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Joshua J. v. Terry

Supreme Court of West Virginia

March 12, 2018

Joshua J., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Randolph County 14-C-189

          MEMORANDUM DECISION

         Petitioner Joshua J., by counsel Gregory R. Tingler, appeals the Circuit Court of Randolph County's January 12, 2017, order denying his amended petition for writ of habeas corpus.[1] Respondent Ralph Terry, Acting Warden of Mt. Olive Correctional Complex, by counsel Gordon L. Mowen II, filed a response.[2] On appeal, petitioner argues that the circuit court erred in denying his amended petition for writ of habeas corpus without affording him an evidentiary hearing on his ineffective assistance of counsel claim.

         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.

         On June 25, 2012, petitioner was indicted on three counts of second-degree sexual assault. Petitioner entered into a plea agreement with the State whereby he agreed to plead guilty to two counts of second-degree sexual assault in exchange for dismissal of the third count in the indictment and the State's agreement to forgo transferring pending juvenile charges to adult jurisdiction. On August 6, 2012, the circuit court held a plea hearing and accepted petitioner's plea. On October 24, 2012, petitioner was sentenced to consecutive indeterminate terms of not less than ten nor more than twenty-five years for each second-degree sexual assault conviction.

         Petitioner did not file a direct appeal of his convictions; however, he moved for reconsideration of his sentence on numerous occasions in 2012, 2013, and 2014. At least three such motions were filed by his trial counsel, including one following a March 1, 2013, letter from petitioner to the circuit court requesting appointment of new counsel. In this letter, petitioner stated that his attorney was unresponsive, failed to do certain things he requested, and was "being a hindrance to [his] case." The circuit court denied petitioner's request. In 2014, petitioner began filing pro se motions for reconsideration of sentence, which the circuit court denied.

         On November 19, 2014, petitioner filed a pro se petition for writ of habeas corpus. Petitioner was appointed counsel, and on August 2, 2016, he filed an amended petition asserting ineffective assistance of counsel, invalid plea agreement and guilty plea, coerced plea agreement, and failure to Mirandize and coercion. Without conducting an evidentiary hearing, the circuit court denied petitioner's amended petition by order entered on January 12, 2017. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner contends that the circuit court erred in not holding an evidentiary hearing on his ineffective assistance of counsel claim. As detailed in his March 1, 2013, letter requesting the appointment of new counsel, petitioner argues that he only met with his attorney a few times outside of court appearances, counsel did not explain his case and options to allow him to make an informed decision, and counsel did not return calls or "do certain things that were asked of him." Petitioner also alleges that his "borderline range of intelligence" renders the answers given at his plea hearing "suspect because they may have been the equivalent of a young student trying to get out of trouble after being called to the principal's office." Finally, petitioner takes exception to the circuit court's citation of the plea hearing transcript because the transcript "does nothing to reveal the content of any communications between [p]etitioner and his trial counsel prior to the plea hearing." Petitioner contends that his trial counsel told him he "would never see the light of day again" if he did not accept the State's plea offer.

         To begin, petitioner cites no law mandating that an evidentiary hearing be held when certain claims are pled. Instead, as petitioner acknowledges, evidentiary hearings are not proper in every case:

[a] court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court's satisfaction that the petitioner is entitled to no relief.

Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). The decision to hold a hearing rests in the "sound discretion" of the circuit court. Tex S. v. Pszczolkowski, 236 W.Va. 245, 253, 778 S.E.2d 694, 702 (2015) (citation omitted). Although petitioner urges this Court to conclude that he was entitled to a hearing as we found in State ex rel. Nazelrod v. Hun, 199 W.Va. 582, 486 S.E.2d 322 (1997), our decision in that case was predicated on the finding that "[a]n examination of the ineffective assistance of counsel claim requires an examination of facts not developed in the appellant's trial transcript." Id. at 584, 486 S.E.2d at 324. As discussed below, the allegations underpinning petitioner's ineffective assistance of counsel claims are adequately developed in his plea hearing transcript. For these reasons, we find no abuse of discretion in the circuit court's failure to hold an omnibus hearing.

         Claims of ineffective assistance of counsel

are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

Syl. Pt. 5, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed of for failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). "Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner's claim." State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted).

         Furthermore, in Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we observed that "[t]he most common issues in [h]abeas corpus cases are whether there were, indeed, knowing and intelligent waivers, whether there were facts outside the record which improperly caused the defendant to enter his plea, and whether defendant's counsel was indeed competent." Id. at 196, 220 S.E.2d at 669-70. We found that these issues "can all be finally resolved in the careful taking of the original plea" and outlined certain inquiries that should be made prior to the acceptance of a plea. Id. at 196, 220 S.E.2d at 670. Where a plea bargain has been entered into, "the trial court should spread the terms of the bargain upon the record and interrogate the defendant concerning whether he understands the rights he is waiving by pleading guilty and whether there is any pressure upon him to plead guilty other than the consideration admitted on the record." Id. at 191, 220 S.E.2d at 667, Syl. Pt. 4. Additionally,

[a] trial court should spread upon the record the defendant's education, whether he consulted with friends or relatives about his plea, any history of mental illness or drug use, the extent he consulted with counsel, and all other relevant matters which will demonstrate to an appellate court or a trial court proceeding in [h]abeas corpus that the defendant's plea was knowingly and intelligently made with due regard to the intelligent waiver of known rights.

Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5.

         At petitioner's plea hearing, the circuit court began by asking petitioner whether there was "anything about the proceeding that you don't understand." Petitioner replied, "No, ma'am" Petitioner stated that he could read and write and had obtained a tenth-grade education. Petitioner further stated that he had read the plea agreement before he signed it and understood its contents. To this end, the following exchange ensued:

Q: Okay. So today is a Monday, so that means you've had six days to think about it?
A: Yes, ma'am.
Q: Do you feel like you've had enough time to think about it?
A: Yes, ma'am.

         Petitioner also offered the following testimony concerning his attorney's ...


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