William David Franklin v. Anne Thomas, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

William David Franklin, Petitioner Below, Petitioner FILED

vs) No. 15-0549 (Mercer County 13-C-378-DS) February 16, 2016 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS Anne Thomas, Warden, OF WEST VIRGINIA

Parkersburg Correctional Center, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner William David Franklin, by counsel Paul R. Cassell, appeals the Circuit Court of Mercer County’s May 8, 2015, order denying his petition for writ of habeas corpus. Respondent Anne Thomas, Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on the following grounds: ineffective assistance of trial counsel; the plea was not knowingly, intelligently, and voluntarily made; and violation of constitutional proportionality standards.

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 September of 2011, petitioner was charged, by information, with two counts of attempt to commit a felony, one count of conspiracy, one count of grand larceny, and one count of Delivery of a Schedule II Controlled Substance. Petitioner consented to the information’s filing. On the same date, petitioner entered into a guilty plea to all five crimes. Pursuant to the plea agreement, the State agreed not to prosecute petitioner for any currently pending or known criminal violations and would not seek enhancement of his sentence. The State further agreed to remain silent at sentencing. In November of 2011, the matter was transferred from Judge Aboulhosn to Judge Swope and sentencing was rescheduled several times until it was ultimately set for January 23, 2012. On December 28, 2011, petitioner’s bond was revoked.

In January of 2012, petitioner was again placed on bond and entered the Legends treatment facility. The circuit court again continued sentencing pending his completion of that program. In April of 2012, petitioner’s probation officer moved to revoke his bond due to his discharge from Legends on March 9, 2012. Petitioner was bonded out on April 12, 2012, to seek further treatment and was placed on home incarceration.

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In May of 2012, petitioner was ultimately sentenced to the following terms of incarceration: one to three years for each of the two counts of attempt to commit a felony; one to five years for the count of conspiracy; one to ten years for the count of grand larceny; and one to fifteen years for the count of Delivery of a Schedule II Controlled Substance. At that time, the circuit court suspended his sentence and placed him on probation for five years. However, in October of 2012, petitioner was arrested for breaking and entering and grand larceny. A few days later, the State filed a petition to revoke his probation based upon these grounds and the additional allegation that he either failed or provided diluted drug screens. On November 8, 2012, the State filed an amended petition and alleged that petitioner failed to appear for drug screenings. After a contested hearing that same month, the circuit court revoked petitioner’s probation and imposed his original cumulative sentence of five to thirty-six years of incarceration.

In September of 2013, petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Thereafter, petitioner was appointed counsel and filed an amended petition on August 5, 2014. In his amended petition, petitioner asserted the following grounds for relief: ineffective assistance of trial counsel; guilty plea was not knowingly, intelligently, and voluntarily made; violation of constitutional rights by a disproportionate sentence; cruel and unusual punishment; illegal or coerced confession; discrimination in enforcement of the law; and several other available grounds in the Losh checklist.1 In August of 2014, the circuit court held an omnibus evidentiary hearing on the habeas petition, after which it denied the same. It is from this order that petitioner appeals.

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.” 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).

On appeal to this Court, petitioner alleges that he was entitled to habeas relief because his trial counsel was ineffective, his plea was not entered into knowingly, intelligently, and voluntarily, and his sentence violates constitutional proportionality standards. The Court, however, does not agree.

Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the

1 Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 2

circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order 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 petitioner’s assignment of error raised herein and direct the Clerk to attach a copy of the circuit court’s May 8, 2015, “Order Denying The Petitioner’s Petition For Writ Of Habeas Corpus Ad Subjiciendum And Removing It From The Court’s Active Docket” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: February 16, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II

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