Miller v. Sallaz, Superintendent

FILED
June 3, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Patricia Miller,
Petitioner Below, Petitioner
vs.) No. 19-1148 (Kanawha County 17-P-284)
J.D. Sallaz, Superintendent,
Lakin Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Patricia Miller, by counsel Elizabeth G. Kavitz, appeals the Circuit Court of
Kanawha County’s November 14, 2019, order denying her petition for a post-conviction writ of
habeas corpus. J.D. Sallaz, Superintendent, Lakin Correctional Center, by counsel Holly M.
Flanigan, filed a response in support of the circuit court’s order. Petitioner filed a reply. On appeal,
petitioner argues that she received ineffective assistance of trial counsel and the circuit court erred
in denying her petition on this ground.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Following an incident in which petitioner stabbed her roommate, Victoria Summers (“the
victim”), in the heart and caused her death in October of 2014, petitioner was indicted on one count
of first-degree murder. Petitioner confessed to the crime upon her arrest, though she later moved
to suppress her statement to law enforcement on the basis of her intoxication. The trial court held
a hearing on the motion to suppress in June of 2016, during which the officer who took petitioner’s
statement described her as “pretty emotional, but . . . alert . . . [and] coherent.” According to the
officer, petitioner “knew exactly what was going on, . . . how important the situation was, and she
said that she did.” The officer indicated that he “could smell an odor of alcohol coming from her
person, . . . but she didn’t seem intoxicated.” Ultimately, the trial court denied petitioner’s motion
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to suppress, finding that she was advised of her Miranda 1 rights, freely and voluntarily waived
those rights, and was not intoxicated “to the point where she did not know what she was doing.”
Eventually, petitioner and the State entered into a binding plea agreement under Rule
11(e)(1)(C) of the West Virginia Rules of Criminal Procedure whereby petitioner would enter a
plea of guilty to one count of second-degree murder in exchange for an agreed upon sentence of
twenty-five years of incarceration. On June 13, 2016, the parties appeared for a plea hearing,
during which the terms of the agreement were set forth on the record, and petitioner acknowledged
that no one made any promises or threats in order to get her to accept the plea agreement. During
the plea colloquy, the court asked petitioner’s trial counsel if he “discussed all of the facts and
circumstances of this matter” with petitioner and “investigated all possible defenses that she might
have to this charge,” and counsel responded affirmatively to both questions. Petitioner indicated
that when she discussed her plea with trial counsel, they “discuss[ed] the maximum sentence [she]
could receive if [she] pled guilty to second-degree murder, pursuant to a plea agreement.”
Petitioner then explained that her understanding of the maximum sentence she could receive was
forty-five years, given that she had a prior felony conviction that could expose her to a recidivist
enhancement. Petitioner then confirmed that, by accepting the State’s binding plea agreement, she
“would be sentenced [to] the penitentiary for a determinate term of [twenty-five] years.”
Ultimately, the Court accepted petitioner’s guilty plea and imposed a sentence of twenty-five years
of incarceration. Petitioner did not appeal this conviction or sentence.
In 2017, petitioner, then self-represented, filed a petition for a writ of habeas corpus. After
the circuit court appointed counsel for petitioner, she filed an amended petition in January of 2018
setting forth several grounds for relief. Relevant to the current appeal, petitioner specifically
alleged that her trial counsel was ineffective for failing to properly explain her parole eligibility
under her plea agreement and that counsel failed to conduct an investigation into intoxication as a
possible defense.
On November 19, 2018, the court held an omnibus evidentiary hearing, during which
petitioner and her trial counsel both testified. According to petitioner’s testimony, she abused
cocaine with the victim on the day of the crime and also consumed alcohol. After petitioner stabbed
the victim, she left the apartment and heard sirens approaching. Petitioner was able to “describe[],
specifically, by street name where she went after she stabbed the victim, and described the clothes
she was wearing at the time of the attack.” Petitioner indicated that she discussed the option of
going to trial with her attorney. She also claimed that trial counsel “assured her that she would be
paroled at the first opportunity, which she represented to be one-third of her time.” Petitioner’s
trial counsel, on the other hand, testified that he explained to petitioner that she would not be parole
eligible for ten years if she accepted the plea agreement for second-degree murder. Although
counsel agreed that he spoke with petitioner about parole eligibility for voluntary manslaughter
when engaging in negotiations with the State regarding that lesser-included offense, counsel was
clear that he explained to petitioner that parole eligibility for second-degree murder was only after
ten years and that petitioner understood. Trial counsel also testified that he did not believe
petitioner’s intoxication would have swayed a jury because she gave a clear statement to police
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Miranda v. Arizona, 384 U.S. 436 (1966).
