Dukes v. Ames
| Decision Date | 26 May 2022 |
| Docket Number | 21-0324 |
| Parties | Steven J. Dukes, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent |
| Court | West Virginia Supreme Court |
Petitioner Steven J. Dukes, by counsel M. Tyler Mason, appeals the December 17, 2020, order of the Circuit Court of Marion County that denied his petition for a writ of habeas corpus. Superintendent Donnie Ames, [1] Mt. Olive Correctional Complex by counsel Patrick Morrisey and Katherine M. Smith, responds in support of the circuit court's order. Petitioner filed a reply.
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 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.
On April 23, 2012, a drug dealer who was cooperating with the police identified petitioner as her heroin supplier. The police had the drug dealer call petitioner and ask him to deliver heroin to her home. Police officers saw petitioner leave his residence and drive in the general direction of the drug dealer's residence. Based on the drug dealer's statement and a Maryland arrest warrant for petitioner's probation violations, the officers pulled petitioner over. While patting petitioner down, an officer found that petitioner was carrying bundles of heroin. Petitioner was indicted on June 4, 2012, for one count of possession of a controlled substance (heroin) with intent to deliver in violation of West Virginia Code § 60A-4-401(a)(i). Thereafter, petitioner filed a motion in limine to suppress the evidence obtained from the stop and search of his vehicle and the subsequent search of his residence. The court denied that motion.
The State offered petitioner a plea deal whereby he would plead guilty to one count of possession of a controlled substance with intent to deliver in exchange for the State's promise not to seek a recidivist conviction. Petitioner rejected that offer. However, he later claimed that his trial counsel poorly described the elements of the crime to him and led him to believe he could be found guilty only if he was caught in the act of delivering heroin to the co-operating drug dealer.
At petitioner's 2012 trial (Case No. 12-F-90), the drug dealer testified that petitioner supplied her with the heroin she sold to others. The drug dealer also testified that when her supply of heroin ran low, she would text petitioner the word "good" to let him know that she needed more. Finally, the drug dealer testified to the events that led to petitioner's arrest. A jury found petitioner guilty of one count of possession of a controlled substance (heroin) with intent to deliver.
On September 21, 2012, the State filed a recidivist information against petitioner seeking an enhancement of petitioner's sentence based on his conviction for three separate felony offenses: (1) his 2012 felony conviction for possession of a controlled substance (heroin) with intent to deliver in violation of West Virginia Code § 60A-4-401(a)(i); (2) a 2000 West Virginia conviction for felony possession of a deadly weapon by a person having been previously convicted of a felony, in violation of West Virginia Code § 61-7-7(b)(2); and, at issue in this case, and (3) an April 30, 1992, North Carolina conviction for one count of felony possession of cocaine, in violation of North Carolina General Statute § 90-95(a)(1).
During petitioner's recidivist trial, a probation officer and a deputy sheriff testified that petitioner had additional prior felony convictions, in New York and Maryland, which were not charged in the recidivist information. Petitioner avers that at his recidivist trial, his counsel failed to raise his claim that his North Carolina conviction for felony "possession of cocaine" would have been a misdemeanor in West Virginia. On February 11, 2012, a jury found that petitioner had been twice or more previously convicted of crimes punishable by penitentiary confinement as alleged in the recidivist information. The trial court sentenced petitioner on March 19, 2013, to life in prison with credit for time served.
Petitioner appealed his life recidivist conviction to this Court arguing that (1) the evidence was insufficient to obtain a conviction; (2) the statements he made to his parole officer should not have been admitted at trial; and (3) his prior felony convictions from New York and Maryland that were not charged in his recidivist information should have been excluded from the evidence at his recidivist trial. In State v. Dukes, No. 13-0649, 2014 WL 1672948 (W.Va. Apr. 25, 2014)(memorandum decision), we found no error and affirmed the circuit court's recidivist conviction.
On January 28, 2015, petitioner, acting as a self-represented litigant, filed a petition for a writ of habeas corpus arguing that, at his recidivist trial, (1) the circuit court erred in admitting records of petitioner's North Carolina felony conviction which were not properly authenticated, and in admitting testimony concerning prior convictions not charged in the recidivist information; and (2) his counsel was ineffective for not objecting to the admission of those records and that testimony. By order entered on April 1, 2015, the habeas court found that petitioner was not entitled to relief and summarily dismissed petitioner's habeas petition without appointment of counsel or an evidentiary hearing. Petitioner appealed the circuit court's order to this Court. We denied relief. See Dukes v. Ballard, No. 15-0382, 2016 WL 1550773 (W.Va. Apr. 15, 2016) (memorandum decision).
On July 2, 2015, petitioner sought to file a second habeas petition in the circuit court. Habeas counsel was appointed and filed petitioner's Losh list[2] on October 9, 2019, alleging ineffective assistance of counsel and an excessive sentence. Petitioner argued that (1) his trial counsel failed to adequately explain the charge of possession with intent to deliver heroin and the evidence against him which prevented him from making a knowing and intelligent evaluation of the proposed plea agreement; (2) his trial counsel failed "to raise the issue of proportionality of the recidivist statute as applied to [him;]" and (3) "disproportionality of the recidivist statute to his case." On June 18, 2020, petitioner filed a "Submission of Additional Authority in Support of Amended Writ of Habeas Corpus" in which he discussed the Court's recent decision in State v. Hoyle, 242 W.Va. 599, 836 S.E.2d 817 (2019). At petitioner's omnibus evidentiary hearing on July 20, 2020, petitioner's counsel argued that petitioner's recidivist life sentence was disproportionate. Petitioner then testified that, at trial, he believed he had been accused of the actual delivery of heroin as opposed to possession of and intent to deliver heroin.
Finally, the habeas court found that, under State v. Norwood, 242 W.Va. 149, 832 S.E.2d 75 (2019), petitioner's prior convictions for "possession of a deadly weapon by a person having been convicted of a felony and . . . possession with intent to deliver heroin, carried with them the potential for actual violence." Therefore, the habeas court concluded that petitioner's recidivist life sentence did not violate constitutional proportionality principles.
Petitioner now appeals and raises three assignments of error. Petitioner first argues that the Court should apply the plain error doctrine to overturn his recidivist conviction on the ground that his 1992 North Carolina conviction for felony possession of cocaine would have been a misdemeanor under West Virginia law punishable by six months in jail. We disagree.
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.
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Petitioner admits, however, that he did not raise this assignment of error below but asserts that this Court should consider his argument due to plain error.
Our standard of review for issues not properly preserved for appeal, or not presented to the trial court for resolution prior to an appeal, is plain error. There are four elements that must be shown to exist before plain error applies: "To trigger...
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