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Shafer v. Pszczolkowski

Supreme Court of West Virginia

February 9, 2018

Timothy P. Shafer, Petitioner Below, Petitioner
Karen Pszczolkowski, Warden, Northern Correctional Center, Respondent Below, Respondent

         Kanawha County 16-P-343


         Petitioner 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.

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

         Factual and Procedural Background

         Pursuant 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 be taken.

         Following 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.

         Thereafter, 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 drugs.
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, ...

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