STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Christopher L.L.,
Petitioner Below, Petitioner FILED
October 13, 2020
vs.) No. 19-0007 (Harrison County 15-C-458) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Christopher L.L., by counsel Ryan C. Shreve, appeals the Circuit Court of
Harrison County’s November 21, 2018, order. 1 Respondent Donnie Ames, Superintendent, Mt.
Olive Correctional Center, by counsel Scott E. Johnson, filed a response in support of the circuit
court’s order.
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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Petitioner and his ex-wife had two children, a son and a daughter. Although the children
primarily resided with their mother after petitioner’s 2010 divorce, he had frequent visitation with
the children. Following visitation with petitioner in November 2012, petitioner’s then six-year-old
daughter informed her mother that petitioner had placed his fingers inside her “pee bug”
(daughter’s name for her vagina) and that he had put his “pee bug” (daughter’s name for
petitioner’s penis) in her mouth. Petitioner’s ex-wife took the victim daughter to the hospital where
she was examined by a sexual assault nurse examiner. The victim also participated in a forensic
interview.
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).
1
In May of 2013, petitioner was indicted on one count of incest, in violation of West Virginia
Code § 61-8-12; one count of first-degree sexual assault, in violation of West Virginia Code § 61-
8B-3; one count of first-degree sexual abuse, in violation of West Virginia Code § 61-8B-7; and
one count of sexual abuse by a parent, in violation of West Virginia Code § 61-8D-5. Petitioner
was tried on these counts in August of 2013, and the jury convicted petitioner on all four counts
of the indictment.
The circuit court sentenced petitioner as follows: five to fifteen years in prison for incest;
twenty-five to one hundred years in prison for first-degree sexual assault; five to twenty-five years
in prison for first-degree sexual abuse; and ten to twenty years in prison for sexual abuse by a
parent. The circuit courted ordered these sentences to be served consecutively.
Petitioner filed a direct appeal to this Court. In that appeal, he argued that the circuit court
erred in denying his motions for a new trial and a judgment of acquittal on the ground that the
State’s evidence at trial inferred that petitioner had refused to take a polygraph examination and
was, therefore, guilty of the crimes charged. Petitioner also claimed that “(1) the circuit court’s
curative instruction was constitutionally insufficient because it did not direct the jury to disregard
the polygraph-related testimony, and (2) that the circuit court failed to give any other instruction
regarding the polygraph-related testimony, including those requested by the defense.” This Court
observed that the investigating officer made a mere mention of a polygraph, but later clarified that
no polygraph examination occurred in petitioner’s case. Further, the circuit court gave the jury an
appropriate cautionary instruction. Thus, this Court concluded that no reversible error occurred.
State v. Christopher L.L., No. 14-0095, 2014 WL 5546350 (W.Va. Nov. 3, 2014) (memorandum
decision).
Petitioner, a self-represented litigant, filed a habeas corpus petition asserting ineffective
assistance of his trial counsel. The circuit court appointed petitioner counsel to further his habeas
corpus petition. At an omnibus habeas corpus hearing on October 17, 2016, two witnesses testified:
petitioner and his trial counsel.
Petitioner testified that he met with his trial counsel two or three times and that the meetings
lasted no more than fifteen minutes. Petitioner also testified that he was not provided with
discovery documents related to his case and he did not get an opportunity to participate in his
defense. Per his testimony, he had no communication with counsel after he was sentenced and
prior to the filing of his direct appeal. Further, he testified that he did not see a copy of the appeal
filed on his behalf prior to its filing. Also, other than a single telephone call, petitioner claims that
his family members were unable to contact his counsel.
Petitioner’s trial counsel testified that he endeavored to meet with petitioner in his office
several times before petitioner’s bond was revoked, but petitioner never appeared for the
appointments. Counsel testified that petitioner “might’ve stopped in the door once or twice.”
Counsel testified that he met with petitioner multiple times in the jail after petitioner’s bond was
revoked. Per counsel’s testimony, he went over all of the discovery with petitioner in the jail, and
left a copy of the materials with petitioner’s wife. Counsel testified that he did not leave the
discovery with petitioner at the jail because petitioner feared that a disclosure of the nature of the
charges would result in petitioner being the subject of violence by other inmates.
2
Petitioner’s trial counsel testified that he prepared a voucher chronicling the time he spent
on petitioner’s case, but testified that the voucher may not accurately reflect the conferences that
counsel had with petitioner, because he did not necessarily include all of his work in the voucher.
Counsel also testified that he was required to sign in at the jail, but the log may not show his
accurate departure time. Counsel further noted that his voucher would not reflect charges for copies
made of discovery, because he did not believe that he was billing for copies at the time.
The circuit court analyzed petitioner’s ineffective assistance of trial counsel claim pursuant
to Strickland v. Washington, 466 U.S. 688 (1984), and State v. Miller, 194 W. Va. 3, 459 S.E.2d
114 (1995). The court found that “[p]etitioner had given several statements that were admitted at
trial, one statement in which he admitted his penis may have gone into the victim’s mouth when
he was trying to get her out of the bathroom. Additionally, the child victim testified to the abuse.”
Therefore, the circuit court concluded that without satisfying the Strickland/Miller test, or further
proof or support on the record, petitioner’s ineffective assistance of counsel claim could not be
substantiated and was an insufficient ground for habeas relief. Thus, the circuit court entered an
order denying petitioner habeas corpus relief on November 29, 2018.
Petitioner appeals the order denying his petition for habeas corpus relief. On appeal,
petitioner maintains that his habeas counsel was ineffective. First, petitioner claims that habeas
counsel was ineffective by failing to introduce documents at the omnibus hearing that would have
corroborated his habeas testimony and would have impeached the testimony of his trial counsel.
Further, petitioner argues that habeas counsel was ineffective in failing to cross-examine trial
counsel with the billing vouchers that counsel prepared and the jail logs from North Central
Regional Jail. Respondent maintains that petitioner’s assignment of error does not raise a
cognizable ground on direct appeal because the record was not developed to allow for this Court’s
appellate review. As discussed below, we agree with respondent.
“This Court has consistently held that claims of ineffective assistance of counsel are not
properly raised on direct appeal.” City of Philippi v. Weaver, 208 W. Va. 346, 351, 540 S.E.2d
563, 568 (2000). As we have explained:
It is the extremely rare case when this Court will find ineffective assistance
of counsel when such a charge is raised as an assignment of error on a direct appeal.
The prudent defense counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the lower court, and
may then appeal if such relief is denied. This Court may then have a fully developed
record on this issue upon which to more thoroughly review an ineffective assistance
of counsel claim.
Syl. Pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992).
Although petitioner concedes that ineffective assistance claims are rarely dealt with on
direct appeal, he suggests that this case presents one of the rare occasions where this Court should
depart from our standard procedure and review this ineffective assistance of counsel claim. We
decline petitioner’s invitation to address this matter on the merits, as his ineffective assistance of
3
counsel claim is not properly before this Court. Should petitioner wish to pursue this claim, he can
file a habeas petition challenging the effectiveness of his original habeas counsel’s representation.
For the foregoing reasons, we affirm the circuit court’s November 21, 2018, order denying
the petition for habeas corpus relief.
Affirmed.
ISSUED: October 13, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4