Submitted: January 8, 2019
from the Circuit Court of Mercer County The Honorable Mark
Wills, Judge Civil Action No. 14-C-463
T. Harvey, Esq. Bluefield, West Virginia Counsel for
Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq.
Solicitor General Gordon L. Mowen, II, Esq. Assistant
Attorney General Charleston, West Virginia Counsel for
BY THE COURT
"In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a
three-prong[ed] 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).
"On an appeal to this Court the appellant bears the
burden of showing that there was error in the proceedings
below resulting in the judgment of which he complains, all
presumptions being in favor of the correctness of the
proceedings and judgment in and of the trial court."
Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973).
criminal prosecution requires the existence of an accusation
charging the commission of an offense. Such an accusation,
either in the form of an indictment or an information, is an
essential requisite of a circuit court's jurisdiction.
petitioner seeking post-conviction habeas corpus relief may
successfully challenge a guilty-plea conviction based upon an
alleged violation of Rule 7 of the West Virginia Rules of
Criminal Procedure only by establishing that the violation
amounted to a constitutional or jurisdictional error, or by
showing that the alleged error resulted in a complete
miscarriage of justice. In addition, the petitioner must also
demonstrate that he was prejudiced by the alleged error.
"A constitutional issue that was not properly preserved
at the trial court level may, in the discretion of this
Court, be addressed on appeal when the constitutional issue
is the controlling issue in the resolution of the case."
Syl. Pt. 2, Louk v. Cormier, 218 W.Va. 81, 622
S.E.2d 788 (2005).
"'A defendant has a right under the Grand Jury
Clause of Section 4 of Article III of the West Virginia
Constitution to be tried only on felony offenses for which a
grand jury has returned an indictment.' Syl. Pt. 1,
State v. Adams, 193 W.Va. 277, 456 S.E.2d 4
(1995)." Syl. Pt. 1, State v. Haines, 221 W.Va.
235, 654 S.E.2d 359 (2007).
defendant may waive his constitutional right to a grand jury
indictment as provided in article III, section 4 of the West
Virginia Constitution and elect to be prosecuted by
information in accordance with the provisions of Rule 7 of
the West Virginia Rules of Criminal Procedure if such waiver
is made intelligently and voluntarily.
"In 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).
"In cases involving a criminal conviction based upon a
guilty plea, the prejudice requirement of the two-part test
established by Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), demands that
a habeas petitioner show that there is a reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to
trial." Syl. Pt. 6, State ex rel. Vernatter v.
Warden, W.Va. Penitentiary, 207 W.Va. 11, 528 S.E.2d 207
2011, Petitioner Jasman Montgomery waived his constitutional
right to grand jury indictment and pled guilty by information
to the first-degree murder of seventeen-year-old Matthew
Flack. He received substantial benefits for proceeding in
this manner including parole eligibility after serving
fifteen years in the penitentiary.
2016, Petitioner filed a second amended petition for writ of
habeas corpus in the Circuit Court of Mercer County, West
Virginia, which was denied. On appeal to this Court,
Petitioner contended that his guilty plea by information was
illegal and improper under the West Virginia Constitution and
Rule 7 of the West Virginia Rules of Criminal Procedure
(hereinafter "Rule 7"), because he faced a life
sentence. Petitioner also asserted his guilty plea was
involuntary and his trial counsel provided ineffective
assistance when they allowed him to plead guilty before
receipt of the ballistics report that revealed
Petitioner's weapon did not fire the fatal shot.
affirm the circuit court's decision. Even though the
guilty plea by information did not comport with Rule 7,
Petitioner implicitly waived that irregularity when he
expressly waived his constitutional right to an indictment.
Moreover, the detail of who actually fired the shot that
killed the victim was legally immaterial to the issues of the
voluntariness of Petitioner's guilty plea and the
effectiveness of his counsel considering the homicide
occurred when Petitioner and his co-conspirators perpetrated
a violent home invasion.
FACTS AND PROCEDURAL HISTORY
evening of January 28, 2011, Petitioner, along with Brandon
Flack and Jacob Thomas, planned to commit a robbery.
