Omarrah v. Ames, No. 18-0754

• Decision Date: 17 January 2020
• Docket Number: No. 18-0754
• Parties: Edward Omarrah, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent
• Court: West Virginia Supreme Court

Edward Omarrah, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent Below, Respondent

No. 18-0754

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

January 17, 2020

(Mercer County 15-C-427-DS)

MEMORANDUM DECISION

Petitioner Edward Omarrah, by counsel Paul R. Cassell, appeals the July 26, 2018, order of the Circuit Court of Mercer County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order.¹ On appeal, petitioner argues that the circuit court erred in denying his petition for habeas relief based on his claims of ineffective assistance of counsel and an involuntary guilty plea.

The 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 August of 2008, petitioner engaged in a domestic argument with the victim.² During the argument, petitioner threatened the victim. The following day, petitioner retrieved his gun from a pawn shop and purchased a holster from a second pawn shop. Petitioner returned home. That same day, another argument ensued between petitioner and the victim. During this argument, petitioner drew the weapon from his holster, disengaged the safety, and shot the victim in the chest, killingher. Petitioner initially asserted that the gun accidentally fired, but later confessed that he intentionally shot the victim out of anger.

In October of 2008, petitioner was indicted on one count of first-degree murder. Petitioner submitted to a competency and criminal responsibility evaluation and a written evaluation report was filed in January of 2009. The evaluator determined that petitioner had an extensive history of psychiatric diagnoses and treatments. The evaluator also determined that petitioner suffered from impulse control disorder, which may have affected his ability to form the intent to murder the victim. The evaluator opined that petitioner evidenced diminished capacity and that his "circumstance may be viewed in two ways."

First, the evaluator suggested that petitioner experienced a volatile relationship with the victim and "feared losing her." "Being insecure and jealous," petitioner decided that, if he could not have her, no one could have her. Notably, a witness overheard petitioner make a similar statement on the day prior to the shooting. The evaluator further opined that these emotions motivated petitioner to reclaim his gun from the pawn shop and load it before he entered the home. Petitioner confronted the victim about their relationship and shot her when she did not respond as he desired.

Second, the evaluator suggested that, on the day of the shooting, petitioner had sufficient money to reclaim his gun from the pawn shop. While petitioner was handling the gun in the bedroom, the victim confronted him and accused him of sexual misconduct involving a twelve-year-old girl. The topic was especially sensitive to petitioner given his history of being a victim of sexual molestation as a child and his father's imprisonment for sexually molesting petitioner's sister. Petitioner became enraged and entered a "blackout" state during which he shot the victim. Ultimately, the evaluator concluded that petitioner was competent to stand trial and did not lack the substantial capacity to appreciate the wrongfulness of his actions or conform his conduct to the requirements of the law.

On April 16, 2009, petitioner entered into a binding plea agreement with the State in which petitioner agreed to plead guilty to a charge of first-degree murder in return for a life sentence with mercy.³ The circuit court accepted the plea agreement, and petitioner waived his right to a presentence investigation report. On the same day, the circuit court ordered petitioner to serve a life sentence with the possibility of parole after fifteen years of incarceration, which was consistent with the terms of the plea agreement. Petitioner did not appeal this order.

In December of 2015, petitioner filed the instant petition for a writ of habeas corpus and requested appointment of counsel. Counsel was appointed in January of 2016. Petitioner filed an amended petition in November of 2016. In the amended petition, petitioner alleged that he received ineffective assistance of counsel based upon counsel's failure to explain a diminished capacity defense to him and failure to provide a detailed explanation of the plea, including the term ofincarceration. Petitioner further alleged that his guilty plea was involuntary and that counsel failed to discuss his appeal rights with him.

The circuit court held an omnibus hearing in November of 2016. Petitioner testified that he had a history of mental illness. Further, he testified that he had some difficulty reading and writing. Petitioner claimed that when he entered his guilty plea, he did not understand the terms. He testified that his counsel only discussed the plea with him for three minutes and that counsel informed him he would be incarcerated for only seven years and six months. Petitioner also testified that counsel never explained the diminished capacity defense to him and that no evidence was ever reviewed with him. Further, petitioner testified that his counsel filed forms in support of his guilty plea, but that these forms were not in his handwriting. On cross-examination, petitioner clarified that counsel read the forms to support the guilty plea to him, that he provided the answers, and that, due to his poor spelling and handwriting, counsel recorded petitioner's answers. The circuit court asked petitioner if he lied during the plea hearing and he responded affirmatively. The circuit court noted that "it was established through testimony that . . . petitioner may have issues remembering the earlier proceedings."

Ultimately, the circuit court denied petitioner relief on all grounds by order entered on July 26, 2018. Regarding petitioner's claim that his plea was involuntary, the circuit court cited to extensive portions of the plea hearing transcript, wherein the circuit court informed petitioner that he would be subject to a fifteen-year-term of incarceration before becoming parole eligible, and that petitioner acknowledged that sentence multiple times. The circuit court also cited to a portion of the transcript during which it described petitioner's constitutional rights that he would waive by pleading guilty and informed petitioner that he was entitled to appeal the circuit court's final sentencing order. Further, during the plea hearing, petitioner testified that he was taking medication, but confirmed through questioning that the medication did not affect his ability to understand the proceedings. Additionally, the transcript provided that petitioner indicated he was satisfied with his counsel and expressed no complaints with counsel. The circuit court found that petitioner was adequately represented, that he was found criminally responsible for his actions through the opinion of the forensic evaluator, and that he was aware of the rights he was waiving. The circuit court concluded that petitioner's claim that he did not knowingly, voluntarily, and intelligently enter into the plea agreement was without merit.

Regarding petitioner's claim of ineffective assistance of counsel, the circuit court cited its questioning of trial counsel in reference to the diminished capacity defense. Counsel stated, "Judge, there was a diminished capacity defense explored. The State's offer was letting him plea[d] and we took that and explained it to [petitioner] and he made that decision." The circuit court asked petitioner if he believed taking the plea was in his best interest and, at the plea hearing, petitioner agreed that the plea was in his best interest. Next, the circuit court considered the evidence against petitioner, including his confession to law enforcement that he intentionally shot the victim.⁴ Thecircuit court also found that the State located several witnesses who would testify that petitioner "stated if . . . the victim[] was not going to be with him she was not going to be with anyone and that [the victim] was in an abusive relationship with him." Further, the circuit court found that petitioner's counsel adequately investigated the case; had no good faith basis to claim a diminished capacity or any other defense; that petitioner was aware of the diminished capacity defense and agreed it was not a good defense; and that counsel obtained the possibility of parole for petitioner, "despite overwhelming evidence" to support a conviction. Accordingly, the circuit court concluded that petitioner's ineffective assistance of counsel claim was without merit.

Finally, the circuit court held that petitioner waived his right to appeal his conviction except on the basis of the voluntariness of his guilty plea and the legality of his sentence. The circuit court noted its earlier finding that petitioner's plea was voluntary and concluded that petitioner's appeal would have been meritless if filed. Additionally, the circuit court determined that petitioner did not request counsel to file an appeal. Petitioner now appeals the circuit court's order denying his petition for writ of habeas corpus.

Our review of the circuit court's order denying petitioner's petition for a writ of habeas corpus is governed by the following standard:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we

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