Steven A. Williamson v. Marvin C. Plumley, Warden (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED February 19, 2016 Steven A. Williamson, Petitioner Below, Petitioner vs) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 15-0383 (Mercer County 15-C-32) Patrick Mirandy, Warden, St. Mary’s Correctional Center Respondent Below, Respondent MEMORANDUM DECISION Petitioner Steven A. Williamson, pro se, appeals the order of the Circuit Court of Mercer County, entered on April 6, 2015, summarily denying his petition for a writ of habeas corpus. Respondent Patrick Mirandy, Warden, St. Mary’s Correctional Center, by counsel Laura Young, filed a response, and petitioner 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 affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. Petitioner was indicted on charges of first-degree robbery and assault during commission of a felony. The charges stemmed from an incident during which petitioner stole a purse from a woman while she was coming out of a business. Petitioner grabbed the purse and jerked it off the woman’s shoulder, causing her to fall and dislocate her shoulder. Petitioner fled on a bicycle, but was apprehended shortly thereafter. On December 12, 2011, petitioner pled guilty to first-degree robbery in exchange for the State’s dismissal the assault charge and agreement to stand silent as to a recommendation at petitioner’s sentencing. After engaging in a colloquy with petitioner, the circuit court accepted petitioner’s guilty plea and convicted him of first-degree robbery. The circuit court ordered a 1 pre-sentence investigation report (“PSI report”) prior to sentencing. 1 After receiving the PSI report, the circuit court held petitioner’s sentencing hearing on February 6, 2012. The circuit court imposed a sentence of twenty-five years of incarceration, noting that petitioner committed an act of violence on the victim by knocking her down and separating her shoulder. Petitioner’s counsel filed a motion for reconsideration of sentence, which was denied on June 3, 2013. On January 30, 2015, petitioner filed a petition for a writ of habeas corpus, alleging (1) involuntary guilty plea; (2) ineffective assistance of counsel; (3) more severe sentence than expected; and (4) failure of counsel to appeal. Upon review of the petition, the underlying criminal record, and the hearing transcripts, the circuit court determined that it could rule on the petition without an evidentiary hearing or appointment of counsel. Accordingly, the circuit court addressed each of petitioner’s four grounds—finding merit in none of them—and denied both his habeas petition and his motion for appointment of counsel in an extensive and well-reasoned order. Petitioner appeals the circuit court’s April 6, 2015, order summarily denying his habeas petition. We apply the following standard of review in habeas cases: 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. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). Also, we will not address issues which have not been decided by the circuit court. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733, 734 (1958). We find that the circuit court’s order adequately resolves all issues raised by petitioner in his habeas petition. We briefly note two issues that were not presented to the circuit court. First, petitioner concedes that respondent is correct that he did not raise the issue of his mental competency to enter his guilty plea. On appeal, petitioner asks that we address that issue under the plain error doctrine or remand this case so that the circuit court can address it. We decline to do either. Because the circuit court summarily denied petitioner’s petition without holding a hearing or appointing counsel, the doctrine of res judicata will not bar petitioner from filing successive habeas petitions. See Syl. Pt. 2, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606, 608 (1981). Petitioner may raise the issue of his mental competency in a subsequent petition provided that he has adequate factual support to do so. 1 The PSI report erroneously described the sentencing range for first-degree robbery. At the sentencing hearing, the circuit court corrected this error stating, as it did at the plea hearing, that first-degree robbery did not have a maximum sentence. See W.Va. Code § 61-2-12(a)(1) (defendant convicted of first-degree robbery “shall be imprisoned in a state correctional facility not less than ten years.”) (emphasis added). 2 Second, the circuit court resolved petitioner’s excessive sentence claim pursuant to State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), because petitioner made no other argument with regard to a first-degree robbery sentence in his petition.2 We deem all other arguments regarding such a sentence waived for the purposes of this appeal. Having reviewed the circuit court’s April 6, 2015, “Order Summarily Denying Petition for Writ of Habeas Corpus,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues raised by petitioner in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. We conclude that the circuit court did not abuse its discretion in denying petitioner’s petition for a writ of habeas corpus. For the foregoing reasons, we affirm. Affirmed. ISSUED: February 19, 2016 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II 2 In Syllabus Point 4 of Goodnight, we held that “[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.” 169 W.Va. at 366, 287 S.E.2d at 505. 3 COpy ( NOTED CIVIL DOCKET ITHE CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA APR 962015 JUUEBALL CLERK CIRCUIT COURT MEACER COUNTY STEVEN A WILLIAMSON CIVILACTIONNO.15-C-32 INDICTMENTNO.1l-F-340 '. PATRICKMIRANDY, WARDEN ORDER SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS . On January 29, 2015, tbis matter came before the Court on Steven Williamson's Petition ?' , Post-Conviction Habeas Corpus relief brought pursuant to the provisions ofWest Virginia Code §53-4A-I, et seq., as amended. Petitioner seeks relief from a.detenninate sentence of twenty five (25) years in the State penitentiary, which the Court imposed .after his conviction by plea of guilty to Robbery First Degree. He contests the constitutionality of his incarceration on four grounds: (1) conviction obtained by an involuntary plea of guilty; (2) ineffective assistance of counsel; (3) imposition of a more severe sentence than expected; and (4) failure of counsel to appeal. I In support of the petition, Petitioner attached the Attorney's Statement in Support of GUilty Plea and Petition to Enter Plea of Guilty.2 I. Faetual and Proeedural History The petitioner was indicted by Grand Jury on October 18, 20ll, fur the crimes of Robbery - First Degree and Assault during the Commission of a Felony. On December 12, 20 It., Williamson pleaded guilty tQ the robbery charge pursuant to a plea agreement with the 1 Each allegation will be set foI1h in detail in the Conclusions of Law. 2 He also attached "Residenl Transaction Details" regarding his income to support his Application to Proceed in Fonna Pauperis IIIld Affidavit. These documents have no bearing on the haheas issues. 