Kanawha County 18-P-146
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,
counsel Julianne Wisman, filed a response in support of the
circuit court's order. Petitioner filed a reply.
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.
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.
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
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.
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
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."
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 ...