CORRECTED MEMORANDUM DECISION
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.
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
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.; 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 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.
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."
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.
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.
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
Court affirmed petitioner's conviction on direct appeal.
State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32
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
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.
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 ...