Jack J. v. Karen Pszczolkowski, Warden ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jack J.,
Petitioner Below, Petitioner FILED
June 8, 2018
vs) No. 17-0014 (Ohio County 13-C-167) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Karen Pszczolkowski, Warden,
Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Jack J., by counsel John M. Jurco, appeals two orders of the Circuit Court of
Ohio County related to his petition for a writ of habeas corpus: (1) the October 7, 2016, order
granting the motion to dismiss filed by Respondent Karen Pszczolkowski, Warden, Northern
Correctional Facility, in response to petitioner’s request for habeas relief, and (2) the December
8, 2016, order denying his “Notification of Remaining Claim and Request for Evidentiary
Hearing.” Respondent, by counsel Gordon L. Mowen, II, filed a response in support of the circuit
court’s orders.
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 January 2008, petitioner was indicted on six counts of sexual assault in the first degree,
seven counts of sexual abuse by a custodian or parent, and conspiracy. These counts charged
petitioner with a wide variety of acts of sexual misconduct against R.M., his girlfriend’s
daughter. The evidence at trial showed that petitioner began sexually abusing R.M. when she
was three or four years old.1 Though petitioner’s first trial resulted in a mistrial, he was
subsequently convicted of all counts charged in the indictment as a result of a second trial. He
was sentenced to an aggregate term of incarceration of 161 to 355 years.
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A graphic and detailed description of petitioner’s criminal acts is set forth in State v.
Jack[J.], 230 W. Va. 692, 742 S.E.2d 108 (2013) (affirming petitioner’s convictions). R.M.’s
mother, Jessica Jane M., participated in some of the sexual acts against her daughter; her
criminal convictions were affirmed by this Court in State v. Jessica Jane M., 226 W. Va. 242,
700 S.E.2d 302 (2010).
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Petitioner appealed his convictions to this Court. This Court affirmed his convictions. See
State v. Jack[ J.], 230 W. Va. 692, 742 S.E.2d 108 (2013).
Petitioner subsequently filed a pro se petition for habeas relief in the Circuit Court of
Ohio County and, after the appointment of counsel, filed two amended petitions. Respondent
filed a motion to dismiss the petition. By order entered on October 7, 2016, the circuit court
granted respondent’s motion to dismiss. Petitioner subsequently filed a “Notification of
Remaining Claim and Request for Evidentiary Hearing,” relating to his claims of ineffective
assistance of counsel, cruel and unusual punishment, and juror bias. The circuit court denied the
same by order entered on December 8, 2016. It is from the October 7, 2016, and December 8,
2016, orders that petitioner now appeals.
Our review of the circuit court’s order denying petitioner’s request for habeas relief is
governed by 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).
In this appeal, petitioner raises the same arguments that he presented in the habeas
proceeding before the circuit court. As he did below, petitioner argues that the trial court erred in
denying numerous claims: (1) prejudicial pretrial publicity; (2) denial of the right to a speedy
trial; (3) incompetency to be sentenced; (4) suppression of helpful evidence; (5) knowing use of
perjured testimony; (6) erroneous information in pre-sentence investigation report; (7) ineffective
assistance of counsel; (8) imposition of consecutive sentences for the same transaction, violation
of the prohibition against double jeopardy, severer sentences than expected, and excessive
sentences; (9) bail was excessive and then wrongfully denied; (10) denial of a preliminary
hearing; (11) challenges to composition of Grand Jury, its procedures, and nondisclosure of
Grand Jury minutes; (12) defective indictment; (13) pre-indictment delay; (14) refusal to turn
over witness notes after the witness testified; (15) unconstitutionality of West Virginia’s rape
shield law and the State v. Quinn2 falsity exception as applied to petitioner and denial of
petitioner’s motion for discovery regarding these issues; (16) prejudicial statements made by
prosecutor and improper communications between prosecutor, witnesses, and jurors; (17)
insufficiency of the evidence; (18) juror’s failure to disclose the fact that she knew petitioner;
(19) denial of petitioner’s motion to interview the jury; and (20) denial of petitioner’s request for
an evidentiary omnibus hearing. Each of petitioner’s claims were addressed at length in the
circuit court’s orders.
We find no error or abuse of discretion by the circuit court. Our review of the record
2
State v. Quinn, 200 W. Va. 432, 490 S.E.2d 34 (1997).
2
supports the circuit court’s decision to grant respondent’s motion to dismiss and deny
petitioner’s requests for post-conviction habeas corpus relief, including the relief sought in his
“Notification of Remaining Claim and Request for Evidentiary Hearing” based on these alleged
errors, which were also argued below. Indeed, the circuit court’s orders include well-reasoned
findings and conclusions as to the assignments of error raised on appeal. Given our conclusion
that the circuit court’s orders 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 the assignments of error raised herein and direct the Clerk to attach a copy of the circuit
court’s October 7, 2016, and December 8, 2016, orders to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 8, 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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