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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Roger Neil Reed,
Petitioner Below, Petitioner
vs) No. 12-0789 (Upshur County 11-C-55) David Ballard, Warden,
Mount Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION Petitioner Roger Reed, by counsel Hunter D. Simmons, appeals the May 30, 2012 order of the Circuit Court of Upshur County denying his petition for writ of habeas corpus. Respondent Ballard, by counsel, has filed a 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, 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. In May of 2009, petitioner was sentenced to thirty-five years of incarceration for the crime of sexual assault in the first degree and a concurrent term of incarceration of three to ten years for the crime of abduction with intent to defile. Sentence was imposed after petitioner pled guilty pursuant to a plea agreement whereby the State agreed to dismiss two other counts of first degree sexual assault, one count of kidnapping, and one count of nighttime burglary. The State also agreed to refrain from filing a recidivist information against petitioner, though this language was stricken from the written plea agreement and all parties initialed next to the correction, including petitioner. It is uncontested that, despite this alteration, the State did not seek a recidivist proceeding against petitioner. In June of 2011, petitioner filed a petition for writ of habeas corpus, which the circuit court denied after holding an omnibus hearing. On appeal, petitioner alleges that the circuit court erred in denying him habeas relief because his guilty plea was not entered into knowingly, intelligently, and voluntarily. According to petitioner, he initialed the plea agreement next to the paragraph relating to the Habitual Criminal Offender Act, but that language was stricken after he signed it. Petitioner argues that he would not have entered a guilty plea if he had known this part of the agreement was going to be stricken and his belief that the State could not seek recidivist proceedings against him was a major factor in inducing his plea. Respondent argues that the circuit court's findings of fact in regard to petitioner's plea agreement being given knowingly, intelligently, and voluntarily must be taken as true because petitioner did not take exception to them. Further, the testimony from petitioner's
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FILED
April 16, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

trial attorneys and his mother clearly established that the plea agreement document was executed before petitioner represented to the circuit court that he wished to enter guilty pleas. Most importantly, respondent argues that the State never sought a recidivist proceeding against petitioner and is, in fact, now time-barred from doing so. This Court has previously held that [i]n 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). After careful consideration of the parties' arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit court's "Order Following Hearing On Petition For Writ Of Habeas Corpus" entered on May 30, 2012, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. 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 and its May 30, 2012 order denying the petition for writ of habeas corpus is affirmed. Affirmed. ISSUED: April 16, 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

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