Norwood v. Ames

• Decision Date: 16 August 2021
• Docket Number: 20-0077
• Court: Virginia Supreme Court
• Parties: Travis R. Norwood, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

Travis R. Norwood, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

No. 20-0077

Supreme Court of Appeals of West Virginia

August 16, 2021

(Greenbrier County 19-C-130)

MEMORANDUM DECISION

Petitioner Travis R. Norwood, by counsel Justin M. Collin, appeals the December 31, 2019, order of the Circuit Court of Greenbrier County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent of Mount Olive Correctional Complex, by counsel Lara Bissett, filed a response 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 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2016, petitioner was indicted on one count of delivery of heroin. John C. Anderson II (hereinafter "trial counsel") was appointed to represent petitioner. Petitioner's case proceeded to trial on the felony drug charge. During the trial, petitioner's trial counsel cross-examined all prosecution witnesses and argued during his closing argument that the chain of custody of the heroin had not been established and that the evidence was insufficient to find beyond a reasonable doubt that petitioner had committed the crime. The jury found petitioner guilty of the charged offense.

Following petitioner's conviction, the State filed a recidivist information asserting that petitioner had previously been convicted of two felonies in Virginia. The first prior conviction was for the felony offense of eluding police in 2008, in violation of Virginia Code § 46.2-817. Petitioner was sentenced to four years of incarceration on that charge, but the Virginia court suspended three years and eight months of that sentence and ordered that petitioner be placed on supervised probation following his release from incarceration. The second prior conviction was for the felony offense of selling, giving, distributing, or possessing with the intent to sell, give, or distribute more than one-half ounce, but not more than five pounds of marijuana in 2016 in violation of Virginia Code § 18.2-248.1. Petitioner was sentenced to two years of incarceration on that charge, but the Virginia court directed that the balance of the sentence be suspended after petitioner served sixty days in jail and ordered that petitioner be placed on unsupervised probation.

Days after the recidivist information was filed, petitioner's trial counsel filed a motion to withdraw from his representation of petitioner. The court granted the motion, and ultimately, Jeffrey S. Rogers (hereinafter "recidivist counsel") was appointed to represent petitioner. Petitioner also retained another attorney to represent him, E. Lavoyd Morgan, Jr. (hereinafter "retained counsel"); however, petitioner's retained counsel never entered an appearance on behalf of petitioner.^[1]

Petitioner was represented at the recidivist trial by his recidivist counsel. The circuit court instructed the jury in the recidivist trial that the prior two Virginia convictions were felony convictions "for which a penitentiary sentence could be imposed under the laws of the State of West Virginia." The jury found that petitioner was the same person who was previously convicted of the two felony offenses in Virginia. Thereafter, the court had the following discussion with petitioner's recidivist counsel:

THE COURT: Should we proceed to sentencing at this point or do you want to have time to discuss the issue prepare any - you may have some motions you want to make before we get to that point. I'll be glad to defer sentencing to give you the opportunity to do that

MR. RODGERS: Your Honor, I've discussed all that with Mr Norwood at length last week, and I think he's aware that he would face sentencing today inasmuch as there is no discretion in the statute, and he's prepared to be sentenced

THE COURT: Well, the defendant does have the opportunity if he wishes to make a proportionality type argument. I would note that the offenses for which the defendant has been found to have been convicted in the Commonwealth of Virginia include one that involves an element of recklessness and danger to the public, which would be akin to the danger presented and the potential violence associated with driving under the influence or similar type of conviction, but if you want to make the argument, Mr. Rodgers, I want to give you every opportunity to present your case and to flesh it out as fully and to make whatever record you want to make

MR. RODGERS: He's prepared to be sentenced today, Your Honor, and waive that.

THE COURT: Well, Mr. Rodgers, do you wish to be heard on the issue of sentencing?

MR. RODGERS: No, Your Honor.

