Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lewis v. Ames

Supreme Court of Appeals of West Virginia

November 21, 2019

ROBERT LEE LEWIS, Petitioner
v.
DONNIE AMES, Superintendent, Mt. Olive Correctional Complex Respondent

          Submitted: November 5, 2019

          Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action No. 16-P-215

          Robert F. Evans, Esquire Public Defender Services Charleston, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esquire Attorney General John M. Masslon II, Esquire Special Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1. "In 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." Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

         2. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syllabus Point 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

         3. "Under the provisions of Chapter 53, Article 4A, Code of West Virginia, 1931, as amended, commonly known as 'Post-Conviction Habeas Corpus,' there is a rebuttable presumption that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he could have advanced on direct appeal but which he failed to so advance." Syllabus Point 1, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972).

         4. "The crimes of abduction with intent to defile, W.Va. Code, 61-2-14 (1984), and kidnapping with intent to avoid arrest, W.Va. Code, 61-2-14a (1965), are separate offenses." Syllabus Point 13 of State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

         5. "Though there be error in instructions given on behalf of the prevailing party, yet the judgment will not for this reason be reversed if it appears that the same error was introduced into the record by instructions given at the instance of or was invited by the other party." Syllabus Point 5, State v. Calhoun, 65 W.Va. 666, 69 S.E.2d 1098 (1910).

         6. A criminal defendant cannot invite the circuit court to give an erroneous instruction on a lesser included offense, benefit from that instruction, and then complain on appeal, or in a collateral attack, that such instruction should not have been given. To the extent that Syllabus Point 7 of State v. Corra, 223 W.Va. 573, 678 S.E.2d 306 (2009), is inconsistent, it is hereby modified.

          ARMSTEAD, JUSTICE.

         Petitioner Robert Lee Lewis appeals the circuit court's denial of relief on his petition for writ of habeas corpus. Petitioner asserts three main arguments: (1) Petitioner was unconstitutionally convicted of a crime not included in the indictment; (2) both Petitioner's trial and direct appeal counsel were ineffective for not raising the unindicted acts error; and, (3) Petitioner's sentences are unconstitutionally disproportionate.

         We have reviewed the entire record before us, and for the reasons stated below, we find no error.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This matter represents Petitioner's second habeas corpus petition that has made its way to this Court. See State ex rel. Lewis v. Ballard, No. 12-0137, 2013 WL 1286150 ( W.Va. March 29, 2013)(memorandum decision). We would also note that Petitioner has filed another appeal with this Court challenging his sentence, [1] but such appeal is not currently before us.

         Petitioner was convicted of: (1) burglary by entering without breaking; (2) second degree sexual assault; and, (3) based upon a jury instruction Petitioner offered at trial, and objected to by the State, abduction with intent to defile as a lesser included offense of kidnapping. The facts of this matter are disturbing, and are set forth in great detail in this Court's prior opinion in State v. Lewis, 235 W.Va. 694, 776 S.E.2d 591 (2015). For purposes of this appeal, a complete restatement of those facts is unnecessary. However, we will briefly highlight some of the salient facts supporting Petitioner's conviction.

         Petitioner, who had a domestic violence protective order against him prohibiting contact with his ex-girlfriend, knocked on the door of his ex-girlfriend's apartment, and pretended to be someone else. See id., 235 W.Va. 694');">235 W.Va. 694, 698, 776 S.E.2d 591, 595. This induced his ex-girlfriend to open her door. See id. Petitioner then forced his way into the apartment, chased his ex-girlfriend, grabbed her, carried her out of her apartment, and took her a few blocks away to an unoccupied apartment. See id. At this unoccupied apartment, Petitioner proceeded to forcibly engage in vaginal intercourse with her. See id. After a period of time, she escaped and ran back to her apartment. See id., 235 W.Va. 694');">235 W.Va. 694, 698-699, 776 S.E.2d 591, 595-596. Petitioner followed her and sat on her front steps until the police arrived and took him into custody. See id., 235 W.Va. 694');">235 W.Va. 694, 699, 776 S.E.2d 591, 596.

         Following his convictions, the State filed a recidivist information, alleging Petitioner had been previously convicted of a felony. See id. The jury found "[P]etitioner 'guilty of having been twice convicted of a crime punishable by confinement in a penitentiary as contained in the recidivist information.'" Id.

         Petitioner was then sentenced to the penitentiary for a term of:

[O]ne to fifteen years for burglary; three to ten years for abduction with intent to defile; and twelve months for violating the domestic violence protective order.[2] In addition, based on the recidivist conviction, the trial court enhanced the petitioner's sentence for second degree sexual assault by increasing the statutory ten to twenty-five year term of imprisonment to twenty to twenty-five years, as provided for in West Virginia Code § 61-11-18 (2014), the recidivist sentencing statute. The trial court also ordered all sentences to be served consecutively with the exception of the twelvemonth sentence, which was ordered to run concurrently with the other sentences.

Id., 235 W.Va. 694');">235 W.Va. 694, 699-700, 776 S.E.2d 591, 596-597 (internal footnote omitted, footnote "2" added).

