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Montgomery v. Ames

Supreme Court of West Virginia

April 26, 2019

JASMAN MONTGOMERY, Plaintiff Below, Petitioner

          Submitted: January 8, 2019

          Appeal from the Circuit Court of Mercer County The Honorable Mark Wills, Judge Civil Action No. 14-C-463

          Joseph T. Harvey, Esq. Bluefield, West Virginia Counsel for Petitioner

          Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq. Solicitor General Gordon L. Mowen, II, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent


         1. "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).

         2. "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).

         3. A 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.

         4. A 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.

         5. "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).

         6. "'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).

         7. A 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.

         8. "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).

         9. "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 (1999).



         In 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.

         In 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.

         We 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.


         On the 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 the door.

         Matthew 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.

         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.[1]

         Following negotiations, Petitioner agreed to plead guilty to first-degree murder by way of information in October 2011.[2] 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 codefendant.

         Petitioner 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.

         At the 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.

         The 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).

         Pursuant 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 of parole.

[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 it?
A. Yes, sir.

         A jury 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 765.[3]

         Petitioner 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 petition.

         In 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."[4] Id., in part.

         Petitioner 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.

         With 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.

         The State[5] 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 death.[6]

         The 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.

         By 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 Procedure).

         The 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 ...

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