1 ( . State in which the State agreed to dismiss C01.U1t 23 of the Indictment and stand silent at sentencing in exchan:ge for Petitioner's plea of guilty to Co1.U1t 1. He was sentenced to a determinate tenn of twenty·five (25) years in the penitentiary on February 6, 2012. The petitioner filed a motion for reconsideration, which the Court denied on J1.U1e 3, 2013. He filed the instant habeas petition on January 29,2015, followed by a motion for appointment ofc01.U1sel on March 19,2015. II. Standard of Review Habeas Corpus is "a snit wherein probable cause therefore being shown, a writ issued which challenges the right of one to hold another in custody or restraint" Sy1. Pt. 1, State ex rei. Crupe v. Yardliiy, 213 W. Va. 335, 582 S.B.2d 782 (2003); Sy1. Pt. 1, State ex reI. Crupe v. ( Yardley,213 W. Va. 335, 582 S.B.2d 782 (2003). "The sole issue presented ina habeas co!pUs proceeding by a prisoner is whether he is restrained of his liberty by due J'rocess oflaw." Id at Sy1. Pt. 2. "A habeas co!pus petition is nota substitute for writ of errol in thst ordinary trial error not involving constitutional violations will not be reviewed." Id at Syl. Pt. 3. Additionally, a habeas CO!pUS proceeding is civil in nature, and the general standard ofproof is a preponderance of the evidence. Sharon B. W. V. George B. w., 203 W.Va. 300, 303, 507 S.E.2d 401,404 (1998). As established by the West Virginia Supreme Gourt in Tate ex ret. McCabe v. Seifert, 220 W.Va. 79, 640 S.B.2d 142 (2006), habeas corpus re1iefmay be available to (1) Any person convicted of a crime and 3 CoWlt 2 ofthe Indictment cbarge>, Petitioner with assault during the commission ofa felony.. . A Writ of error is a wrltissued by an appellate court tQ the court ofreCord where a case was tried, requiring that the record ofthe trial be sent to the appellate court for examination ofalleged errors, writ oferror. Dictionary.comUnabrtdged (v 1.1) Randcm House, Ine. 4 2 .. ' ," .. , , ( (2) incarcerated under sentence. of imprisonment therefore who contends (3) that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution ofthe United States or the Constitution of this State or both, or (4) that the court was without jurisdiction to impose the sentence, or (5) that the sentence exceeds the maximum authorized by law, or (6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may without paying a filing fee file a petition for a writ of habeas corpUs ad . subjiciendum, and prosecute the same, seeking release from such illegal imprisonment,. correction ofthe sentence, setting aside ofthe plea, conviction and sentence, or other relief. Id; C W.Va. Code §53-4A-l(a)(1967)(RepJ. Vol. 2000). Guided by these standards, the Court has scrupulously considered the petition. the exhibits, the underlying criminal record, the transcripts of relevant hearings, and pertinent legal anthorities. The Court finds that all matters alleged in this habeas petition are inextricably linked to Petitioner's December 12,2011, plea of guilty, and the Court is satisfied based on the petition and accompanying documents and the underlying record that no violation of the petitioner's Constitutional rights occurred and no evidence is needed to resolve the issues. As a result, the Court rules without an evidentiary hearing and hereby sUmmarily dismisses the Petition. See, State ex. rei. Waldron v. Scott, 222 W.Va. 122, 663 S;E.2d 576, 580 (2008) (finding that a circuit court may dispose of habeas allegations without an evidentiary hearing, so long as the order { 3 ,. ., , . (' meticulously addresses each of the grounds raised by the petitioner). It also DENIES Petitioner's motion for appointment of counsel. s llL Dialogue and Testimony To put the petitioner's allegations'in to context, the Court prefaces its Findings of Fact and Conclusions of Law with pertinent dialog from the plea hearing and the sentencing hearing. A. Plea Hearing Co8oquy (December 12, 2011) COURT:6 Mr. Williamson, can you raise yourrlght hand? Do you swear or affirm the testi:qtony you give be the truth, the whole truth, and nothing but the troth, so help you God? . DEFENDANT: Yes, sir. COURT: . How far did you go in school? DEFENDANT': Twelfth grade. ( COURT: And so I take it you can read and write? DEFENDANT: No, sir. COURT: You can't read and write? DEFENDANT: Barely read and write. They've got me down as mental retarded in my school records. COURT: Now did you received [sic] a copy of the indictment in this case? DEFENDANT: Yes, sir. COURT: And did Mr. Evans read it to you? DEFENDANT: Yes, sir. COURT: And did he explain it to you? DEFENDANT: Yes, sir. COURT: And do you understand the nature ofthe charges against you that are made in the indictment? DEFENDANT: Yes, sir. ( S Williamson med 1he motion for appointment of counsel 011 March 19,2015. • Plea Hearing Tmnscript pages 2 thrQugh 8 (hereinafh:.r designated as 12/12/2011 D. at pp. ~ 4 , . , l ( · " .' COURT; DEFENDANT; COURT: DEFENDANT: COURT: Now, it's my understanding that you wish to enter a plea of guilty to the indic1ment pursuant to a plea agreement :that you've reached with the State, is that correct? Yes, sir. Alright. Now before we get to the plea agreement are you under the influence of alcohol or drugs, Mr. Williamson? No, sir. And, uh, do you suffer from any sort of mental impairment that would prevent you from understanding what's going on here in Court today? DEFENDANT: No, Sir. . COURT: Alright. Now, you say that you can... you cannot read and write and did you have like some learning disabled classes and stuff like that? DEFENDANT: Yeah. I've got a ...I've got a learning disability. I don't comprehend stuff that I read. COURT: Alright. Does that in anyway prevent you from understanding what we're doing here? DEFENDANT: No, sir. { COURT: Alright. DEFENDANT: He explained it to me. COURT: In other words, you know where you're at and what you're doing? DEFENDANT: Yes, sir. "''II'" COURT: Alright. Now, uh, under the plea agreement it's been...your lawyer and the State has advised that you agree to plea guilty to Count 1 ofthe indictment which charges you with robbery first degree. DEFENDANT: Yes, sir. "'' ' ' COURT: And [in] exchange for your plea of guilty to that charge the State will move to dismiss Count 2 ofthe charges, the assault during the commission ofa felony and the State will further agree to remain silent· at sentencing. Is that correct? DEFENDANT: Yes, sir. "''''''' COURT: ( Now once again, this agreement is that you plea guilty to Count 1. Count 2 will be dismissed and the State will remain silent at sentencing. , , ,. '" ( - DEFENDANT: Yes, sir. COURT: The complete agreement? DEFENDANT: Yes, sir. COURT: Now do you 1.Ulderstand, Mr. Williamson... there is no agreement as to - punishment or probation and the decision as to punishment in this case is a decision that I, alone, will make? DEFENDANT: COURT: Do you 1.Ulderstand that? DEFENDANT: Yes, sir. COURT: And do you 1.Ulderstand that the penalty that you face by pleading guilty to robbery first degree is a minimum often years in the penitentiary? DEFENDANT: Yes, sir. COURT: And you understand that there is no maximUm on that. That it's up to the discretion of the Court what your sentence will be? ' DEFENDANT: Yes,sir. COURT: ( Yes, sir. And that it will be at least ten years in tha penitentiary but it could be as much as a 100. Do you understand that? DEFENDANT: Yes, sir. COURT: Do you have any questions about the penalty? DEFENDANT: No, sir. *** COURT: Do you have any questions about the punishment you face by pleading guilty to robbery first degree? DEFENDANT: ·7 N 0, SIT. **** COURT: Now do you understand and has Mr. Evans explained to you, Mr. Williamson, the elements of the offense of robbery first degree?8 DEFENDANT: No. I don't understand the elements. COURT: Alright. (Defendant conftrring with his attorney.) DEFENDANT: Okay. Yes, sir. 7 ri/12l2011 Tr. at p. 8 (End Excerpt) • 1211212011 Tr. at p. 8 (Begin Excerpt) 6 ( COURT: And by elements ofthe offense what that means is that's what the State would have to prove beyond a reasonable doubt in order for a jury to find you guilty of that. Do you understand that? DEFENDANT: Yes, sir. COURT: And robbery first degree first ofall is a crime. that committed against a person. Do you understand that? . DEFENDANT: Yes, sir. COURT: And ifwe went to trial in order for a jury to find you guilty of robbery first degree the Court would have to prove beyond a reasonable doubt that you unlawfully and feloniously committed violence to a person and that while and the reason that you committed the violence to the person is so that you could steal property from them. Take from their person property. Do you understand that? DEFENDANT: Yes, sir. COURT: And that's, ub, and the property had to be either ou their person or under their custody and control. Do you understand that? DEFENDANT: Yes, sir. COURT: So it's a violent crime thai's committed against a person for the purpose of stealing property from them. . ( \. Do you understand that? DEFENDANT: Yes, sir. COURT: And that's what the State would have to beyond a reasonable doubt. Do you understand that? DEFENDANT: Yes, sir. COURT: Alright. Do you have any questions about the offense ofrobbery first degree? DEFENDANT: No, sir. COURT: And you uriderstand what the elements ofthat offense are? . 9 Y es, SIr. DEFENDANT: *** COURT: 10 Alright. Now has anyone promised you leniency or a lighter sentence to get you to plead guilty? DEFENDANT: No, sir. • 1211212011 Tr. atp. 10 (End Excerpt) 10 1211212011 Tr. alp. 19 (Begin Excerpt) 7 ., ~ ( COURT: Has anyone promised you I'd put you on probation? DEFENDANT: COURT: No, sir. DEFENDANT: No, sir. COURT: Now on the other hand has anyone threatened you or anyone in your family or placed you in fear to get you to plea guilty? DEFENDANT: No, sir. COURT: Is your offer to plea guilty free and voluntary ofyour own part and you're doing of your own free will? DEFENDANT: Yes, sir. COURT: In other words, no one is forcing you to do it? DEFENDANT: No, sir. COURT: Now, MI. Williamson, do you understand that a guilty plea is more than an admission of criminal conduct, that it will be·a conviction... There's not going to be a trial of any kind and all I would have to do is accept a ... accept your plea of guilty and you stand convicted of this robbery first degree and th.at the only thing left for me to do after that would be to determine what sentence should be imposed? Do·you understand that? DEFENDANT: Yea, sir. COURT: Knowing all of this, do you still with to enter a plea of guilty? DEFENDANT: Yes, sir. ( Have any promisea been made to you other than what's in the plea. agreement that we stated at the ... that we went over at the beginning of the hearing? "'*'" COURT: Befure entering your plea do you want to have more tin'te to talk to MI. Evans or to anyone else? DEFENDANT: No, sirY "'** COURT: 12 Now, MI. Williamson ifyou and MI. Evans will come up to the Clerk's Desk here and we'll go over these furms that you submitted to the Court and while you're up here I'll have you execute your written plea of guilty. . Now the first document we have is this petition to enter a plea of guilty. Do you recognize that, MI. Williamson? , II • 12 1 1211212011 Tr. atp. 21 (EndExcerpt) 12/1212011 Tr. at p. 22-26 8 ( \. DEFENDANT: Yes, sir. COURT: And did Mr. Evans read that to you? DEFENDANT: Yes, sir. COURT: Did he explafu it to you? DEFENDANT: Yes, sir. COuRT: Do you understand everything that is contained in that document? DEFENDANT: Yes, sir. COURT: Now do you have a,ny questions of the Court about any of the matters . that's coutained in that document? DEFENDANT: No, sir. *** COURT: DEFENDANT: Yes, sir. COURT: And did Mr. Evans read all the questions to you that's in that document. DEFENDANT: Yes, sir. COURT: And didyou answer the questions that [he] read to you? DEFENDANT: Yes, sir. COURT: And did you go over your questions and answers with you? DEFENDANT: Yes, sir. COURT: And do you understand. all your questions and your answers that are contained in that document? DEFENDANT: Yes, sir. COURT: And is that your signature at the first .of four pages of that document? DEFENDANT: Yes, sir. COURT: Do you have any questions ofthe Court about any of the matters that's contained in that document? DEFENDANT: C T4e Court will order that the petition to enter plea of guilty be filed. The next document that the Court has is called the Defendant's Statement in Support of Guilty Plea. Now, do you recognize that document, Mr. Williamson? No, sir. *** COURT: Now the last document we have, Mr. Williamson, is your actual written plea of guilty. Do you recognize that? . ( 9 ( DEFENDANT: Yes, sir. COURT: And did Mr. Evans Read that to you? DEFENDANT: Yes, sir. COURT: And did he explain it to you? DEFENDANT: Yes, sir. COURT: And d9 you understand everything that's contained in that document? DEFENDANT: Yes, sir. COURT: Is that your signature at the bottom of the first page? DEFENDANT: Yes, sir. COURT: Now do [you] have any questions of the Court about any of the matters in that document? DEFENDANT: No, sir. COURT: And you understand that's your actu;il plea of guilty to first degree robbery under Count One ofthe indictment? DEFENDANT: . COURT: { Yes, sir. Alright. Ifthat's still what you want to do you need to sign the bottom of the second page there which acknowledges your plea of guilty to Count One of Indictment Number II-F-340 charging you with robbery first degree. 13 . PROSECurOR: Ifwe took this case to trial, Your Honor, the State's evidence would show that on the 17th day of August, 2011, Lois Christian was 'coming from or she was at the Roses here in Princeton on Stafford Drive. That while she was at entry way of the Roses Mr. Williamsou came by and . took her purse by furce. He broke the strap on the purse when he jerked offher shoulder and knocked her to the ground. She suffimid a dislocated shoulder. That he fled on a bicycle. Was apprehended by some construction workers who saw what had happened. When he was, picked up by the police he was advised of his Miranda warnings and he . confessed to the crime of robbery. That would be the State's evidence. COURT: 14 Now, Mr. Williamson, you hear what the State said. Is that what happened? DEFENDANT: Uh, some like that. I... truly quite like that. COURT: ( • 13 14 Alright. Y011 tell me what happened. 1211212011 Tr. at p. 26 (End Excerpt) 1211212011 Tr. atp. 27 (Begin Excerpt) 10 , ( ' I was coming through Roses' parldng lot and a woman was walking and she had her purse in her hand slinging it and it wasn't on her shoulder. And I rode the bike by. I grabbed it and I pulled it and the strap did break and she apparently did fillI. And I took offon the bike and uh there wasn't no construction workers that apprehended me. It was the detectives or the cops that was out there. TIley caught me running down a little alley. COURT: Okay. DEFENDANT: That's all. COURT: Alright. But you're pleading guilty because you are guilty? DEFENDANT: Yes, I am guilty. 