Jasman Montgomery v. David Ballard, Warden

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
FILED
April 26, 2019
released at 3:00 p.m.
No. 16-0915 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JASMAN MONTGOMERY,
Plaintiff Below, Petitioner
v.
DONNIE AMES, SUPERINTENDENT
MT. OLIVE CORRECTIONAL COMPLEX,
Defendant Below, Respondent
Appeal from the Circuit Court of Mercer County
The Honorable Mark Wills, Judge
Civil Action No. 14-C-463
AFFIRMED
Submitted: January 8, 2019
Filed: April 26, 2019
Joseph T. Harvey, Esq. Patrick Morrisey, Esq.
Bluefield, West Virginia Attorney General
Counsel for Petitioner Lindsay S. See, Esq.
Solicitor General
Gordon L. Mowen, II, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In reviewing challenges to the findings and conclusions of the
circuit court in a habeas corpus action, we apply a three-prong[ed] 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).
2. “On an appeal to this Court the appellant bears the burden of
showing that there was error in the proceedings below resulting in the judgment of which
he complains, all presumptions being in favor of the correctness of the proceedings and
judgment in and of the trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194
S.E.2d 657 (1973).
3. A criminal prosecution requires the existence of an accusation
charging the commission of an offense. Such an accusation, either in the form of an
indictment or an information, is an essential requisite of a circuit court’s jurisdiction.
4. A petitioner seeking post-conviction habeas corpus relief may
successfully challenge a guilty-plea conviction based upon an alleged violation of Rule 7
of the West Virginia Rules of Criminal Procedure only by establishing that the violation
amounted to a constitutional or jurisdictional error, or by showing that the alleged error
i
resulted in a complete miscarriage of justice. In addition, the petitioner must also
demonstrate that he was prejudiced by the alleged error.
5. “A constitutional issue that was not properly preserved at the trial
court level may, in the discretion of this Court, be addressed on appeal when the
constitutional issue is the controlling issue in the resolution of the case.” Syl. Pt. 2, Louk
v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005).
6. “‘A defendant has a right under the Grand Jury Clause of Section 4
of Article III of the West Virginia Constitution to be tried only on felony offenses for
which a grand jury has returned an indictment.’ Syl. Pt. 1, State v. Adams, 193 W. Va.
277, 456 S.E.2d 4 (1995).” Syl. Pt. 1, State v. Haines, 221 W. Va. 235, 654 S.E.2d 359
(2007).
7. A defendant may waive his constitutional right to a grand jury
indictment as provided in article III, section 4 of the West Virginia Constitution and elect
to be prosecuted by information in accordance with the provisions of Rule 7 of the West
Virginia Rules of Criminal Procedure if such waiver is made intelligently and voluntarily.
8. “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
ii
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.” Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995).
9. “In cases involving a criminal conviction based upon a guilty plea,
the prejudice requirement of the two-part test established by 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), demands that a habeas petitioner show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Syl. Pt. 6, State ex rel. Vernatter v. Warden, W. Va.
Penitentiary, 207 W. Va. 11, 528 S.E.2d 207 (1999).
iii
WORKMAN, Justice:
In 2011, Petitioner Jasman Montgomery waived his constitutional right to
grand jury indictment and pled guilty by information to the first-degree murder of
seventeen-year-old Matthew Flack. He received substantial benefits for proceeding in this
manner including parole eligibility after serving fifteen years in the penitentiary.
In 2016, Petitioner filed a second amended petition for writ of habeas
corpus in the Circuit Court of Mercer County, West Virginia, which was denied. On
appeal to this Court, Petitioner contended that his guilty plea by information was illegal
and improper under the West Virginia Constitution and Rule 7 of the West Virginia Rules
of Criminal Procedure (hereinafter “Rule 7”), because he faced a life sentence. Petitioner
also asserted his guilty plea was involuntary and his trial counsel provided ineffective
assistance when they allowed him to plead guilty before receipt of the ballistics report
that revealed Petitioner’s weapon did not fire the fatal shot.
We affirm the circuit court’s decision. Even though the guilty plea by
information did not comport with Rule 7, Petitioner implicitly waived that irregularity
when he expressly waived his constitutional right to an indictment. Moreover, the detail
of who actually fired the shot that killed the victim was legally immaterial to the issues of
the voluntariness of Petitioner’s guilty plea and the effectiveness of his counsel
1
considering the homicide occurred when Petitioner and his co-conspirators perpetrated a
violent home invasion.
