Berkeley County 17-C-214
MEMORANDUM DECISION
Petitioner
Joshua Stitley, pro se, appeals the September 20, 2017, order
of the Circuit Court of Berkeley County denying his second
petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,
[1] by
counsel Robert L. Hogan, filed a response in support of the
circuit court's order. Petitioner filed a reply.
The
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.
Late on
the evening of May 26, 2011, petitioner and his codefendant,
Roy Wisotzkey, traveled to the home of petitioner's
mother and stepfather, Vickie and Jack Clem, with the intent
to commit burglary. The men were armed with a knife and the
codefendant's baseball bat and decorative sword. The men
entered the home without permission where they were
confronted by Mr. Clem. During the confrontation, petitioner
struck Mr. Clem on the head with the baseball bat and stabbed
him in the groin with the knife. Mr. Clem fell into a
bathroom where he shut and barricaded the door. While
petitioner was fighting with Mr. Clem, his codefendant struck
Mrs. Clem on the head with the baseball bat. One or both men
then followed Mrs. Clem into her bedroom where she was struck
on the head with the baseball bat at least seven more times
and stabbed twice in the chest. Mrs. Clem died that night as
a result of her injuries.
Following
the attack, petitioner and his codefendant remained in the
Clems's residence and consumed drugs and alcohol. At one
point, petitioner left the home to withdraw money from Mrs.
Clem's bank account using her ATM card; he then returned
to the Clems's home. Eventually, both men fell asleep in
the home's living room. While they slept, Mr. Clem
escaped from his home. Early the next morning, petitioner and
the codefendant awoke, removed various objects of the
Clems's personal property from the house, and fled the
scene. However, they were soon apprehended by law
enforcement.
On
October 20, 2011, petitioner and his codefendant were jointly
indicted for the following crimes: Count 1, murder in
violation of West Virginia Code § 61-2-1 (Mrs. Clem);
Count 2, felony murder in violation of West Virginia Code
§ 61-2-1 (the underlying felony was the
commission/attempt to commit robbery); Count 3, robbery in
the first degree in violation of West Virginia Code §
61-2-12(a) (Mrs. Clem); Court 4, robbery in the first degree
in violation of West Virginia Code § 61-2-12(a) (Mr.
Clem); Count 5, conspiracy to commit robbery in violation of
West Virginia Code § 61-10-31; Count 6, burglary in
violation of West Virginia Code § 61-3-11(a); Count 7,
attempted murder in violation of West Virginia Code §
61-11-8(1) (Mr. Clem); Count 8, malicious assault in
violation of West Virginia Code § 61-2-9(a) (Mr. Clem);
Count 9, assault during the commission of a felony in
violation of West Virginia Code § 61-2-10 (Mr. Clem);
and Count Ten, assault during the commission of a felony in
violation of West Virginia Code § 61-2-10 (Mrs. Clem).
Additionally, petitioner was individually indicted on one
count of fleeing in a vehicle while driving under the
influence from a law enforcement officer in violation of West
Virginia Code § 61-5-17(j) and one count of fraudulent
use of an access device in violation of West Virginia Code
§ 61-3C-13(c).
On
August 7, 2013, following a jury trial, petitioner's
codefendant was found guilty of felony murder based on the
underlying robbery of Mrs. Clem, first-degree robbery of Mr.
Clem, burglary, and conspiracy to commit robbery. The circuit
court sentenced the codefendant to a life term of
incarceration with the possibility of parole for felony
murder and fifty years of incarceration for first-degree
robbery. The circuit court ordered that those sentences be
served concurrently. The circuit court further sentenced the
codefendant to one to fifteen years of incarceration for
burglary and one to five years of incarceration for
conspiracy. The circuit court ordered that the
codefendant's sentences for burglary and conspiracy were
to run concurrently with one another, but consecutive to the
sentences for felony murder and robbery.
On
October 21, 2013, the day before his jury trial, petitioner
entered into a plea agreement with the State. Petitioner
agreed to plead guilty to felony murder based on the
underlying robbery of Mrs. Clem, first-degree robbery of Mr.
Clem, attempted murder of Mr. Clem, and malicious assault of
Mr. Clem. In exchange, the State agreed to dismiss all other
charges and to enter into a binding sentencing recommendation
as to felony murder where petitioner would be sentenced to a
life term of incarceration with the possibility of parole.
However, with regard to the other guilty pleas, "[e]ach
side [was] free to request any sentence on the remaining
counts as allowed by law." Consequently, at the plea
hearing, the circuit court cautioned that, except for the
agreed disposition regarding felony murder, "the [plea]
bargain is not binding on this [c]ourt and I don't have
to dispose of your case the way you and your attorney and the
State's attorney are recommending." Petitioner
responded, "Yes, Your Honor."
After
engaging a colloquy with petitioner pursuant to Call v.
McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), the
circuit court found that petitioner freely, voluntarily, and
intelligently entered his guilty pleas:
The [c]ourt finds your decision to plead guilty was freely
and voluntarily and intelligently made. You had the advice of
counsel, a highly competent criminal trial lawyer with whom
you say you're satisfied. Therefore, your pleas of guilty
to felony murder, robbery in the first degree, attempted
murder in the first degree, and malicious assault [are]
accepted, and based upon your pleas[, ] you are adjudged
convicted of those crimes.
Following
the October 21, 2013, plea hearing, the State made its
sentencing recommendation with regard to those of
petitioner's convictions where the circuit court had
discretion to impose such sentences as allowed by law. The
State recommended a sentence of fifty years of incarceration
for first-degree robbery, but also advocated that, unlike in
the codefendant's case, all of petitioner's sentences
should be served consecutively.
At a
January 13, 2014, sentencing hearing, petitioner expressed
remorse for his crimes and his attorney argued for concurrent
sentencing, claiming that "this is a terrible tragic
incident obviously driven by drugs and alcohol." The
State's attorney argued that all of petitioner's
sentences should run consecutively where petitioner's
mother and stepfather "were terrorized in their own home
for nothing more than loving this young man."
Thereafter, the circuit court sentenced petitioner to a life
term of incarceration with the possibility of parole for
felony murder as required by the plea agreement. However, the
circuit court declined to follow the State's non-binding
recommendation with regard to first-degree robbery and
instead imposed a sentence of sixty years of incarceration.
The circuit court further sentenced petitioner to three to
fifteen years of incarceration for attempted murder and two
to ten years of incarceration for malicious assault. The
circuit court ordered that all of petitioner's sentences
run consecutively.
In
State v. Stitley, No. 14-0265, 2014 WL 5546524, at
*2 (W.Va. Nov. 3, 2014) (memorandum decision), petitioner
appealed his aggregate sentence as unjustifiably harsher than
that of his codefendant. This Court rejected petitioner's
argument and affirmed the circuit court's sentencing
order, finding:
The record on appeal in this case demonstrates that
petitioner and his codefendant were not similarly situated
with regard to the crimes committed. Here, petitioner
instigated and planned the crimes; the victims were his
mother and stepfather; petitioner recruited the codefendant
for the crimes because the codefendant was large and
imposing; petitioner drove the codefendant to the Clems's
home; petitioner struck his [stepfather] in the head with a
baseball bat and stabbed him in the groin with a knife;
petitioner urged the codefendant to "help him" with
the attack; petitioner either participated in, or failed to
stop, the murder of his mother; petitioner stole money and
credit cards from the victims and withdrew money from his
mother's bank account using her bank card; and,
...