SER Anthony A. Collins v. David Ballard, Warden

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS State of West Virginia, ex rel. Anthony A. Collins, FILED Petitioner Below, Petitioner February 11, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 12-0115 (Mingo County 11-C-63) OF WEST VIRGINIA David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Anthony A. Collins, by counsel David R. Barney Jr., appeals the December 29, 2011 order of the Circuit Court of Mingo County denying his petition for writ of habeas corpus. Respondent Ballard,1 by counsel Thomas W. Rodd, filed a response, to which petitioner has filed a reply. The 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. Pursuant to a plea agreement, petitioner pled guilty to multiple counts of grand larceny and breaking and entering as charged in three separate indictments in 1996. Ultimately, petitioner was sentenced to an aggregate term of three to forty-five years of incarceration for these crimes, as the circuit court imposed consecutive sentences for each term of incarceration under the separate indictments. After filing a pro se petition for habeas corpus relief in 2011, petitioner was appointed counsel and an amended petition was filed. Thereafter, an omnibus evidentiary hearing was held on September 27, 2011, after which the circuit court denied the petition. On appeal, petitioner alleges ten assignments of error. However, petitioner is simply re- alleging the grounds for relief cited in his circuit court habeas petition, and his assignment of error on appeal is more accurately stated as alleging error by the circuit court in denying his petition. Petitioner argues that his testimony and the record were sufficient to establish a basis for relief below. In response, the State argues that the circuit court was correct to deny the petition. 1 We have replaced the original respondent’s name with David Ballard, Warden, because petitioner is no longer housed at Stevens Correctional Center. Petitioner is currently housed at the Slayton Work Camp which is administered by Mount Olive Correctional Complex. 1 ­ This Court has previously held that [i]n 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). After careful consideration of the parties’ arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit court’s “Final Order Denying Petitioner’s Omnibus Petition For Writ Of Habeas Corpus” entered on December 29, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. For the foregoing reasons, we find no error in the decision of the circuit court and its December 29, 2011 order denying the petition for writ of habeas corpus is affirmed. Affirmed. ISSUED: February 11, 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 2 ­