(Berkeley County 16-C-41)
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
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.
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.
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.
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
1, 2016, petitioner filed an amended petition for a writ of
habeas corpus and accompanying Losh
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.
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).
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.
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 ...