Christopher H. v. Michael Martin, Superintendent

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
JANUARY 2019 TERM
FILED
May 17, 2019
No. 17-1001 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
CHRISTOPHER H.,
Petitioner Below, Petitioner
V.
MICHAEL MARTIN, ACTING SUPERINTENDENT,
HUTTONSVILLE CORRECTIONAL CENTER,
Respondent Below, Respondent
________________________________________________________
Appeal from the Circuit Court of Monroe County
The Honorable Robert Irons, Judge
Civil Action No. 13-C-82
AFFIRMED
_________________________________________________________
Submitted: March 6, 2019
Filed: May 17, 2019
Matthew Brummond Patrick Morrisey
Public Defender Services Attorney General
Charleston, West Virginia Elizabeth Grant
Attorney for Petitioner Assistant Attorney General
Shannon Frederick Kiser
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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).
2. “Probation is a matter of grace and not a matter of right.” Syllabus
point 3, State v. Jones, 216 W. Va. 666, 610 S.E.2d 1 (2004).
3. “In the West Virginia courts, claims of ineffective assistance of
counsel are to be governed by the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was
deficient under an objective standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings would
have been different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114
(1995).
i
4. “In deciding ineffective . . . assistance claims, a court need not
address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459 S.E.2d
114 (1995), but may dispose of such a claim based solely on a petitioner’s failure to meet
either prong of the test.” Syllabus point 5, State ex rel. Daniel v. Legursky, 195 W. Va.
314, 465 S.E.2d 416 (1995).
ii
Jenkins, Justice:
Petitioner Christopher H.1 herein appeals the October 18, 2017 order of the
Circuit Court of Monroe County denying his petition for writ of habeas corpus.2
Christopher H. contends that he is entitled to habeas relief because he was denied due
process and effective assistance of trial counsel when he did not receive a sex offender
evaluation pursuant to West Virginia Code § 62-12-2(e) (LexisNexis 2014).3 The State
responds and asserts that the circuit court did not err. Having considered the briefs
submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable
legal authority, we find no error. Accordingly, we affirm the circuit court’s order.
1
It is this Court’s customary practice in cases involving sensitive facts to
refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190
W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n.1 (1993).
2
In the original petition for habeas corpus, the Respondent was styled as
Marvin Plumley, Warden, Huttonsville Correctional Center. Once appealed, the
Respondent was re-styled: Michael Martin, Acting Warden, Huttonsville Correctional
Center. However, effective July 1, 2018, the correctional facility positions formerly
designated as “wardens” are now designated “superintendents.” See W. Va. Code § 15A-
5-3 (LexisNexis 2018). For this reason, the Respondent has been styled as Michael Martin,
Acting Superintendent, Huttonsville Correctional Center for purposes of this Opinion.
Additionally, Mr. Martin, who now holds this position at Huttonsville, has been substituted
for Mr. Plumley. See W. Va. R. App. P. 41(c) (addressing substitution of parties who are
public officials).
3
For the full text of West Virginia Code § 62-12-2(e) (LexisNexis 2014), see
Section III, infra.
1
I.
FACTUAL AND PROCEDURAL HISTORY
In August of 2012, Christopher H. pleaded guilty to one count of sexual
abuse by a parent.4 See generally W. Va. Code § 61-8D-5 (LexisNexis 2014) (defining
crime of sexual abuse by a parent). At the plea hearing, Christopher H. was told that the
statutory sentence for this offense was an indeterminate term of ten to twenty years in
prison unless the court ordered probation. The court also advised Christopher H. that it
had no discretion to grant probation unless he received a satisfactory sex offender
evaluation stating he could receive treatment in the community. Once the court accepted
his guilty plea, Christopher H.’s counsel advised the circuit court that he had spoken with
Christopher H. about his right to a sex offender evaluation under West Virginia Code § 62-
12-2(e),5 and that Christopher H. was “pretty adamant that he wanted to waive those
rights.” The Court verified with Christopher H., and he acknowledged that he wished to
waive the evaluation because he was “financially unable to do anything otherwise.” Citing
his own indigence as a reason for waiving said evaluation, Christopher H. was not informed
by the court, or his own counsel, that such an evaluation could be provided at no cost to
him. See W. Va. Trial Ct. R. 35.05 (requiring West Virginia Department of Health and
Human Resources to pay for evaluations conducted pursuant to W. Va. Code § 62-12-2(e)).
