Gardner v. Ballard, 13-1301

• Decision Date: 03 November 2014
• Docket Number: No. 13-1301,13-1301
• Court: West Virginia Supreme Court
• Parties: Thomas Eugene Gardner, Jr., Petitioner Below, Petitioner v. David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

Thomas Eugene Gardner, Jr., Petitioner Below, Petitioner v. David Ballard, Warden,Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 13-1301

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 3, 2014

(Marion County 12-C-449)

MEMORANDUM DECISION

Petitioner Thomas Eugene Gardner, Jr., by counsel Brandon L. Christopher, appeals the order of the Circuit Court of Marion County, entered November 26, 2013, that denied his petition for post-conviction habeas corpus relief. The State of West Virginia, in the name of David Ballard, Warden, by counsel Derek Knopp, responds in support of the circuit court's order.

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

In the underlying criminal case, petitioner was indicted on one count of distribution or exhibition of obscene material to a minor in violation of West Virginia Code § 61-8A-2(a). That case arose when petitioner telephoned a girl he knew to be thirteen years old, engaged her in a sexually explicit conversation, and then played a recording depicting the rape of a child. Defense counsel moved to dismiss the indictment on the ground that the telephone call did not fit the definition of "distribute" found in West Virginia Code § 61-8A-1. Petitioner pled guilty to the charge on January 19, 2011, but reserved the right to appeal. Petitioner's plea agreement reads, in relevant part, as follows.

The State will agree to allow [petitioner] to enter a plea of guilty to the offense of DISTRIBUTION AND DISPLAY TO MINOR OF OBSCENE MATTER, a felony, the penalty for which, under the provisions of West Virginia Code § 61-8A-2(a) [includes a fine of] not more than Twenty Five Thousand ($25,000.00) Dollars or [confinement] in a state correctional facility for not more than Five years, or both.

On the same day that petitioner entered his guilty plea, the State filed a recidivist information against petitioner based on his guilty plea and his prior felony convictions for statutory rape, involuntary deviate sexual intercourse, kidnapping, and failure to register as a sexual offender. The circuit court scheduled the matter for trial on March 15, 2011. However, prior to trial, petitioner opted to plead guilty to the recidivist information despite the circuit court's warning that "[a]n admission that you were convicted of three or more prior felonies prior to the alleged felony will result in you being sentenced to the penitentiary for the remainder of your natural life."

At his sentencing hearing, petitioner argued that his prior convictions were too remote in time to be used as the basis for a life sentence and that his conduct related to his conviction for distribution or exhibition of obscene material to a minor was not violent and did not contain the threat of violence. Thus, he claimed that it was unconstitutional to sentence him to life in prison under the recidivist statute. The circuit court rejected these arguments, and sentenced petitioner to a life in prison pursuant to the recidivist statute. This Court affirmed petitioner's conviction on February 13, 2012. See State v. Gardner, No. 11-0714 (W.Va. Supreme Court, February 13, 2012) (memorandum decision).

Petitioner filed a petition for writ of habeas corpus, pro se, on December 10, 2012. On February 15, 2013, the circuit court appointed habeas counsel who filed an amended habeas petition on June 14, 2013. That amended petition raised the following claims: (1) the court lacked jurisdiction to impose a life sentence because the recidivist information was procedurally defective, (2) the prosecutor made prejudicial statements during the sentencing hearing and in the recidivist information, (3) ineffective assistance of counsel, (4) the underlying felony guilty plea was not voluntarily, (5) the plea bargain was unfulfilled, (6) the circuit court imposed a more severe sentence than expected, (7) the sentence was excessive, and (8) petitioner was given insufficient credit for time served.

On October 25, 2013, the circuit court held an omnibus hearing on petitioner's amended habeas petition. Petitioner's trial counsel from his case for distribution or exhibition of obscene material to a minor testified at the hearing. By order entered November 26, 2013, the trial court addressed each of the issues raised in petitioner's amended habeas petition and then denied relief. Petitioner now appeals that order.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"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).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

Petitioner raises four assignments of error on appeal. He first argues that the State breached the terms of his written plea agreement; or, by its actions, lead petitioner to believe that it would not file a recidivist plea against him if he pled guilty to distribution or exhibition of obscene material to a minor. Petitioner also argues that, because his plea agreement stated that the penalty for his plea would be a maximum of five years in prison, he was justified in believing that the State had agreed not to file recidivist charges against him.

Petitioner's plea agreement clearly provides that the State and petitioner agree to argue appropriate sentencing to the court following the entry of a pre-sentence report. Hence, the State did not breach the terms of petitioner's plea agreement because the State did not agree to be limited to the five year term of imprisonment found in West Virginia Code § 61-8A-2(a). Nor did the State's actions justify petitioner's claim that the State led him to believe that it would not file a recidivist information against him. The record on appeal shows that, at petitioner's omnibus hearing, his trial counsel testified that he (counsel) asked the State to waive a recidivist action in exchange for petitioner's plea, but the State would not agree to do so. Trial counsel also testified that, "There was certainly no . . . promise or commitment to us that they were not going to pursue the recidivist. In fact, I think by the time we did this, it was made clear to us that they would, even though it's not . . . part of this plea agreement." Finally, trial counsel testified that at no time did the State do anything that would give petitioner a justifiable belief that recidivist charges would not be pursued. On this record, we cannot say that the circuit court erred when it found that the State did not breach petitioner's plea agreement or give petitioner reason to believe that it would not file a recidivist action if petitioner pled guilty to distribution or exhibition of obscene material to a minor.

Petitioner also claims that the trial court failed to make him aware of all of the possible consequences of his guilty plea. In State ex rel. Appleby v. Recht, we said,

The law is clear that a valid plea of guilty requires that the defendant be made aware of all "the direct consequences of his plea." By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all "possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, . . . ."

. . . .

Under West Virginia Code §§ 61-11-18 & 19, the imposition of a life sentence is not "definite, immediate and largely automatic." The State not only retains the discretion to decide when to pursue recidivist sentencing (or to decide not to so proceed), but the separate nature of the recidivist proceeding requires the State to satisfy a number of requirements, such as: (1) filing a written information, Syl. pt. 1, State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707 (1961); (2) proving "beyond a reasonable doubt that each penitentiary offense, including the

principal penitentiary offense, was committed subsequent to each preceding conviction and sentence[,]" Syl., State v. McMannis, 161 W.Va. 437, 242 S.E.2d 571 (1978); and (3) proving beyond a reasonable doubt to the jury the identity of the defendant. W.Va. Code § 61-11-19; Syl. pt. 4, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

213 W.Va. 503, 511, 583 S.E.2d 800, 808 (2002) (emphasis added). Therefore, pursuant to Appleby, the circuit court had no duty to inform petitioner about a possible recidivist action because such an action was not a direct consequence of his guilty plea. Thus, we find that the circuit court did not err.

Petitioner's next assignment of error is that the circuit court lacked jurisdiction to impose a life sentence upon him because it failed to follow the strict procedural requirements set forth in West Virginia Code § 61-11-19 regarding recidivist proceedings. Specifically, petitioner claims that the recidivist information filed against him (1) set forth...