THE COURT: Mr. Norwood, is there anything that you would like to say by way of mitigation of your punishment or otherwise?

THE DEFENDANT: Nothing I can think of, Your Honor.

THE COURT: Anything that you'd like to put on the record that the Supreme Court can see if you choose to file an appeal in this case?

THE DEFENDANT: No, thank you, Your Honor.

Thereafter, the court sentenced petitioner to a term of life in the penitentiary pursuant to West Virginia Code § 61-11-18(c) (2000).^[2]

Petitioner filed a direct appeal, arguing, among other things, that his sentence of life in prison violated the proportionality clause contained in Article III, Section 5 of the West Virginia Constitution.^[3] The Court concluded that petitioner's sentence did not violate proportionality principles, finding that petitioner's conviction for evading police carries a risk of violence; however, the Court noted:

Defendant Norwood was convicted of both prior felonies in the Commonwealth of Virginia. This Court has previously held, "[w]hether the conviction of a crime outside of West Virginia may be the basis for application of the West Virginia Habitual Criminal Statute, W.Va. Code, 61-11-18, -19 (1943), depends upon the classification of that crime in this State." Syllabus Point 3, Justice v. Hedrick, 177 W.Va. 53, 350 S.E.2d 565 (1986). See also State v. Lawson, 125 W.Va. 1, 5, 22 S.E.2d 643, 645 (1942)("It is conceivable that there may be crimes which are punishable by confinement in a penitentiary in other jurisdictions and that the same crimes would be classed as misdemeanors under our laws. In such event, it would seem proper that the law of this State should be considered in determining the grade for the crimes for which there has been a former conviction.").

The trial transcript shows that the circuit court discussed this exact point at length with counsel on the record, even granting a recess which afforded counsel the further opportunity for review. No objection was lodged, and - while the court did not specify what West Virginia felony was analogous to the Virginia evading police statute - the court instructed the jury that both prior Virginia convictions would constitute felonies "for which a penitentiary sentence could be imposed under the laws of the State of West Virginia."

State v. Norwood, 242 W.Va. 149, 159 n.3, 832 S.E.2d 75, 85 n.3 (2019). The Court affirmed petitioner's conviction and sentence.

On October 3, 2019, petitioner, without the assistance of counsel, filed a petition for writ of habeas corpus in the circuit court. Therein, he argued three separate ineffective assistance of counsel claims: (1) that he was denied effective assistance by his retained counsel when his retained counsel "was retained for the recidivist trial, and failed to show up, forcing me to have a recidivist trial with court appointed counsel," and when his retained counsel "also failed to file a[n] order [substituting] counsel with the clerk of circuit court on my behalf"; (2) that he was denied effective assistance of counsel by his recidivist counsel when his recidivist counsel "convinced me [to] waive the proportionality challenge on a life sentence, for a felony conviction that may carry a sentence of 1-15 years in the penitentiary, but does not require mandatory confinement"; (3) that he was denied effective assistance of counsel by his trial counsel when his trial counsel "made no [pretrial] motion," "made zero objections during my trial," and "had a conflict of interest that would [have] prejudice[d] him."

On December 31, 2019, the circuit court entered an order summarily denying the petition. With regard to petitioner's claim concerning his retained counsel, the circuit court found that the trial court had not "disqualif[ied] any attorney chosen by the Petitioner who sought to appear on his behalf, nor did the trial court otherwise deprive the Petitioner of the opportunity to retain counsel of his own choosing." The circuit court further found that petitioner had not explained what his retained counsel would have done differently from his recidivist counsel or how the outcome of his recidivist trial or sentencing would have been different had his retained counsel been involved. The court concluded that petitioner "was not deprived of effective assistance of counsel merely because he did not have the benefit of his preferred counsel."

With regard to petitioner's argument concerning the performance of his recidivist counsel, the circuit court said:

One might reasonably question why the Petitioner's counsel did not at least put forward an

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