Schofield v. West Virginia Dept. of Corrections

Decision Date15 March 1991
Docket NumberNo. 19708,19708
Citation406 S.E.2d 425,185 W.Va. 199
CourtWest Virginia Supreme Court
PartiesKathy Jo SCHOFIELD v. WEST VIRGINIA DEPARTMENT OF CORRECTIONS.
Dissenting Opinion of Justice Workman

July 29, 1991.

Syllabus by the Court

1. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case 2. "W.Va. [C]onst., art. 8 § 1, W.Va. Const., art. 8 § 3, and W.Va. Const., art. 8 § 6 when read together provide an orderly and exclusive system by which errors of circuit courts may be corrected only by the West Virginia Supreme Court of Appeals and not by other circuit courts. One circuit court may not directly or indirectly interfere with the orders of another circuit court unless specifically provided by statute or civil rule regardless of how erroneous such orders may be." Syllabus Point 2, State ex rel. Shamblin v. Dostert, 163 W.Va. 361, 255 S.E.2d 911 (1979).

                [185 W.Va. 200] will be regarded as harmless error."   Syllabus Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)
                

3. "A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case, which renders such judgment voidable merely but not void, can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding." Syllabus Point 1, State ex rel. Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576 (1964).

4. When a circuit court determines in a post-conviction habeas corpus proceeding that assistance of counsel in a homicide was ineffective, the circuit court has no authority to modify the original final judgment to award a recommendation of mercy when none was awarded by the jury that heard the case.

Michele L. Rusen, Asst. Pros. Atty., Robert Waters, Asst. Pros. Atty., Parkersburg, for West Virginia Dept. of Corrections.

Rom Rodd, Milton Zelermyer, Morgantown, for Kathy Jo Schofield.

NEELY, Justice:

Kathy Jo Schofield was convicted of first-degree murder without a recommendation of mercy by a Wood County jury in December 1982. Her conviction was affirmed by this Court in State v. Schofield, 175 W.Va. 99, 331 S.E.2d 829 (1985). In 1987 Ms. Schofield petitioned the Circuit Court of Monongalia County for post-conviction habeas corpus relief under W.Va.Code, 53-4A-1 [1967] et seq. Ms. Schofield's amended habeas corpus petition alleged that her trial counsel were ineffective in three areas: (1) they failed to deal adequately with the issue of mercy by offering evidence, instructions and argument; (2) they failed to offer evidence before the jury on the issue of whether her statements were voluntary; and (3) they failed to represent her adequately with respect to a proposed plea agreement. The petitioner asked that her conviction be vacated and that she be permitted to plead under the proposed plea agreement, or in the alternative, that she be granted a new trial.

The Circuit Court of Monongalia County conducted a hearing and reviewed the depositions of defendant's trial counsel. Based on the evidence presented, the circuit court found trial counsel to be ineffective in a "limited but significant area," and modified the final judgment of the Circuit Court of Wood County by adding a recommendation of mercy. No new trial was ordered, nor was the matter remanded to the Circuit Court of Wood County. The State of West Virginia now appeals, arguing that the jury's verdict of guilty of first-degree murder with no recommendation of mercy should be reinstated. We find that the circuit court's findings of fact were not contrary to the weight of the evidence; however, we reverse the circuit court's award of a recommendation of mercy and remand the case to Wood County for a new trial.

I

Kathy Jo Schofield was arrested by the Parkersburg Police Department on 4 May 1982 and charged with the murder of James Preston Gill. Shortly thereafter, David Finnerin, a Parkersburg lawyer, was appointed to represent Ms. Schofield. On 20 September 1982, William Powell was appointed as co-counsel for Ms. Schofield.

The evidence proved that Ms. Schofield had entered the apartment of James Gill Ms. Schofield appealed her conviction to this Court. In that appeal, Ms. Schofield's appellate counsel challenged the validity of Ms. Schofield's arrest, the failure to conduct a competency hearing, the refusal to give an insanity instruction, and the giving of an instruction which did not explain to the jury that without a recommendation of mercy, Ms. Schofield would never be eligible for parole. Each of these alleged errors was discussed and rejected by this Court. State v. Schofield, supra.