Nothing further was mentioned regarding Christopher H.’s indigence, and the court
4
Christopher H. allegedly engaged in oral sex with his daughter.
5
See supra note 3.
2
proceeded to sentencing. Christopher H. was sentenced to “not less than ten nor more than
twenty years in prison” in accordance with the statutory sentencing provisions. See W. Va.
Code § 61-8D-5 (establishing sentence for crime of sexual abuse by a parent).
Christopher H. never directly appealed his sentence; however, in November
of 2013, he filed a pro se petition for a writ of habeas corpus. He was then appointed
counsel, and an amended petition was filed with two grounds raised for relief: (1) due
process violations and (2) ineffective assistance of counsel. Both of these grounds were
based on his allegation that neither his attorney nor the circuit court informed him that the
State would have provided the sex offender evaluation at no cost to him. See W. Va. Trial
Ct. R. 35.05.
At the hearing on Christopher H.’s petition for a writ of habeas corpus, he
sought the relief of undergoing a sex offender evaluation and having a new sentencing
hearing, if necessary. By order entered October 18, 2017, the circuit court denied
Christopher H.’s petition for habeas relief finding that even a favorable evaluation would
not mitigate his sentence, and, given the severity of his crime, probation would be grossly
lenient. Further, the court determined that because its sentencing decision was based on
the “heinous nature” of Christopher H.’s crime, “entirely independent of the fact that [he]
was indigent,” fundamental notions of fairness were not violated. As for his claim of
ineffective assistance of counsel, the court simply found that he was not entitled to relief
as he suffered no harm because the sentence imposed by the court would be the same
3
regardless of the outcome of an evaluation. It is from the circuit court’s denial of his
petition for writ of habeas corpus that Christopher H. now appeals.
II.
STANDARD OF REVIEW
This Court reviews appeals of circuit court orders denying habeas corpus
relief under 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.
Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With this standard
in mind, we now address the issues presented.
III.
DISCUSSION
The instant proceeding is before this Court upon Christopher H.’s appeal
from the circuit court’s order denying him habeas relief. Christopher H. based his habeas
corpus petition on the State’s failure to provide a sex offender evaluation to him when he
4
said he could not afford to pay for one, even though he never asked for such an evaluation
or requested that one be provided at no cost to him.
Pursuant to West Virginia Code § 62-12-2(e), a sex offender evaluation is a
prerequisite to consideration for probation for certain crimes, including the offense of
which Christopher H. was convicted:
In the case of any person who has been found guilty of,
or pleaded guilty to, a violation of the provisions of section
twelve [§ 61-8-12], article eight, chapter sixty-one of this code,
the provisions of article eight-c [§§ 61-8C-1 et seq.] or eight-b
[§§ 61-8B-1 et seq.] of said chapter, or under the provisions of
section five [§ 61-8D-5], article eight-d of said chapter, such
person shall only be eligible for probation after undergoing a
physical, mental and psychiatric study and diagnosis which
shall include an on-going treatment plan requiring active
participation in sexual abuse counseling at a mental health
facility or through some other approved program[.]
(Emphasis added).
In rendering its ruling denying habeas relief, the circuit court rejected
Christopher H.’s argument that denying him an evaluation under West Virginia Code § 62-
12-2(e) denied his right to due process:
Based on a review of the pleadings presented by the
parties, the Court is not persuaded by the arguments set forth
by Petitioner in support of his Petition for Writ of Habeas
Corpus. Because Petitioner plead [sic] guilty to engaging in
sexual intercourse with his biological daughter who was under
his care, custody and control, the severity and heinous nature
of the criminal act warranted the administration of the
maximum penalty under the law. The justification for the
aforesaid sentence would not have been mitigated even by a
5
favorable sexual offender evaluation because probation is a
grossly lenient sentence given the details involved in
Petitioner’s felony case. Given this sentencing determination
made at the discretion of the Court, Petitioner’s argument that
fundamental notions of fairness were violated is rejected, as the
sentence was determined entirely independent of the fact that
the Petitioner was indigent.