1 did do it. COURT: Alright. Now, Mr. Evans, before I accept your client's guilty plea, having talked with him, having investigated his case and having heard tIle representations oftIle State with respect to its evidence and knowing the facts and circumstances surrounding this matter can you see any advantage to your client ifthis case proceeded to trial? COUNSEL: No, sir. COURT: Do you know ofany meritorious defenses he would have if this case went to trial? COUNSEL: No, sir. COURT: Do you feel it is in his best interest for the Court to accept the plea pursuant to tIle plea agreement? COUNSEL: Yes, sir. COURT: Alright. COURT: Now, Mr. Willianlson. are you satisfied with the maooer in which Mr. Evans has represented you? DEFENDANT: Yes, sir. COURT: Do you feel that there is anything he failed to do in representing you? DEFENDANT: No, sir. COURT: Did he do. anything in your case you did not want him to do? DEFENDANT: No, sir. COURT: Do you have any complains at all about how he's represented you? DEFENDANT: No, sir. COURT: Have you understood all ofmy questions ~day? DEFENDANT: ( DEFENDANT: Yes, sir. ( 11 ( COURT And did you understand all ofthe matters I explained to you? DEFENDANT: Yes, sir. COURT: Were all of your answers truthful? DEFENDANT: Yes, sir. COURT: Did you freely and voluntarily tender this plea of guilty to this Court? DEFENDANT: Yes, sir. COURT: Do you have any questions at all about your guilty plea or anything else? DEFENDANT: No, sir. COURT: Alright. And do you want the Courtto accept your plea or reject it? DEFENDANT: I'd like for them 10accept it. COURT: Alright. The Court, after due consideration of the facts and circumstances developed by the responses and statements made by the Defendant, and ofthe statements made by both the attomey for the Defendant and the attomey for the State finds as follows: The Defendant and his attorney have received a copy ofthe indictment in this case, and the defendant understands the nature and meaning of . the charge against him contained in the indictment. ( The Defendant has an attorney, who is competent in criminal matters, and the Defendant is totally satisfied wi1$ the representation and advice he received from his attorney. . *** The Court further finds that 'the defendant also understands that. .. any plea agreement that appears in the record of this case'is not binding on this Court with respect to punishment or probation; and that he may be sentenced to the penitentiary of this State for a minimum term often years. He understands there is no maximum term and it wonid be at the discretion of the Court what his sentence wonid be ... Mr. ,Evans, do you have any motions that you wish to make at this time? COUNSEL: .Your Honor, I'll be filing some written motions for alternative sentencing but none at this time. is B. Sentencing Hearing Colloquy (Febroary 6, ZOU) COURT:16 ( Alright. Thank you. 1211212011 Tr. at p. 33 (End Excerpt) '62/612012 Tr. atpp. 6-10. 15 12 ( The question before the Court is what should be the proper sentence for Mr. Williamson. As the· C~urt'has previously pointed out Mr. Williamson has pled guilty to a robbery first degree which carries a minimum sentence often years in the penitentiary. So there's really . a couple ofquestions that the Court has address at this sentencing hearing. The first is whether or not the Court should suspend any sentence and place Mr. Williamson on some sort ofprobation or other fann of alternative sentencing and the second question is what should be the actual sentence that Mr. Williamson receives as far as a term of years. We'll address the first question that the Court posed at this time and that's whether or not Mr. Williamson should be granted any sort of' probation or other furmS of alternative sentencing. tbis... / ( of Mr. Williamson that the Court has is that The picture before he is 26 years of age. He's a high school graduate. He's...he's single. Uh, he's obviously unemployed. He's been incarcerated for 205 days. He has a criminal history that involves a lot of misdemeanor arrests mostly from the State ofTennessee which he...where he is from. They're the type of offenses that he's ...he's ... shows the Court that he's struggled with a drug problem probably fur some time. A lot of drug... drug related offenses as well as other type ofsubstance ,o:f'l:enses related to driving charges. That and of itself shows that while he does have some prior criminal history the best I could tell he has no prior feiony history so that does work somewhat in his favor. ( The overwhelming aggravating circumstances surrounding this case are the...is the o:f'l:ense itself. I mean. this is just a horrible offense as far as the Court's concemed. A robbery is not a property crime as most people, uh. most of the lay public thinks it is. A robbery is actually a crime against the person. It is Ii violent crime: It's a crime where a person is accosted by force and property is taken from them against their will. Next to murder there is really no more serious charge in the State of West Virginia. And some would argue that it's even more serious than second degree murder. That next to first degree murder it's the most serious charge. And rightfully so. This is a case where a woman was in the...in a local business establishment going :from the parking lot, uh. between the parking lot and the store and she is physically assaulted. Now Mr. Williamson indicates he had no desire to hurt Ms. Christian. Whether he had that desire or not, he did. And he knocked her doWIl, forcibly took her , purse, separated her shoulder, and no doubt not only the physically scars from the altercation but the emotional scars she will have to deal with for the rest ofher life are no doubt just enormous. I mean, 13 ( no one should have to put up with that tYPe of activity. The Court is sympathetic toward Mr. Williamson. I understand he has a drug problem but never the less that does not give another person the right to do what happened in this case. Because ofthe seriousness ofthe offense, the Court finds that probation would denigrate the seriousness ofthe offense. Or any other alternative sentence so the Court will deny the motion for probation or other furm of alternative sentence. That's just not appropriate in this case due to the violent nature and the 'seriousness ofthis offense. So the question now becomes is what should be the proper sentence. As indicated this is a charge that carries a minimum often years in the penitentiary but it can be more in the discretion of the Court. Basically the sentence is at the discretion ofthe Court. ' ( Once again the Court is somewhat sympathetic towards Mr. Williamson in that he has had a drug problem for a while. He's ...he's had some issues and some problems growing up but the Court just 'cannot overlook once again the seriousness and the violent nature of this offense and really just the stupidity ofthis offense. I mean. the... the fact that this was done in view ofwituesSes. It's obvious it wasn't well thought out It wasn'twell planned. It was a