         Initially, Petitioner filed no direct appeal to this Court. However, on January 4, 2012, he filed his first petition for writ of habeas corpus in Kanawha County Circuit Court. Without a hearing, the circuit court denied that petition. Petitioner appealed that denial to this Court, and this Court issued a memorandum decision in State ex rel. Lewis v. Ballard, No. 12-0137, 2013 WL 1286150 ( W.Va. March 29, 2013)(memorandum decision). In that memorandum decision, this Court remanded that habeas for hearing on the issue of whether there was ineffective assistance of counsel for failing to file a direct appeal. See id., at *1-2. On remand, the circuit court entered an Agreed Order Granting in Part and Denying In Part Petition for Writ of Habeas Corpus finding that trial counsel was ineffective for not filing a direct appeal. As a result of this finding, the circuit court resentenced Petitioner and dismissed all other claims as moot.

         The resentencing of Petitioner allowed him to timely file a direct appeal to this Court. In that appeal, he raised six issues:

The petitioner seeks to set aside his conviction for abduction with intent to defile on the basis that the criminal offense set forth in West Virginia Code § 61-2-14(a) (2014) is unconstitutionally vague. He challenges his convictions for abduction with intent to defile and second degree sexual assault on grounds of double jeopardy. The petitioner's remaining assignments of error allege an insufficiency of the State's evidence to convict him of the crimes of burglary and second degree sexual assault, the inadequacy of the jury instruction on abduction with intent to defile, and errors related to his recidivist conviction and sentencing.

Lewis, 235 W.Va. 694');">235 W.Va. 694, 698, 776 S.E.2d 591, 595 (2015). Importantly, all grounds raised in that appeal were previously and finally adjudicated on the merits by the opinion issued by this Court in 2015. See id. and W.Va. Code § 53-4A-1(b)(1967). Some of those grounds will be further discussed below.

         Following his direct appeal, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of West Virginia. See Lewis v. Ballard, Civil Action No. 2:16-CV-03194, 2017 WL 927231(S. D. W.Va., March 8, 2017)(not reported in Fed. Supp.). The District Court dismissed Petitioner's petition on the grounds that he had failed to exhaust state remedies. See id., at *1.

         Petitioner then filed this second habeas corpus petition in Kanawha County Circuit Court. In this pro se petition, he raised four grounds:

(1) Petitioner was denied due process of law as secured by the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution when Petitioner was convicted and sentenced for violating W.Va. Code § 61-2-14(a);
(2) Petitioner was denied due process of law as secured by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution when he was tried, convicted and sentenced for burglary;
(3) Petitioner was denied due process of law when the Circuit Court of Kanawha County determined Petitioner had a prior felony conviction and enhanced Petitioner's sentence of sexual assault in the Second Degree, as requested by the State, rather than the burglary sentence; and,
(4) Petitioner was denied due process of law as secured by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution when the jury was not instructed on the lesser included offenses of battery, sexual misconduct, and sexual abuse in the First Degree.

         The circuit court, pursuant to Rule 4(c) of the West Virginia Rules Governing Post Conviction Habeas Corpus Proceedings, summarily dismissed this petition, finding with respect to each ground raised:

(1) Petitioner's ground one asserts an ordinary trial error, an improper jury instruction, for [sic] which he failed to raise on direct appeal, and is thereby waived.
(2) Petitioner's ground two was previously and finally adjudicated upon direct appeal before the Supreme Court of Appeals of West Virginia in State v. Lewis, 235 W.Va. 694, 776 S.E.2d 591 (2015).
(3) Petitioner's ground three was previously and finally adjudicated upon direct appeal before the Supreme Court of Appeals of West Virginia in State v. Lewis, 235 W.Va. 694, 776 S.E.2d 591 (2015).
(4) Petitioner's ground four asserts an ordinary trial error, an improper jury instruction, for [sic] which he failed to raise on direct appeal, and is thereby waived.

         In this pro se appeal from that order, Petitioner raised the following grounds:

(1) Was [P]etitioner denied due process of law as secured by the [Fifth, Sixth, Eighth, and Fourteenth] Amendments to the U.S. Constitution when [P]etitioner was convicted and sentenced for violating W.Va. Code § 61-2-14(a) . . . ?
(2) Are the consecutive sentences imposed on [P]etitioner by the Circuit Court of Kanawha County . . ., a disproportionate sentence and contrary to this Court's ruling in State v. Davis. . . ?
(3) Is [P]etitioner's conviction for [a]bduction with intent to defile the result of constructive amendment of the kidnapping indictment, and, therefore a violation of [the Fifth and Fourteenth] Amendments to the U.S. Constitution, and Art[icle] III, §§ 4 [and] 10 of the Constitution of West Virginia?
(4) Was Petitioner denied effective assistance of counsel when Mr. Sullivan asked the judge to instruct the jury on the elements of [a]bduction, a violation of W.Va. Code § 61-11-14(a), despite the fact that the indictment did not allege defendant had abducted [the victim] with the intent to marry or defile her, a violation of the [Fifth, Sixth, and Fourteenth] Amendments to the U.S. Constitution and Art[icle] III, §§ 4, 10, [and] 14 of the [West Virginia] Constitution?

         Upon review of this appeal, this Court sua sponte appointed appellate counsel for Petitioner and ordered supplemental briefing on the issue of whether abduction with intent to defile is a lesser included offense of kidnapping. Following review of the entire record, we find that the errors raised in this appeal were either not raised below and therefore waived, or were ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.