White v. Haines, 31056.

• Citation: 215 W.Va. 698,601 S.E.2d 18
• Decision Date: 15 March 2004
• Docket Number: No. 31056.,31056.
• Parties: Judson WHITE, Petitioner Below, Appellant, v. William HAINES, Warden, Respondent Below, Appellee.
• Court: Supreme Court of West Virginia

601 S.E.2d 18

215 W.Va. 698

Judson WHITE, Petitioner Below, Appellant, v. William HAINES, Warden, Respondent Below, Appellee.

No. 31056.

Supreme Court of Appeals of West Virginia.

Submitted: January 14, 2004.

Filed: March 15, 2004.

Jason E. Huber, Esq., Forman & Huber, Charleston, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

PER CURIAM.

The appellant Judson White appeals the Kanawha County Circuit Court's order denying the appellant's petition for a second habeas corpus hearing. In his appeal to this Court, the appellant argues that the circuit court erred in applying the "concurrent sentence rule" to deny the appellant's petition. The appellant also argues that he is entitled to a second habeas hearing because the circuit court failed to make a finding of competency on the record in relation to the appellant's 1986 convictions. We affirm the circuit court's order denying the appellant's petition for a second habeas corpus hearing.

I.

In December of 1985, Judson White, the appellant, was arrested on two felony counts of forgery and uttering and released on bond. On January 8, 1986, the appellant was arrested on an additional felony charge of forgery; he posted bond the same day.

While these charges were pending, the appellant was again arrested on April 12, 1986, for breaking and entering and public intoxication, and again, he was released on bond. The appellant waived his right to a preliminary hearing and the appellant was held over to the grand jury for indictment.

On April 28, 1986, pursuant to a motion made by appellant's counsel in the appellant's most recent cases — breaking and entering and public intoxication, the circuit court sent the appellant to Weston State Hospital's Forensic Unit for a twenty-day mental status evaluation¹ of the appellant's criminal responsibility and competency to stand trial on the "21 pending charges alleged to have occurred before 4/12/86," including "tampering with an auto, forgery, uttering, and possession of stolen property."

While at Weston, psychologist E. Rick Beebe, Ph.D. interviewed the appellant and administered psychological tests on the appellant. Dr. Beebe evaluated whether the appellant was criminally responsible for the crimes with which the appellant had been accused. In his report, Dr. Beebe found that the appellant was "able to differentiate right and wrong in both a concrete [lie, steal, cheat, kill], and abstract sense" and that the appellant understood the wrongness of his actions. According to Dr. Beebe, the appellant "has major addictive problems" and that the appellant had "developed a business-like approach to securing needed funds."

Dr. Beebe also evaluated the appellant's competency to stand trial. Specifically, Dr. Beebe found that the appellant was able to name the crimes with which the appellant had been charged and to describe those charges in "practical detail," that the appellant understood the court system, was able to participate in his own defense, and "identified the practical consequences" of pleading guilty or going to trial.

In his May 1986 report presented to the circuit court in the appellant's breaking and entering and public intoxication cases, Dr. Beebe concluded that appellant was both competent to stand trial and criminally responsible for the crimes with which he was charged. The circuit court received the written report of Dr. Beebe and distributed copies of the report to counsel of record in the appellant's breaking and entering and public intoxication case.

During its May 1986 term, a Kanawha County Grand Jury returned an indictment charging the appellant with having committed ten counts of forgery and ten counts of uttering of checks and money orders prior to February 1986. And, in November 1986, a Kanawha County Grand Jury indicted the appellant on one count of entering without breaking and one count of breaking and entering for offenses committed in April 1986.

The appellant with the assistance of counsel entered into a written plea agreement with the prosecutor's office, attempting to bring to conclusion all pending charges. In the plea agreement, the appellant pled guilty to five counts of forgery and five counts of uttering. Pursuant to a motion for nolle prosequi by the prosecutor's office, the circuit court dismissed the remaining five counts of forgery and five counts of uttering, and dismissed the one count of entering without breaking and the one count of breaking and entering.

On November 19, 1986, in accepting the appellant's plea, the circuit court discussed with the appellant the consequences of pleading guilty.² The circuit court then accepted the appellant's plea and adjudged the appellant guilty of the five counts of forgery and five counts of uttering. Sentencing was deferred.

