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.Respondent Donnie Ames, Superintendent, by
counsel Scott E. Johnson, filed a response and supplemental
appendix. 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.
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.
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
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.
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
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.
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.
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.
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.
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. ...