Petitioner and his co-conspirators traveled from Pulaski,
Virginia, and drove to Bluefield, West Virginia, with the
intent to steal money from a car. Upon their arrival shortly
after midnight on January 29, 2011, they could not locate the
car. Petitioner and his co-conspirators changed plans and
decided to break into the home of David Flack (Brandon
Flack's uncle) and steal money. They donned ski masks,
approached the back of the Flack residence, and knocked on
Flack (Brandon Flack's cousin) and others were inside the
home. Hearing the knock on the back door, Matthew looked
through a curtain and saw three masked men standing at the
back door. Matthew then ran upstairs to get a gun. As Matthew
headed up the stairs, one of Petitioner's co-conspirators
kicked in the back door and they entered the home. Petitioner
and Jacob Thomas were armed with handguns. Brandon claimed,
and the State did not contest, that he was unarmed. Following
Matthew, Brandon ran up the stairs and the two began
wrestling. Brandon and Matthew fought on the landing, and
Brandon was shot in the scuffle. Petitioner ran up the
stairs, pulled out a gun, and shot toward Matthew.
died as the result of gunshot wounds of his face and chest.
The medical examiner found the wounds "could be the
result of one discharge fired by a handgun." A bullet
was recovered from Matthew's body and sent for ballistic
testing. As explained below, Petitioner believed he shot
Matthew in the face (and testified in court that he did) but
the ballistics report later revealed that Petitioner's
weapon did not fire the fatal shot.
negotiations, Petitioner agreed to plead guilty to
first-degree murder by way of information in October
2011. At the time of the plea, the ballistic
report was not complete. The plea agreement provided:
1.That the State will file an Information charging Defendant
Montgomery with the first degree murder of Matthew Flack on
or about the 29th day of January 2011, and
Defendant will tender a guilty [plea] to said Information.
2. That the State will refrain from further prosecuting
Defendant for other possible charges arising from the same
set of facts and circumstances surrounding the murder of
Matthew Flack, which charges are now known or should be known
to the State.
3. That the State and Defendant agree, pursuant to Rule
11(e)(C) of the Rules of Criminal Procedure, that
the proper disposition of the case herein is a life sentence
with a grant of mercy.
4. The Defendant will come forward and provide truthful
testimony about the facts and circumstances regarding the
murder of Matthew Flack in any court proceeding. The State
will join Defendant's motion for an order requiring the
Division of Corrections to house him separately from any
agreed to the above terms and, in exchange, waived several
constitutional rights including the right to be prosecuted by
indictment and the right to a jury trial. Although not
outlined in the plea agreement, Petitioner also received the
benefit of the State's agreement to file a motion with
the circuit court to strike the language "with the use
of a firearm" from the information to avoid a firearm
enhancement penalty against Petitioner. The circuit court
granted this motion.
plea hearing on October 17, 2011, Petitioner asserted, under
oath, that he was entering the plea knowingly, voluntarily,
and of his own free will; that no one had forced or
threatened him to do so; that his counsel informed him of the
charges and consequences of pleading guilty; and that he was
satisfied with the advice and services of his counsel.
Petitioner also stated that he had reviewed and understood
the waiver of his right to an indictment, and indicated that
he wanted to proceed, knowing he was waiving or giving up
this right. Further, Petitioner signed a Waiver of Indictment
in open court and consented to proceeding by way of
information. Counsel informed the court during the guilty
plea that "[b]allistic results aren't back yet, but
[Petitioner] has sufficient information at length to enter in
this plea voluntarily, and he-we went over his rights with
him yesterday." Petitioner agreed.
circuit court agreed to accept the binding plea agreement,
and on November 28, 2011, sentenced Petitioner to life in
prison, with the recommendation of mercy, whereby Petitioner
would be eligible for parole after having served fifteen
years. See W.Va. R. Crim. P. 11(e) (stating court
may accept or reject binding plea agreement).
to the plea, Petitioner testified for the State at
co-defendant Brandon Flack's trial. Petitioner discussed
how the men planned the robbery, traveled to the Flack
residence, and executed a forced entry. State v.
Flack, 232 W.Va. 708, 711, 753 S.E.2d 761, 764 (2013).
Petitioner stated that he shot Matthew Flack. Id.
