Timothy P. Shafer, Petitioner Below, Petitioner
Karen Pszczolkowski, Warden, Northern Correctional Center, Respondent Below, Respondent
Timothy P. Shafer, by counsel Matthew A. Victor, appeals the
Circuit Court of Kanawha County's Final Order Denying
Petitioner's Amended Petition for Writ of Habeas Corpus,
entered on April 25, 2017. Respondent Karen Pszczolkowski,
Warden, Northern Correctional Center, by counsel Zachary
Aaron Viglianco, filed a response. On appeal, petitioner
argues that (1) he received ineffective assistance from his
trial counsel, and (2) the State violated the terms of its
plea agreement with petitioner by arguing in favor of the
sentence imposed by the circuit court when responding to
petitioner's direct appeal to this Court.
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
to a plea agreement in July of 2014, petitioner pled guilty
to one count of first-degree murder in the commission of a
first degree robbery (felony murder), one count of
conspiracy, three counts of burglary by breaking and
entering, and two counts of grand larceny. In exchange, the
State agreed to recommend that the circuit court sentence
petitioner to life in prison with mercy on the felony murder
charge, and to stand silent on whether his remaining
sentences should run consecutively or concurrently to one
another. The parties' agreement was not binding on the
circuit court. Additionally, the agreement was silent as to
positions the parties may advance on appeal, should an appeal
a lengthy colloquy, the circuit court accepted
petitioner's guilty plea. Consistent with the
parties' agreement, the State recommended that petitioner
receive mercy. Despite the recommendation, the circuit court
sentenced petitioner to a life sentence without mercy for
felony murder, an indeterminate sentence of one to five years
for conspiracy, one to fifteen years on each conviction for
burglary by breaking and entering, and one to ten years on
each conviction for grand larceny. The circuit court ordered
that the sentences run consecutively.
petitioner filed a direct appeal to this Court, challenging
his sentence as disproportionate to his offenses. In
affirming petitioner's sentence, this Court described the
factual background of petitioner's offenses as follows:
In early 2014, Mr. Shafer was a drug addict, using heroin and
methamphetamine. He contends that his girlfriend at the time,
Megan Hughes, was also addicted to drugs and that they would
use drugs together.
Mr. Shafer, Ms. Hughes, and a friend of the couple, Jessica
Wilson, conspired to rob Nancy Lynch ("the victim")
of money to buy illegal drugs. The victim was sixty-six years
old, and she lived alone with her dog, Hazel, in St. Albans,
West Virginia. Mr. Shafer claimed he and Ms. Hughes got the
idea to rob the victim after he and Hughes had a chance
encounter with the victim. During the encounter, the victim
told Mr. Shafer and Ms. Hughes that she had been robbed three
or four times in the past but that she did not report the
robberies because she feared repercussions from the robbers.
Sometime on the evening of January 3 or 4, 2014, Mr. Shafer
and Ms. Wilson decided to rob the victim in her home. Mr.
Shafer maintains that he targeted the victim because he did
not believe she would report the robbery. There is no
evidence in the record to suggest that Mr. Shafer or Ms.
Wilson were under the influence of drugs at this time. Mr.
Shafer and Ms. Wilson left on foot from Ms. Wilson's
home. According to Mr. Shafer, he took a toy gun and put it
in his pants, intending to use it to threaten the victim. He
contended that Ms. Wilson took a long kitchen knife and put
it in her pants. Neither Mr. Shafer nor Ms. Wilson wore masks
or gloves. Mr. Shafer claims that he did not believe any
violence would be necessary to rob the victim.
When Mr. Shafer and Ms. Wilson arrived at the victim's
home, the victim was not there. They waited for her, and she
later returned home from a shopping trip to K-Mart. Mr.
Shafer, Ms. Wilson, and the victim spoke together outside the
home until Mr. Shafer lifted his shirt so that the victim
could see the gun and insisted that they all go into the
house. Mr. Shafer later told police that the victim did not
take him seriously. In response to the victim's
indifference, he asserts that Ms. Wilson pulled the knife out
of her pants and pushed the victim inside. Once inside the
house, Ms. Wilson demanded money and pills. The victim told
Ms. Wilson that she had $13 in her purse, but upon inspection
of the purse, Ms. Wilson found $16 and an ATM card. According
to Mr. Shafer, Ms. Wilson ordered the victim to provide her
with the pin number to the card, but the victim responded
with a string of different numbers.
Mr. Shafer theorized that Ms. Wilson was angered by the
victim's lies about the amount of money in the purse and
the ATM card pin number. He told police that Ms. Wilson told
him to look away, and that as soon as he looked away, Ms.
Wilson began quickly stabbing the victim in the chest and
neck area. Mr. Shafer said he turned around as soon as he
heard the stabbing and watched Ms. Wilson stab the victim to
death. The victim was stabbed nineteen times. After the
victim fell to the floor, Ms. Wilson covered her with a
blanket. Ms. Wilson put the victim's dog, which had been
outside during the attack, in the house.
Directly after the killing, Mr. Shafer and Ms. Wilson left
the victim's house with the victim's ATM card, two
pistols, a camera with lenses, jewelry, and prescription
medications. They tried to withdraw cash using the ATM card,
but the pin numbers they tried failed. They returned to Ms.
Wilson's home where Ms. Hughes was waiting. Ms. Hughes
sorted through the stolen property. Mr. Shafer and Ms. Wilson
then went back to the victim's home to steal one of the
victim's cars. Mr. Shafer used the stolen car to drive to
a separate location where he traded the victim's property
for heroin, prescription narcotics, and $150. He used the
money he acquired to buy methamphetamine from another person.
Upon acquiring the drugs, Mr. Shafer drove back to Ms.
Wilson's home where he, Ms. Wilson, and Ms. Hughes used
The next day, Mr. Shafer returned to the victim's home
with Ms. Hughes. They took jewelry, pills, a flat-screen
television, and the victim's checkbook from the home.
Within a week of the victim's death, Mr. Shafer and Ms.
Hughes again went to the victim's home to take the
victim's second car. Mr. Shafer asserted that the
victim's dog was alive during these trips. Mr. Shafer,
Ms. Wilson, and Ms. Hughes pawned the victim's jewelry,