I. FACTS AND PROCEDURAL HISTORY
On the evening of January 28, 2011, Petitioner, along with Brandon Flack
and Jacob Thomas, planned to commit a robbery. Petitioner and his co-conspirators
traveled from Pulaski, Virginia, and drove to Bluefield, West Virginia, with the intent to
steal money from a car. Upon their arrival shortly after midnight on January 29, 2011,
they could not locate the car. Petitioner and his co-conspirators changed plans and
decided to break into the home of David Flack (Brandon Flack’s uncle) and steal money.
They donned ski masks, approached the back of the Flack residence, and knocked on the
door.
Matthew Flack (Brandon Flack’s cousin) and others were inside the home.
Hearing the knock on the back door, Matthew looked through a curtain and saw three
masked men standing at the back door. Matthew then ran upstairs to get a gun. As
Matthew headed up the stairs, one of Petitioner’s co-conspirators kicked in the back door
and they entered the home. Petitioner and Jacob Thomas were armed with handguns.
Brandon claimed, and the State did not contest, that he was unarmed. Following
Matthew, Brandon ran up the stairs and the two began wrestling. Brandon and Matthew
fought on the landing, and Brandon was shot in the scuffle. Petitioner ran up the stairs,
pulled out a gun, and shot toward Matthew.
2
Matthew died as the result of gunshot wounds of his face and chest. The
medical examiner found the wounds “could be the result of one discharge fired by a
handgun.” A bullet was recovered from Matthew’s body and sent for ballistic testing. As
explained below, Petitioner believed he shot Matthew in the face (and testified in court
that he did) but the ballistics report later revealed that Petitioner’s weapon did not fire the
fatal shot.1
Following negotiations, Petitioner agreed to plead guilty to first-degree
murder by way of information in October 2011.2 At the time of the plea, the ballistic
report was not complete. The plea agreement provided:
1. That the State will file an Information charging Defendant
Montgomery with the first degree murder of Matthew Flack
on or about the 29th day of January 2011, and Defendant will
tender a guilty [plea] to said Information.
2. That the State will refrain from further prosecuting
Defendant for other possible charges arising from the same
set of facts and circumstances surrounding the murder of
Matthew Flack, which charges are now known or should be
known to the State.
1
The parties do not indicate who fired the shot that killed Matthew, but that detail
is irrelevant to our analysis.
2
The State pursued the murder charge based on a felony murder theory. Felony
murder is defined as “[m]urder . . . in the commission of, or attempt to commit, arson,
kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful
custody, or a felony offense of manufacturing or delivering a controlled substance[.]” W.
Va. Code § 61-2-1 (2014). The penalty for felony murder is “confinement in the
penitentiary for life.” Id., § 61-2-2.
3
3. That the State and Defendant agree, pursuant to Rule
11(e)(C) of the Rules of Criminal Procedure, that the proper
disposition of the case herein is a life sentence with a grant of
mercy.
4. The Defendant will come forward and provide truthful
testimony about the facts and circumstances regarding the
murder of Matthew Flack in any court proceeding. The State
will join Defendant’s motion for an order requiring the
Division of Corrections to house him separately from any
codefendant.
Petitioner agreed to the above terms and, in exchange, waived several
constitutional rights including the right to be prosecuted by indictment and the right to a
jury trial. Although not outlined in the plea agreement, Petitioner also received the
benefit of the State’s agreement to file a motion with the circuit court to strike the
language “with the use of a firearm” from the information to avoid a firearm
enhancement penalty against Petitioner. The circuit court granted this motion.
At the plea hearing on October 17, 2011, Petitioner asserted, under oath,
that he was entering the plea knowingly, voluntarily, and of his own free will; that no one
had forced or threatened him to do so; that his counsel informed him of the charges and
consequences of pleading guilty; and that he was satisfied with the advice and services of
his counsel. Petitioner also stated that he had reviewed and understood the waiver of his
right to an indictment, and indicated that he wanted to proceed, knowing he was waiving
or giving up this right. Further, Petitioner signed a Waiver of Indictment in open court
and consented to proceeding by way of information. Counsel informed the court during
4
the guilty plea that “[b]allistic results aren’t back yet, but [Petitioner] has sufficient
information at length to enter in this plea voluntarily, and he—we went over his rights
with him yesterday.” Petitioner agreed.