                [185 W.Va. 201] and shot him in the back.  In addition to the physical evidence connecting the defendant to the murder weapon at the crime scene, Ms. Schofield admitted at trial that she had shot Mr. Gill, but asserted that it was done in self-defense.  This statement was contradicted, however, by her earlier statements to the police that Mr. Gill had been shot by a nonexistent person named "Buddy" and that she had shot him "to see what it was like to kill someone."  State v. Schofield, supra, 175 W.Va. at 100, 331 S.E.2d at 833, 834.   Ms. Schofield, although of limited intelligence, was found by three different mental health professionals to be competent to stand trial and criminally responsible
                

In connection with the habeas corpus petition, both original trial counsel were deposed and later testified at a hearing. Mr. Finnerin testified that he had practiced law since 1971, and that in 1982 he had been on the list of local lawyers who voluntarily accepted appointments to represent indigent criminal defendants for approximately ten years. Mr. Finnerin stated that the defendant was "probably the most difficult client" he'd ever had. As Mr. Finnerin stated:

The key problem was that she did not one time while I was representing her ever consistently tell me the same thing that she had earlier told me. She told me so many different things, and so many difference [sic] versions of what had happened, and so many different versions of her life history that each one was different. She was never able to consistently tell me anything. And that presented a great problem in trying to prepare for a trial because one day she would say one thing, the next day she would say another, the next day she would not want to talk with me, she'd get angry with me, the next day I'd be her friend. She was just very difficult.

Mr. Finnerin testified that he conducted an investigation into the circumstances surrounding the shooting, as was his usual practice, rather than hiring a private investigator. Mr. Finnerin stated that he talked with local people about the character of the victim, but found no confirmation with regard to Ms. Schofield's claim that James Gill was her pimp. Mr. Finnerin visited the scene of the crime, pursued the "Buddy" story, looked for the mythical Buddy whom the defendant stated had helped her rob Mr. Gill and then had shot him, and then monitored the police's inquiry into that possibility. In the end, however, Mr. Finnerin was never able to corroborate any aspect of Ms. Schofield's story.

During the course of Mr. Finnerin's preparation for trial, Mr. Finnerin obtained a plea agreement from the State under which Ms. Schofield would plead guilty to second-degree murder. Mr. Finnerin met with the defendant and her parents several times to explain the matter and to prepare for the plea. The plea agreement fell apart, however, when the judge inquired if Ms. Schofield was aware of the penalties for the lesser included offenses of voluntary manslaughter and involuntary manslaughter. After adjourning temporarily so that Mr. Finnerin could explain those offenses to her, the defendant became angry with her counsel and ultimately refused to enter a plea to second-degree murder despite Mr. Finnerin's advice to her that it was "the best that [she] could ever hope to get." As Mr. Finnerin explained:

I took her out in the hallway--we were in the old courthouse then--and sat down with her. I went over the elements of each of these other offenses and I explained them to her. She wanted one of them. It was like a kid in a candy store. Well, I'm not going to plead to this. You tell the prosecutor I want this one. She wanted the voluntary or involuntary, whatever the least penalty would have At this point Mr. Finnerin asked that additional counsel be appointed to help him deal with the defendant. The Court then appointed Mr. Powell, who had graduated from Duke Law School and practiced law since 1975. As Mr. Finnerin stated, the trial court carefully considered whom he would appoint to assist with the representation of Ms. Schofield and ultimately chose Mr. Powell because the Court thought that Mr. Powell had successfully represented difficult juvenile clients in the past.

[185 W.Va. 202] been. She was very petulant about it and childish.

After becoming involved in the case, Mr. Powell advised the defendant to accept the second-degree murder plea offer, and Mr. Powell confirmed that the defendant would not plead because she insisted that she wanted the one to five year sentence and couldn't understand why she couldn't have it. Mr. Powell continued to urge her to plead to second-degree murder and repeatedly told her that the prosecutor would not accept a plea to voluntary manslaughter and that, in his opinion, ...

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12 cases
  • State v. Trail
    • United States
    • West Virginia Supreme Court
    • October 7, 2015
    ...serving no less than fifteen years of his or her life sentence.18In her dissenting opinion in Schofield v. West Virginia Department of Corrections,185 W.Va. 199, 207, 406 S.E.2d 425, 433 (1991), Justice Workman pointed out that “[t]he determination of whether a defendant should receive merc......
  • State v. Trail
    • United States
    • West Virginia Supreme Court
    • October 7, 2015
  • State v. LaRock
    • United States
    • West Virginia Supreme Court
    • March 20, 1996
    ...constitutionality of bifurcation and in each instance a solid majority has upheld its validity. See Schofield v. West Virginia Dept. of Corrections, 185 W.Va. 199, 406 S.E.2d 425 (1991); Leach, supra (Neely, J., dissenting); Rasnake, supra (Neely, J., and Wilson, J., dissenting). The langua......
  • State Of West Va. v. Mclaughlin, 34860.
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    • West Virginia Supreme Court
    • June 8, 2010
    ...deserves.”). 219 W.Va. at 752, 639 S.E.2d at 844. Further, in a dissenting opinion to Schofield v. West Virginia Department of Corrections, 185 W.Va. 199, 406 S.E.2d 425 (1991) (Workman, J., dissenting), the following rationale for a bifurcated proceeding was set forth: a bifurcated hearing......
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