Montgomery v. Ames
| Decision Date | 26 April 2019 |
| Docket Number | No. 16-0915,16-0915 |
| Citation | 827 S.E.2d 403,241 W.Va. 615 |
| Court | West Virginia Supreme Court |
| Parties | Jasman MONTGOMERY, Plaintiff Below, Petitioner v. Donnie AMES, Superintendent Mt. Olive Correctional Complex, Defendant Below, Respondent |
Joseph T. Harvey, Esq., Bluefield, West Virginia, Counsel for Petitioner
Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent
In 2011, Petitioner Jasman Montgomery waived his constitutional right to grand jury indictment and pled guilty by information to the first-degree murder of seventeen-year-old Matthew Flack. He received substantial benefits for proceeding in this manner including parole eligibility after serving fifteen years in the penitentiary.
In 2016, Petitioner filed a second amended petition for writ of habeas corpus in the Circuit Court of Mercer County, West Virginia, which was denied. On appeal to this Court, Petitioner contended that his guilty plea by information was illegal and improper under the West Virginia Constitution and Rule 7 of the West Virginia Rules of Criminal Procedure (hereinafter " Rule 7"), because he faced a life sentence. Petitioner also asserted his guilty plea was involuntary and his trial counsel provided ineffective assistance when they allowed him to plead guilty before receipt of the ballistics report that revealed Petitioner’s weapon did not fire the fatal shot.
We affirm the circuit court’s decision. Even though the guilty plea by information did not comport with Rule 7, Petitioner implicitly waived that irregularity when he expressly waived his constitutional right to an indictment. Moreover, the detail of who actually fired the shot that killed the victim was legally immaterial to the issues of the voluntariness of Petitioner’s guilty plea and the effectiveness of his counsel considering the homicide occurred when Petitioner and his co-conspirators perpetrated a violent home invasion.
On the evening of January 28, 2011, Petitioner, along with Brandon Flack and Jacob Thomas, planned to commit a robbery. Petitioner and his co-conspirators traveled from Pulaski, Virginia, and drove to Bluefield, West Virginia, with the intent to steal money from a car. Upon their arrival shortly after midnight on January 29, 2011, they could not locate the car. Petitioner and his co-conspirators changed plans and decided to break into the home of David Flack (Brandon Flack’s uncle) and steal money. They donned ski masks, approached the back of the Flack residence, and knocked on the door.
Matthew Flack (Brandon Flack’s cousin) and others were inside the home. Hearing the knock on the back door, Matthew looked through a curtain and saw three masked men standing at the back door. Matthew then ran upstairs to get a gun. As Matthew headed up the stairs, one of Petitioner’s co-conspirators kicked in the back door and they entered the home. Petitioner and Jacob Thomas were armed with handguns. Brandon claimed, and the State did not contest, that he was unarmed. Following Matthew, Brandon ran up the stairs and the two began wrestling. Brandon and Matthew fought on the landing, and Brandon was shot in the scuffle. Petitioner ran up the stairs, pulled out a gun, and shot toward Matthew.
Matthew died as the result of gunshot wounds of his face and chest. The medical examiner found the wounds"could be the result of one discharge fired by a handgun." A bullet was recovered from Matthew’s body and sent for ballistic testing. As explained below, Petitioner believed he shot Matthew in the face (and testified in court that he did) but the ballistics report later revealed that Petitioner’s weapon did not fire the fatal shot.1
Following negotiations, Petitioner agreed to plead guilty to first-degree murder by way of information in October 2011.2 At the time of the plea, the ballistic report was not complete. The plea agreement provided:
Petitioner agreed to the above terms and, in exchange, waived several constitutional rights including the right to be prosecuted by indictment and the right to a jury trial. Although not outlined in the plea agreement, Petitioner also received the benefit of the State’s agreement to file a motion with the circuit court to strike the language "with the use of a firearm" from the information to avoid a firearm enhancement penalty against Petitioner. The circuit court granted this motion.
At the plea hearing on October 17, 2011, Petitioner asserted, under oath, that he was entering the plea knowingly, voluntarily, and of his own free will; that no one had forced or threatened him to do so; that his counsel informed him of the charges and consequences of pleading guilty; and that he was satisfied with the advice and services of his counsel. Petitioner also stated that he had reviewed and understood the waiver of his right to an indictment, and indicated that he wanted to proceed, knowing he was waiving or giving up this right. Further, Petitioner signed a Waiver of Indictment in open court and consented to proceeding by way of information. Counsel informed the court during the guilty plea that "[b]allistic results aren’t back yet, but [Petitioner] has sufficient information at length to enter in this plea voluntarily, and he—we went over his rights with him yesterday." Petitioner agreed.
The circuit court agreed to accept the binding plea agreement, and on November 28, 2011, sentenced Petitioner to life in prison, with the recommendation of mercy, whereby Petitioner would be eligible for parole after having served fifteen years. See W. Va. R. Crim. P. 11(e) ().
Pursuant to the plea, Petitioner testified for the State at co-defendant Brandon Flack’s trial. Petitioner discussed how the men planned the robbery, traveled to the Flack residence, and executed a forced entry. State v. Flack , 232 W. Va. 708, 711, 753 S.E.2d 761, 764 (2013). Petitioner stated that he shot Matthew Flack. Id . During cross-examination by defense counsel, Petitioner admitted that he was motivated to plead guilty before his co-defendants could because he did not want to go to the penitentiary for the rest of his life without the possibility of parole.
A jury found Brandon Flack guilty of all charges set forth in the indictment: first-degree murder, burglary, first-degree robbery, and conspiracy. Because the State had pursued the murder charge based on a felony murder theory, the trial court merged the counts of first-degree murder and burglary, resulting in the dismissal of the burglary conviction. Mr. Flack was sentenced to life imprisonment with eligibility for parole after fifteen years for first-degree murder, a determinate term of forty years for first-degree robbery, and an indeterminate term of one to five years on the conspiracy offense. The trial court ordered all those sentences to run consecutively. Id . at 712, 753 S.E.2d at 765.3
Petitioner filed a petition for habeas corpus in August 2014. Petitioner was appointed counsel and subsequently filed an amended petition in October 2014, wherein he raised four claims: (1) the guilty plea to first-degree murder by information was improper pursuant to Rule 7 ; (2) his guilty plea was involuntary; (3) ineffective assistance of counsel, and (4) excessive bail. Petitioner ultimately withdrew this amended petition.
In March 2016, Petitioner filed a second amended petition and alleged that pleading guilty to first-degree murder by information was illegal and improper because it is an offense punishable by life imprisonment. Petitioner relied upon Rule 7, which provides: 4 Id. , in part.
Petitioner also argued that his trial counsel was ineffective because they allowed him to plead guilty by information, and counsel advised him to plead guilty even though the ballistics report was not completed. Petitioner stated that the ballistics report ultimately revealed that the bullet removed from the victim was not fired by Petitioner’s handgun. Petitioner also noted that the Post-Mortem Investigation confirmed that the victim died of two gunshot wounds that were inflicted by the same bullet.
With regard to relief, Petitioner requested that the circuit court consider placing him on probation or home confinement. In the alternative, Petitioner requested that his counsel be allowed to negotiate a more reasonable plea agreement with ...
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...the form of an indictment or an information, is an essential requisite of a circuit court’s jurisdiction." Syllabus Point 3, Montgomery v. Ames , 241 W. Va. 615, 827 S.E.2d 403 (2019). Clearly, Montgomery is inapplicable as Petitioner was properly charged in an indictment. Petitioner’s own ......
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