crime, no doubt, of opportunity and the Court feels like the sent.!mce of Mr. Williamson receives should hopefully serve as a deterrent to others that are wanting to commit these type of violent offenses. So it's the judgement and order of this Court"Mr. Williamson, that you be sentenced to the penitentiary ofthis State for the determinant term of 25 years. The Court will give you credit for 205 days that you previously served in this matter. The Court is not going to , impose a fine and but the Court would impose court costs. You'll have six months from the date that you're released from the penitentiary to pay your court costs. Failure to do so could result in your liceose to operate a motor vehicle be suspended by the State. Ifyou wish to appeal the Court's decision in this matter you can do so by filing anotiee ofintentto appeal within 30 days from the date that ,the Order is entered from today's hearing. It can be filed with the Supreme Court of Appeals in Charleston, West Virginia. If you wish to appeal the Court's decision in this matter and you eaonot afford an attorney one will be appointed for you at no cost to the Court, er, nO cost to you upon proper application to the Court. Is there anything further that we need to 'do? PROSECUTOR: State moves to dismiss Count 2, Your Honor. ( 14 '. ,( , COURT: IV. Pursuant to the plea agreement that will be granted. General Findings ofFaet I. The petitioner was indicted by Grand Jury on October 18, 2011, for the crimes of Robbery - First Degree and Assault during the Commission of a Felony. 2. On December 12, 2011, Williamson pleaded guilty to the robbery charge pursuant to a plea agreement with the State. 3. Williamson's attorney affinned that he had reviewed with the petitioner the elements of the crimes charged, the evidence, possible defenses, the consequences of pleading guilty, and his constitutional rights. 17 4. In support of the plea, Petitioner completed and signed Defendant's Statement in Support of Guilty Plea; Petition to Enter Guilty Plea; and Plea of Guilty (hereinafter collectively referred to as "Plea Documents''). S. At the plea hearing and prior to the entry of the petitioner's plea of guilty and execution ofthe Plea DocUments, the Court addressed with him each of the rights he would be relinquishing through his guilty plea, including his presumption ofinnocence; his right to a trial before an impartial jury, the State's burden of proving his guilty beyond a reasonable doubt before he could be found guilty by ajury; his right against compelled self-incrimination; his right to present witnesses to testilY on his behalf; his right to question the' State's witnesses and to confront his accusers. The petitioner testified that he understood each ofthe rights he would be relinquishing through his guilty plea. ( 17 Attorney's Statement in Support of Guilty Plea. IS '. ( 6. In addition, the Collrt advised Petitioner of-the possible penalties for the offense to which he was entering a guilty plea. Indeed, it explicitly informed the petitioner that "there is no lll3ildmum on that, That it's up to the discretion ofthe-Collrt what your sentence will be... it will be at least ten years in the penitentiai:y but i~ could be as much as a 100." The petitioner affinned his understanding that sentencing would be entirely in the Court's discretion. 7. Finally, before allowing the petitioner to enter his guilty plea, the circuit court provided him another opportunity to confer with counsel. Petitioner informed the Court he didn't need any additional time to confer and was ready to proceed with the plea. 8. The petitioner then entered his guilty plea to First Degree Robbery, after which the prosecutor gave the factnal basis ofhis crime. In response, the petitioner recited his ( \ version ofthe crime, which was "something like" the Sta;te's version: r was coming through Roses' parking lot and a woman was walking and she had her purse in her hand slinging it and it wasn't on her shoulder. And r rode the bike by. I grabbed it and I pulled it and the strap did break: and she apparently did fall. And r took offon the bike and uh there wasn't no construction workers truit apprehended me. It was the detectives or the cops that was out there. They caught me running down a little alley. 9. The Collrt then asked, "But you're pleading guilty because you are guilty?" The petitioner responded, "Yes, I am guilty. I did do it." 1O. Thereafter, the Collrt found the petitioner had freely and voluntarily entered his guilty plea with the advice and consultation with competent legal counsel and had understood the consequences ofhis plea, including the possible penalties the Collrt coUld impose at sentencing. ( 16 , '. ·. 11. The Court accepted the petitioner's guilty plea and adjudged the petitioner guilty of First Degree Robbery. 12. Following the petitioner's plea of guilty and the Court's acceptance thereof, it ordered a . presentence investigation report to be completed by the Mercer County Adult Probation Office and scheduled a sentericing hearing for February 6, 2012. 13. Defimse counsel filed a motion for probation and a motion fur home confinement, both of which counsel advocated at the hearing un February 6, 2012. 14. During the sentencing hearing on February 6, 2012, the Court inquired ofcounsel for the petitioner if th~ petitioner had received a copy of the presentence investigation report. Counsel informed the Court it was accurate other than its conclusion that Petitioner would have no place to stay if granted probation. The Comt noted the correction. Prior to issuing the sentence, the Court again discussed the :fuct that the crime to which Petitioner pleaded guilty carried no maximum sentence and the ultimate period of incarceration would be in the Court's discretion. The Court proceeded with sentencing, articulating the factors and mitigating circumstances it considered in ultimately sentencing Petitioner to a determinate term oftwenty-five (25) years in the penitentiary. 15. During the sentencing hearing the Court expressly informed Williamson that COURT: If you wish to appeal the Comt's decision in this matter you can do so by :filing a notice ofintent to appeal within 30 days fro~ the date that the Order is entered from today's hearing. It can be filed with the Supreme Comt of Appeals in Clu!rleston; West Vrrginia. If you wish to appeal the Court's decision in tqis matter and you cannot afford an attorney one will be appointed for you at no cost to the Comt, er, no cost to you upon proper. application to the Court. IS .' t. I' Sentencing Hearing Transcript, pages 10 and 11 (hereinafter designated as 21612012 Tf. at pp.-.-> 17 ( \ 16. At no time did Petitioner ever seek the appoinlment of an attorney to pursue an appeal. 17. On March 6,2012, trial couusel timely filed a Rule 35(b) motion for reconsideration of sentence. 18. By letter dated September 10,2012, the Circuit Clerk of Mercer Couuty informed Petitio.ner that he would be notified if the Court considered his Rule 3S(b) motion. 19. Thereafter, the petitioner submitted a letter again asking for reconsideration ofhis . sentence. 19 20. The Court denied Rule 35 relief on May 31, 2013. 