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Smith v. Plumley

Supreme Court of West Virginia

May 22, 2017

Andrew Smith, Petitioner Below, Petitioner
v.
Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

         (Berkeley County 15-C-175)

          MEMORANDUM DECISION.

         Petitioner Andrew Smith, by counsel Kevin D. Mills and Shawn R McDermott, appeals the Circuit Court of Berkeley County's April 1, 2016, order denying his petition for writ of habeas corpus. Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Benjamin M. Hiller, filed a response in support of the circuit court's order to which petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his request for habeas relief wherein he alleged (1) that he received ineffective assistance of trial counsel; (2) that his guilty plea was involuntary; (3) that there was an insufficient factual basis for his guilty plea; and (4) that the State failed to disclose exculpatory evidence. Petitioner further alleges that the circuit court erred in failing to hold an omnibus evidentiary hearing below.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In February of 2010, petitioner entered a Kennedy plea to one count of first-degree sexual abuse.[1] He was thereafter sentenced to a term of incarceration of five to twenty-five years followed by ten years of supervised release. However, pursuant to the plea agreement, the sentence was suspended in lieu of five years of supervised probation.

         In March of 2012, the Berkeley County Probation Office filed a petition to revoke petitioner's probation, and a hearing was held on April 30, 2012. During the hearing, petitioner admitted to several probation violations. The circuit court thereafter ordered that petitioner's original sentence be imposed and denied his request to return him to probation after serving a portion of the sentence. This Court affirmed the circuit court's probation revocation by memorandum decision. See State v. Smith, No. 12-0953, 2013 WL 2301907 (W.Va. May 24, 2013) (memorandum decision).

         In 2014, Petitioner filed a petition for writ of habeas corpus with the circuit court, which he subsequently withdrew. In May of 2015, petitioner filed another petition for writ of habeas corpus relief with the circuit court alleging (1) that he received ineffective assistance of trial counsel; (2) that his guilty plea was involuntary; (3) that there was an insufficient factual basis for his guilty plea; and (4) that the State failed to disclose exculpatory evidence. The circuit court entered an order on March 31, 2016, denying petitioner's petition for writ of habeas corpus without holding an omnibus evidentiary hearing. It is from this order that petitioner appeals.

         This Court reviews a circuit court order 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).

         First, we address petitioner's argument that the circuit court erred in denying his request for an omnibus evidentiary hearing. Specifically, he contends that his petition for writ of habeas corpus "presented probable cause that he may be entitled to some relief had the evidence panned out at the hearing as [he] had predicted it would." West Virginia Code § 53-4A-7(a) provides, in part, that

[i]f the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or the record in the proceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall enter an order denying the relief sought.

         Additionally, West Virginia Code §§ 53-4A-1 through 53-4A-11 contemplate the circuit court's exercise of discretion regarding granting or denying habeas relief.

         We have held that a circuit court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing "if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief." Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). In the comprehensive March 31, 2016, order denying petitioner's request for habeas relief, the circuit court cited to this syllabus point, found that the petition demonstrated that petitioner was not entitled to relief, and dismissed his petition. Based on this record, and in light of our holding in Perdue, we find no error.

         In petitioner's second assignment of error, he contends that he would not have entered a guilty plea but for the "pressure placed on him by his family and trial counsel." Petitioner maintains his innocence but concedes that he pled guilty "nonetheless." He contends that the record on appeal supports his reluctance to enter a guilty plea. According to petitioner, he had "mixed-feelings" about the plea because his "life [was] ruined" as a result of the plea and he pled guilty because he "did not want to go to prison." Having carefully reviewed the circuit court's order, this Court concludes that the circuit court did not abuse its discretion in denying petitioner's request for habeas corpus relief. With regard to petitioner's claim that his plea was involuntary, we find that the circuit court properly concluded, after reviewing the record on appeal, that petitioner did not raise this issue on his direct appeal to this Court. We have previously held that "there is a rebuttable presumption that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he could have advanced on direct appeal but which he failed to so advance." Syl. Pt. 2, in part, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). As such, this claim has been waived. Additionally, the record on appeal also supports the circuit ...


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