evidentiary hearing in
November of 2016. In his petition below, petitioner raised the following grounds for relief: (1)
judicial conflict; (2) ineffective assistance of counsel; (3) improper preliminary hearing; (4)
failure to receive pre-sentence investigation report; (5) prosecutorial conflict; (6) failure to
disclose victim impact statement; (7) abuse of discretion and plain error; and (8) violation of plea
agreement. Additionally, following the omnibus hearing, the circuit court noted that petitioner
also raised another ground for relief predicated on a lack of jurisdiction. Ultimately, the circuit
court denied petitioner relief. 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).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
3
On appeal, petitioner asserts that the trial court imposed a fifty-year period of supervised
release. Similarly, the order on appeal indicates that the term of supervised release was fifty
years. However, the sentencing order included in the appendix indicates that the term of
supervised release was for only fifteen years.
2
On appeal, petitioner simply alleges anew the same arguments he presented to the circuit
court. Namely, he asserts that he is entitled to habeas relief upon the following grounds: (1)
judicial conflict; (2) ineffective assistance of counsel; (3) improper preliminary hearing; (4)
failure to receive pre-sentence investigation report; (5) prosecutorial conflict; (6) failure to
disclose victim impact statement; (7) abuse of discretion and plain error; and (8) violation of plea
agreement. Indeed, petitioner fails to even allege how he believes the circuit court erred in
denying his petition.4 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 these alleged errors, which were 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, as it
relates to these assignments of error, 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 and direct the Clerk to attach a copy of the circuit
court’s February 9, 2017, “Final Order On Petition For Writ Of Habeas Corpus” to this
memorandum decision.
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In fact, petitioner’s brief is deficient in relation to several of his assignments of error,
wherein his arguments in support of the assignments of error simply reiterate, sometimes in as
little as one sentence, the assignment of error itself. For example, under his assignment of error
alleging a failure to disclose the victim impact statement, the entirety of his argument is as
follows: “Petitioner was denied an opportunity to review the victim’s impact statement.” Many
of these assignments of error contain no citation to any controlling authority. Additionally, many
of these assignments of error fail to cite specifically to the record on appeal and, instead, simply
direct the Court to “[s]ee [p]etitioner’s testimony at the evidentiary hearing.” This is in direct
contradiction to the applicable rules and this Court’s prior directions. 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.
Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E. Ketchum
specifically noted 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 in regard to
several assignments of error is inadequate as it fails to comply with West Virginia Rule of
Appellate Procedure 10(c)(7) and our December 10, 2012, administrative order.
3
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: May 14, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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