21. On or about January 29, 2015;. the petitioner filed the instant petition for writ ofhabeas corpus. The motion for appointment of counsel was filed on March 19, 2015, and denied for the reasons set forth, supra. / l V. ConclusioDS of Law Ground 1: Involuntary Plea of Guilty (decided under Federal and State law) Claim as Set Forth in Petition In Ground I, the petitioner contends his plea of guilty was ''unlawfully induced or not made voluutarily with uuderstanding of the nature of the charge and the consequences ofthe plea?O The facts he says support this Ground are: In his PETITION TO ENTER PLEA OF GUILTY, filed Dec. 12, 2011, at 7. is stated: "My lawyer has advised me that the maximum punishment which the law provides for the offunse of 1,I Degree Robbery charged in the Count One count of the indiclment is 10 minimum years in the State Penitentiary or a fine not to exceed $0.00, or both." This led the Defendant to believe that by entering a plea of guilty he was subject to a maximum - 19 The ( ~.--------- date on the letter isPebruruy 10, 2013. The official date stamp from theC!rcuit Clerk's office is June 3, 2013). 2<>112912015 Petition Under W. Va. Code §53·4A·1 For Writ a/Habeas Corpus, Ground 1, p. 5. 18 penalty .of 10 years. Defendant received 25 years. Ifhe bad known he was g.oing to receive 25 years and not 10, he W.ould n.ot have entered a plea .ofguilty.21 Legal Authority Our C.ourt has long rec.ognized that "[a] guilty plea based .on c.ompetent advice .of counsel represents a seri.oUS admissi.on.of factual guilt, and where an adequate record is made. to sh.oW it was V.oluntarily and intelligently entered, it willllot be set aside." SyI. Pt. 3, Stste ex reI. Burton v. Whyte, 163 W.Va. 276, 256 S .E.2d424 (1979). The 1975 case Callv. McKenzie, 159 W.Va. 191,220 S.E.2d 665 (1975) is the seminal West Virginia case in which.our C.ourt established guideless f.or trial c.ourts to f.oll.oW in ascertaining wh~er a defendant's l'lea .of guilty was v.oluntarily and kn.owingly made. Specifically,.our C.ourt held as f.oll.ows: When a criminal defendant proposes to enter a plea .of guilty, the trial· judge should interrogate such defendant .on the rec.ord with regard t.o his intelligent understanding .ofthe f.oll.owing rights, some .of which he will waive by pleading guilty: 1) the right t.o retain counsel .ofhis choice, and if indigent, the right to court appointed counsel; 2) the right to C.onsult with . counsel and have c.ounsel prepare the defense; 3) the right to a public trial by an impartial jury .oftwelve persons; 4) the right to have the State pr.ove .its case bey.ond a reasonable doubt and the right .ofthe defendant to ~d mute during the proceedings; 5) the right t.o c.onfront and cr.oss-examine his accusers; 6) the right to present witnesses in his .own defense and t.o testilY himself in his .own defense; 7) the right t.o appeal the convicti.on f.or any errors .onaw; 8) the right to move t.o suppress illegally .obtained evidence and illegally .obtained c.onfessi.ons; and, 9) the right t.o challenge in the trial court and .on appeal all pre-trial pr.oceedings. ( Where there is a plea bargain by which the defenliant pleads guilty in consideration f.or some benefit conferred by the State, the trial court sh.ould spread the terms .of the bargain upon the record and interrogate the defendant concerning whether he understands the rights he is waiving by pleading guilty and whether there is any pressure UP.on him to plead guilty .other than the considerati.on admitted on the rec.ord. ( 21 Emphasis in original Petition. 19 . . c A trial court should spread upon the record the defendant's education, , whether he consulted with friends or relatives about his plea, any history of mental illness or drug use, the extent he consulted with counsel, and all other relevant matters which will demonstrate to an appellate' court or a trial court proceeding in habeas corpus that the defendant's plea was knowingly and intelligently made with due regard to the intelligent waiver of known rights. Syl. PIs. 3; 4 and 5, Call v. McKenzie, 159 W.Va. 191,220 S.E.2d 665 (1975). These requirements ere echoed in Rule 11 ofthe West Virginili Rules of Criminal Procedure ("Rule Conclusions of Law 1. Upon review of the transcript of WiJliamson' s plea hearing it becomes evident the Court conformed to the requirements ofboth Call v. McKenzie and Rule 11. As reflected in the plea colloquy, supra, Petitioner was presented with multiple opportunities to ask questions regarding ( the charge to which he was pleading and to ask for clarification of any matter he did not " understand?3 Indeed, he fully understood he could ask for clarification because he did in fact do 22 Rule I Iprovides, in pertinent part, as fullows: (c) Advice to Defendant-Before accepting a plea of guill;y or nolo contendere, the court must address the defendant personally in open court and inform the defendant o~ and determine that the defendant understands, the follOwing: (I) The natore ofthe chilrgeto which the plea is of.rered, the mandatoryminlmum penalty provided by law, if any, and the maximum possible penalty provided by law; and ...... (3) Th1Il the defendant has the right to plead not guiJty or to persist in that plea ifit has already been made, and that the defendant has the right to be tried by a july and at that trial the right to the assistance of co1lllse1, the right to conftonl and cross-examine adverse witnesses, the right against compelled seIf.incrimination. and the right to ,call witoesses; and (4) Th1Il ifa plea ofguilty or nolo contendere is accepted by the court there will not be a further trial of any kiod, so that by pleading guilty Or nolo cootendere the defendant waives the right to a trial; and •••• (d) Ensuring that the plea is lIo1untary.-The court shall not accept a plea ofguilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats ar ofpromises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attotney fur the state and the defendant or the defendant's attorney. ' ( , 20 ( so when he did not understand the elements of the offense offust degreerobbery?4 At no other point did Petitioner indicate a lack ofunderstanding. Instead, Petitioner affinned (under oath) that he understood the indictment, the elements offust degree robbery, the possible punishment, and the Court's discretion in imposing the punishment in regard tothere being no maximum tenn of incarceration for First Degree Robbery. 2. For similar reasons, the Court fmds no merit to Petitioner's assertion that paragraph number 7 in the Petition to Enter Plea ofGuilty led him to believe the maximum sentence for first degree robbery was ten years. Although the boilerplate langunge on the document states: "my lawyer has advised me that the maximum punishment which the law provides for the of...", the blank spaces allow counsel to write in the specific penalties for the offense at issue. In petitioner's case, Mr. Evans clearly specified in writing that the punishment for first degree ( robbery is "10 minimum years." Even if Petitioner was somehow misled b.y paragraph 7, the thorough and unambiguous colloquy between the Court and the petitioner unequivocally negates his contention. The transcript reflects that Williamson knew and understood the crime to which he pleaded guilty and its punishment; Petitioner further knew and onderstood he did not have to plead guilty and directly informed the Court he wanted "them to accept it'.25 3. Assuming for the sake of argument that despite Petitioner being informed that "it will be at least ten years in the penitentiary but it could be as much as Ii 100," and Petitioner confuming under oath he l.Ulderstood the punishment and had no questions about the penalty,26 the Court finds he was not at all prejudiced because he twice admitted guilt He twice stated under oath Z4 ( 12112111 Tr. atpp. 8-10, supra. 