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Mayo v. Terry

Supreme Court of West Virginia

May 18, 2018

Rajion Alterek Mayo, Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Cabell County 15-C-142)

          MEMORANDUM DECISION

         Petitioner Rajion Alterek Mayo, by counsel Jason Goad, appeals the May 26, 2016, order of the Circuit Court of Cabell County denying his petition for writ of habeas corpus.[1] Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, [2] by counsel Scott E. Johnson, filed a response in support of the circuit court's order. Petitioner filed a reply. By order entered April 19, 2017, this Court directed the parties to file supplemental briefs. Petitioner filed a supplemental brief on May 17, 2017. Respondent filed a supplemental brief on October 20, 2017, following an extension of time granted by order entered October 4, 2017.

         The 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.

         Petitioner was born on April 30, 1992. On March 30, 2010, petitioner and another juvenile, J.M., approached a couple at Ritter Park in Huntington, West Virginia, and "pulled a weapon on the guy." Petitioner and J.M. robbed the man of $27 and left the scene. Subsequently, after petitioner's eighteenth birthday, he fired a weapon into a vehicle during an attempted robbery on July 26, 2010. An individual was struck and died from the injury.

         With regard to the March 30, 2010, incident, petitioner was initially charged in juvenile court, but was later transferred to adult court. On February 17, 2011, a Cabell County grand jury indicted petitioner for attempted first-degree robbery of the woman and first-degree robbery of the man and, with regard to the July 26, 2010, incident, indicted him for murder "during the commission of a [f]irst [d]egree [r]obbery." On September 16, 2011, petitioner entered into a plea agreement. Pursuant to the agreement, the State dismissed the first-degree murder and attempted first-degree robbery counts of the indictment. In exchange, petitioner agreed to plead guilty to second-degree murder (charged by information) and to the first-degree robbery count of the indictment. The parties agreed that the State could argue for a forty-year sentence for second-degree murder and that petitioner could argue for a twenty-year sentence for that offense. Furthermore, the State agreed to recommend no more than a twenty-year sentence for first-degree robbery and that petitioner could argue for concurrent sentencing. At a September 16, 2011, hearing, the circuit court accepted the plea agreement and petitioner's pleas of guilty to second-degree murder and first-degree robbery.

         By sentencing order entered December 15, 2011, the circuit court imposed thirty years of incarceration for second-degree murder and twenty-years of incarceration for first-degree robbery, to be served consecutively. On January 26, 2012, petitioner filed a motion for reduction of sentence. The circuit court denied the motion on June 4, 2013. On July 26, 2013, petitioner filed a second motion for reduction of sentence and a motion for appointment of counsel. The circuit court denied those motions on September 5, 2013, finding that the request for reduction of sentence was untimely under Rule 35(b) of the West Virginia Rules of Criminal Procedure, but also that "no circumstances have changed since [petitioner]'s sentencing." Petitioner appealed the September 5, 2013, order in State v. Mayo, No. 13-1003, 2014 WL 6634229 (W.Va. November 24, 2014) (memorandum decision). This Court affirmed the denial of the motion for reduction of sentence, finding that petitioner's sentence for first-degree robbery was not unconstitutionally disproportionate to the offense. Id. at *2-3.

         On February 26, 2015, petitioner filed a petition for writ of habeas corpus alleging that his sentence for first-degree robbery was unconstitutionally disproportionate to the less severe sentence imposed on his co-defendant, J.M., whose case proceeded in the juvenile delinquency system. Petitioner was appointed an attorney who elaborated on his claim in an amended petition. At a May 12, 2016, omnibus hearing, petitioner testified that he and J.M. had similar juvenile records and that both had previously served sentences of detention. Petitioner stated that it was his belief that J.M. discharged his sentence for first-degree robbery after a year of juvenile detention. However, petitioner's attorney acknowledged that, because J.M.'s juvenile record was sealed, the exact nature of J.M.'s sentence was unknown. On cross-examination, petitioner confirmed that his juvenile record included two battery charges, a petit larceny charge, and a charge for possession of a controlled substance. Petitioner admitted that his unlawful conduct intensified over time and that his "last crimes were way more severe." By order entered May 26, 2016, the circuit court denied habeas relief, finding that petitioner's sentence for first-degree robbery was neither unconstitutionally disproportionate to the offense nor in relation to any sentence imposed on his juvenile co-defendant.

         Petitioner now appeals the circuit court's May 26, 2016, order denying his habeas petition. We apply the following standard of review in habeas appeals:

"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." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

         On appeal, petitioner argues that the circuit court erred in denying his habeas petition. Respondent counters that the circuit court properly denied the petition as the alleged ground for relief was without merit. We agree with respondent.

         Article III, Section 5 of the West Virginia Constitution contains the cruel and unusual punishment counterpart to the Eighth Amendment to the United States Constitution and provides that "[p]enalties shall be proportioned to the character and degree of the offence."[3] We have found that there are two tests for determining whether a sentence is so disproportionate that it violates our constitutional provision:

The first is a subjective test and asks whether the sentence for a particular crime shocks the conscience of the Court and society. If the sentence is so offensive that it cannot pass this test, then inquiry need proceed no further. When it cannot be said that a sentence shocks the conscience, a disproportionality challenge should be resolved by more objective factors which include the consideration of the nature of the offense, the defendant's past criminal history, and his proclivity to engage in violent acts.

State v. Ross, 184 W.Va. 579, 581-82, 402 S.E.2d 248, 250-51 (1990) (citing State v. Martin, 177 W.Va. 758, 356 S.E.2d 629 (1987); State v. Glover, 177 W.Va. 650, 355 S.E.2d 631 (1987); State v. Buck, ...


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