Andrew Scott Perry v. David Ballar (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Andrew Scott Perry, Petitioner Below, Petitioner June 7, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-0941 (Wayne County 10-C-178) David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Andrew Scott Perry, by counsel A. Courtenay Craig, appeals the Circuit Court of Wayne County s July 16, 2012, order denying and dismissing his petition for writ of habeas corpus. Respondent David Ballard, by counsel Scott E. Johnson, filed his response. 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 is appropriate under Rule 21 of the Rules of Appellate Procedure. Petitioner pled guilty to murder in the first degree for the murder of Dennis Denny Isaacs and was adjudicated guilty based upon his own statements. Petitioner claims that he, Mr. Isaacs, and others were drinking alcohol together during the evening of May 18, 2005. He further claims that at some point during the evening, Mr. Isaacs sexually assaulted him, though he had no memory of the incident until the next day. Petitioner states that on May 19, 2005, he confronted Mr. Isaacs about the incident, and Mr. Isaacs responded by threatening to rape and/or kill petitioner s daughter if petitioner told anyone about the incident. Petitioner reportedly left the area where Mr. Isaacs was located before returning with a gun, shooting Mr. Isaacs in the head, and fleeing the scene. He turned himself in to law enforcement, and counsel was appointed. Petitioner pled guilty to murder in the first degree. During the plea hearing, the circuit court asked petitioner if he had been treated or hospitalized for mental illness. Petitioner explained to the court that he first went to Prestera Center due to real bad nerves. I don t know, I just felt depressed like. . . . the other times I was on drugs, and it was like it was drugs and my nerves, too, but they mostly treated me for my drug problem. Petitioner also informed the court that he was suicidal in 2004 and had been hospitalized a few days later. Other than those hospitalizations, petitioner denied hospitalizations for mental illness or disability. Petitioner also denied any treatment for alcohol addiction but admitted to drug treatment in the mid 1990 s. He also admitted taking Seroquel and Lexapro for nerves and depression, but he claimed those 1 medications did not alter his ability to think. It is undisputed that petitioner informed his counsel that he had been treated for mental illness. There was no mental evaluation performed following the arrest, and petitioner entered into a plea agreement whereby he pled guilty to first degree murder. He was sentenced to life without mercy, and his direct appeals filed in 2006 and 2007 were denied. Petitioner filed his petition for writ of habeas corpus on July 23, 2009, alleging ineffective assistance of counsel. There were two omnibus hearings held, the first on November 21, 2011, and the second on April 18, 2012. At the first habeas hearing, a staff psychiatrist from Prestera Center testified that she sent a letter to petitioner s counsel on December 8, 2005, but that counsel never contacted her. That letter stated that petitioner requires medication to control the voices he hears, and that he had ideations of committing suicide and crying spells. The letter continued by stating that if petitioner takes his medicine regularly, his mood is much improved, he is not as sad, and he is able to function well in the community setting and in his daily living routine. She testified at the habeas hearing that she believed petitioner should have been able to understand the court proceedings in 2005. Trial counsel also testified at the habeas hearing. He stated that petitioner expressed concern about the impact of a trial on his family. Counsel informed petitioner that a voluntary intoxication defense was a difficult defense, especially with a jury. Counsel also testified that a surge of anger would not constitute a defense since the alleged assault occurred in a separate location, approximately twelve to sixteen hours before the shooting. The court entered its Opinion Order Denying Writ of Habeas Corpus Following Omnibus Hearing on July 16, 2012.1 In its order, the court found that petitioner gambled on receiving mercy from the court[. . ., but he] was informed of what possible sentences the Court could impose and he responded that he understood this. The court also found that while petitioner was aware that mercy was possible, he was fully aware that a harsher sentence was possible. In the discussion section of the order, the court stated that petitioner could not demonstrate that counsel was deficient in some way, as the court s denial of mercy was based on petitioner s past criminal record, specifically a prior felony conviction involving petitioner shooting another person. Petitioner asserts a single assignment of error in his appeal. He claims that his counsel was ineffective because counsel neither fully investigated petitioner s history of psychiatric problems nor offered them in mitigation at sentencing. In response, respondent argues that counsel did not fall below a reasonable standard of professional competency in failing to raise the issue of petitioner s competency. In order to satisfy the prejudice requirement under these circumstances, petitioner must show that there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have insisted on going to trial. The circuit court made detailed findings of fact with regard to counsel s efforts in this regard, as well as petitioner s knowledge and actions in entering his plea. Moreover, under any allegation of ineffective assistance of counsel here, the second part of the test of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), petitioner cannot meet his burden that the outcome of this matter would 1 It appears there was an error on the judge s signature page, as it shows an entered date of July 16, 2010. However, the hearings were not held until after that date, and the first page of the order shows that it was entered on July 16, 2012. 2 have been different. The circuit court properly analyzed a number of reasons why petitioner could not satisfy this standard, not the least of which was the fact that petitioner was found by the circuit court to be competent, so he has suffered no prejudice. Having reviewed the circuit court s well-reasoned Opinion Order Denying Writ of Habeas Corpus Following Omnibus Hearing entered on July 16, 2012, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: June 7, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 3
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