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Wilkerson v. Ballard

Supreme Court of West Virginia

November 20, 2017

James Wilkerson, Defendant Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Plaintiff Below, Respondent

         Ohio County 14-C-161

          CORRECTED MEMORANDUM DECISION

         Petitioner James Wilkerson, by counsel John M. Jurco, appeals the June 15, 2016, order of the Circuit Court of Ohio County that denied his petition for post-conviction habeas corpus relief. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel, Robert L. Hogan, responds in support of the habeas court's order. Petitioner filed a reply.

         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 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.

         On January 12, 2009, petitioner was indicted on the following five counts: one count of robbery in the first degree for the attempted robbery of thirteen-year-old S.S.[1]; one count of robbery in the first degree for the attempted robbery of thirteen-year-old D.W.; two counts of assault during the commission of, or attempt to commit, a felony; and one count of conspiracy to commit robbery in the first degree. The indictment alleged these acts occurred on the evening of November 14, 2008. The State indicted petitioner's codefendant, Brandon Myers (the "codefendant"), for the same crimes. The codefendant's trial commenced on April 13, 2009. However, prior to a verdict, the codefendant entered an Alford[2] plea to two counts of robbery in the second degree. The trial court sentenced the codefendant to two consecutive terms of five to eighteen years in prison for a net effective sentence of ten to thirty-six years.

         Petitioner's two-day trial commenced on April 18, 2011. The evidence adduced at trial included the following: On the evening of November 14, 2008, petitioner, the codefendant, and others were skateboarding in a parking lot across the street from a playground in Wheeling. At that same time, S.S. and D.W. (together "the victims") were walking in the direction of the parking lot. The victims observed the group in the parking lot, crossed the street to avoid them, and began walking through the playground. According to petitioner, the codefendant saw the victims and, without further explanation, asked petitioner to follow him to the playground. Others testified that petitioner asked the group if anyone knew the victims, that the response was "No, " and that petitioner then said, "[l]et's get 'em; let's do it."

         Petitioner and the codefendant confronted S.S. and D.W. The codefendant asked S.S., "Where's the weed at?" Both victims denied having any "weed." Thereafter, the codefendant asked for money. S.S. told the codefendant they did not have any money. The codefendant became angry, punched S.S., and then hit him several more times. S.S. claimed that petitioner hit D.W. and then began punching him (S.S.). S.S. gave his wallet to the codefendant, but the codefendant continued to kick S.S. and to demand money. D.W. offered his cell phone to petitioner and the codefendant. The police later found the cell phone and S.S.'s wallet on the playground. The codefendant then asked S.S. his age. When S.S. replied, "thirteen, " the attack stopped and petitioner and the codefendant fled the scene, leaving the victims unconscious on the ground. S.S. regained consciousness and went to D.W.'s nearby house for help. D.W.'s mother called the police. Thereafter, D.W. arrived at his house. The victims went to the hospital. S.S. had a broken nose that required reconstructive surgery. D.W. suffered a concussion and required stitches in his mouth.

         Also at petitioner's trial, the codefendant testified that: (1) he did not intend to rob either victim, but instead sought to collect an unpaid debt; and (2) petitioner did not hit either victim. However, three other eyewitnesses testified that both the codefendant and petitioner struck the victims.

         The jury found petitioner guilty of four of the five counts of the indictment: both attempted robbery counts, one of the two assault counts, and the conspiracy count. The trial court sentenced petitioner to forty years in prison on each of the two robbery counts, not less than two nor more than ten years in prison on the assault count, and not less than one nor more than five years in prison on the conspiracy count. The trial court further ordered that the two forty-year sentences run consecutively and the other two sentences run concurrently with the two forty-year sentences. Petitioner's net effective sentence was eighty years in prison.

         This Court affirmed petitioner's conviction on direct appeal. State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

          On April 14, 2014, petitioner filed a pro se habeas petition. The habeas court appointed counsel, who filed an amended petition on August 12, 2015. Petitioner's amended petition asserted the following eleven grounds for relief: (1) consecutive sentence for same transaction/double jeopardy; (2) more severe sentence than expected/excessive sentence/cruel and unusual punishment; (3) ineffective assistance of counsel; (4) incorrect jury instruction; (5) prejudicial statement by the prosecutor/improper communications between the prosecutor and the jury; (6) insufficiency of the evidence; (7) right to a jury trial/composition of jury; (8) failure to hold a preliminary hearing; (9) violation of right to credit for time served; (10) cumulative error; and (11) "equitable consideration."

         The habeas court held an omnibus evidentiary hearing on January 20, 2016; neither party presented witnesses, but the court heard oral argument. On June 15, 2016, the habeas court issued an order denying relief.

         On July 7, 2016, petitioner filed a pro se Rule 35 motion, out of time, in the underlying criminal case. On July 12, 2016, the circuit court granted petitioner's Rule 35 motion and ordered that petitioner's two forty-year sentences for robbery run concurrently, instead of consecutively as originally ordered, for a net effective sentence of forty years. In the order, the circuit court found that,

[the codefendant], who is white, was sentenced to five (5) to eighteen (18) years on both counts to run consecutively for an effective sentence of ten (10) to thirty-six (36) years. [The codefendant] is eligible for parole on November 11, 2018. [Petitioner], who is black, is eligible for parole on November 11, 2030. Both [the codefendant] and [petitioner] participated in the offense on a relatively equal basis, although [the codefendant] was the main actor. Both exercised their constitutional right to a trial by jury. The only difference between their cases is that [the codefendant] chose to plead guilty to lesser offenses (without admitting his role in the offenses) prior to verdict while ...

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