                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


John C.,                                                                             FILED
Petitioner Below, Petitioner                                                     January 12, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0124 (Ohio County 07-C-526)                                            OF WEST VIRGINIA


Karen Pszczolkowski, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner John C., by counsel Mark D. Panepinto, appeals the Circuit Court of Ohio
County’s January 14, 2014, order denying his petition for writ of habeas corpus.1 Respondent
Karen Pszczolkowski, Warden, by counsel Christopher C. Dodrill, filed a response.2 On appeal,
petitioner alleges that the circuit court erred in denying him habeas relief on the ground of
ineffective assistance of counsel due to counsel’s alleged failure to communicate a plea offer.

        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.

        Following a jury trial in November of 2005, petitioner was convicted of five counts of
child abuse resulting in serious bodily injury and was sentenced to a total indeterminate term of
incarceration of ten to fifty years. Petitioner thereafter filed a direct appeal with this Court, which
was refused by order entered on September 13, 2007. Thereafter, petitioner filed a petition for
writ of habeas corpus, and the circuit court appointed counsel, who filed an amended petition for
writ of habeas corpus in May of 2008. Among other things, petitioner alleged that trial counsel
was ineffective for allegedly failing to communicate a plea offer from the State.3

       1
         In keeping with the Court’s policy of protecting the identities of minors, the Court will
refer to petitioner by his last initial throughout the memorandum decision. See W.Va. R. App. P.
40(e)(1).
       2
        Pursuant to Rule 41(c) of the Rules of Appellate Procedure, we have substituted the
respondent party’s name with Warden Karen Pszczolkowski because petitioner is currently
incarcerated at the Northern Correctional Facility.
       3
        Petitioner raised several other issues in his amended petition for writ of habeas corpus
below, all of which were denied. However, on appeal, petitioner alleges error only in the . . .
                                                  1


        In April of 2013, the circuit court held an omnibus evidentiary hearing. According to
petitioner, he was unable to secure trial counsel’s testimony at the omnibus hearing. During the
hearing, the State acknowledged that a verbal plea offer was made to petitioner’s trial counsel,
though the State went on to explain that no plea was offered pursuant to Kennedy v. Frazier, 178
W.Va. 10, 357 S.E.2d 43 (1987).4 Petitioner testified that counsel never communicated this offer
to him and that, despite his innocence; he would have accepted a plea deal that exposed him to
less potential incarceration. Following the hearing, the circuit court entered an order denying the
petition for writ of habeas corpus. This appeal followed.

       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). Upon our
review, the Court finds no abuse of discretion in the circuit court’s denial of petitioner’s claim of
ineffective assistance of counsel. We have previously held that

                “[i]n 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 6, State v.
       Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
Syl. Pt. 3, Ballard v. Ferguson, 232 W.Va. 196, 751 S.E.2d 716 (2013). In the habeas
proceedings below, petitioner was denied relief because he failed to establish that counsel did not
convey the State’s verbal plea offer and, that even if the plea offer had been communicated,
petitioner could not show that he would have accepted the plea. At the evidentiary hearing, the
only evidence petitioner submitted regarding the alleged failure to communicate the offer was his
own testimony. While petitioner argues that he could not have presented any other evidence

. . . circuit court’s denial of relief in regard to the narrow issue of ineffective assistance based
upon petitioner’s allegation that his trial counsel failed to communicate the State’s plea offer. As
such, this memorandum decision addresses only that issue.
       4
        Kennedy allows a circuit court to accept a guilty plea despite the defendant’s claim of
innocence “if he intelligently concludes that his interests require a guilty plea and the record
supports the conclusion that a jury could convict him.” Syl. Pt. 1, in part, Kennedy v. Frazier,
178 W.Va. 10, 357 S.E.2d 43 (1987).
                                                 2


because of his trial counsel’s unavailability, this fact does not absolve petitioner of satisfying his
burden of proof for habeas relief.
         In discussing claims of ineffective assistance of counsel, we have held that “‘[o]ne who
charges on appeal that his trial counsel was ineffective and that such resulted in his conviction,
must prove the allegation by a preponderance of the evidence.’ Syllabus Point 22, State v.
Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).” Syl. Pt. 4, State ex rel. Kitchen v. Painter, 226
W.Va. 278, 700 S.E.2d 489 (2010). As noted above, petitioner provided no evidence to
corroborate his own testimony that his trial counsel failed to communicate the State’s verbal
offer to him prior to trial. In fact, petitioner’s own testimony on this issue was conflicting, as he
testified that following trial, trial counsel showed him a plea offer that had been reduced to
writing. Petitioner testified that trial counsel then told him that he believed he had shown
petitioner the same prior to trial.
       As such, the circuit court did not find petitioner’s testimony reliable and declined to grant
him relief based solely on the same.5 We have previously held that “[a] reviewing court cannot
assess witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).
For these reasons, we find that petitioner failed to satisfy his burden of proof in regard to his
claim of ineffective assistance of counsel.
        Moreover, petitioner was unable to satisfy the second prong of the Strickland standard in
that he could not show that, but for counsel’s allegedly ineffective performance, the outcome
below would have been different. While petitioner argues that his testimony at the omnibus
hearing established that he would have accepted the verbal plea offer so as to limit his exposure
to a longer possible sentence, the record shows that this was unlikely. Throughout the criminal
proceedings, petitioner maintained his innocence, having testified that he only confessed to the
crimes to avoid jail time. He additionally told his trial counsel that he was “not guilty of anything
[he was] accused of,” and that he “never hurt [his] children.”
        During the omnibus hearing, the State presented evidence that it was unwilling to offer a
plea agreement pursuant to Kennedy because of the “horrific circumstances” surrounding
petitioner’s crime and the associated abuse and neglect proceedings. According to testimony,
petitioner never accepted responsibility for “severely mutilat[ing]” the child and continued to
deny causing the injuries. As such, the circuit court found that petitioner would not have
accepted the State’s plea offer because he believed he was innocent. On appeal, we find no error
in this conclusion, as petitioner failed to present compelling evidence that he would have
accepted a plea offer. As such, petitioner could not establish that, but for his trial counsel’s
       5
         Petitioner also argued below, and argues on appeal, that trial counsel’s subsequent
discipline by the State Bar for failure to communicate with clients supports his petition for writ
of habeas corpus. However, the Court finds no merit to this argument because counsel’s
subsequent discipline was not predicated upon any alleged failure to communicate a plea offer
nor did that disciplinary matter establish that counsel failed to communicate the specific plea
offer to petitioner in his criminal matter. Counsel’s law license was eventually suspended
pursuant to this Court’s order. State ex rel. Office of Disciplinary Counsel v. Barnabei, 224
W.Va. 642, 687 S.E.2d 580 (2009).
                                                  3


alleged failure to communicate the plea offer to him, the outcome in the criminal proceeding
would have been different.
       For the foregoing reasons, we affirm.

                                                                                  Affirmed.

ISSUED: January 12, 2015

CONCURRED IN BY:

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




                                               4