During cross-examination by defense counsel, Petitioner
admitted that he was motivated to plead guilty before his
co-defendants could because he did not want to go to the
penitentiary for the rest of his life without the possibility
[Flack's Defense Counsel] Q. They also told you, the
first guy who gets the plea gets the deal, didn't they?
That's what you came to understand, the first guy that
takes a plea gets the deal?
[Petitioner] A. Yeah.
Q. And you had to make yourself the best deal you could, in
the situation . . . . And that's what you did, isn't
A. Yes, sir.
found Brandon Flack guilty of all charges set forth in the
indictment: first-degree murder, burglary, first-degree
robbery, and conspiracy. Because the State had pursued the
murder charge based on a felony murder theory, the trial
court merged the counts of first-degree murder and burglary,
resulting in the dismissal of the burglary conviction. Mr.
Flack was sentenced to life imprisonment with eligibility for
parole after fifteen years for first-degree murder, a
determinate term of forty years for first-degree robbery, and
an indeterminate term of one to five years on the conspiracy
offense. The trial court ordered all those sentences to run
consecutively. Id. at 712, 753 S.E.2d at
filed a petition for habeas corpus in August 2014. Petitioner
was appointed counsel and subsequently filed an amended
petition in October 2014, wherein he raised four claims: (1)
the guilty plea to first-degree murder by information was
improper pursuant to Rule 7; (2) his guilty plea was
involuntary; (3) ineffective assistance of counsel, and (4)
excessive bail. Petitioner ultimately withdrew this amended
March 2016, Petitioner filed a second amended petition and
alleged that pleading guilty to first-degree murder by
information was illegal and improper because it is an offense
punishable by life imprisonment. Petitioner relied upon Rule
7, which provides: "[a]n offense which may be punished
by life imprisonment shall be prosecuted by indictment. Any
other felony offense may be prosecuted by information if the
indictment is waived." Id., in part.
also argued that his trial counsel was ineffective because
they allowed him to plead guilty by information, and counsel
advised him to plead guilty even though the ballistics report
was not completed. Petitioner stated that the ballistics
report ultimately revealed that the bullet removed from the
victim was not fired by Petitioner's handgun.
Petitioner also noted that the Post-Mortem Investigation
confirmed that the victim died of two gunshot wounds that
were inflicted by the same bullet.
regard to relief, Petitioner requested that the circuit court
consider placing him on probation or home confinement. In the
alternative, Petitioner requested that his counsel be allowed
to negotiate a more reasonable plea agreement with the State
or proceed to trial if necessary.
State responded that although the charging
document was not in accordance with Rule 7, the fact that
Petitioner waived grand jury indictment and elected to plead
by way of information was, at most, harmless error. A proper
charging document would not have resulted in any change in
the outcome, namely, a conviction of first-degree murder with
the possibility of parole. The State also asserted that
Petitioner received effective assistance of counsel; the
issue of whose bullet killed the victim was immaterial under
a felony murder charge in a case where several co-defendants
broke into a home at night and the victim was shot to
circuit court held an omnibus evidentiary hearing on July 26,
2016. Petitioner did not testify nor did he offer evidence.
The circuit court heard argument by counsel.
order entered August 30, 2016, the circuit court denied
Petitioner's second amended petition. It held that
although Petitioner's guilty plea by information was not
in accordance with the West Virginia Rules of Criminal
Procedure, this alleged Rule 7 "right" to a grand
jury presentment of first-degree murder "is not one
borne of the [State] Constitution." The circuit court
noted that it was unaware of any legal authority to support
the notion that this procedural irregularity necessitated
relief in habeas corpus. See e.g., State ex rel. Farmer
v. Trent, 209 W.Va. 789, 794, 551 S.E.2d 711, 716 (2001)
(stating prisoner may not collaterally attack guilty plea
where all that is shown is failure to comply with formal
requirements of Rule 11 of West Virginia Rules of Criminal
circuit court also held that Petitioner failed to prove that
his trial counsel was ineffective. It noted that given the
circumstances of the case, the plea deal accepted by
Petitioner and the resulting sentence was in his best
interest. Finally, the lengthy plea colloquy demonstrated
that Petitioner was fully informed ...