Jordan v. Ballard, 12-1015
| Decision Date | 01 October 2013 |
| Docket Number | No. 12-1015,12-1015 |
| Parties | Kevin Scott Jordan, Petitioner , Petitioner v. David Ballard, Warden, Respondent Respondent |
| Court | Supreme Court of West Virginia |
Petitioner Kevin Scott Jordan, by counsel Michael Farnsworth Jr., appeals the Circuit Court of Wood County's order entered on June 6, 2012, denying his amended petition for writ of habeas corpus. Respondent Warden David Ballard, by counsel Marland Turner, filed a response in support of the circuit court's decision, to which petitioner replied. On appeal, petitioner alleges that the circuit court erred in denying his amended petition for writ of habeas corpus because he was improperly convicted of forgery of a public document, the jury was improperly instructed, and he received ineffective assistance of counsel.
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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
In April of 2006, petitioner and his co-defendant robbed an elderly man with the threat of violence. Following an investigation, petitioner was arrested. At the time of petitioner's arrest he provided a fake name and signed three separate fingerprint cards with that false name. As a result, petitioner was indicted in September of 2006 on one count of first degree robbery in violation of West Virginia Code § 61-2-12; one count of conspiracy to commit first degree robbery in violation of West Virginia Code § 61-10-31; three counts of forgery of a public record, certificate, return or attestation of court or officer in violation of West Virginia Code § 61-4-1; and three counts of forgery in violation of West Virginia Code § 61-4-5. Following a two-day jury trial in December of 2006, petitioner was convicted on all counts. Petitioner was sentenced to a term of incarceration of fifty years for first degree robbery, plus an additional five years on a recidivist information filed against petitioner. Additionally, petitioner was sentenced to a term of incarceration of one to five years for conspiracy to commit first degree robbery and two to ten years for each of the three counts of forgery of a public record. Petitioner's sentences for forgery of a public record were to be served concurrently with each other, but consecutive to the first degree robbery and conspiracy charges. Petitioner filed his pro se petition for writ of habeas corpus in March of 2009. After the appointment of counsel, petitioner filed his amended petition for writ of habeas corpus on March 1, 2010. After conducting two omnibus evidentiary hearings in an effort to allow both parties to properly present arguments, the circuit court enteredits order denying petitioner's amended petition for habeas relief on June 6, 2012. This appeal followed.
Petitioner raises three assignments of error on appeal. First, petitioner argues that a plain reading of West Virginia Code §§ 61-4-1 and 61-4-5 show that the legislature intended to create two separate and distinct crimes: forgery of a public document, and forgery. Petitioner also argues that the circuit court erred because it incorrectly interpreted West Virginia Code § 61-4-1 to include the preparation or alteration of a fingerprint card. Petitioner argues that the indictment for forgery of a public record, certificate, return or attestation of court or officer was defective because it did not allege how a fingerprint card was a public record, certificate, return or attestation of court or officer.
Second, petitioner argues that the circuit court improperly interpreted West Virginia Code § 61-4-1 and improperly instructed the jury that signing a fingerprint card with a false name was sufficient to constitute the counterfeit production of a public record, certificate, return, or attestation of a public officer. Finally, petitioner argues that he received ineffective assistance of counsel because his trial counsel failed to adequately communicate and render legal advice regarding the plea offer made by the State.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:
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).
After careful consideration of the parties' arguments, this Court concludes that the circuit court did not abuse its discretion in denying the amended petition for writ of habeas corpus. The circuit court's order reflects its thorough findings of fact and conclusions of law concerning petitioner's arguments raised on appeal. A review of the entire record supports that the circuit court did not improperly interpret West Virginia Code §§ 61-4-1 and 61-4-5. The circuit court's jury instruction followed the language of the relevant statutes. Finally, petitioner did not receive ineffective assistance of counsel. Petitioner represents that he discussed the plea offer with his attorney. Additionally, petitioner's trial attorney testified that she discussed the plea agreement with petitioner on two different occasions. The record on appeal does not support petitioner's assignments of error. Having reviewed the circuit court's "Amended Order Denying Petition For Habeas Corpus Relief" entered on June 6, 2012, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.
For the foregoing reasons, we affirm.
WARDEN, MOUNT OLIVE CORRECTIONAL CENTER Respondent
OPINION AND ORDERPresently pending before the Court this 4th day of June, 2012, is the Petitioner's Amended Petition for a Writ of Habeas Corpus Ad Subjiciendum. This Amended Petition was filed as a result of a jury verdict finding the Petitioner guilty of Robbery in the First Degree, and other less serious offenses.
On the 23rd day of April, 2006, the Petitioner was charged, by warrant in the Magistrate Court of Wood County, with Robbery in the First Degree and three offenses of Forgery of a Public Document. A preliminary hearing was held on May 2, 2006, and the Petitioner was bound over to the Wood County Grand Jury.
The Petitioner was then indicted on September 15, 2006, by a Wood County Grand Jury on 8 charges: Count One: Robbery in the First Degree in violation of W.Va. Code 61-2-12; Count Two: Conspiracy to Commit Robbery in the First Degree in violation of W.Va. Code 61-10-31; Count Three: Forgery in violation of W.Va. Code 61-4-5; Count Four: Forgery of Public Record, Certificate, Return or Attestation of Court or Officer in violation of W.Va. Code 61-4-1; Court Five: Forgery in violation of W.Va. Code 61-4-5; Count Six: Forgery of Public Record,Certificate, Return or Attestation of Court or Officer in violation of W.Va.Code 61-4-1; Count Seven: Forgery in violation of W.Va. Code 61-4-5; and, Count Eight: Forgery of a Public Record, Certificate, Return or Attestation of Court or Officer in violation of W.Va.Code 61-4-1.
The Petitioner was arraigned on the Indictment on September 22, 2006. Trial was held on December 5 and 6, 2006, and the jury returned a guilty verdict on each of the eight counts of the Indictment.
On April 20th, 2007, the Petitioner was sentenced to a term of fifty (50) years on Count One, that being the Robbery in the First Degree conviction, with five (5) years added due to a recidivist information filed against the Petitioner. This made the Petitioner's sentence on Count One a fifty-five (55) year sentence. Consecutive to this sentence was a period of confinement of not less than one (1) nor more than five (5) years on Count Two, that being the Conspiracy to Commit Robbery in the First Degree.
The State of West Virginia maintained, and the Court agreed, that Counts Three and Four were alternative pleading, Counts Five and Six were alternative pleading and Counts Seven and Eight were alternative pleading. Therefore, at sentencing, and upon Motion of the State, Counts Three, Five and Seven (each charging the offense of Forgery) were Dismissed and the Petitioner was not sentenced on those Counts. However, the Petitioner was sentenced to a term of not less than two (2) nor more than ten (10) years for each of the three convictions of Forgery of a Public Record, Certificate, Return or Attestation of Court or Officer, as charged in Counts Four, Six and Eight. These sentences were to be served concurrent with each other, but consecutive to the sentences imposed for Counts One and Two.
FACTS UNDERLYING THE INDICTMENT:
It was alleged by the State that the Petitioner, and a co-defendant, James Eric Wine, robbed an elderly man, Maywood Burdette, of his wallet. This robbery was alleged to have occurred by the Petitioner and his co-defendant on a city street in Parkersburg just after dark, while the elderly gentleman was walking in his neighborhood. It was alleged that the co-defendant grabbed Mr. Burdette from behind in a choke-hold while the...
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