Smith v. Ballard, 16-0763

• Decision Date: 09 June 2017
• Docket Number: No. 16-0763,16-0763
• Parties: Roger Dwayne Smith, Petitioner Below, Petitioner v. David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent
• Court: West Virginia Supreme Court

Roger Dwayne Smith, Petitioner Below, Petitioner v. David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

No. 16-0763

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 9, 2017

(Berkeley County 08-C-1284)

MEMORANDUM DECISION

Petitioner Roger Dwayne Smith, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of Berkeley County's "Final Order Partially Granting the Amended Petition for Habeas Corpus as to Counts Five and Seven of the Indictment, and Denying the Remainder of the Amended and Supplemental Petition" entered on July 11, 2016. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Benjamin M. Hiller, filed a response. 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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Factual and Procedural Background

In 2006, petitioner was indicted on the following charges: daytime burglary; possession of a stolen vehicle; felony murder; malicious wounding; attempted murder; first degree robbery; and fleeing an officer on foot. Petitioner was accused of breaking into the home of Mary Stewart. While petitioner was in the home, Ms. Stewart's fourteen year old daughter, Miana, returned from school. Petitioner accosted Miana and tied her up in the basement. Ms. Stewart arrived at the home shortly thereafter, and petitioner beat her with a baseball bat and tied her up in the basement next to Miana. Petitioner then strangled Miana, killing her. When petitioner left the basement to continue the robbery, Ms. Stewart managed to escape to a neighbor's house. Petitioner fled the house, but was apprehended outside.

Two pretrial motions are relevant for the purposes of this appeal. First, petitioner sought a change of venue from Berkeley County. Contradicting petitioner's argument for a change of venue, petitioner's expert witness concluded that a jury could be properly selected if a large enough panel of potential jurors (100 to 200) were brought in for jury selection. Accordingly, the circuit court denied the motion for a change of venue with the caveat that if a jury could not be seated after bringing in a large number of potential jurors, then it would consider other options. In the second motion, petitioner requested that the guilt and mercy phases of the trial be bifurcated. The State did not object, and the circuit court granted the motion.

However, prior to trial, and without any agreement from the State, petitioner pled guilty to the charges in the indictment. Petitioner's trial counsel informed the circuit court that petitioner's decision to plead guilty without an agreement was not based on their advice, but was petitioner's idea. Petitioner's counsel advised the court as follows:

I would represent to the court, Judge, that this is not my recommendation directly or [co-counsel's] to [petitioner]. This is a decision that he insisted on doing. It is not completely against the advice of counsel in the sense that I think that he does in accepting responsibility and showing remorse preserve an argument to a jury for mercy on the bifurcated part of the proceedings next week.

The circuit court then advised petitioner of the rights that he would forfeit by pleading guilty. The circuit court further explained to petitioner that he preserved his ability to present his case for mercy to a jury with respect to the first degree murder charge. Petitioner then entered guilty pleas to each charge in the indictment except for daytime burglary, which was subsumed into the felony murder conviction.

The mercy phase proceeded to a two day jury trial in December of 2006. After hearing the evidence, the jury did not recommend that petitioner receive mercy. Following a sentencing hearing three months later, the circuit court sentenced petitioner to life in prison without the possibility of parole for first degree murder; a determinate sentence of eighty years in prison for first degree robbery; and statutory indeterminate prison sentences for each of the other felony convictions. The circuit court ordered that all sentences be served consecutively. Finally, the court ordered that petitioner make restitution in the amount of $7,505.00.¹

Petitioner filed an appeal with this Court in which he raised the following assignments of error: (1) that his due process rights were violated by allowing a jury to decide whether to grant mercy without any standards; (2) that his due process rights are violated without this Court's mandatory review his life without mercy sentence; (3) that his life without mercy sentence should be reversed; (4) that the trial court committed reversible error by denying his change of venue motion; (5) that the trial court committed reversible error by granting the State's motion to strike Juror Byrezinski for cause; (6) that petitioner received prejudicial treatment from the prosecutor, police, jail officials, and the circuit court; and (7) that his eighty year prison sentence for robbery was excessive. In February of 2008, this Court refused petitioner's appeal by order.

Following the filing of a pro se petition for a writ of habeas corpus, petitioner was appointed counsel who filed an amended petition in October of 2013. In the amended petition, petitioner raised the following grounds for habeas relief: (1) empaneling a jury for the mercy phase was unlawful, and thus, rendered petitioner's guilty pleas involuntary; (2) petitioner's arrest was illegal; (3) the indictment was defective; (4) jury voir dire was improper; (5) change of venue should have been granted; (6) the State's strike of Juror Byrezinski was improper; (7) the jury forms were incomplete; (8) the statutory procedure for the granting of mercy set forth in West Virginia Code § 62-3-15 is unconstitutionally vague;² (9) cumulative error warranted reversal; (10) ineffective assistance of counsel; (11) the restitution order was unlawful; and (12) the amount of restitution was unlawful. Following the withdrawal of counsel and appointment of new counsel, petitioner filed a supplemental petition in May of 2014, in which he raised the additional ground that there was an insufficient factual basis to support petitioner's guilty pleas to robbery and possession of a stolen vehicle.

By order entered on July 11, 2016, the circuit court denied the habeas petition without a hearing.³ In a lengthy order, the court addressed and denied each of petitioner's alleged groundsfor habeas relief. With respect to petitioner's allegation that he received ineffective assistance of counsel, the circuit court found that petitioner's guilty pleas limited petitioner's challenge solely to the competency of counsel's advice regarding the pleas. The circuit court found that petitioner failed to prove that he was incompetently advised because counsel did not advise petitioner to plead guilty; rather, petitioner decided to do so on his own. Petitioner now appeals to this Court.

Discussion

On appeal, petitioner raises three assignments of error. First, he argues that the circuit court committed reversible error in denying petitioner's claims regarding ineffective assistance of counsel. Second, he argues that the circuit court committed reversible error in failing to address his claim regarding his absence from the sentencing proceeding, wherein the trial court substantively modified his sentence. Petitioner's final assignment of error is that the circuit court erred by finding that certain claims had been previously waived or adjudicated, or were otherwise insufficient to establish relief.

This Court has established the following standard for reviewing the denial of habeas relief:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With this standard in mind, we now turn to petitioner's arguments.

Petitioner first argues that his trial counsel was ineffective. This Court has held as follows:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

Syl. Pts. 5 and 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). This Court has also held that

[b]efore a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the

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