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Michael R. v. Ames

Supreme Court of Appeals of West Virginia

November 15, 2019

Michael R., Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Raleigh County 18-C-311-D)


         Petitioner Michael R., [1] pro se, appeals the July 12, 2018, order of the Circuit Court of Raleigh County dismissing his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Holly M. Flanigan, 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.

         In 2014 and 2015, petitioner perpetuated various sexual acts on his nine-year-old adopted daughter and also photographed her in engaging sexually explicit conduct. On September 15, 2015, petitioner was indicted on four counts of first-degree sexual assault, four counts of incest, seven counts of sexual abuse by a parent, three counts of first-degree sexual abuse, and fourteen counts of filming a minor child engaging in sexually explicit conduct. In an additional count of the indictment (count thirty-three), the grand jury alleged that the victim was a child under twelve years of age, that petitioner was an adult over twenty-one years of age, and that petitioner employed forcible compulsion in his perpetuation of the charged offenses.[3] According to respondent, if petitioner was convicted of all the offenses alleged in the indictment, petitioner would have received an aggregate sentence of 205 to 815 years of incarceration.

         On October 7 and 20, 2015, petitioner underwent a court-ordered psychological evaluation to determine his criminal responsibility for the alleged acts and his competency to stand trial. In a report dated November 18, 2015, the forensic psychologist opined that petitioner suffered from no mental disease or defect which would have rendered him unable to appreciate the wrongfulness of the alleged acts and/or conform his conduct to the requirements of the law. The psychologist further opined that petitioner was competent either to stand trial or enter into a plea agreement with the State:

. . . [petitioner] has the capacity to assist his attorney in his defense with a reasonable degree of rational and factual understanding of the charges against him, their potential consequences, and the nature and object of the adjudicatory process. He has the capacity to understand and agree to the terms of a plea agreement if one is offered to him and should be able to follow the directives of the [c]ourt.

         On January 6, 2016, petitioner and the State entered into a plea agreement, under which petitioner agreed to plead guilty to counts one and four of the indictment charging him with first-degree sexual assault. Petitioner further agreed to admit the facts alleged in count thirty-three rendering him ineligible for alternative sentencing. In exchange, the State agreed to dismiss the other thirty counts of the indictment. Under West Virginia Code § 61-8B-3(c), counts one and four each subjected petitioner to a sentence of 25 to 100 years of incarceration; under the plea agreement, the circuit court would decide whether petitioner would serve those sentences concurrently or consecutively with each party free to argue that issue.[4]

         At the beginning of the February 11, 2016, plea hearing, the circuit court noted that "the only issue at sentencing will be whether the sentences are to run concurrently . . . or consecutively[.]" After petitioner was sworn, the circuit court advised him to let the court know if he needed clarification on any issue during the hearing.

         Because petitioner is illiterate, the court confirmed that petitioner's counsel read the indictment and the plea form to him in their entirety. The court noted that petitioner faced a sentence of 25 to 100 years of incarceration for each count to which he was pleading guilty, emphasizing that the only issue at sentencing would be a determination of whether those sentences would run concurrently or consecutively. Petitioner acknowledged that he understood the limited issue that his sentencing would entail.

         The circuit court asked petitioner whether he had sufficient time to discuss the matter with his counsel, and petitioner answered, "Yes, sir." Petitioner further testified that he did not have any present complaints regarding counsel's performance. The court further inquired: "Do you feel that, at least up until now, [counsel] has done everything reasonably possible to represent you in this matter?" Petitioner responded, "Yes, sir."

         The circuit court then asked petitioner if he suffered from any mental health issues, and petitioner answered that he had previously been diagnosed with a learning disability. When the court inquired about any medications petitioner was taking, petitioner responded that he was taking Lithium. The court followed up by asking petitioner the number of times he took his medication daily and its potential effects on him:

Q. All right. Is Lithium the only medication you're taking now?
A. Yeah. It's the only one they will give me.
Q. Are you taking that in the morning? Or at the evening time? Or at both times?
A. Both times, sir.
Q. Have you taken one medication dose today?
A. Yes, sir.
Q. Do you take this Lithium pursuant to your prescribed ...

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