The circuit court agreed to accept the binding plea agreement, and on
November 28, 2011, sentenced Petitioner to life in prison, with the recommendation of
mercy, whereby Petitioner would be eligible for parole after having served fifteen years.
See W. Va. R. Crim. P. 11(e) (stating court may accept or reject binding plea agreement).
Pursuant to the plea, Petitioner testified for the State at co-defendant
Brandon Flack’s trial. Petitioner discussed how the men planned the robbery, traveled to
the Flack residence, and executed a forced entry. State v. Flack, 232 W. Va. 708, 711,
753 S.E.2d 761, 764 (2013). Petitioner stated that he shot Matthew Flack. Id. During
cross-examination by defense counsel, Petitioner admitted that he was motivated to plead
guilty before his co-defendants could because he did not want to go to the penitentiary for
the rest of his life without the possibility of parole.
[Flack’s Defense Counsel] Q. They also told you, the first
guy who gets the plea gets the deal, didn’t they? That’s what
you came to understand, the first guy that takes a plea gets the
deal?
[Petitioner] A. Yeah.
Q. And you had to make yourself the best deal you could, in
the situation . . . . And that’s what you did, isn’t it?
A. Yes, sir.
5
A jury found Brandon Flack guilty of all charges set forth in the indictment:
first-degree murder, burglary, first-degree robbery, and conspiracy. Because the State had
pursued the murder charge based on a felony murder theory, the trial court merged the
counts of first-degree murder and burglary, resulting in the dismissal of the burglary
conviction. Mr. Flack was sentenced to life imprisonment with eligibility for parole after
fifteen years for first-degree murder, a determinate term of forty years for first-degree
robbery, and an indeterminate term of one to five years on the conspiracy offense. The
trial court ordered all those sentences to run consecutively. Id. at 712, 753 S.E.2d at 765.3
Petitioner filed a petition for habeas corpus in August 2014. Petitioner was
appointed counsel and subsequently filed an amended petition in October 2014, wherein
he raised four claims: (1) the guilty plea to first-degree murder by information was
improper pursuant to Rule 7; (2) his guilty plea was involuntary; (3) ineffective
assistance of counsel, and (4) excessive bail. Petitioner ultimately withdrew this amended
petition.
In March 2016, Petitioner filed a second amended petition and alleged that
pleading guilty to first-degree murder by information was illegal and improper because it
is an offense punishable by life imprisonment. Petitioner relied upon Rule 7, which
3
In the appeal of Brandon Flack’s habeas corpus petition, this Court stated:
“robbery is not a lesser included offense of felony murder predicated on burglary.
Therefore, double jeopardy does not prohibit the imposition of a punishment for both
crimes.” Flack v. Ballard, 239 W. Va. 566, 587, 803 S.E.2d 536, 557 (2017).
6
provides: “[a]n offense which may be punished by life imprisonment shall be prosecuted
by indictment. Any other felony offense may be prosecuted by information if the
indictment is waived.”4 Id., in part.
Petitioner also argued that his trial counsel was ineffective because they
allowed him to plead guilty by information, and counsel advised him to plead guilty even
though the ballistics report was not completed. Petitioner stated that the ballistics report
ultimately revealed that the bullet removed from the victim was not fired by Petitioner’s
handgun. Petitioner also noted that the Post-Mortem Investigation confirmed that the
victim died of two gunshot wounds that were inflicted by the same bullet.
With regard to relief, Petitioner requested that the circuit court consider
placing him on probation or home confinement. In the alternative, Petitioner requested
that his counsel be allowed to negotiate a more reasonable plea agreement with the State
or proceed to trial if necessary.
The State 5 responded that although the charging document was not in
accordance with Rule 7, the fact that Petitioner waived grand jury indictment and elected
4
Petitioner also contended that the Grand Jury Clause of the Fifth Amendment to
the United States Constitution was violated. He has since abandoned that claim.
5
We refer to Respondent Donnie Ames, Superintendent, Mt. Olive Correctional
Complex, as “the State.”
7
to plead by way of information was, at most, harmless error. A proper charging document
would not have resulted in any change in the outcome, namely, a conviction of first-
degree murder with the possibility of parole. The State also asserted that Petitioner
received effective assistance of counsel; the issue of whose bullet killed the victim was
immaterial under a felony murder charge in a case where several co-defendants broke
into a home at night and the victim was shot to death.6
The circuit court held an omnibus evidentiary hearing on July 26, 2016.
