Apollo Rice v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex ( 2022 )

FILED
August 30, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Apollo Rice,
Petitioner Below, Petitioner
vs.) No. 21-0212 (Ohio County 18-C-135 MJO)
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Apollo Rice appeals the February 22, 2021, order of the Circuit
Court of Ohio County denying his amended petition for a writ of habeas corpus. Respondent
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and
William E. Longwell, filed a response in support of the circuit court’s order. 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.
In 2017, petitioner was indicted in the Circuit Court of Ohio County on two counts of child
abuse resulting in serious injury, four counts of child abuse resulting in injury, four counts of child
abuse creating a substantial risk of death or serious bodily injury, and two counts of attempt to kill
or injure by poison or other destructive thing. The child’s injuries included a leg fracture, an arm
fracture, contusions, and lacerations. Petitioner also submerged the child’s head in a bathtub full of
water. On a separate occasion, petitioner placed duct tape over the two-year-old child’s nose and
mouth and, according to the indictment, the child “would struggle to remove the duct tape from his
face.” The indictment further alleged that petitioner used a syringe to put hot sauce into the child’s
nose and mouth.
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Subsequently, petitioner and the State entered into a plea agreement. Petitioner agreed to
plead guilty to two counts of child abuse resulting in serious injury, four counts of child abuse
resulting in injury, and four counts of child abuse creating a substantial risk of death or serious
bodily injury. In exchange, the State agreed to dismiss the two counts of attempt to kill or injure by
poison or other destructive thing. “The parties agree[d] that [petitioner] shall serve the statutory
sentences of incarceration consecutively for an effective sentence of not less twelve (12) [nor]
more than sixty (60) years [of incarceration].” The plea agreement further provided that petitioner
would enter his guilty pleas pursuant to Syllabus Point 1 of Kennedy v. Frazier, 178 W. Va. 10,
357 S.E.2d 43 (1987), 1 and waive the preparation of a presentence investigation report.
The circuit court entered an order on April 12, 2018, following petitioner’s plea and
sentencing hearing on March 30, 2018. In its order, the circuit court found:
• Petitioner was placed under oath to provide sworn testimony, and “all the
requirements of Call v. McKenzie[, 159 W. Va. 191, 220 S.E.2d 665(1975),] [were] met.”
• Petitioner “confirmed to the [c]ourt that he was aware of and authorized
plea negotiations to be undertaken on his behalf by his counsel with counsel
for the State.”
• Petitioner was satisfied with the representation provided by his counsel who
was “competent in criminal matters.”
• Petitioner testified “that he was not coerced or threatened to enter into the
plea agreement.”
• Petitioner “acknowledged his signature on the written [p]lea [a]greement,
which he stated he read, understood[,] and voluntarily signed in open
[c]ourt after having read the same.”
• The written plea agreement was made a part of the record.
• Petitioner testified that “no promises other than the terms of the plea
agreement had been made to him.”
1
Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in Syllabus Point
1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily,
knowingly and understandingly consent to the imposition of a prison sentence even though he is
unwilling to admit participation in the crime, if he intelligently concludes that his interests require
a guilty plea and the record supports the conclusion that a jury could convict him.”
2
• The circuit court asked petitioner about his understanding of his
constitutional rights, including “the right to suppress any evidence or
confessions which may have been illegally obtained in this matter, and the
right to challenge pre-trial proceedings.”
• “[Petitioner] then advised the [c]ourt that he understood all of his
constitutional and procedural rights and that he was waiving the same and
wanted to proceed with the plea agreement.”
• The State proffered the factual basis for the plea agreement and advised the
circuit court that it had sufficient evidence to convict petitioner of two
counts of child abuse resulting in serious injury, four counts of child abuse
resulting in injury, and four counts of child abuse creating a substantial risk
of death or serious bodily injury.
• Petitioner agreed with the State’s proffer and “advised the [c]ourt [of] what
had occurred which made him guilty of the charges to which he chose to
enter a plea of guilty.”
• Petitioner’s counsel “advised the [c]ourt that he believed that the . . . plea
agreement was in [petitioner’s] best interest and that he was unaware of any
meritorious defenses or advantages in proceeding to trial.
• Petitioner desired to waive his rights and enter guilty pleas to two counts of
child abuse resulting in serious injury, four counts of child abuse resulting
in injury, and four counts of child abuse creating a substantial risk of death
or serious bodily injury.
Accordingly, the circuit court found that petitioner understood his “statutory, constitutional[,] and
procedural rights” and was waiving the same, including his rights to challenge “any and all
pre-trial defects with regard to, among other things, his arrest, the gathering of all evidence . . . ,
admissions and confessions[,] and . . . all other non-jurisdictional defects arising out of these
criminal proceedings.”
