Donte J. Garrett v. Marvin Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Donte J. Garrett, Petitioner Below, Petitioner FILED June 10, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-1133 (Kanawha County 12-MISC-98) Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Donte J. Garrett, by counsel Jason D. Parmer, appeals the September 5, 2012 order of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus. Respondent Plumley, by counsel Andrew Mendelson, has filed a response, to which petitioner has filed a reply. The 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. In 2005, petitioner was indicted on one count of first degree murder by a Kanawha County Grand Jury. In March of 2007, petitioner pled guilty to one count of first degree murder and, as part of a plea agreement, the State recommended mercy. After the plea hearing, petitioner moved to withdraw his plea, stating that he wasn t happy with the plea being a first degree rather than a second degree. The circuit court denied petitioner s motion to withdraw the plea and thereafter sentenced him to life incarceration, with mercy. In May of 2009, petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Without appointing counsel or holding an omnibus hearing, the circuit court summarily denied the petition. Petitioner appealed the denial to this Court, which refused the same by order entered on May 21, 2010. In February of 2012, petitioner filed a second pro se petition for writ of habeas corpus, after which the circuit court appointed counsel to represent petitioner. An amended petition for writ of habeas corpus was filed with the assistance of counsel. Thereafter, the circuit court denied the petition without holding an omnibus hearing. On appeal, petitioner alleges that the circuit court erred in summarily denying his petition below. According to petitioner, the circuit court did not have an adequate record to make a determination on his claims of ineffective assistance of counsel without holding a hearing. Citing Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), petitioner argues that he is entitled to an omnibus hearing in which to seek collateral relief, especially for his claims of ineffective assistance of counsel. Additionally, petitioner provides a summation of testimony he contends 1 supports his claims that he would provide if allowed an omnibus hearing, including his assertions that counsel below informed him he would be incarcerated for only fifteen years if he accepted the plea agreement and failed to inform him of a possible diminished capacity defense. Further, petitioner argues that the circuit court failed to satisfy its statutory obligation to include specific findings of fact and conclusions of law in the order denying his petition that related to each of the contentions raised in his petition. This Court has previously held that [i]n 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). After careful consideration of the parties arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus, especially in light of the following: A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing . . . if the petition, exhibits, affidavits or other documentary evidence filed therewith show to such court s satisfaction that the petitioner is entitled to no relief. Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Syl. Pt. 3, in part, Marley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). As set forth by the circuit court, petitioner is unable to satisfy the burden necessary to prove ineffective assistance of counsel as required by Strickland v. Washington, 466 U.S. 668 (1984). Having reviewed the circuit court s Order Denying Petitioner s Petition For Writ Of Habeas Corpus entered on September 5, 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 find no error in the decision of the circuit court and its September 5, 2012 order denying the petition for writ of habeas corpus is affirmed. Affirmed. ISSUED: June 10, 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 2
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