Roger Dwayne Smith, by counsel Ben J. Crawley-Woods, appeals
the Circuit Court of Berkeley County's "Final Order
Partially Granting the Amended Petition for Habeas Corpus as
to Counts Five and Seven of the Indictment, and Denying the
Remainder of the Amended and Supplemental Petition"
entered on July 11, 2016. Respondent David Ballard, Warden,
Mount Olive Correctional Complex, by counsel Benjamin M.
Hiller, filed a response. Petitioner filed a reply.
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.
and Procedural Background
2006, petitioner was indicted on the following charges:
daytime burglary; possession of a stolen vehicle; felony
murder; malicious wounding; attempted murder; first degree
robbery; and fleeing an officer on foot. Petitioner was
accused of breaking into the home of Mary Stewart. While
petitioner was in the home, Ms. Stewart's fourteen year
old daughter, Miana, returned from school. Petitioner
accosted Miana and tied her up in the basement. Ms. Stewart
arrived at the home shortly thereafter, and petitioner beat
her with a baseball bat and tied her up in the basement next
to Miana. Petitioner then strangled Miana, killing her. When
petitioner left the basement to continue the robbery, Ms.
Stewart managed to escape to a neighbor's house.
Petitioner fled the house, but was apprehended outside.
pretrial motions are relevant for the purposes of this
appeal. First, petitioner sought a change of venue from
Berkeley County. Contradicting petitioner's argument for
a change of venue, petitioner's expert witness concluded
that a jury could be properly selected if a large enough
panel of potential jurors (100 to 200) were brought in for
jury selection. Accordingly, the circuit court denied the
motion for a change of venue with the caveat that if a jury
could not be seated after bringing in a large number of
potential jurors, then it would consider other options. In
the second motion, petitioner requested that the guilt and
mercy phases of the trial be bifurcated. The State did not
object, and the circuit court granted the motion.
prior to trial, and without any agreement from the State,
petitioner pled guilty to the charges in the indictment.
Petitioner's trial counsel informed the circuit court
that petitioner's decision to plead guilty without an
agreement was not based on their advice, but was
petitioner's idea. Petitioner's counsel advised the
court as follows:
I would represent to the court, Judge, that this is not my
recommendation directly or [co-counsel's] to
[petitioner]. This is a decision that he insisted on doing.
It is not completely against the advice of counsel in the
sense that I think that he does in accepting responsibility
and showing remorse preserve an argument to a jury for mercy
on the bifurcated part of the proceedings next week.
circuit court then advised petitioner of the rights that he
would forfeit by pleading guilty. The circuit court further
explained to petitioner that he preserved his ability to
present his case for mercy to a jury with respect to the
first degree murder charge. Petitioner then entered guilty
pleas to each charge in the indictment except for daytime
burglary, which was subsumed into the felony murder
mercy phase proceeded to a two day jury trial in December of
2006. After hearing the evidence, the jury did not recommend
that petitioner receive mercy. Following a sentencing hearing
three months later, the circuit court sentenced petitioner to
life in prison without the possibility of parole for first
degree murder; a determinate sentence of eighty years in
prison for first degree robbery; and statutory indeterminate
prison sentences for each of the other felony convictions.
The circuit court ordered that all sentences be served
consecutively. Finally, the court ordered that petitioner
make restitution in the amount of $7, 505.00.
filed an appeal with this Court in which he raised the
following assignments of error: (1) that his due process
rights were violated by allowing a jury to decide whether to
grant mercy without any standards; (2) that his due process
rights are violated without this Court's mandatory review
his life without mercy sentence; (3) that his life without
mercy sentence should be reversed; (4) that the trial court
committed reversible error by denying his change of venue
motion; (5) that the trial court committed reversible error
by granting the State's motion to strike Juror Byrezinski
for cause; (6) that petitioner received prejudicial treatment
from the prosecutor, police, jail officials, and the circuit
court; and (7) that his eighty year prison sentence for
robbery was excessive. In February of 2008, this Court
refused petitioner's appeal by order.
the filing of a pro se petition for a writ of habeas corpus,
petitioner was appointed counsel who filed an amended
petition in October of 2013. In the amended petition,
petitioner raised the following grounds for habeas relief:
(1) empaneling a jury for the mercy phase was unlawful, and
thus, rendered petitioner's guilty pleas involuntary; (2)
petitioner's arrest was illegal; (3) the indictment was
defective; (4) jury voir dire was improper; (5) change of
venue should have been granted; (6) the State's strike of
Juror Byrezinski was improper; (7) the jury forms were
incomplete; (8) the statutory procedure for the granting of
mercy set forth in West Virginia Code § 62-3-15 is
unconstitutionally vague; (9) cumulative error warranted
reversal; (10) ineffective assistance of counsel; (11) the
restitution order was unlawful; and (12) the amount of
restitution was unlawful. Following the withdrawal of counsel
and appointment of new counsel, petitioner filed a
supplemental petition in May of 2014, in which he raised the
additional ground that there was an insufficient factual
basis to support petitioner's guilty pleas to robbery and
possession of a stolen vehicle.
order entered on July 11, 2016, the circuit court denied the
habeas petition without a hearing. In a lengthy order, the
court addressed and denied each of petitioner's alleged
grounds for habeas relief. With respect to petitioner's
allegation that he received ineffective assistance of
counsel, the circuit court found that petitioner's guilty
pleas limited petitioner's challenge solely to the
competency of counsel's advice regarding the pleas. The
circuit court found that petitioner failed to prove that he
was incompetently ...