Thereafter, the circuit court accepted petitioner’s guilty pleas and convicted him of those
counts to which he pled guilty. The circuit court found that, pursuant to the plea agreement,
petitioner waived the preparation of a presentence investigation report and that the parties desired
that it proceed to sentence petitioner. The circuit court imposed the aggregate sentence to which
the parties agreed: twelve to sixty years of incarceration. Finally, the circuit court advised
petitioner of “his appeal rights as to [his] sentence” and found that he “understood his appellate
rights and had no questions regarding the same.” Petitioner did not file a criminal appeal.
On June 12, 2018, petitioner filed a petition for a writ of habeas corpus in the circuit court.
The circuit court appointed habeas counsel who filed an amended habeas petition on October 7,
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2019. The circuit court held an omnibus habeas corpus hearing on October 8, 2020, via video
conferencing. Both petitioner and his trial counsel testified at the hearing. During petitioner’s
testimony, habeas counsel questioned him regarding his completion of the Losh list, pursuant to
which he waived any grounds not raised. 2 Petitioner raised the following grounds for habeas
relief: (1) failure of trial counsel to file a criminal appeal; (2) coerced confession; (3) knowing use
of perjured testimony by the State; (4) excessive bail; (5) insufficient evidence; (6) actual
innocence; (7) ineffective assistance of trial counsel; and (8) involuntary guilty plea.
The circuit court, by order entered on February 22, 2021, found that petitioner established
none of his habeas claims. The circuit court confirmed its prior findings that, at the March 30,
2018, plea and sentencing hearing, petitioner (a) knew of and authorized the plea negotiations; (b)
did not face any threats or coercion to plead guilty; and (c) entered his guilty pleas “knowingly,
intelligently, and voluntarily.”
Petitioner now appeals the circuit court’s February 22, 2021, order denying the amended
habeas petition. This Court reviews a circuit court’s order denying 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 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).
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).
On appeal, petitioner argues that the circuit court erred in finding that he failed to establish
his habeas claims. Respondent counters that the circuit court properly denied petitioner’s amended
habeas petition.
We have held that “[a] criminal defendant can knowingly and intelligently waive his
constitutional rights, and when such knowing and intelligent waiver is conclusively demonstrated
on the record, the matter is res judicata in subsequent actions in habeas corpus.” Call, 159 W. Va.
at 191, 220 S.E.2d at 667, Syl. Pt. 2; see also State v. Greene, 196 W. Va. 500, 505, 473 S.E.2d
921, 926 (1996) (Cleckley, J., concurring) (“[I]n the absence of special circumstances, a guilty
plea waives all antecedent constitutional and statutory violations save those with jurisdictional
consequences.” (footnote omitted)).
2
The checklist of grounds typically used in habeas corpus proceedings, usually referred to
as the Losh list, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606(1981), wherein we set forth the most common grounds for habeas relief. See id. at 768-70, 277
S.E.2d at 611-12.
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Here, based upon our view of the record, we concur with the circuit court’s findings that,
pursuant to Syllabus Point 2 of Call, petitioner knowingly, intelligently, and voluntarily entered
his guilty pleas and waived his constitutional rights with regard to pre-trial defects, the gathering
of evidence, and all other non-jurisdictional defects in the underlying criminal case. Accordingly,
we decline to review petitioner’s claims that there was a coerced confession, that there was the
knowing use of perjured testimony, and that there was excessive bail imposed during the pendency
of the underlying criminal case.
Moreover, we reject petitioner’s insufficient evidence and actual innocence claims based
upon the guilty pleas that he voluntarily entered. In pleading guilty, petitioner agreed with the
State’s proffer that it had sufficient evidence to convict him of those counts to which he was
entering guilty pleas. Petitioner’s trial counsel stated at the plea and sentencing hearing that he did
not know of any advantages to proceeding to trial and that the plea agreement was in petitioner’s
best interests. As the circuit court found, based upon petitioner’s and trial counsel’s testimony at
the omnibus habeas corpus hearing, petitioner “never expressed his actual innocence.”
Despite his colloquy with the circuit court at the plea and sentencing hearing, which we
find was in compliance with Syllabus Point 2 of Call, petitioner argues that his guilty pleas were
involuntary because his trial counsel (1) provided ineffective assistance; and (2) coerced
petitioner into pleading guilty. We review ineffective assistance of counsel claims under the
following standards:
In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-prong test established in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 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 of the
proceedings would have been different.
In reviewing counsel’s performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts
or omissions were outside the broad range of professionally competent assistance
while at the same time refraining from engaging in hindsight or second-guessing of
trial counsel’s strategic decisions. Thus, a reviewing court asks whether a
reasonable lawyer would have acted, under the circumstances, as defense counsel
acted in the case at issue.
Syl. Pts. 5 and 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). We have further held that
[t]he fulcrum for any ineffective assistance of counsel claim is the adequacy
of counsel’s investigation. Although there is a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance, and
judicial scrutiny of counsel’s performance must be highly deferential, counsel must
at a minimum conduct a reasonable investigation enabling him or her to make
informed decisions about how best to represent criminal clients. Thus, the
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presumption is simply inappropriate if counsel’s strategic decisions are made after
an inadequate investigation.