25 26 12/121201 J Tr. at p. 33. 1211212011 Tr. atpp. 6-8. 21 '. that he was guilty ofFirst Degree Robbery. Specifically, to conclude its consideration ofthe Call requirements, the Court made various inquiries, read the Indictment, and aSk Williamson . how he pleaded to the offense of first degree robbery:27 COURT: Alright I'm going to read Count One ofthls indictment to you, Mr. Williamson, and at the conclusion I'm going to ask yon what your plea is, guilty or not guilty. If you want to plea guilty you need to say guilty. If you mange your mind and don't want to plea guilty say not guilty. Or don't say anything and !fyou don't say anything the Court will enter a plea of Qot guilty for yon. The Court has before it indictment Case Number I1-F-340 charges the State of West Virginia versus Steven A. Williamson. That's you, isn't it? DEFENDANT: Yes, sir. COURT: ( Count One reads the Grand Jury charges Count One that on or about the 17th day of August, 2011 in the County ofMercer, State ofWest Virginia Steven A Williamson committed the offense ofRobbery first degree by unlawfully and feloniously committing violence to the person ofLois Christian by knocking ber to the ground and taking, stealing or clirrying away her purse against her will. Said property being in the lawful care, custody, and control of Lois Christian against the peace and dignity ofthe State. . Now, Steven A. WilliariIson, as to Count One ofthe Indictment charging 'you with robbery first degree are yon guilty or not· guilty? DEFENDANT: Guilty. And then again after the State proffered a summary ofthe evidence it would have introduced at trial, the defendant informed the Court "[y]es, I am guilty. I did do it.',2S 4. Quite simply, the record is devoid ofany statement supporting WilliamsoI)'s assertion that his plea was involuutarlly. By his own sworn admissious, Petitioner knew ten years of . incarceration was a minimum sentence, he pleaded guilty freely and voluntarily, and he asked the ( .11211212011 Tr. atpp. 21-22 (emphasis supplied). 28 1211212011 Tr. atp. 28. 22 " ( Court to accept his plea. 29 For these reasons, the Court concludes the petitioner's plea was intelligently, knowingly, and voluntarily made. Relief Denied. Ground 2: Ineffective assistane,e of counsel (decided under Federal and State law) Claim.as Set FoTth in Petition The facts Petitioner sets forth to support Ground 2 are as follows: Petitioner was told by his attorney that he would receive a 10-year sentence ifhe entered a plea of guilty. (See PETITION TO ENTER PLEA OF GUILTY, filed Dec 12, 2011, at Paragraph 7.)(attached). Following entry ofplea Petitioner's attorney did not talk to him prior to sentencing, and did not effectively argue for the 10-year sentence that he told Petitioner he was going to receive, did not object to sentence of25 years, did not file an appeal on Petitioner's behalf. 30 ( LegalAuthority The Sixth Amendment ofthe United States Constitution, applied to the states through the Fourteenth Amendment, and Article Three Section Fourteen ofthe West Virginia State Constitution guarantee a criminal defundant the right to effeCtive counsel. U.S.Const.Amend. VI and XIV; W. Va Const Amend. Art. III §14. The West Virginia Supreme Court ofAppeals set forth the standard ofreview for claims of ineffectiveassistsnce of counsel in Syl. Pis. 5 and 6, State v. Miller, 194W. Va 3, 459 S.E.2d 114 (1995): In the West Virginia courts, claims ofineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 674 (1984); (1) Counsel's performance was deficient under an objective standard of reasonableness; and ' (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result ofthe proceedings would have been different. In reviewing counsel's performance, courts must apply an objective standard and'determine , ( , 2' 1211212011 Tr. at p. 30. '°1/2912015 Petition Under ' w: Va. Code §j34A-I For Writ qfHabel1/l Corpus, Ground I, p. 5. 23 ... ';; \ ( whether, in light ofall the circumstances, the identified acts or omissions were outside the broad range ofprofessionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, Ii reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as de:funse counsel acted in the case at issue. As recently as October of2010 inState v. VanHoose, 227 W.Va. 37, 705 S.E.2d. 544 (2010), the West Virginia Supreme Court explained that "[i]n deciding ineffective ... assistance claims. a court need not address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668. 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W. Va. 3,459 S.E.2d 114 (1995),10 but may dispose ofsuch a claim based solely on a petitioner's fuilure to meet either prong of the test." Syl. pt. 5, State ex ref. Daniel v. Legursky, 195 W. Va. 314,465 S.E.2d416 (1995); See also, Syl. pt. 3, Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Thus, the failure to satisfy one prong defeats a claim ofineffective assistance. Conclusions of Law 1. Bearing in mind that "a court must indulge a strong presumption that counsel's conduct falls within the wide range ofreasounble professional assistance," the transcript ofthe plea hearing makes clear that counsel's performance was 'by no means deficient under the above standards, aild that even if it were, the petitioner suffe(ed no prejudice. See, Syl. pt. 2, Strickland, 466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674. State ex ref. Danielv. Legursky, 195 W. Va. 314, 324, 465 S.E.2d 416, 426 (1995)("prejudice" is whether the result ofthe proceedings was fundamentally unfair or unreliable). First, the record reflects that counsel did not tell Petitioner he would get a ten-year sentence. Just as in Ground 1, supra, Petitioner bases this contention on the boilerplate language contained in paragraph 7 of a document he could not read - the same r 10 The two-prong test is hereinafter referred to as the Strickland-Miller test. 24 ( document which defense counse1.correctly completed as having a "10 minimum years" . incarceration. See, Count 1, supra. In addition, Petitioner's answers under oath ex.pressly refute this contention: COURT: 31 Alright. Nowhas anyone promised you leniency or a lighter sentence to get you to plead gnilty? . DEFENDANT: No, sir. COURT: Has anyone promised you I'd put you on probation? DEFENDANT:· No, sir. COURT: Have any promises been made to you other than what's in the plea agreement that we stated at the...that we went over at the beginning of the hearing? DEFENDANT: No, sir. The argument lacks merit here just as it did in Ground 1. 2. ( The record is devoid of evidence suggesting that counsel's performance was deficient based on a failure to talk to his client prior to sentencing or that additional conferences would have changed the outcome ofthe sentencing hearing.32 ·3. . The extensive explanation the Court gave at sentencing demonstrates that Mr. Evans' argument on Petitioner's behalf was right on point, as it focused on mitigating factors and advocated alternative sentencing options?3 Furthermore, even if Mr. Evans had objected to the sentence or advocated di:trerently, the Court's rationale for imposing the lengthy sentence obviates any chance that the CoUrt would have decreased the twenty-five year sentence. 