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Kees v. Sallaz

Supreme Court of West Virginia

November 21, 2018

Nicole L. Kees, Petitioner Below, Petitioner
v.
J.D. Sallaz, Superintendent, Lakin Correctional Center, Respondent Below, Respondent

          Berkeley County 16-C-625

          MEMORANDUM DECISION

         Petitioner Nicole L. Kees, by counsel Jason M. Stedman, appeals the Circuit Court of Berkeley County's November 21, 2017, order denying her amended second petition for a writ of habeas corpus. Respondent J.D. Sallaz, Superintendent[1], by counsel Robert L. Hogan, filed a response. On appeal, petitioner asserts that the circuit court erred in denying her habeas relief based upon a favorable change in the law and ineffective assistance of counsel.

         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.

         In January of 2004, petitioner and Jashua Frocke forged and uttered two checks, and petitioner obtained heroin with the unlawfully obtained money. Petitioner later gave Mr. Frocke some of the purchased heroin, and he fatally overdosed. Petitioner was subsequently indicted on one count of murder under the felony murder doctrine.[2] Following a jury trial, on September 30, 2004, petitioner was convicted of this charge, and on January 7, 2005, she was sentenced to life imprisonment with mercy.

         Petitioner appealed her conviction to this Court, which we refused on April 24, 2008. Next, petitioner filed a petition for a writ of habeas corpus and, following appointment of counsel, an amended habeas petition. The circuit court denied petitioner's habeas petition on September 21, 2011, which we affirmed in Kees v. Nohe, No. 11-1465, 2013 WL 149614 (W.Va. Jan. 14, 2013)(memorandum decision).[3]

         In 2017, the Legislature enacted a new statute that, in pertinent part, states,

Any person who knowingly and willfully delivers a controlled substance . . . in violation of the provisions of section four hundred one, article four of this chapter for an illicit purpose and the use, ingestion or consumption of the controlled substance or counterfeit controlled substance alone or in combination with one or more other controlled substances, proximately causes the death of a person using, ingesting or consuming the controlled substance, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate sentence of not less than three nor more than fifteen years.

W.Va. Code § 60A-4-416(a). Petitioner, who had filed a second habeas petition in November of 2016, was appointed counsel, who filed an amended second petition on November 8, 2017. In petitioner's amended second petition, she argued that West Virginia Code § 60A-4-416(a) should be applied retroactively and that she should be resentenced in accordance with that statute. Petitioner also asserted an ineffective assistance of habeas counsel claim.[4] The circuit court denied petitioner's amended second petition by order entered on November 21, 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." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

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

         Petitioner raises two assignments of error on appeal. First, petitioner claims the circuit court erred in denying relief based upon a favorable change in the law. Petitioner argues that the Legislature's enactment of West Virginia Code § 60A-4-416 evidences its view that a life sentence is inappropriate for the crime petitioner committed. Petitioner contends that because this statute is substantive, it is applied retroactively, and she should be resentenced to a determinate term of imprisonment of not less than three nor more than fifteen years. In support of her argument that the statute should apply retroactively, petitioner cites law discussing the retroactive application of "new constitutional rules of criminal procedure" announced in judicial decisions. See Teague v. Lane, 489 U.S. 288 (1989); Penry v. Lynaugh, 492 U.S. 302 (1989); and Welch v. U.S., ___ U.S.___, 136 S.Ct. 1257 (2016).

         Petitioner's discussion of the analytical framework for determining whether judicial rules should apply retroactively is immaterial to a determination of whether a newly enacted statute should apply retroactively. Indeed, the law relevant to the latter determination is well settled: "The presumption is that a statute is intended to operate prospectively, and not retrospectively, unless it appears, by clear, strong and imperative words or by necessary implication, that the Legislature intended to give the statute retroactive force and effect." Syl. Pt. 2, Martinez v. Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582 (2017) (citations omitted); see also W.Va. Code § 2-2-10(bb) ("A statute is presumed to be prospective in its operation unless expressly made retrospective[.]"). West Virginia Code § 60A-4-416 neither necessarily implies retroactive application nor contains language evidencing an intent for retroactive application. Accordingly, we find no error in the circuit court's denial of relief on this ground.

         Petitioner also assigns as error the circuit court's denial of her ineffective assistance of habeas counsel claim. Petitioner claims the court erred because habeas counsel rendered deficient representation in failing to review the Losh list[5] with her, failing to "adequately allege" that the felony murder statute was inapplicable to her case, and failing to ...


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