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Hundley v. Mirandy

Supreme Court of West Virginia

April 5, 2018

Danny Hundley, Petitioner Below, Petitioner
Patrick Mirandy, Warden, Saint Mary's Correctional Center, Respondent Below, Respondent

          Greenbrier County 10-C-94


         Petitioner Danny Hundley, by counsel Eric M. Francis, appeals the Circuit Court of Greenbrier County's November 3, 2016, order denying his amended petition for writ of habeas corpus. Respondent Patrick Mirandy, Warden, by counsel Gordon L. Mowen, II and Mary M. Downey, filed a response.[1] Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds of ineffective assistance of trial counsel, disproportionate sentence, and cumulative error.

         This Court has considered the parties' briefs, oral arguments, and the appendix record on appeal. Under the limited circumstances presented in this case, we find a memorandum decision affirming in part and reversing and remanding in part for further proceedings appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, the Court finds that the circuit court committed no reversible error as pertains to petitioner's claim of ineffective assistance of counsel and therefore affirm that ruling. However, we find that the imposition of a recidivist life sentence violates the proportionality requirements of Article III, Section 5 of the West Virginia Constitution and therefore reverse the recidivist sentence and remand for resentencing in accordance with this decision.

         In May of 2006, petitioner was arrested following his confession to police that he took an all-terrain vehicle ("ATV") from Jimmy Legg's residence without permission. Petitioner was later indicted on one count of burglary and one count of grand larceny. Prior to trial, the State offered to dismiss both charges if petitioner would plead guilty to one count of conspiracy to commit burglary. The State further agreed to not seek a recidivist sentence enhancement. Petitioner rejected this proposed plea agreement and instead chose to proceed to trial in January of 2007.

         The day before trial began, the State filed a notice of intent to seek a recidivist penalty and informed petitioner that, if convicted, the State would seek a life sentence pursuant to West Virginia Code § 61-11-18(c) (2000). Ultimately, the jury found petitioner guilty of both counts. The State then filed its recidivist information that alleged petitioner was previously convicted of multiple felonies.

         In March of 2007, the circuit court proceeded to trial on the recidivist information, after which a jury found that petitioner was the same individual that was previously convicted of each of the felony offenses identified in the information. That same month, the circuit court sentenced petitioner to a term of life imprisonment as a habitual offender under West Virginia Code § 61-11-18(c). Petitioner appealed his conviction, and this Court refused the same by order entered in January of 2008.

         In May of 2010, petitioner filed his initial petition for writ of habeas corpus, after which the circuit court ordered that he undergo a psychological evaluation to determine his competency and criminal responsibility at the time of the acts with which he was charged. In June of 2013, the circuit court received the evaluation, which concluded that, despite functioning at a borderline intellectual range, petitioner was competent to stand trial and, at the time of the crime, capable of appreciating the wrongfulness of his acts and conforming his acts to the requirements of the law.

         In September of 2014, the circuit court held two omnibus evidentiary hearings regarding petitioner's claims. Thereafter, in December of 2014, Petitioner filed a Losh checklist and amended petition for writ of habeas corpus.[2] In his amended petition, petitioner set forth only the following grounds for relief: (1) ineffective assistance of counsel and (2) disproportionate sentence. In January of 2015, petitioner filed a supplemental memorandum in support of his amended petition that bolstered his factual support and argument for the grounds raised in the amended petition. Thereafter, by order entered on November 3, 2016, the circuit court denied petitioner's amended petition for writ of habeas corpus. 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 raises three assignments of error: 1) that the circuit court erred in failing to find ineffective assistance of counsel; 2) that the circuit court erred in failing to find his recidivist life sentence disproportionate; and 3) cumulative error. We shall address each in turn.

          I. Ineffective Assistance of Counsel

         Petitioner first alleges that the circuit court erred in denying him habeas relief based upon ineffective assistance of counsel.[3] In his amended petition for writ of habeas corpus in the circuit court, petitioner asserted the following grounds for relief under his claim of ineffective assistance of counsel: 1) failing to communicate with petitioner "in a certain manner" based on his intellectual functioning; 2) failing to adequately meet with petitioner in preparation for his defense; and 3) permitting petitioner to testify at trial.[4] Before this Court, however, the complexion of petitioner's argument regarding trial counsel's ineffectiveness changes substantially. Petitioner argues that trial counsel was ineffective for failing to adduce evidence of his limited intellectual functioning at trial for the purpose of advancing a diminished capacity defense.[5]

         We have held that

[i]n the West Virginia courts, 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, 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).

         With respect to petitioner's assertions of ineffective assistance of counsel based upon his intellectual functioning, we address those collectively. Petitioner asserts that his borderline intelligence required trial counsel to "explain the procedure to him in a certain manner" and that trial counsel should have "further investigated" and/or adduced this evidence at trial for the purpose of asserting a diminished capacity defense. Insofar as trial counsel's manner of explaining the process to petitioner, the circuit court found that petitioner failed to establish that trial counsel's "performance in communicating with the [p]etitioner was deficient[.]" The circuit court noted that during the habeas evidentiary hearing, petitioner was presented with various materials which he understood in substance and had the opportunity to request further explanation for any words which he may not have understood. We agree with the circuit court that petitioner has failed to demonstrate any sort of deficiency in trial counsel's manner of communicating and explaining the process to him.

         Insofar as petitioner's contention that trial counsel was under an obligation to "further investigate" his borderline intelligence for the purpose of claiming diminished capacity, petitioner has likewise failed to demonstrate either an objective deficiency or reasonable probability of a different outcome. A psychological evaluation demonstrated that petitioner was competent to stand trial, had an "adequate factual and rational appreciation of the proceedings, " and the capacity to assist his attorney in his defense. Moreover, this evaluation revealed that petitioner was criminally responsible for his offenses and that "[h]is mental disorders would not have prevented him from appreciating the wrongfulness of his acts" or "conforming his acts to the requirements of law." Trial counsel testified that petitioner was "reasonably articulate, understood the process, [and] understood the notion of criminal responsibility[.]"

         Moreover, petitioner's contention that trial counsel foreclosed an opportunity to investigate or advance a "diminished capacity" defense is undermined by the cases he cites in support. In Wickline v. House, 188 W.Va. 344, 424 S.E.2d 579 (1982), the Court found ineffective assistance of counsel where trial counsel failed to investigate Wickline's possible diminished capacity. However, Wickline was not merely of borderline intellectual function, but also had "longstanding neurological problems." Id. at 348, 424 S.E.2d at 583. More importantly, however, Wickline offered expert testimony that "had [she] been evaluated for diminished capacity, there was a reasonable probability that he would have found that [she] did not knowingly waive her Miranda rights prior to [her] confession[, ]" which confession was the centerpiece of the prosecution's case. Id. Moreover, in State v. Joseph, we explained that a diminished capacity defense is available to introduce expert testimony "regarding a mental disease or defect that rendered the defendant incapable, at the time the crime was committed, of forming a mental state that is an element of the crime charged." Syl. Pt. 3, in part, 214 W.Va. 525, 526-27, 590 S.E.2d 718, 719-20 (2003). As indicated above, petitioner was found both competent and criminally responsible for his offenses.

         We therefore conclude that petitioner has failed to establish that his trial counsel was ineffective. Accordingly, we find no error in the circuit court's refusal of habeas relief on this basis.[6]

         II. ...

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