At a hearing on January 20, 1987, appellant's counsel made a motion to withdraw the appellant's guilty plea to the forgery and uttering charges. The appellant asserted that he was innocent of several of the charges and wished to proceed to trial. The circuit court found that the appellant had entered his plea voluntarily and knowingly, and denied the appellant's motion.

Subsequently, in April 1987, the circuit court sentenced the appellant to five consecutive indeterminate terms of one to ten years for the five forgery charges and five indeterminate terms of one to ten years for the five uttering charges. The uttering terms were to run concurrently with the appellant's forgery terms.

On May 16, 1988, the appellant, by counsel, appealed his convictions of five counts of forgery and five counts of uttering to this Court. In his petition, the appellant argued that the circuit court had erred in "failing to develop the record as to the appellant's competency or ability to plead" guilty when accepting the appellant's guilty plea, and that the appellant's counsel was ineffective in failing to make a record on the issue of the appellant's competency.

This Court refused the appellant's appeal petition without discussion.

While confined at the Huttonsville Correctional Center in December of 1988, the appellant filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County. In his petition, the appellant claimed that his 1986 guilty plea for the five counts of forgery and five counts of uttering was not voluntarily made, that he had ineffective assistance of counsel, and that the circuit court had erroneously denied the appellant the right to withdraw his guilty plea prior to sentencing. On January 26, 1989, the Randolph County Circuit Court denied the appellant's petition without a hearing; the appellant appealed the circuit court's dismissal of his habeas corpus petition to this Court.

This Court granted the appellant's petition and had the appellant's petition returnable to the Circuit Court of Kanawha County. The Kanawha County Circuit Court conducted an omnibus habeas corpus hearing. On August 21, 1989, the circuit court found that appellant had ineffective assistance of counsel, that the appellant's plea was involuntarily made, and that the circuit court, when sentencing the appellant for the five counts of forgery and five counts of uttering, considered a void conviction. As relief, the Kanawha County Circuit Court reduced the appellant's sentence to time served and "ordered the petitioner [appellant] be released from custody immediately."

The Huttonsville warden then filed a petition asking this Court to prohibit the circuit court from reducing the appellant's sentence to time-served and releasing the appellant from Huttonsville.³ In Duncil v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990), we granted the warden's writ of prohibition. In granting the writ of prohibition, this Court found that the appellant's counsel had acted effectively, that there were no grounds to support a finding that the appellant's plea was involuntarily given, and that the circuit court had not considered a void conviction when sentencing the appellant. A capias was issued for the appellant.

However, before the appellant could be picked up on the capias and returned to prison, the appellant was charged and convicted by a circuit court in Cabell County for breaking and entering. The defendant was returned to the penitentiary in 1991,⁴ and was released on parole in December of 1994.

While on parole, in January of 1996, a Kanawha County grand jury indicted the appellant for robbing a Kanawha County bank; a jury subsequently convicted the appellant of bank robbery.

Following the appellant's bank robbery conviction, the prosecutor's office filed a recidivism information alleging that the appellant had been convicted of two prior felonies. The appellant admitted that he been convicted of two prior felonies, the 1986 forgery and uttering convictions and the 1990 Cabell County breaking and entering conviction.⁵ He pled guilty to the recidivism information.

By order dated April 16, 2001, the circuit court accepted the appellant's plea and sentenced the appellant under the "recidivist statute" to not less than twenty nor more than twenty years⁶ in the penitentiary and ordered the sentence to run concurrently with the appellant's 1986 forgery and uttering sentence and the appellant's 1990 breaking and entering sentence.

In April of 2002, the appellant then filed a second petition for a writ of habeas corpus challenging the appellant's 1986 convictions for five counts of forgery and five counts of uttering. In this pro se petition, the appellant alleged that the circuit court erred in accepting the appellant's 1986 guilty plea without making a finding of competency on the record.⁷

In its May 24, 2002 order, the circuit court denied the appellant's second habeas corpus petition. In denying the appellant's second petition, the circuit court found that "the [appellant's] recent [habeas] Petition, 02-MISC-169 [challenging the appellant's 19...