Christopher Cozad v. Marvin Plumley, Warden ( 2013 )


Menu:
  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    October 4, 2013
    Christopher Cozad,                                                            RORY L. PERRY II, CLERK
    Petitioner Below, Petitioner                                                SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    vs.) No. 12-1416 (Monongalia County 12-C-21 and 12-C-678)
    Marvin Plumley, Warden, Huttonsville Correctional Center,
    Respondent Below, Respondent
    MEMORANDUM DECISION
    Petitioner Christopher Cozad, appearing pro se, appeals two orders of the Circuit Court of
    Monongalia County. In the first order, entered November 2, 2012, the circuit court denied
    petitioner’s petition for writ of habeas corpus without a hearing. In the second order, also entered
    November 2, 2012, the circuit court dismissed as moot a petition for writ of mandamus petitioner
    addressed to the chief judge seeking to compel appointment of counsel and a hearing on the habeas
    petition. Respondent Warden, by counsel Andrew Mendelson, filed a summary response.
    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 2006, petitioner was indicted on two counts of robbery in the first degree, one count of
    malicious assault, one count of wanton endangerment involving a firearm, and one count of felon
    in possession of a firearm. On December 5, 2006, petitioner’s counsel filed a notice of intent to
    rely on lack of mental responsibility and a notice of intent to present expert testimony in support
    thereof. The notice indicated that petitioner was misdiagnosed as a teenager with attention deficit
    hyperactivity disorder and an anger management problem, but that petitioner’s behaviors more
    closely resembled bipolar disorder. The notice further indicated that petitioner’s counsel had
    contacted a mental health professional at Chestnut Ridge Mental Health Facility for an expert
    opinion.
    The parties reached a plea agreement on February 28, 2007. Petitioner agreed to plead
    guilty to the two counts of robbery in the first degree and to the count charging felon in possession
    of a firearm. The State agreed to dismiss the remaining two counts of the indictment and not to
    1
    initiate proceedings under the recidivist statute. 1 The parties agreed that the State would
    recommend a sentence of twelve years in prison on each of the robbery counts and a sentence of
    two years in prison for felon in possession of a firearm and that the sentences for the robbery
    offenses run concurrently, but that the sentence for felon in possession of a firearm run
    consecutively to the sentences for robbery. The parties also agreed that petitioner would be free to
    make his own sentencing recommendations.
    At the February 28, 2007 plea hearing, the circuit court engaged petitioner in a thorough
    colloquy pursuant to Call v. McKenzie, 159 W.Va. 191, 
    220 S.E.2d 665
    (1975). In response to the
    circuit court’s questions, petitioner testified that he had never been treated for mental illness, but
    that while at Anthony Correctional Center, he had undergone an intensive drug and alcohol
    program. Petitioner further testified that a psychiatrist at the regional jail had prescribed Prozac for
    bipolar disorder and that the medical staff had prescribed Motrin for migraine headaches.
    Petitioner testified that neither medication had adverse side effects. Petitioner testified that no one
    had used threats, force, pressure, or intimidation to coerce him into agreeing to plead guilty.
    Petitioner further testified that he was satisfied with his counsel and that counsel did not fail to do
    anything to properly represent him.
    The circuit court also questioned petitioner’s counsel. Petitioner’s counsel stated that she
    interviewed her client and engaged in discovery. Counsel further stated that she shared the
    discovery with petitioner and that she was satisfied that the State possessed lawfully acquired
    evidence sufficient to convict petitioner at trial. Following the questioning of petitioner’s counsel,
    the circuit court allowed petitioner to withdraw his former pleas of not guilty and enter guilty pleas
    to counts one, two, and five of the indictment. The circuit court found that petitioner’s guilty pleas
    were freely and voluntarily made and that there was no evidence of any improper threats,
    promises, or inducements with regard to the guilty pleas.
