Ian Smith v. WV Regional Jail, etc.

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Ian Smith, FILED Petitioner Below, Petitioner January 14, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 11-1429 (Cabell County 06-C-144) OF WEST VIRGINIA West Virginia Regional Jail And Correctional Facility Authority, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Ian Smith, by counsel Glen Conway, appeals the September 16, 2011 order of the Circuit Court of Cabell County denying his petition for a writ of habeas corpus. Respondent West Virginia Regional Jail and Correctional Facility Authority, by counsel Jake Morgenstern, has filed a summary response. 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 Revised Rules of Appellate Procedure. On June 3, 2003, petitioner entered a guilty plea to one count of attempted robbery and one count of malicious wounding. He was thereafter sentenced to a determinative sentence of forty years in prison for attempted robbery and an indeterminate sentence of two to ten years in prison for malicious wounding, said sentences to run consecutively. Petitioner sought a direct appeal of that criminal matter, which this Court refused by order entered on September 9, 2010. On August 25, 2008, petitioner, by counsel, filed an amended petition for a writ of habeas corpus in the circuit court. An omnibus evidentiary hearing was held on September 23, 2008. The circuit court thereafter denied the petition for habeas relief. On appeal, petitioner alleges that his plea was involuntary because he incorrectly believed that he was entering into an agreed sentence pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure and because his trial attorney was ineffective because he incorrectly advised petitioner that the circuit court had agreed to a binding plea agreement. Respondent argues in support of the circuit court’s denial of habeas relief, and notes that the record clearly shows that petitioner was told that this was a non-binding plea agreement. Further, respondent argues that petitioner did not receive ineffective assistance of counsel because his attorney never promised petitioner a specific sentence. 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 a writ of habeas corpus. Having reviewed the circuit court’s “Amended Order For Purposes Of Appeal” entered on September 16, 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 September 16, 2011 order denying the petition for writ of habeas corpus is affirmed. Affirmed. ISSUED: January 14, 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 ­