The circuit court also found that Christopher H. had not demonstrated ineffective assistance
of trial counsel, ruling as follows:
Further, the Court rejects the Petitioner’s second
argument that he was deprived of effective assistance of
counsel. Even if the failure of Petitioner’s counsel to inform
him of his right to obtain a sexual offender evaluation at State
expense fell below a reasonable standard of professional
competence, the inaction fails to satisfy the second prong of
[State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), which
adopted Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)] because, as stated above, the
outcome of the case would not have been different.
On appeal, Christopher H. argues that the denial of the sex offender
evaluation amounts to a deprivation of due process as well as ineffective assistance of
counsel. The State responds by arguing that the circuit court did not err by rejecting
Christopher H.’s due process argument or by finding that his trial counsel provided him
effective representation.
With respect to Christopher H.’s first assignment of error alleging that the
denial of a sex offender evaluation effectively denied his right to due process, we reject
this contention. Christopher H. has not demonstrated a deprivation of due process insofar
6
as probation, the alternative sentence that he might have received had he undergone a sex
offender evaluation, is not guaranteed, but, rather, is solely a matter of grace within the
circuit court’s discretion. As to this point, we have held that “[p]robation is a matter of
grace and not a matter of right.” Syl. pt. 3, State v. Jones, 216 W. Va. 666, 610 S.E.2d 1
(2004). In other words, “a defendant convicted of a crime has no absolute right to
probation.” State v. Loy, 146 W. Va. 308, 318, 119 S.E.2d 826, 832 (1961). This is so
because “[p]robation is not a sentence for a crime but instead is an act of grace upon the
part of the State to a person who has been convicted of a crime.” Syl. pt. 2, State ex rel.
Strickland v. Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968). This is so because “probation
[i]s ‘simply one of the devices of an enlightened system of penology which has for its
purpose the reclamation and rehabilitation of the criminal.’” Id., 152 W. Va. at 506, 165
S.E.2d at 94. Accordingly, “the decision as to whether the imposition of probation is
appropriate in a certain case is entirely within the circuit court’s discretion.” State v. Duke,
200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). See also W. Va. Code § 62-12-3
(LexisNexis 2014) (granting court discretion to suspend sentence and release offender on
probation); Duke, 200 W. Va. at 364, 489 S.E.2d at 746 (“W. Va. Code § 62-12-3 specifies
the discretionary nature of the circuit court’s authority to suspend either the imposition or
execution of a sentence of incarceration and to place the defendant on a period of
probation[.]”); State v. Miller, 172 W. Va. 718, 720, 310 S.E.2d 479, 481 (1983) (“[T]he
matter of probation is within the sound discretion of the trial court.”). In light of the
foregoing authorities, we find that Christopher H.’s first assignment of error has no merit,
and the circuit court did not err by denying him habeas relief in this regard.
7
Christopher H. additionally argues that he was denied effective assistance of
trial counsel because he was not informed that the State would provide him a sex offender
evaluation at no cost to him. However, because we agree with the circuit court’s conclusion
that, given the egregious nature of his underlying offense the result of his sentencing
proceedings would not have been different, we also find that Christopher H. is not entitled
to habeas relief on this basis.
In West Virginia,
claims of ineffective assistance of counsel are to be governed
by the two-pronged test established in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984): (1) Counsel’s performance was deficient under an
objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.
Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). To prevail under the
second prong of this test, a defendant must “demonstrate prejudice” and “prove there is a
‘reasonable probability’ that, absent the errors, the [proceedings] would have reached a
different result.” Id. at 15, 459 S.E.2d at 126 (citing Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d 674). Further, as this Court held in State ex rel. Daniel v. Legursky,
195 W. Va. 314, 465 S.E.2d 416 (1995):
In deciding ineffective . . . assistance claims, a court
need not address both prongs of the conjunctive standard of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995), but may dispose of such a claim based
solely on a petitioner’s failure to meet either prong of the test.
8
Syl. pt. 5, Legursky, 195 W. Va. 314, 465 S.E.2d 416.
In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the
United States Supreme Court applied the Strickland test to a conviction based upon a
defendant’s guilty plea. The Supreme Court explained that the second prong of the test
regarding prejudice
focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other
words, in order to satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.
Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d 203. Accord Slonaker v. Minnix, No.
13-0474, 2014 WL 1673029 (W. Va. Apr. 25, 2014) (memorandum decision).