    The circuit court then asked petitioner to describe, in his own words, the circumstances of
    his offenses. Petitioner testified that all he could remember about the evening of the offenses was
    that he had earlier gone drinking in a bar and later awoken up in a hospital. Consequently, the
    circuit court asked the State to make a proffer of what its evidence would have been to a jury. The
    State proffered that on August 16, 2006, petitioner approached two individuals in the Sunnyside
    area of Morgantown, West Virginia, and inquired whether they were interested in purchasing
    cocaine. The two individuals evidently agreed to make the purchase. Petitioner and the two
    individuals travelled to Granville, West Virginia, where the deal went awry. Petitioner attempted
    to rob the two individuals by demanding money. When they failed to produce any money,
    petitioner fired a shot from a gun he had in his possession and also struck one of the individuals.
    Following the State’s proffer of what the evidence would have been, the circuit court accepted
    petitioner’s guilty pleas and adjudged him guilty of two counts of robbery and one count of felon
    in possession of a firearm.
    On April 16, 2007, the circuit court sentenced petitioner to twelve years in prison on each
    of the robbery convictions, to be served concurrently, and sentenced petitioner to five years in
    1
    W.Va. Code §§ 61-11-18 and -19.
    2
    prison for felon in possession of a firearm, to be served concurrently with the robbery sentences.
    The circuit court ordered that all three sentences were to be served consecutive to sentences
    petitioner previously received in prior felony cases: No. 03-F-55 and No. 03-F-110.
    On January 22, 2010, petitioner filed a petition for writ of habeas corpus asserting four
    grounds for relief. First, petitioner alleged that his guilty pleas were involuntary because the
    prosecutor had threatened him with a life sentence under the recidivist statute if he did not accept
    the plea agreement. Second, petitioner alleged that he was mentally incompetent at the time of the
    offenses because he was so severely intoxicated that he lost consciousness and had to be
    transported to the hospital for treatment. Third, petitioner alleged that the State did not produce
    “helpful evidence” in the form of a recorded statement the victims gave to the police and in the
    form of test results from a gun residue test. Lastly, petitioner alleged that counsel had been
    ineffective because she wrote him a letter stating that she felt that accepting the plea agreement
    was his only option and that if he wanted a new attorney who would take the matter to trial, she
    would support his doing so. Petitioner asserted that he did not realize that he could have fired
    counsel and then obtained another court-appointed attorney. On March 23, 2010, the circuit court
    ordered respondent to answer the petition. Respondent’s answer was served on April 13, 2010.
    Subsequently, petitioner filed a petition for writ of mandamus, dated September 26, 2012,
    addressed to the chief judge, seeking to compel appointment of counsel and a hearing on the
    habeas petition.2 On November 2, 2012, the circuit court entered separate orders denying each of
    the petitions. In the order denying the habeas petition, the circuit court found that appointment of
    counsel and an evidentiary hearing were unnecessary because (1) “[petitioner’s] petition and
    supporting materials are complete and the grounds for relief stated are clear and unambiguous”;
    and (2) “the facts in this case were sufficiently developed during prior proceedings.” (Emphasis
    omitted.) The circuit court noted that it had access to the entire court file from the underlying
    criminal case as well as to the transcripts of petitioner’s plea and sentencing hearings. The circuit
    court found that the four grounds for relief all asserted various reasons petitioner had for believing
    counsel had been ineffective. Therefore, the circuit court treated the assertions as a single ground
    for relief—ineffective assistance of counsel. The circuit court concluded as follows: “The record
    in this case indicates that [p]etitioner was fully advised of the terms of the proposed plea
    agreement and assured the Court that he was entering [into] the agreement voluntarily during the
    February 28, 2007, plea hearing. As such, defense counsel was not effective and the plea entered
    by the [p]etitoner is lawful.” (Emphasis omitted.) In the order denying the mandamus petition, the
    circuit court found that its order denying the habeas petition rendered the mandamus proceeding
    moot. Petitioner now appeals both orders entered November 2, 2012, denying his petitions.
    We review a circuit court’s denial of a habeas petition 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
    2
    The mandamus petition was later given its own case number. The chief judge was the
    presiding judge in both cases.
    3
    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).
