Charmain T. Willis v. Lori Nohe, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Charmain T. Willis, Petitioner Below, Petitioner FILED August 31, 2015 vs) No. 14-0445 (Fayette County 13-C-268) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Lori Nohe, Warden, Lakin Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Charmain T. Willis, by counsel Brandon S. Steele, appeals the Circuit Court of Fayette County’s December 30, 2013, order denying her petition for post-conviction habeas corpus relief.1 Respondent warden, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner asserts that the circuit court erred in denying her habeas petition because (1) her 2011 guilty plea was “unlawfully induced” where her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2) her 2009 trial counsel was constitutionally ineffective for several alleged deficiencies both before and during trial;2 (3) “there were no African Americans on the jury, and . . . the State failed to disclose favorable evidence”; (4) the circuit court made racially charged comments at petitioner’s sentencing hearing on January 17, 2012; and (5) her sentence was constitutionally excessive or more severe than expected. 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 affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In 2008, petitioner was indicted on two counts of delivery of a controlled substance in violation of West Virginia Code § 60A-4-401. Prior to trial, in a jury questionnaire sent to potential jurors, Juror 16 indicated that he was African American. The jury trial commenced in 2009, and, at the conclusion of jury vior dire, the State used a peremptory strike to remove Juror 1 Petitioner’s counsel filed a brief in this matter pursuant to Anders v. California, 386 U.S. 738, (1967). 2 As explained below, a jury found petitioner guilty of two felony offenses in 2009, and she pled guilty to a separate felony offense in 2011. Both the 2009 and 2011 convictions are at issue in this appeal. 1 16 from the jury panel. Petitioner challenged that strike on Batson grounds.3 In articulating raceneutral grounds for the strike, the State explained that Juror 16 had voted to acquit another criminal defendant weeks earlier and that an officer involved in petitioner’s case had made a controlled drug purchase from Juror 16 within the last year. The circuit court denied petitioner’s Batson challenge, and Juror 16 was stricken from the jury panel. During the State’s case-in-chief, a confidential informant (“CI”) claimed that police “already had eight other purchases on [petitioner].” The circuit court sustained petitioner’s objection to the statement and directed the jury to disregard it. At the conclusion of the State’s case-in-chief, petitioner moved for judgment of acquittal or, in the alternative, a mistrial based, in part, on the CI’s statement. The circuit court denied the motions. The jury found petitioner guilty on both counts. In April of 2009, the circuit court sentenced petitioner to two consecutive prison terms of one to fifteen years, but it suspended that sentence and imposed a three-year probationary term. Only three months later, in July of 2009, petitioner’s probation officer filed a notice of probation revocation alleging multiple violations of the alcohol and drug conditions of her probation. Petitioner admitted to the allegation that she used cocaine, but, nevertheless, the circuit court permitted her to return to probation with no additional terms or conditions. In 2011, petitioner was arrested for delivery of a controlled substance. Petitioner’s probation officer filed a second notice of probation revocation based on that arrest, and, in December of 2011, the circuit court held a joint plea and probation revocation hearing. Pursuant to her plea agreement with the State, petitioner admitted that she violated her probation as alleged, and she pled guilty to delivery of a controlled substance, by information.4 During her plea colloquy with the circuit court, petitioner stated that she understood the consequences of her guilty plea and the rights she was waiving by pleading guilty, and, with that understanding and with advice of counsel, she still wished to plead guilty. Her signed plea agreement stated, in relevent part, that [b]efore being called upon to enter any plea in this case, I fully understand the following . . . [t]hat I have a right to challenge in the [t]rial [c]ourt and on appeal all pre-trial proceedings, but by pleading guilty I waive all pre-trial defects with regards to, among others, my arrest, the gathering of evidence against me and prior confessions, as well as, all non-jurisdictional defects in this criminal proceeding. She also signed a waiver of rights statement in which she stated that her trial counsel “to [her] complete and total satisfaction, represented, advised and consulted with [her][.]” The circuit 3 See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecution’s purposeful exclusion of members of jury panel due to race is constitutional violation where defendant establishes prima facie case of the same and prosecution cannot articulate race-neutral explanation for the exclusion). 4 Petitioner waived her right to a grand jury indictment in this matter, and the parties proceeded by information. The State dismissed the felony offense as charged in September of 2011. 2 court accepted petitioner’s admission that she violated the conditions of her probation and accepted her guilty plea to the felony of delivery of a controlled substance. In January of 2012, the circuit court held a joint sentencing and dispositional probation revocation hearing. For petitioner’s probation violation, the circuit court imposed her original 2009 sentence of two terms of one to fifteen years in prison. For the 2011 conviction, the circuit court sentenced her to a third term of one to fifteen years in prison. All terms were ordered to run consecutive to one another. Petitioner did not directly appeal her convictions or sentences. In October of 2013, petitioner filed a pro se habeas petition asserting three grounds: (1) “unlawfully induced” plea in 2011 because her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2) ineffective assistance of trial counsel in 2009 due to several alleged deficiencies both before and during trial; and (3) “there were no African Americans on the jury, and . . . the State failed to disclose favorable evidence[.]” By order entered on December 30, 2013, the circuit court denied her habeas petition. The circuit court explained that petitioner’s grounds were either waived and/or lacked merit. This appeal followed. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: [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, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (internal citations omitted). On appeal, petitioner assigns error to allegedly “racially charged” comments made by the circuit court at her sentencing hearing and to the amount of prison time she received as her sentence for these offenses. However, in her argument to this Court, petitioner failed to include “citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal.” W.Va. R. App. P. 10(c)(7). This Court has often held that it will not consider issues raised for the first time on appeal. See In re Michael Ray T., 206 W.Va. 434, 444, 525 S.E.2d 315, 325 (1999) (stating that “a constant refrain of this Court is that we will not consider, for the first time on appeal, a matter that has not been determined by the lower court from which the appeal has been taken.”); see also Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971) (holding that “this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.”). The record is devoid of any evidence that petitioner included these issues in her habeas petition below or otherwise placed these issues before the circuit court. Therefore, we decline to address these issues on appeal. Petitioner’s remaining issues were raised in her habeas petition and were adequately addressed by the circuit court in its final order. Upon our review and consideration of the circuit 3 court’s final order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner’s petition for writ of habeas corpus based on the three grounds raised in this appeal. Having reviewed the circuit court’s order denying habeas relief, entered on December 30, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings of fact and conclusions of law as to these assignments of error. 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: August 31, 2015 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II 4
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