Syl. Pt. 3, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).
While petitioner argues that trial counsel’s performance was inadequate, trial counsel
testified that he engaged in “a fairly extensive investigation of the material” the State provided in
discovery. Trial counsel stated that the defense had recordings of three individuals who indicated
that they had firsthand knowledge of petitioner’s abuse of the child. Trial counsel testified that he
spoke with the three individuals as part of his preparation for trial and that a private investigator
was unnecessary “because the evidence was there.” According to trial counsel, he and petitioner
reviewed the recordings of the witness statements, discussed potential trial testimony, and
examined the child’s medical records. Trial counsel stated that “it was not a very good case to take
to trial[ ] based upon the medical evidence and . . . the three people that I did interview.” 3
However, trial counsel indicated that he “was fully prepared to go to trial” if petitioner decided not
to accept the plea agreement. Therefore, we find that trial counsel’s investigation did not constitute
deficient performance.
In addition, based upon our review of the record, we concur with the circuit court’s
findings that petitioner knew of and authorized trial counsel’s plea negotiations with the State. We
note that petitioner testified that he told trial counsel that he would consider a plea agreement
provided that it gave him “a lesser amount of time.” Trial counsel testified that, if petitioner was
convicted on all counts of the indictment, petitioner’s aggregate sentence would have been
eighteen to ninety-six years of incarceration. Trial counsel further stated that, because the State
agreed to dismiss the two counts of attempt to kill or injure by poison or other destructive thing, “it
saved [petitioner] six years on the bottom end of the sentence and 36 years on the top end of the
sentence.” Accordingly, we find that trial counsel’s plea negotiations did not constitute deficient
performance.
Petitioner further argues that trial counsel was “repulsed” by the charges against him and
that trial counsel coerced or intimidated him into pleading guilty. “The controlling test as to the
voluntariness of a guilty plea, when it is attacked either on a direct appeal or in a habeas corpus
proceeding on grounds that fall within those on which counsel might reasonably be expected to
advise, is the competency of the advice given by counsel.” Syl. Pt. 2, State v. Sims, 162 W. Va.
212, 248 S.E.2d 834 (1978).
The omnibus hearing transcript reflects that trial counsel became emotional when
discussing the child’s injuries that were associated with the counts to which petitioner pled guilty.
3
The child’s mother also had firsthand knowledge of petitioner’s abuse of the child.
However, the child’s mother was petitioner’s co-defendant and had her own counsel. Therefore,
petitioner’s trial counsel testified that he did not speak to the child’s mother other than to confirm
(with her attorney present) that she intended to testify against petitioner at petitioner’s trial.
6
Trial counsel testified that he generally advised clients to place themselves in the position of a
potential jury because “[a]ll [the jury] know[s] is what they’re going to hear about what happened”
and that petitioner was receptive to his advice. Petitioner testified that trial counsel informed him
that “it would be a very horrible case” to take to trial given the State’s likely portrayal of the crimes
to the jury and “[made] sure I had the full grasp of the time I was facing.”
Ultimately, petitioner stated that, “with everything [trial counsel] was doing, with
everything that seemed stacked against me, it seem[ed] completely impossible to even have a slim
chance” of being found not guilty at trial if he did not plead guilty. However, we have already
found that trial counsel’s advice that it was not a good case to take to trial was based upon an
adequate investigation and that the plea negotiations that resulted in the reduction of thirty-six
years in petitioner’s maximum sentence were authorized by petitioner. Thus, we find that the most
relevant part of petitioner’s testimony was his recognition that the State had sufficient evidence to
convict him of those counts to which he agreed to plead guilty. Therefore, we conclude that trial
counsel did not coerce or intimidate petitioner into pleading guilty, but provided effective
assistance. 4 As found above, petitioner knowingly, intelligently, and voluntarily entered his guilty
pleas. Accordingly, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s amended habeas petition.
For the foregoing reasons, we affirm the circuit court’s February 22, 2021, order denying
petitioner’s amended petition for a writ of habeas corpus.
Affirmed.
ISSUED: August 30, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
4
Petitioner further argues that trial counsel provided ineffective assistance in failing to
present mitigation evidence at his plea and sentencing hearing. However, trial counsel testified that
the parties addressed petitioner’s sentence in the plea agreement which provided that he would
serve an aggregate term of twelve to sixty years of incarceration. Given that the circuit court
imposed the aggregate sentence specified in the plea agreement, we reject this ineffective
assistance of trial counsel claim as without merit.
With regard to petitioner’s claim that trial counsel failed to file an appeal in his criminal
case, we concur with the circuit court’s finding that petitioner testified at the omnibus hearing that
he did not ask trial counsel to file an appeal “[b]ecause I felt it would be pointless.”
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