Petitioner did not testify nor did he offer evidence. The circuit court heard argument by
counsel.
By order entered August 30, 2016, the circuit court denied Petitioner’s
second amended petition. It held that although Petitioner’s guilty plea by information was
not in accordance with the West Virginia Rules of Criminal Procedure, this alleged Rule
7 “right” to a grand jury presentment of first-degree murder “is not one borne of the
[State] Constitution.” The circuit court noted that it was unaware of any legal authority to
support the notion that this procedural irregularity necessitated relief in habeas corpus.
See e.g., State ex rel. Farmer v. Trent, 209 W. Va. 789, 794, 551 S.E.2d 711, 716 (2001)
(stating prisoner may not collaterally attack guilty plea where all that is shown is failure
6
See Syl. Pt. 7, State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978) (“The crime
of felony-murder in this State does not require proof of the elements of malice,
premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs
accidentally during the commission of, or the attempt to commit, one of the enumerated
felonies.”).
8
to comply with formal requirements of Rule 11 of West Virginia Rules of Criminal
Procedure).
The circuit court also held that Petitioner failed to prove that his trial
counsel was ineffective. It noted that given the circumstances of the case, the plea deal
accepted by Petitioner and the resulting sentence was in his best interest. Finally, the
lengthy plea colloquy demonstrated that Petitioner was fully informed about the
consequences of the plea agreement and his decision to plead guilty was voluntary.
II. STANDARD OF REVIEW
This Court reviews a circuit court’s dismissal 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[ed] 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). Further, “[o]n an
appeal to this Court the appellant bears the burden of showing that there was error in the
proceedings below resulting in the judgment of which he complains, all presumptions
being in favor of the correctness of the proceedings and judgment in and of the trial
court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).
9
III. DISCUSSION
A. Petitioner Waived His Right To An Indictment
Petitioner first contends that the circuit court erred by rejecting his claim
that pleading guilty to first-degree murder by information was illegal and improper.
Petitioner argues that the circuit court “erroneously assumed that the requirement of an
indictment in cases that may be subject to life imprisonment stemmed” from Rule 7.
Petitioner’s assertion is disingenuous. The circuit court focused on the Rule 7 violation
because that was the precise argument advanced by Petitioner.
The issue is whether a defendant, who has waived his constitutional right to
grand jury indictment and pled guilty by information, is entitled to post-conviction
habeas corpus relief by simply showing his plea did not comply with the requirements of
Rule 7. We begin with Rule 7, which provides the procedure for a defendant to waive
grand jury indictment:
(a) Use of Indictment or Information. – An offense which
may be punished by life imprisonment shall be prosecuted by
indictment. Any other felony offense may be prosecuted by
information if the indictment is waived. Any misdemeanor
may be prosecuted by indictment or information. An
information may be filed without leave of court.
(b) Waiver of Indictment. – Any felony offense which is not
punishable by life imprisonment may be prosecuted by
information if the defendant, after having been advised of the
nature of the charge and of his or her rights by a written
waiver signed by the defendant and his or her counsel and
filed as a part of the record, waives prosecution by
indictment.
10
W. Va. R. Crim. P. 7, in part.
An information is an agreement between the State and the defendant to
proceed without the formalities of a grand jury indictment. In certain situations, the
defendant and the State benefit by proceeding by way of information. By waiving the
constitutional right to an indictment, “the defendant can obtain a speedier disposition of
the charges against him and the State is spared the time and expenses of unnecessary
Grand Jury proceedings.” People v. Menchetti, 561 N.E.2d 536, 538 (N.Y. 1990).7
Petitioner relies on State ex rel. McGilton v. Adams, 143 W. Va. 325, 102
S.E.2d 145 (1958), and State ex rel. Firestone v. Adams, 145 W. Va. 194, 113 S.E.2d 830
(1960), for the proposition that his conviction is utterly void in the absence of an
indictment considering the Rule 7 irregularity. However, these cases are patently
distinguishable as they involved the transfer of adjudicated delinquents to an adult
penitentiary when there was no charging instrument—information or indictment—and no
7
See also Fed. R. Crim. P. 7 comments (noting the “[o]pportunity to waive
indictment and to consent to prosecution by information will be a substantial aid to
defendants, especially those who, because of inability to give bail, are incarcerated
pending action of the grand jury, but desire to plead guilty. This rule is particularly
important in those districts in which considerable intervals occur between sessions of the
grand jury. In many districts where the grand jury meets infrequently a defendant unable
to give bail and desiring to plead guilty is compelled to spend many days, and sometimes
many weeks, and even months, in jail before he can begin the service of his sentence,
whatever it may be, awaiting the action of a grand jury.”).
