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Greene v. Ames

Supreme Court of West Virginia

May 24, 2019

Michael Greene, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Mercer County 15-C-357-WS

          MEMORANDUM DECISION

         Petitioner Michael Greene, by counsel Ryan J. Flanigan, appeals the Circuit Court of Mercer County's January 8, 2018, order denying his amended petition for a writ of habeas corpus.[1]Respondent Donnie Ames, Superintendent, by counsel Scott E. Johnson, filed a response and supplemental appendix.[2] Petitioner filed a reply pro se. On appeal, petitioner asserts that the circuit court erred in not finding that trial counsel failed to file an appeal, not reviewing his probation revocation hearing, not finding that the evidence was insufficient to support revocation of his probation, placing him on adult probation while he was under juvenile jurisdiction, and in finding that his completion of a core curriculum did not satisfy a term of his probation.

         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.

         Petitioner was arrested on January 9, 2010, in connection with the murder of Clayton Mitchum. Petitioner was charged as a juvenile in Mercer County Criminal Case No. 10-JD-03, and he remained incarcerated until May 3, 2010, when the charge was dismissed. On August 3, 2010, petitioner was arrested for carrying a concealed weapon (Mercer County Criminal Case No. 10-JD-61). Petitioner stipulated to the delinquency charge and was sentenced to the Salem Industrial Home ("Salem").

         While petitioner was at Salem, in February of 2011, the murder charge was refiled (Mercer County Criminal Case No. 11-JD-11) along with three counts of delivery of a controlled substance (Mercer County Criminal Case No. 11-JD-118). Although petitioner completed his sentence for the concealed weapon charge in August of 2011, he remained at Salem due to the pending murder and drug charges.

         In April of 2012, petitioner entered into a plea agreement with the State, which was approved by the circuit court. In that agreement, petitioner consented to an adjudication of delinquency on the three delivery of a controlled substance charges and placement in a facility to complete a youthful offender program. Petitioner further consented to the filing of an information, consented to transfer to adult jurisdiction, and entered a guilty plea to first-degree robbery as an accessory, stemming from Mr. Mitchum's murder. The agreement provided that his first-degree robbery sentence would be capped at twenty years, his sentence would be suspended and he would be placed on probation "consecutive to release from [j]uvenile custody," and there would be a deferred adjudication of guilt. Specifically, should petitioner "successful[ly] complet[e] . . . probation, or successful[ly] complet[e] . . . a two-year Associate[']s degree program or an equivalent trade-school certification," his guilty plea to robbery would be withdrawn and the case dismissed. Finally, the agreement provided that if either party failed to comply with the agreement's terms, the "plea, conviction and sentence shall be vacated and set aside[, ] . . . and the parties will be returned to their original positions before the entry of the plea, and any charges dismissed or reduced, as a result of this plea bargain will be reinstated."

         Petitioner and the State appeared for sentencing on May 24, 2013. The circuit court found that petitioner had successfully completed the youthful offender program (11-JD-118), and it deferred adjudication on the first-degree robbery charge and placed petitioner on five years of probation.

         Four days after the sentencing hearing, on May 28, 2013, the State filed a petition to revoke petitioner's probation alleging that he was in possession of a concealed weapon, associated with felons, and broke curfew. At the probation revocation preliminary hearing, Bluefield Police Department Officer Ron Davis testified that shortly after midnight on May 28, 2013, he responded to a report of an altercation at a gas station. After locating the individuals involved in the altercation on another street, Officer Davis learned that Anthony Webb, who had blood on his shirt, had been involved in the altercation. As Officer Davis was speaking with Mr. Webb, he "observed [petitioner] laid back in the driver's seat of a silver" car. Officer Davis approached petitioner from the passenger side of the car and observed a handgun "behind the driver[']s seat in the passenger left side" of the car. After directing petitioner to exit the car, Officer Davis found another handgun concealed "in the driver's compartment of the driver's side of the vehicle, where [petitioner] was seated." Although Officer Davis's investigation did not confirm that either gun was owned by petitioner, his "investigation led [him] to believe that [one of the guns] was in possession of [petitioner] due to his position in the vehicle." Officer Davis also identified other individuals present at the scene, many of whom Officer Davis arrested previously. The circuit court found probable cause to believe petitioner violated the terms and conditions of his probation, as alleged in the revocation petition, and set the matter for a final hearing.

         Petitioner and the State appeared for an evidentiary hearing on June 24, 2013. Officer Davis again testified, and his testimony from the preliminary hearing was incorporated into the evidentiary hearing. Mr. Webb also testified. Mr. Webb testified that he was with petitioner earlier in the day, but they parted ways before eventually meeting back up with other individuals at the gas station from which the report of the altercation was made. Mr. Webb claimed that, while at the gas station, someone hit him "out of the blue," and he and the other individual began to fight. Unbeknownst to petitioner, Mr. Webb pulled out one of the guns from his car, which caused the individual with whom Mr. Webb was fighting to run. Mr. Webb put the gun back in the car and began to run after his assailant. Given the presence of guns in the car, Mr. Webb also directed petitioner to move the car away from the altercation, but he did not alert petitioner to the guns. According to Mr. Webb, Officer Davis appeared immediately after petitioner moved the car. Mr. Webb also testified that the car in which petitioner was found was rented to Mr. Webb's stepsister and that the guns found in the car belonged to Mr. Webb. Mr. Webb was adamant that petitioner was unaware of the guns in the car, but he admitted that certain known criminals were present at the gas station on the evening of the altercation.

         At the dispositional hearing on July 8, 2013, the circuit court revoked petitioner's probation and imposed his twenty-year sentence pursuant to the terms of the plea agreement. In reaching this disposition, the circuit court expressed to petitioner that

[t]ime and time and time again you have been given chance after chance after chance each time. Each time you failed to take advantage of it. You go back to that same lifestyle, that same street lifestyle that I have begged you to leave behind. How long were you out on probation and you're back? It's not that you were out pas[t] curfew. It's not that you were caught in a car with two weapons whether you knew that they were there or not. It's the fact that you're back with the same people, the same lifestyle, that I begged you to leave behind.
. . .
Like I said it's . . . the potential for violence that, you know the fact that you're out past curfew, you're caught in a vehicle with two guns, whether you knew they [were] there or not, the fact that you're even in that vehicle with people that were involved in violent behavior that night. Mr. Webb said he was getting ready to shoot somebody. I mean, that was his testimony and these are the people you're hanging with.

         Petitioner filed a pro se petition for a writ of habeas corpus on October 21, 2015. Following the appointment of counsel, petitioner filed an amended habeas petition on February 7, 2017. Petitioner raised several grounds in the amended petition, including, among others, failure to take an appeal, unfulfilled plea bargain, and sufficiency of the evidence. The parties appeared for an omnibus evidentiary hearing on March 24, 2017. ...


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