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Hogan v. Ames

Supreme Court of Appeals of West Virginia

September 3, 2019

Terrick Hogan, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Kanawha County 18-P-146

          MEMORANDUM DECISION

         Petitioner Terrick Hogan, pro se, appeals the May 9, 2018, order of the Circuit Court of Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Julianne Wisman, 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.

         Petitioner conspired with Shayla Stephenson and Marcus Curtis to rob a fourth person, Kalvon Casdorph ("the victim"). According to the State, petitioner planned the robbery, Ms. Stephenson provided the gun, and Mr. Curtis carried the plan out. During the robbery, Mr. Curtis shot and killed the victim. The three participants were each indicted on one count of conspiracy, one count of first-degree robbery, and one count of first-degree murder.

         On August 15, 2016, the circuit court held a hearing on petitioner's motion to suppress two incriminating statements he gave to the police. The court denied the motion. That same day, petitioner entered a plea agreement with the State. The State agreed to dismiss the conspiracy and robbery counts of the indictment in exchange for petitioner's guilty plea to first-degree murder. The parties agreed the appropriate disposition of petitioner's case was a life term of incarceration with the possibility of parole; therefore, pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the circuit court would be required to impose that sentence if it accepted the plea agreement. Petitioner agreed to provide truthful testimony against his co-conspirators, if necessary. The State agreed not to file a recidivist information against petitioner. Finally, the parties agreed that petitioner would provide the factual basis for his guilty plea.

         The circuit court held a plea hearing on August 16, 2016. The court noted that petitioner previously rejected the same proposed plea agreement and explained that petitioner was going to enter a guilty plea "a couple months or so ago" but "canceled" a prior plea hearing "after [a] while." Consequently, the court asked petitioner, "[a]re you sure you now want to do this?" Petitioner answered, "[y]es." The circuit court also inquired of the State regarding the nature of the plea agreement it had with petitioner's co-conspirator, Mr. Curtis. The assistant prosecutor answered, "[i]t is the exact same plea agreement." The court then asked petitioner if he requested that the court accept the plea agreement and impose a life sentence of incarceration with the possibility of parole. Petitioner responded, "[y]es, sir." The court inquired whether petitioner believed the plea agreement was in his best interests. Petitioner answered in the affirmative.

         Next, the circuit court explained to petitioner the rights he would be giving up by pleading guilty such as the right to a jury trial, the right to testify in his own defense or to choose to remain silent, and the right to present witnesses. The court noted that petitioner exercised his right to seek the suppression of certain evidence at the previous day's hearing, but that his motion was denied. The court explained to petitioner that, by pleading guilty, he would waive the right to challenge such evidentiary rulings on appeal. The court asked if petitioner understood this. Petitioner responded, "[y]es, I do." The court inquired of the State as to whether discovery was provided to the defense. The assistant prosecutor answered affirmatively and noted that "[w]e've actually been to the state police headquarters to review the evidence and to look at all of it, even all of the stuff that was collected that day." The circuit court asked petitioner's attorney to confirm that defense counsel reviewed the evidence at the state police headquarters. Petitioner's attorney responded, "[t]hat is correct, Your Honor." Petitioner's counsel further confirmed that counsel was fully aware of the evidence the State would present at a trial. The court asked petitioner to confirm that he understood he had the right to move to "eliminate" any evidence that was obtained illegally. Petitioner indicated that he understood that he had that right and that he was waiving that right by pleading guilty.

         Prior to accepting petitioner's guilty plea, the circuit court asked petitioner if he had any additional questions for his attorney. Petitioner and his attorney conferred off the record. Thereafter, petitioner indicated that he wanted to proceed with his guilty plea. The court then asked petitioner whether he was satisfied with his attorney's services. Petitioner responded in the affirmative. The circuit court noted that petitioner's attorney had "a lot of experience in criminal cases." When petitioner was asked if he "had plenty of opportunity to talk with [counsel] and let him advise [petitioner] about [his] case," Petitioner answered, "[y]es, I have."

         The circuit court again inquired whether petitioner was willing to waive his rights and enter a guilty plea to first-degree murder. Petitioner responded, "[y]es, sir." The court then asked petitioner to indicate his plea to the charge of first-degree murder. Before answering, petitioner conferred again with his attorney. Thereafter, petitioner responded, "[g]uilty." The circuit court asked for the factual basis for the guilty plea. After a third consultation with his attorney, petitioner answered:

[Petitioner]: On the day in question, I conspired to a commit a robbery, in which . . . . the victim-
The Court: Mr. Casdorph?
[Petitioner]: -Mr. Casdorph, was killed. And[, ] I never intended for anything to this magnitude to occur. But-
The Court: You just intended the robbery to take place?
[Petitioner]: Yes, Sir.
. . . .
[Assistant Prosecutor]: Judge, it would be the State's evidence that the robbery . . . was 100% orchestrated by [petitioner]. He solicited Mr. Curtis to do the robbery via text message that day. As the architect of that plan, he is as guilty as Mr. Curtis of [the] murder.
Also, [petitioner] directed Mr. Curtis to where the firearm was and instructed [Ms.] Stephenson to give it to him. Those things would all be in evidence if we went to trial. There would be several text ...

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