4. As established by the transcript of the sentencing hearing, the Court specifically informed the petitioner that he could appeal the Court's decision. It also explained the manner in which to ( 31 12ll2l2011 Tr. atp. 19; See, $upra, pp. 6,21; See, infra, p. 28. . "The transcript shows that Mr. Evans did, in fact, speak with his client prior to sentencing. 21612012 Th. at p. 2. "21612012 Tr. at pp. 2-S. ., 25 ( file an appeal, the time frame in which to file notice of appeal, and where to file the notice of appeal. He was instructed that if he could not afford a lawyer, the court would appoint one to . assist him upon proper application to the court. For these reasons, the Court finds that the petitioner bore the responsibility for filing an appeal, not mal counsel. 5. For these reasons, Petitioners claims of ineffective assistance of counsel fail both prongs of the Strickland-Miller test. ReliefDenied. Ground 3: Severer sentence than expected (decided under Federal and State law) Claim tIS Set Forth in Petition The Petitioner argnes that his lawyer told him he "would receive a 10-year sentence ifhe entered a plea of guilty," and, thns, he received a more severe sentence than he expected. ( . Specifically, he alleges in Ground 3 of the Petition that [a]ccording to the advice ofhis attorney, .and according to the wording in the PETITION TO ENTER PLEA OF GUILTY, Petitioner believed that by entering a plea of guilty he was going to receive a 1O-year sentence. Had Petitioner known he was going to receive a 25-year sentence he would not have entered the plea of guilty. Both the record and relevant law render his contention meritless. Lega/Authority A two-factor inquiry governs this instant issue. Specifically, as established in State v. Goodnight, sentences imposed by the mal court, 'if within statutory limits and ifnot based on some [imJpermissible rutor, are not subject to appellate review,' Syllabus point 4, State v. Goodnight, 169 W. Va. 366,287 RE.2d 504 (1982)." Syl. Pt. 6, State v. Slater, 222 W. Va. 499, 665 S.E.2d 674 (2008); See, Hart v. Plumley, No. 11-1326,2013 WL 513183, at *1 (W. Va. Feb. 26 ( 11, 2013). The statutory limits for incarceration for fust degree robbery are codified in W.Va. Code §61-2-12, which provides, in pertinent part, that (a) Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial str~gulation or suffocation or by striking or beating... is guilty of robbery iI;t the first degree and, upon conviction thereof, 1fha11 be imprisoned in a Iftate correctional focility not less than ten years. (emphasis supplied). Conclusions of Law 1. Applying the statute to Petitioner's sentence of a detenninate tenn oftwenty-five years in the penitentiary, leads to one conclusion: the sentence falls within the statutorily crafted pnnishment of "not less than ten years" imprisonment. ( 2. In regard to the second Goodnight factor, the petitioner has made no allegation the Court applied or relied upon impermissible factors in its sentencing. For the sake of argument, even assmning petitioner did make such an allegation, the transcript of the sentencing hearing reflects that none of the reasons relied upon by the Court were impermissible or inappIopriate considerations. 34 3. As discussed in Ground 2, the Court expressly infonned the petitioner during the plea hearing about the possible sentence he could face.3s It :fiir!her demonstrates that the petitioner . fully understood the Court had discretion to sentence him to much more than ten years. COURT: Now do you understand, Mr. Williamson...there is no agreement as to punishment or probation and the decision as to punishment in this case is a decision that I, alone, will make? DEFENDANT: Yes, sir. >4 21612012 Tr. at pp. 6-10. "1211212011 Tr. atpp. 6.8; p. 27 , .,. , ( COURT: Do you understand that? DEFENDANT: Yes, sir. COURT: And do you understand that the penalty that you face by pleading guilty to robbery first degree is a mininunll often years in the penitentiary? DEFENDANT: Yes, sir. COURT: And you understand that there is no maximum on that. 'That it's up to the discretion ofthe Court what your sentence will be? DEFENDANT: Yes, sir. COURT: And that it will be at least ten years in the penitentiary but it could be as much as a 100. Do you understand that? DEFENDANT: Yes, sir. COURT: Do you have any questions about the peilalty? DEFENDANT: No, sir. *** Do you have any questions about the punishment you face by pleading guilty to robbary fIrst degree? DEFENDANT: No, sir,36 COURT: ( 4. Similar information was explained in the petitioner's written Plea Agreement and the other plea documents he completed and signed,31 and Paragraph 5 of the Plea Agreement stated that ":the defendant agrees that an unpleasant or unanticipated sentence does not give the defendant the 'right to withdraw from this plea Agreement. (emphasis added). Thus, despite that fact that the Petitioner was hoping to receive the minimum sentence often years and the record indisputebly contradicts his claim that "had Petition(lr known he was going to receive a 25-year sentence he would not have entered the guiity plea.'~ 5. Petitioner was well aware ofand repeatedly informed that ten years was a minimmn sentence. He also knew and understood that "it will be at least ten years in the penitentiary but it ( ,. 1211212011 n. at pp. 6-8 " 28 " ( , could be as much as a 100" years of incarceration, and he still proceeded to plea of guilty. Petitioner cannot now claim he received a severer sentence than expectei:l or otherwise undo his voluntary and knowing plea of guilty on tb.l.!t basis. Relief Denied.• ground 4: Failure of counsel to appeal (decided under Federal and State law) Claim as Set Forth in Petition Just as in Ground 2, Petitioner's Ground 4 asserts error in defense counsel's failure to file an appeal. Specifically, the contention is that [d]espite the fact that Petitioner desired for his attorney to file an appeal in his behalf, and the fact that sufficient grounds existed for an appeal, none was ever filed .. Analysis and Conclusions ofLaw ( 1. For the same reasons set forth in Ground2, this argument fails. Relief Denied. VI. Ruling 1. The motion for appointment of counsel is DENIED. 2. The underlying record unequivocally establishes that Petitioner is not entitled to relief in . Habeas CoIpus. Therefore, it is hereby ORDERED, ADJUDGED and DECREED by this Court that the Petition for Writ ofHabeas Corpus and the relief prayed for therein be, and the same is hereby DENIED. 3. The Clerk ofthis Court is directed to remove this case from the docket and provide a copy of this Order to: ( , 29 ( George Sitler, Chief Assistant Prosecuting Attorney Mercer County Prosecutors O:I;fice Mercer County Courthouse Steven a Williamson St. Marys Correctional Center 2880 North Pleasants Highway St.Marys, WV26170 It is so ORDERED. ENTERED the} day ofApri120l5. William J. Sadler, Judge 9th Cirouit ( ( 30

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