11
conviction.8 Moreover, McGilton and Firestone were decided before this Court adopted
the West Virginia Rules of Criminal Procedure in 1981—“the paramount authority
controlling criminal proceedings before the circuit courts of this jurisdiction[.]” State v.
Wallace, 205 W. Va. 155, 156, 517 S.E.2d 20, 21 (1999). In Wallace, this Court
recognized that “Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure now
requires only that ‘[t]he indictment or the information shall be a plain, concise and
definite written statement of the essential facts constituting the offense charged.’” Id. at
159, 517 S.E.2d at 24 (emphasis added).
Consequently, Petitioner’s related argument—that the circuit court lacked
jurisdiction to accept the plea because there was no indictment—lacks merit. Petitioner
offers no support for that categorical argument, and we are aware of none. Rule 7 clearly
provides that a criminal defendant may be charged by indictment or information. Other
courts examining this issue have found that the constitutional right to be charged by a
8
In McGilton, this Court granted relief in habeas corpus recognizing that “a
juvenile court is without authority to sentence a person to confinement in the penitentiary
of this State.” Id. at 325, 102 S.E.2d at 145, syl. pt. 1, in part. Moreover, we held that
“[t]he incarceration of a person in the penitentiary of this State for an offense for which
there was no presentment or indictment by a grand jury violates the provisions of Article
III, Section 4, of the Constitution of this State and is therefore void.” Id., syl. pt. 2; see
also Firestone, 145 W. Va. at 195-96, 113 S.E.2d at 831 (granting relief in habeas corpus
when petitioner (adjudicated delinquent) was determined unfit for confinement in
Industrial School for Boys and subsequently transferred to State Penitentiary at
Moundsville, without being indicted by grand jury). The syllabus points of McGilton and
Firestone are valid points of law considering the distinctive facts of those cases. This
Court has repeatedly stated that a syllabus point is to be read in the light of the opinion.
Farley v. Worley, 215 W. Va. 412, 426, 599 S.E.2d 835, 849 (2004).
12
grand jury is a personal right of the defendant and does not go to the court’s subject
matter jurisdiction because it may be waived. See, e.g., Malone v. Com., 30 S.W.3d 180,
184 (Ky. 2000) (“Provisions to the effect that no person shall be held or required to
answer, or held for or put upon trial, for a criminal offense, or for a specified kind or
grade of offense, except by or upon indictment have been construed, in most jurisdictions
as not being mandatory or jurisdictional in character but merely conferring a personal
privilege which may be waived.”).9
Nevertheless, we are mindful that an information acts in lieu of or as a
substitute for an indictment and its validity is therefore essential to a circuit court’s
jurisdiction. It is axiomatic that a criminal prosecution requires the existence of an
accusation charging the commission of an offense. Such an accusation, either in the form
of an indictment or an information, is an essential requisite of a circuit court’s
jurisdiction. See, e.g., Malone, 30 S.W.3d at 183 (“In Kentucky, subject matter
jurisdiction over a felony offense may be invoked either by a grand jury indictment or by
information in cases where the individual consents.”); accord Wells v. Sacks, 184 N.E.2d
9
See also McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (citing
Rule 7(b) of Federal Rules of Criminal Procedure and finding “the constitutional right to
be charged by grand jury indictment simply does not fit the mold of a jurisdictional
defect, because it is a right that plainly may be waived.”); United States v. Jones, 177
F.2d 476, 478 (7th Cir. 1949) (“The right to indictment by a grand jury is a right
guaranteed by the Federal Constitution . . . but an intelligent accused may waive any
constitutional right that is in the nature of a privilege to him, or that is for his personal
protection or benefit.”).
13
449 (Ohio 1962). Thus, if an accused has not validly waived his or her constitutional
right to an indictment, an indictment is still the mandatory charging instrument.
