STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Wendell K. Ash, FILED
April 5, 2013
Petitioner Below, Petitioner RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 12-0470 (Kanawha County 11-C-136)
David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Wendell K. Ash, pro se, appeals the order of the Circuit Court of Fayette County,
entered November 23, 2011, denying his petition for a writ of habeas corpus. The respondent
warden by Laura Young, his attorney, 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,1 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.
On June 3, 2011, petitioner filed a petition for a writ of habeas corpus seeking review of his
conviction and sentence for second degree sexual assault pursuant to his guilty plea in Felony No.
95-F-73. At the time of the incident, June 1995, petitioner was already an inmate at Mt. Olive
Correctional Complex. The indictment charged him with four separate offenses relating to the
sexual assault of a female prison employee. As part of the plea agreement, the three other counts
were dismissed.
At an October 16, 1996 sentencing hearing, the parties presented arguments as to whether
petitioner’s sentence in the case at bar should be concurrent with or consecutive to the sentence he
already was serving.2 After hearing arguments of counsel, the circuit court sentenced petitioner to
1
Certain documents were attached to petitioner’s brief. Also, on May 14, 2012, the respondent
warden filed a motion to dismiss the appeal, or in the alternative, to supplement the record. By an
order entered June 6, 2012, this Court refused the motion to dismiss but granted the motion to
supplement.
2
Petitioner had been convicted of first degree murder in Wood County. He was sentenced to life
in prison without parole.
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ten to twenty-five years in prison “to run after you have served your sentence out of Wood
County.”
On November 23, 2011, in an order containing numerous findings of fact and conclusions
of law, the circuit court addressed various grounds of relief and denied the petition. On appeal,
petitioner makes numerous assignments of error including that the circuit court should have
appointed him habeas counsel. But see Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d
657 (1973) (“A court having jurisdiction over habeas corpus proceedings may deny a petition for a
writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the
petition, exhibits, affidavits or other documentary evidence filed therewith show to such court’s
satisfaction that the petitioner is entitled to no relief.”). The respondent warden argues that the
circuit court did not err in denying the petition.
We review the circuit court’s denial of a habeas petition under an abuse of discretion
standard. See Syl. Pt. 1, in part, 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. We hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal.3 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 of Fayette
County and affirm its November 7, 2011 order denying petitioner’s petition for a writ of habeas
corpus.
Affirmed.
ISSUED: April 5, 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
3
As his final assignment of error, petitioner alleges that his conviction should be set aside because
counsel failed to inform him of the details of the victim’s written statement. The circuit court did
not address this issue because petitioner did not raise it below. This Court will not pass on the issue
in the first instance. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733
(1958).
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