State ex rel. Farmer v. Trent, 28399.
| Decision Date | 10 July 2001 |
| Docket Number | No. 28399.,28399. |
| Citation | 209 W.Va. 789,551 S.E.2d 711 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Donald R. FARMER, Jr., Petitioner Below, Appellant, v. George TRENT, Warden, Respondent Below, Appellee. |
Noel M. Olivero, Esq., Sammons, Olivero & Paraschos, Huntington, for Appellant.
Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, for Appellee. McGRAW, Chief Justice.
Appellant Donald Farmer, Jr., appeals the refusal of the Circuit Court of Mingo County to grant habeas corpus relief on his claims that (1) he was not informed, at the time he pled guilty to charges of first-degree murder and robbery with the use of a firearm, of the various constitutional rights incident to standing trial, as required by W. Va. R.Crim. P. 11(c); and (2) the trial court failed to obtain a sufficient factual basis for his guilty plea to first-degree murder as required by W. Va. R.Crim. P. 11(f), in that he never expressly stated on the record that he intended to kill the victim. We affirm the circuit court, concluding that Farmer failed to show that he was prejudiced by the trial court's alleged violations of Rule 11, as required by our recent holding in State ex rel. Vernatter v. Warden, 207 W.Va. 11, 528 S.E.2d 207 (1999).
Farmer was indicted by the Mingo County Grand Jury in September 1990 on charges of murder and robbery, in connection with allegations that he shot and killed 70-year-old Gertrude Huff in the course of robbing her of approximately $3,000. There was evidence that in carrying out the robbery in concert with his uncle, Ballard Johnson, Farmer shot his victim in the back, and then later shot her two more times in the face as she lay on the ground. Farmer later entered into a written plea agreement with prosecutors, where he agreed to plead guilty to both first-degree murder, W. Va.Code § 61-2-1 (1987), and robbery with the use of a firearm, W. Va. Code § 61-2-12 (1961), on condition that he obtain a recommendation of mercy with respect on the murder charge, so as to permit him to eventually become eligible for parole,1 and that the State would recommend a sentence of 20 years in connection with the robbery offense.
Farmer tendered his guilty pleas to the two offenses at a hearing conducted on November 21, 1990. At a subsequent hearing held on July 2, 1991, Farmer was sentenced to life with mercy on the charge of first-degree murder, with sentencing on the robbery offense being deferred pending his testimony at the trial of his co-defendant. After Johnson was tried and convicted on similar charges, which resulted in the imposition of two consecutive life sentences, a second sentencing hearing was conducted on November 15, 1991, where the State, in conformity with an amendment to the original plea agreement, recommended that Farmer receive a 15-year sentence on the robbery charge. After hearing testimony from Trooper John Zirkle of the West Virginia State Police regarding the facts of the crime, the trial court again deferred sentencing pending the completion of a presentencing report. At the final sentencing hearing, held on February 19, 1992, the State again recommended a 15-year sentence; however, after citing the nature of Farmer's conduct and the fact that his co-defendant, who had not fired the fatal shots, had received two consecutive life sentences, the court imposed a sentence of 24 years, to be served consecutive to the previous life sentence.
Farmer later sought post-conviction habeas relief and, following the appointment of counsel, eventually filed a second amended habeas petition which set forth two broad grounds for relief. First, he alleged that his guilty pleas were "involuntary," and in doing so effectively presented three distinct claims: (1) the circuit court failed to inform him of his constitutional trial rights and adequately question him regarding the voluntariness of his plea as required by Criminal Procedure Rule 11(c) & (d); (2) the court failed to inform him of his right to withdraw his plea in the event that the recommended sentence was rejected, as required by W. Va. R.Crim. P. 11(e)(2); and (3) the court failed to ascertain a factual basis for Farmer's guilty plea to first-degree murder in accord with W. Va. R.Crim. P. 11(f), in that he never admitted to having specific intent to kill Mrs. Huff. As an additional ground for relief, Farmer contended that he had not received effective assistance of counsel at the time he tendered his guilty pleas.