During the August 20, 2012 plea hearing, Christopher H. pleaded guilty to
engaging in sexual intercourse with his daughter who was under his care, custody, and
control. Then, when the circuit court inquired about a possible date for sentencing,
Christopher H.’s counsel noted that Christopher H. wished to proceed directly to
sentencing. Specifically, his counsel stated that he had discussed with Christopher H. his
rights to a sex offender evaluation, but that Christopher H. was “pretty adamant” that he
wished to waive such evaluation. Moreover, when questioned by the court, Christopher H.
said that he was “financially unable to do anything otherwise.”
9
Pursuant to West Virginia Code § 62-12-2(e), anyone guilty of sexual
offenses shall be eligible for probation only after undergoing a sex offender evaluation.
Furthermore, Rule 35.05 of the West Virginia Trial Court Rules requires the West Virginia
Department of Health and Human Resources to pay for such an evaluation, but such
information does not appear to have been communicated to Christopher H. because he
claims he refused an evaluation under the mistaken belief that he would have to pay for it.
Christopher H. does not claim that, but for his counsel’s allegedly defective representation,
he would not have pleaded guilty. See Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d
203. Instead, Christopher H. contends that, but for his mistaken belief that he would have
to pay for the sex offender evaluation, himself, “his sentence could have been mitigated by
a sexual offender evaluation,” and, thus, a different outcome would have been achieved
because the evaluation could have rendered him eligible to be considered for probation.
We disagree.
As noted previously, a claim of ineffective assistance of counsel may be
defeated by the failure to prove either prong of the Strickland/Miller test. See Syl. pt. 5,
Legursky, 195 W. Va. 314, 465 S.E.2d 416. See also Syl. pt. 5, Miller, 194 W. Va. 3, 459
S.E.2d 114 (“In the West Virginia courts, claims of ineffective assistance of counsel are to
be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was deficient
under an objective standard of reasonableness; and (2) there is a reasonable probability
10
that, but for counsel’s unprofessional errors, the result of the proceedings would have been
different.”).
Here, though, Christopher H. has failed to prove the second prong of the
Strickland/Miller test: but for his counsel’s deficient performance, the outcome of his case
would have been different.
At the outset, we note that Christopher H. has not claimed that he would have
changed his guilty plea but for his counsel’s allegedly ineffective representation. See Hill,
474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d 203. Accordingly, we find that
Christopher H. has not satisfied the prejudice requirement of the second prong of the
Strickland/Miller test by showing that the outcome of the plea proceedings would have
been different, and, thus, the circuit court correctly denied habeas relief on this basis.
Instead, Christopher H. argues that his counsel’s allegedly ineffective
representation negatively affected the ultimate sentence that he received for his crime. The
crime under West Virginia Code § 61-8D-5 that Christopher H. admitted to committing
against his own daughter was abhorrent and in a category of the most loathsome of crimes.
At the time of sentencing, the circuit court was presented with two options for
Christopher H.’s sentence: probation or incarceration. The circuit court sentenced
Christopher H. to incarceration, and, while presiding over his habeas proceeding, observed
that, because “the severity and heinous nature of [Christopher H.’s] criminal act warranted
11
the administration of the maximum penalty,” the results of the proceeding would not have
been different even if Christopher H. had undergone a sex offender evaluation. Thus, it is
apparent that the court would have sentenced Christopher H. to a period of incarceration
regardless of the outcome or favorability of any diagnostic evaluation. Given that the only
other possible outcome would have been an extremely lenient sentence in the form of
probation, which the circuit court said it would not have granted, Christopher H.’s
contention that the circuit court’s finding was “entirely speculative” is not supported by
the record evidence.
Under Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771, we view the
findings of the lower court under a presumption of correctness, and may only reverse the
decision of the court if we find that the court abused its discretion or made a clearly
erroneous finding of fact. Based upon Christopher H.’s failure to prove that he was denied
fundamental fairness amounting to a deprivation of due process by his failure to undergo a
sex offender evaluation, or that the outcome of his sentencing hearing would have been
different so as to establish a claim of ineffective assistance of counsel, this Court finds that
the habeas court’s order should be affirmed.
12
IV.
CONCLUSION
For the reasons set forth above, we affirm the October 18, 2017 order of the
Circuit Court of Monroe County denying Christopher H.’s petition for writ of habeas
corpus.
Affirmed.
13