John J. v. Dennis Dingess, Warden, 16-0445

Background

John J. was indicted on three counts of first-degree sexual abuse alleging acts occurred within a six-year window when the victim was under twelve; trial evidence narrowed timeframe to summer 2008 when victim was seven.
Criminal complaint and a psychological competency report mistakenly listed the penalty as 1–5 years; the correct statutory penalty for an adult accused of abusing a child under 12 is 5–25 years per count.
The State offered a plea to a third-degree misdemeanor (up to 90 days) which defense counsel recommended but petitioner rejected, maintaining innocence; at voir dire the court advised petitioner of the 5–25 year exposure and petitioner affirmed understanding and declined the plea.
At trial the victim testified to abuse; petitioner sent a text to the victim’s sister denying it; a redacted public‑defender affidavit containing petitioner’s phone number was admitted in evidence after an initial improper reference by the State.
The jury convicted on one count of first-degree sexual abuse and acquitted on two counts; petitioner was sentenced to 5–25 years, 50 years supervised release, and lifetime sex offender registration.
Petitioner sought post-conviction habeas relief alleging ineffective assistance of counsel (trial and appellate), a defective indictment, and prosecutorial misconduct; the habeas court denied relief and the Supreme Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to advise penalty / reject plea	Counsel did not inform John of 5–25 year exposure; had he known he would have accepted plea; counsel was ineffective	Counsel and trial court record show plea was discussed, court advised John of 5–25 years, and John repeatedly declined; counsel’s performance not deficient	Denied — petitioner failed to prove deficient performance under Strickland/Miller
Ineffective assistance — trial preparation and witness handling	Counsel inadequately prepared, called only one witness (J.J.), failed to interview or impeach her, and failed to challenge provenance of incriminating text	Counsel investigated, made strategic choices to rely on State witnesses, interviewed J.J. midtrial and called her at client’s request; defense strategy was reasonable	Denied — counsel’s strategic decisions were within range of competence
Prosecutorial reference to public‑defender affidavit	State’s reference to affidavit and admission of redacted affidavit prejudiced John by implying he had appointed counsel	Reference was isolated, trial court admonished State, the affidavit was redacted, and evidence of guilt was strong (victim testimony and petitioner’s text)	Denied — brief reference not so damaging as to violate rights under Sugg factors
Sufficiency of indictment / notice & alibi prejudice	Indictment’s six‑year window (including months when victim was over 12) deprived John of notice and impaired ability to mount an alibi (trial counsel waited too long to seek narrower timeframe)	Time is not an element; statute and case law permit non‑specific time windows; indictment provided fair notice and was later narrowed to summer 2008; no specific alibi shown that was lost	Denied — indictment constitutionally sufficient and no prejudice shown from counsel’s timing

Key Cases Cited

Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (W. Va. 2006) (standards of review in habeas proceedings)
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (W. Va. 1995) (adopting Strickland test for ineffective assistance)
State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (W. Va. 1995) (factors for assessing prejudicial prosecutorial comments)
Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (W. Va. 2013) (standards for sufficiency of indictments)
State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (W. Va. 1974) (deference to counsel’s strategic choices)