    On appeal, petitioner asserts that the circuit court erred in not providing him with an
    opportunity to develop the record and in not making specific findings of fact and conclusions of
    law on each of his grounds for relief. Respondent counters that there is no right to appointment of
    counsel and an evidentiary hearing where the circuit court’s findings are sufficient to demonstrate
    that the petitioner is entitled to no relief. See Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 
    194 S.E.2d 657
    (1973).3
    In West Virginia, claims of ineffective assistance of counsel are governed by the
    two-pronged test established in Strickland v. Washington, 
    466 U.S. 668
    (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 of the proceedings
    would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 
    459 S.E.2d 114
    (1995).
    First, while the recidivist statute was discussed during plea negotiations, there is nothing to suggest
    that the prosecutor threatened petitioner with a recidivist life sentence if he did not accept the plea
    agreement.4 Therefore, this Court concludes that this issue lacks merit.
    Second, petitioner argues that his counsel and/or the circuit court should have followed up
    on his “motion for psychological evaluation.” Counsel never moved for a psychological
    evaluation, therefore, the circuit court did not need to act on such a motion. Counsel did notice the
    State that the defense intended to rely on lack of mental responsibility and to present expert
    testimony in support thereof. In the notice to the State, counsel posited that petitioner suffered
    from misdiagnosed bipolar disorder at the time of the offenses.5 However, at the plea hearing,
    3
    While petitioner styled his request for appointment of counsel and a hearing as a “petition
    for writ of mandamus,” doing so was procedurally improper. See State ex rel. Judy v. Kiger, 153
    W.Va. 764, 767-68, 
    172 S.E.2d 579
    , 581 (1970) (“When a duty is imposed by a law upon a court,
    Mandamus from a higher court is the proper means to compel the discharge of such duty.”)
    (Internal citations and quotations omitted.) (Emphasis added.).
    4
    Petitioner asserts that the possibility of recidivist life sentence was conveyed as a threat is
    because the recidivist statute did not apply in his circumstances, citing, Moore v. Coiner, 
    303 F. Supp. 185
    , 190 (N.D. W.Va. 1969), which held that prior convictions must precede the
    commission of the principal offense before they can be taken into account for recidivist purposes.
    Moore is distinguishable because petitioner had prior convictions that preceded the commission of
    the instant offenses, namely, those in Felony No. 03-F-55 and Felony No. 03-F-110.
    5
    Petitioner’s present reason for asserting that he was incompetent at the time of the
    offenses is different from the reason counsel put in the notice. Petitioner asserts that he was
    4
    petitioner testified that he had never been treated for mental illness and testified that although he
    was on prescribed medications while at the hearing, those medications had no adverse side effects.
    Therefore, this Court concludes that this issue lacks merit.
    Third, despite the fact that petitioner’s counsel stated at the plea hearing that discovery had
    been shared with petitioner, petitioner alleges that the State did not produce certain “helpful
    evidence.” This Court finds this allegation to be meritless because petitioner fails to explain why
    he believes the evidence would have been helpful, much less exculpatory.
    Fourth, petitioner asserts that counsel was ineffective because she wrote to him that she felt
    that the plea agreement was his only option. However, at the plea hearing, petitioner testified that
    he was satisfied with his counsel and that counsel did not fail to do anything to properly represent
    him. In addition, petitioner’s counsel stated that she had interviewed her client and engaged in
    discovery. This Court finds that counsel was not ineffective. Therefore, after careful consideration,
    this Court concludes that the circuit court did not err in finding that petitioner’s counsel was
    effective and that petitioner’s guilty pleas were lawful, and that the circuit court did not abuse its
    discretion in denying petitioner’s habeas petition.
    For the foregoing reasons, we affirm both the circuit court’s order denying the petition for
    writ of habeas corpus and its order dismissing as moot the request for appointment of counsel and
    a hearing.
    Affirmed.
    ISSUED: October 4, 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
    suffering from severe intoxication. Severe intoxication is a defense that “can only be used when
    there is demonstrated a [t]otal lack of capacity such that the bodily machine completely fails.”
    State v. Brant, 162 W.Va. 762, 767, 
    252 S.E.2d 901
    , 904 (1979). We find that the record does not
    support that an intoxication defense could have been asserted.
    5