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Stitley v. Ames

Supreme Court of West Virginia

May 31, 2019

Joshua Stitley, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          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, ...

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