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Caldwell v. Pszczolkowski

Supreme Court of Appeals of West Virginia

October 11, 2019

Derek Caldwell, Petitioner Below, Petitioner
v.
Karen Pszczolkowski, Superintendent, Northern Correctional Facility, Respondent Below, Respondent

          (Berkeley County 16-C-41)

          MEMORANDUM DECISION

         Petitioner Derek Caldwell, by counsel Dylan Batten, appeals the Circuit Court of Berkeley County's June 18, 2018, order that denied his petition for a writ of habeas corpus. Karen Pszczolkowski, Superintendent, Northern Correctional Facility, by counsel, Benjamin F. Yancey, III, filed a response. On appeal, petitioner argues that the circuit court erred in failing to conclude that trial counsel was ineffective during the plea bargaining stage of his criminal proceeding.

         This 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In February of 2014, petitioner was indicted in the Circuit Court of Berkeley County on one count of first-degree robbery and one count of assault during the commission of a felony. Petitioner was accused of robbing a pizza delivery driver at knifepoint on December 11, 2013, when the driver arrived at 221 West Race Street in Martinsburg, West Virginia, after petitioner's girlfriend called to order a pizza. Petitioner attempted to disguise his identity by placing a patterned scarf around his face and attacked the driver from behind. The driver gave petitioner all of his cash and pizza receipts from his pocket, returned to his place of employment, and called the police. Law enforcement traced the pizza order to the girlfriend's telephone number and eventually located the couple at a local motel. Petitioner fled while the girlfriend remained and gave the authorities consent to search the motel room. There, police recovered cash, the driver's receipts, petitioner's sweatpants, drug paraphernalia, and a scarf identified by the driver as the one that was worn by his attacker. Petitioner later turned himself in to the police.

         On April 3, 2014, the State tendered a plea offer whereby petitioner would plead guilty to first-degree robbery (count 1) and, in exchange, the State would dismiss the charge of assault during the commission of a felony (count 2). The plea offer further provided that the State would bind the court to a sentence of no more than twenty years in prison and that the court would "remain free to consider any lesser sentence allowable under the law." Further, the parties would "remain free to argue for any lawful sentence up to 20 years in the penitentiary." Trial counsel Matthew Yanni presented and reviewed the plea offer with petitioner, who ultimately rejected it. Following a two-day jury trial, petitioner was convicted of both counts of the indictment. Petitioner was thereafter sentenced to a determinate term of twenty-five years in prison for the first-degree robbery conviction and not less than two nor more than ten years for the assault during the commission of a felony conviction. The sentences were ordered to run concurrently.[1]

         On May 15, 2015, petitioner filed a motion for reduction of sentence pursuant to West Virginia Rule of Criminal Procedure 35(b). The circuit court denied the motion by order entered on June 5, 2015.

         On June 1, 2016, petitioner filed an amended petition for a writ of habeas corpus and accompanying Losh[2] list[3] to which the State filed a response. The circuit court conducted an omnibus evidentiary hearing on May 23, 2017, at which trial counsel and petitioner both testified. By order entered on June 18, 2018, the circuit court denied petitioner's request for habeas relief. It is from this order that petitioner now appeals.

         This Court has held that,

[i]n reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Further, "'[f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.' Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975)." Syl. Pt. 1, State ex rel. Waldron v. Scott, 222 W.Va. 122, 663 S.E.2d 576 (2008).

         In his sole assignment of error, petitioner argues that the circuit court erred in failing to conclude that he received ineffective assistance of counsel with regard to the plea offer tendered by the State. More specifically, petitioner argues that had trial counsel adequately advised him during the plea bargaining process, he would have accepted the plea instead of going to trial. According to petitioner, trial counsel failed to discuss crucial aspects of the plea offer with him and admitted that he did not make a recommendation as to whether the plea was in petitioner's best interests. Petitioner argues that, as a result of trial counsel's inadequate performance, petitioner should be granted specific performance of the offered plea or, in the alternative, a new trial.

         This Court's standard for evaluating counsel's effectiveness is well settled. In syllabus point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we adopted the following two-pronged test established by the United States Supreme Court:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for ...

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