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shortly after the crime. As such, counsel did not believe that a psychiatric or psychological
evaluation would have been beneficial to the defense.
In denying petitioner habeas relief, the court noted that the police report of the incident in
question indicated that petitioner “said that she understood what was going on” when asked if she
was intoxicated when she gave her statement shortly after the crime. The habeas court also noted
the testimony from the officer who took petitioner’s statement, wherein he indicated that petitioner
did not appear to be intoxicated to the point that she did not appreciate the circumstances. The
court also addressed discrepancies between petitioner’s testimony and that of her trial counsel,
finding that trial counsel’s testimony was more credible. The court concluded that “there is no
evidence to demonstrate that petitioner was not competent at the time of the offense, even though
she had been drinking and has (by self-report) a substance abuse problem.” Further, the court found
that petitioner’s counsel “was aware of her substance abuse . . . [but] saw nothing in his client and
her recollection of events, particularly her clear, detailed and articulate statement to police that
indicated she was not criminally responsible.” The court further found that counsel would not have
ignored any plausible defense and would have sought an evaluation prior to the entry of the plea
if there was any reason to believe that petitioner lacked criminal responsibility. The court further
found that petitioner could not establish any prejudice in regard to her assertion that counsel was
ineffective for failing to investigate a diminished capacity defense because “[r]ejecting this plea
offer and going to trial would not have been a rational decision” given that the plea agreement
“took first-degree murder off the table.” The court also concluded that petitioner “did not receive
incorrect information about parole eligibility nor was she guaranteed by counsel that she would
receive parole at her earliest opportunity.” While counsel may have expressed an opinion that
petitioner’s age “would work in her favor before the board,” the court found that counsel not only
testified that he made no such guarantee, but that “no experienced trial lawyer would ever
guarantee the results of an event which could not even occur until years in the future.” The court
specifically “reject[ed] petitioner’s contention and testimony from the omnibus hearing that she
was told she would only have to serve one-third of her sentence before she was parole eligible.”
As such, the court denied petitioner habeas relief. It is from the order denying her petition for a
writ of habeas corpus that petitioner appeals.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
“In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review
the final order and the ultimate disposition under an abuse of discretion standard;
the underlying factual findings under a clearly erroneous standard; and questions
of law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009). Further, the
standard for evaluating claims of ineffective assistance of counsel is well established:
In the West Virginia courts, claims of ineffective 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.Ed.2d 674 (1984): (1) Counsel’s performance
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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.
Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Further,
[i]n 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.
Id. at 6-7, 459 S.E.2d at 117-18, syl. pt. 6. Further, in regard to the “prejudice” element, a
“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. That
is to say that deficient performance alone “does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. Finally, this Court has warned
that “[u]nder the[] rules and presumptions [established in Strickland and its progeny], the cases in
which a defendant may prevail on the ground of ineffective assistance of counsel are few and far
between one another.” Miller, 194 W. Va. at 16, 459 S.E.2d at 127. As it relates to petitioner’s
allegation that counsel was ineffective in counseling her regarding her possible parole eligibility,
the Court notes that “[w]e have applied the foregoing Miller/Strickland standards for evaluation
of ineffective assistance of counsel claims to cases involving guilty pleas.” Raines v. Ballard, 236
W. Va. 588, 782 S.E.2d 775 (2016) (citations omitted). With these standards in mind, we turn to
petitioner’s arguments on appeal.
According to petitioner, her counsel was deficient in failing to “impart her with a
meaningful understanding of the plea she undertook . . . and the failure to adequately explore
defenses related to [her] intoxication.” In support of the first claim, petitioner alleges that she and
her counsel discussed the potential sentence and parole eligibility on a charge of manslaughter “up
until the very day of jury selection” and that it was “crucial that counsel ensured [her] full
understanding once the second[-]degree murder plea became an option.” Essentially, petitioner
argues that “the evidence is unsettled as to whether there was any meaningful effort of counsel to
convey all differences under the new plea” before she accepted same. Petitioner also concludes,
without citing any evidence, that “a better understanding of the case . . . would have precluded her
acceptance of the plea offered and thereby achieved a ‘different result.’” This argument, however,
is entirely unsupported by the record.
As the circuit court found, petitioner’s trial counsel testified several times that he
unequivocally explained to petitioner that she would not be parole eligible for a conviction of
second-degree murder until she served ten years of incarceration. Not only that, but counsel
testified that petitioner understood this explanation. While it is true that petitioner testified that
counsel informed her that she would only have to serve a third of her sentence and would be
guaranteed parole at the first opportunity, the habeas court specifically found that petitioner’s
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testimony lacked credibility. According to the court, petitioner’s trial counsel “ha[d] no motive to
lie, embellish, or obfuscate in his testimony because he has no vested interest in the outcome of
the proceeding,” while “[t]he same, obviously, is not true for the petitioner.” The court further
based its credibility determinations on “the demeanor of the witness as well as the credulity or lack
thereof of specific statements.” We decline to disturb these credibility determinations on appeal.
Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing
court cannot assess witness credibility through a record. The trier of fact is uniquely situated to
make such determinations and this Court is not in a position to, and will not, second guess such
determinations.”). Even more importantly, assuming that counsel was deficient in explaining
petitioner’s parole eligibility, petitioner has failed to establish that the outcome of the proceedings
would have been different. On appeal, petitioner simply concludes that she would have proceeded
to trial. However, as the habeas court found, such a decision would not have been rational, given
that it would have exposed petitioner to a possible conviction for first-degree murder, which could
have resulted in a sentence of life, without mercy. As such, petitioner cannot satisfy either element
of the Strickland test in regard to her argument that counsel failed to properly inform her of her
possible parole eligibility.
In regard to petitioner’s final argument, we similarly find that she is not entitled to relief.
Petitioner argues that counsel’s failure to obtain a psychiatric or psychological evaluation, and
resulting failure to consider the defenses available following findings from such an evaluation,
constitutes ineffective assistance. According to petitioner, her intoxication on the day of the crime,
and her history of substance abuse, could have supported a valid defense at trial. However, as the
habeas court found, petitioner’s counsel had no reason to believe that such an evaluation was
necessary, given the fact that petitioner gave a clear, coherent statement to police shortly after the
crime in question. As this Court recently noted, “Strickland has a good deal to say about the ‘duty
to investigate’ both generally” and in the context of possible defenses. Lloyd v. Terry, No. 16-
1166, 2018 WL 1319187 (W. Va. March 14, 2018)(memorandum decision). Specifically,
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgements support the
limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgements.
[W]hen a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.
Strickland, 466 U.S. at 691. As the circuit court found, “petitioner’s trial counsel would have
explored the issue of competency to commit [the] crime, diminished capacity, or criminal
responsibility if there were any indications such a defense would have been availing.” Just as we
found in Lloyd, there is nothing in the record that indicates that an investigation into petitioner’s
intoxication and any possible defenses stemming from that intoxication was necessary. As such,
counsel cannot be said to have provided ineffective representation.
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Even more importantly, petitioner cannot satisfy the prejudice element of the Strickland
test. Although she again concludes that she would not have accepted the plea and would have
proceeded to trial if she were more informed of possible defenses, the habeas court correctly found
that
[v]oluntary drunkenness is generally never an excuse for a crime, but where
a defendant is charged with murder, and it appears that the defendant was too drunk
to be capable of deliberating and premeditating, in that instance intoxication may
reduce murder in the first degree to murder in the second degree, as long as the
specific intent did not antedate the intoxication.
Syl. Pt. 2, State v. Keeton, 166 W. Va. 77, 272 S.E.2d 817 (1980). Further, “[i]ntoxication to reduce
an unlawful homicide from murder in the first degree, must be such as to render the accused
incapable of forming an intent to kill, or of acting with malice, premeditation or deliberation.” Id.
at 77, 272 S.E.2d at 818, Syl. Pt. 3 (citation omitted). In citing these holdings, the habeas court
noted that if petitioner had convinced the jury that she was incapable of premeditating and
deliberating, “her offense would have been reduced to second[-]degree murder” which is the crime
to which she pled. This supports the habeas court’s conclusion that any decision to proceed to trial
and expose herself to a potential sentence of life, without mercy, would not have been a rational
decision. Further, as we found in Lloyd,
[a] “defendant’s mere allegation that he would have insisted on trial but for his trial
counsel’s errors, although necessary, is ultimately insufficient to entitle him to
relief. Rather, we look to the factual circumstances surrounding the plea to
determine whether defendant would have proceeded to trial.” United States v.
Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (brackets, citation, and internal
quotation marks omitted); see Hill[ v. Lockhart], 474 U.S. [52,] 59 [1985]. And
where, as here, “the alleged error of counsel is a failure to advise the defendant of
a potential affirmative defense to the crime charged, the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense likely
would have succeeded at trial.” Id. at 59.
No. 16-1166, 2018 WL 1319187, at *8. As such, petitioner’s failure to provide any analysis as to
whether the affirmative defense was likely to have succeeded at trial is fatal. Further, as outlined
above, the best-case scenario for petitioner advancing an intoxication defense at trial would have
been a conviction of second-degree murder, the crime to which she ultimately pled. Therefore,
petitioner cannot satisfy the prejudice element of Strickland and is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 14, 2019, order is hereby affirmed.
Affirmed.
ISSUED: June 3, 2021
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CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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