During an evidentiary hearing held incident to the habeas corpus petition on July 21, 1997, Farmer testified, among other things, that his lawyers had failed to inform him of the various rights that he would waive by pleading guilty:
Farmer also testified that he was told by his lawyers what to say at the plea hearing, that he did not understand what he was being told by the plea hearing judge, and that contrary to statements made during the plea hearing, his lawyers had neither read nor explained to him the substance of a "Petition to Enter Guilty Plea" that had been tendered to the circuit court at the time he pled guilty, which set forth in detail the rights he would be waiving by entering a guilty plea.2
When Teresa McCune, who had represented Farmer at his plea hearing, was later called to testify at the evidentiary hearing, the issue arose as to whether Farmer had effectively waived the attorney-client privilege by asserting deficiencies in counsel's representation. When Farmer, after consultation with his habeas counsel, expressly refused to permit Ms. McCune to testify to facts pertaining to her representation, the court made clear that it would not permit the petitioner to go forward with any claims that called into question the advice given him by trial counsel:
THE COURT: The problem here ... is that Mr. Farmer wants to get up and testify that he answered certain questions that are in the court transcript at the time of his plea, but that he was told to give answers that he was assisted during the course of the proceeding by saying whether to say yes or no to the court's questions and that, in effect, he was placed under duress because of the threat of receiving life without mercy in order to what amounted to false answers in his—at the time of his plea proceeding and now he has directly accused Ms. McCune of telling him to do so. What Mr. Farmer wants to do is put all those issues into evidence and then put everyone in an impossible position— he's putting the state in an impossible position of rebutting the argument. No one but Ms. McCune and Mr. Farmer were privy to those conversations and Mr. Farmer wants to paint them in one light and Ms. McCune may very well testify consistent with that or she may testify inconsistent with that, but, certainly, he has questioned the official transcript and has offered an explanation of why it says what is says. He wants to open the door and put evidence in the record as far as this writ is concerned and then close the door so no one can rebut it. Who else in the world can rebut what Mr. Farmer has testified to here today except for Ms. McCune....
The court went on to state succinctly, "I'm going to tell you now that I'm going to give none of Mr. Farmer's testimony credibility with regard to those issues if Ms. McCune is not allowed to testify in this matter."
In response, Farmer's counsel suggested that "the other possible solution is this case can be decided on the first issue, which is whether the plea was knowing, intelligent and voluntary with respect to the advice that Mr. Farmer was given or not given during the plea hearing." (Emphasis added.) The court then gave Farmer the choice of either permitting Ms. McCune to testify, or withdrawing those claims which implicated her representation. Farmer chose the latter course, which elicited the following statement from the habeas court:
THE COURT: All right. If Mr. Farmer intends to claim privilege, then this court is not going to consider any of the prior testimony of Ms. McCune and is not going to consider any of the grounds that would be associated with her testimony... and, frankly, to make it very plain, any issue relative to the representations of Ms. McCune, ineffective assistance of counsel, her advice, misrepresentation of or him being placed under duress or threats of a higher sentence or matter[s] along these lines will not be considered if Ms. McCune is not going to testify in this matter, fully, completely, openly and honestly.
The court then asked Farmer's habeas counsel to state the issues remaining for decision, which drew the following response:
MR. OLIVERO: Your Honor, the best I can characterize it, from the petition which I have previously filed, Mr. Farmer's claim would be whether or not his plea to the charges could have been voluntary where the court did not inform him that he could not withdraw his plea of guilty if the court chose not to follow the recommended sentence and where the court did not inform Mr. Farmer, alternatively, at the sentencing hearing that it was not going to follow the recommended sentence and afford him an opportunity to withdraw his plea and where the court, during the plea hearing, did not inform Mr. Farmer that he had the right to plead not guilty and where the court did not inform Mr. Farmer at the plea hearing he had the right to be tried by a jury and at that trial he had the right to assistance of counsel, where the court did not advise the petitioner, Mr. Farmer, he had the right to confront and cross[-]examine witnesses and he had the right...
To continue reading
Request your trial
-
State Va. v. Vanhoose
...the record in this case is adequately developed, we will not remand for entry of such an order. See State ex rel. Farmer v. Trent, 209 W.Va. 789, 796 n. 3, 551 S.E.2d 711, 718 n. 3 (2001) (declining to remand for entry of proper habeas order); State ex rel. Vernatter v. Warden, W. Va. Penit......
-
Montgomery v. Ames
...to support the notion that this procedural irregularity necessitated relief in habeas corpus. See e.g., State ex rel. Farmer v. Trent , 209 W. Va. 789, 794, 551 S.E.2d 711, 716 (2001) (stating prisoner may not collaterally attack guilty plea where all that is shown is failure to comply with......
-
Hogan v. Ames
...(finding that a remand was not necessary because the record was adequately developed in that case); State ex rel. Farmer v. Trent, 209 W. Va. 789, 794 n.3, 551 S.E.2d 711, 716 n.3 (2001) (declining to remand the case for the entry of a proper habeas order); State ex rel. Vernatter v. Warden......
-
Heard v. Plumley, 13-0300
...v. Turner, 695 F.2d 545, 548 (11th Cir.1983); Willett v. Georgia, 608 F.2d 538, 540-41 (5th Cir.1979).State ex rel. Farmer v. Trent, 209 W.Va. 789, 796, 551 S.E.2d 711, 718 (2001). Based upon this prior holding, it is clear that the trial court had before it sufficient evidence upon which t......