Robert Bowers, III v. Marvin Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Robert Bowers III, Petitioner Below, Petitioner FILED vs) No. 12-1314 (Kanawha County 05-MISC-448) October 1, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Marvin Plumley, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Robert Bowers III, by counsel Jason Parmer,1 appeals the Circuit Court of Kanawha County s order entered on September 25, 2012, denying his second amended petition for writ of habeas corpus. Respondent Warden Marvin Plumley, by counsel Laura Young, filed a summary response in support of the circuit court s decision. On appeal, petitioner alleges that the circuit court erred in denying his second amended petition for writ of habeas corpus because he received ineffective assistance of trial counsel and was denied his constitutional rights to trial by an impartial jury and a presumption of innocence. 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. On August 14, 1997, the victim arranged to pick up Charles Frye Jr., petitioner s co defendant,2 at petitioner s house to go to a bar for drinks. Upon arriving at his house, petitioner asked the victim for a ride to his friend s house. While driving to petitioner s friend s house, petitioner began punching the victim in the head and choking him from the backseat, which caused the victim to stop the vehicle. After petitioner told his co-defendant to take the victim s wallet, petitioner dragged the victim out of the vehicle and began kicking him in the head with his steel-toed boots. Following the attack, petitioner and his co-defendant drove away in the victim s car. In January of 1998, petitioner and his co-defendant were each indicted on one count of aggravated robbery, West Virginia Code § 61-2-12 and one count of malicious wounding, West Virginia Code § 61-2-9. Petitioner s co-defendant pled guilty to one count of aggravated robbery. As part of the co-defendant s plea agreement, he agreed to testify against petitioner and the State dismissed the remaining charge of malicious wounding. Following a three-day trial in 1 Counsel filed his brief pursuant to Anders v. Cal., 386 U.S. 738 (1967). 2 Petitioner s co-defendant is not a party to this appeal. 1 January of 1999, petitioner was convicted of aggravated robbery and malicious wounding. Petitioner was sentenced to a term of incarceration of sixty years for aggravated robbery and a consecutive term of incarceration of two to ten years for malicious wounding. In December of 1999, petitioner filed a direct appeal with this Court that was refused by order entered on February 24, 2000. Following the refusal of his direct appeal, petitioner filed a petition for writ of habeas corpus relief with this Court in September of 2000, which was refused by order entered on January 25, 2001.3 Next, petitioner filed his first pro se petition for writ of habeas corpus in the Circuit Court of Kanawha County on June 18, 2001. By order entered on July 31, 2001, the circuit court denied the petition without conducting a hearing. This Court refused petitioner s pro se appeal of the circuit court s order denying habeas relief by order entered on July 15, 2002. However, while petitioner s first appeal of the circuit court s order denying him habeas relief was still pending with this Court, petitioner filed a second petition for writ of habeas corpus on March 20, 2002, in the Circuit Court of Kanawha County. Petitioner s second petition was denied by the circuit court by order entered on September 3, 2002. On December 12, 2002, petitioner filed his pro se appeal of the circuit court s September 3, 2002, order denying his petition for habeas corpus relief, which was refused by this Court by order entered on July 18, 2003.4 Petitioner filed his third petition for writ of habeas corpus on November 2, 2005. The circuit court appointed counsel for petitioner. Following the withdrawal and appointment of two different attorneys, petitioner, by counsel Dennis Bailey, filed an amended petition for writ of habeas corpus on October 31, 2008. After two more attorneys were permitted to withdraw, the circuit court appointed the Kanawha County Public Defender s Office to represent petitioner by order entered on May 14, 2010. Subsequently, counsel filed a second amended petition for writ of habeas corpus on December 8, 2011, and petitioner s Losh List on March 27, 2012.5 Petitioner alleged the following grounds in his second amended petition for writ of habeas corpus: ineffective assistance of counsel in that trial counsel implied that he was guilty of the crimes, and that he was prejudiced by an inadvertent statement by Corporal Randall West during his testimony. Following an omnibus evidentiary hearing, the circuit court denied petitioner s second amended petition for writ of habeas corpus by order entered on September 25, 2012. The circuit court held that petitioner s trial counsel was not ineffective and that petitoiner was not severely prejudiced by an inadvertent statement made by a State witness. The circuit court noted that petitioner failed to specify facts that prove counsel s performance was atypical . . . . [and] there is no reasonable probability that but-for these alleged errors a different outcome would have resulted. 3 Petitioner asserted the following grounds for relief: trial counsel failed to disclose key evidence, trial counsel failed to impeach perjured testimony, and trial counsel failed to act responsibly as a defense lawyer. 4 Petitioner asserted that his sentence of sixty years of incarceration for aggravated robbery is disproportionate. 5 The checklist of grounds typically used in habeas corpus proceedings, commonly known as the Losh list, originates from Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). 2 Petitioner now appeals the September 25, 2012 order. He alleges two assignments of error. First, petitioner alleges that his trial counsel was ineffective because he conceded petitioner s guilt during his opening and closing arguments without petitioner s consent. In his second assignment of error, petitioner argues that because a State s witness testified that petitioner s blood was drawn at the South Central Regional Jail, and the fact of his incarceration was brought to the jury s attention, he was denied his constitutional rights to a trial by an impartial jury and a presumption of innocence. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: 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. Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). After careful consideration of the parties arguments, this Court concludes that the circuit court did not abuse its discretion in denying the second amended petition for writ of habeas corpus. A review of the record reveals that trial counsel did not state that petitioner committed aggravated robbery and malicious wounding. Furthermore, trial counsel testified at the omnibus hearing that petitioner was in full agreement with his trial strategy to admit certain elements of the crimes, while attacking other elements of the crimes that were necessary for a conviction. The circuit court clearly addressed petitioner s claim regarding alleged ineffective assistance of counsel and also addressed whether he was denied his right to a fair trial. Having reviewed the circuit court s Final Order entered on September 25, 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: October 1, 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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