Having obtained from the circuit court precisely what he sought, it ill
behooves Petitioner now to complain that his waiver of indictment was improper under
Rule 7 because he was charged by information with an offense punishable by life
imprisonment. As this Court stated in State v. Wade, 174 W. Va. 381, 384, 327 S.E.2d
142, 146 (1985), Rule 7 “implements the requirements of” the constitutional right to
grand jury indictment under article III, section 14 of the West Virginia Constitution. Rule
7 does not create a right separate and distinct from the constitution. Consequently, when
Petitioner expressly waived his constitutional right to an indictment, he implicitly waived
the Rule 7 irregularity.
In Wallace, we discussed the interplay between the constitutional mandate
and Rule 7:
Article III, § 14 of the West Virginia Constitution
mandates, in part, that in all criminal trials “the accused shall
be fully and plainly informed of the character and cause of the
accusation.” Rule 7(c)(1) is coterminous with this
constitutional command. As we stated in Syllabus point 2 of
State v. Miller, “[a]n indictment need only meet minimal
constitutional standards, and the sufficiency of an indictment
is determined by practical rather than technical
considerations.”
Wallace, 205 W. Va. at 160, 517 S.E.2d at 25 (footnotes omitted and emphasis added).
14
The requirements of Rule 7 serve a salutary purpose and should ordinarily
be observed. Nevertheless, this Court has recognized that a technical violation of the
West Virginia Rules of Criminal Procedure does not give rise to habeas relief. For
instance, in State ex rel. Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999), the
petitioner argued that he was denied due process as a result of the trial court failing to
meet certain requirements of Rule 11 of the West Virginia Rules of Criminal Procedure
in the course of his guilty plea colloquy. Vernatter, 207 W. Va. at 19, 528 S.E.2d at 215.
In Vernatter, the trial court violated Rule 11 by failing to advise the petitioner that he was
waiving a variety of constitutional protections, including the right to a trial and the right
to confront accusers. This Court found the claims were not cognizable in an action for
post-conviction relief under the West Virginia Post-Conviction Habeas Corpus Act: 10
“[t]he requirements of Rule 11, while they assist in ensuring that guilty pleas comport
with this basic constitutional requirement, are not of themselves of constitutional
significance.” Vernatter, 207 W. Va. at 19-20, 528 S.E.2d at 215-16.
This Court went on to hold in Vernatter that a petitioner may successfully
challenge a guilty-plea conviction in a habeas proceeding based upon an alleged violation
of Rule 11 “only by establishing that the violation constituted a constitutional or
jurisdictional error; or by showing that the error resulted in a complete miscarriage of
justice, or in a proceeding inconsistent with the rudimentary demands of fair procedure.”
10
See W. Va. Code §§ 53-4A-1 to -11 (2016).
15
Vernatter, 207 W. Va. at 14, 528 S.E.2d at 210, syl. pt. 10, in part. In addition, the
petitioner must also demonstrate that he was prejudiced by the alleged error. Id.; accord
State ex rel. Farmer v. Trent, 209 W. Va. at 794, 551 S.E.2d at 716 (noting prisoner may
not collaterally attack guilty plea under Rule 11 where all that is shown is failure to
comply with formal requirements of Rule).
Applying the principles enunciated in Vernatter to the issue before us, we
hereby hold that a petitioner seeking post-conviction habeas corpus relief may
successfully challenge a guilty-plea conviction based upon an alleged violation of Rule 7
of the West Virginia Rules of Criminal Procedure only by establishing that the violation
amounted to a constitutional or jurisdictional error, or by showing that the alleged error
resulted in a complete miscarriage of justice. In addition, the petitioner must demonstrate
that he was prejudiced by the alleged error.
In this case, all that Petitioner has alleged and shown is that the circuit court
failed to comply with the formal requirements of Rule 7 when it accepted his guilty plea
by information when the offense was punishable by life imprisonment. At no point in the
proceedings below did Petitioner show that his guilty plea by information was
involuntary or that he was prejudiced by this alleged error. To the contrary, Petitioner
admitted at Brandon Flack’s trial that he was strongly motivated to be the first of his co-
defendants to accept the plea offer by the State to secure the best deal. The State’s
agreement to waive indictment and proceed to prosecution by information was therefore
16
substantially favorable to Petitioner and he has shown no prejudice. Accordingly,
Petitioner’s claimed Rule 7 violation is insufficient to warrant post-conviction habeas
corpus relief.
Petitioner raises a new challenge on appeal, namely, that his right to a
grand jury indictment under the State Constitution was violated. W. Va. Const. art. III §
4. Because Petitioner did not advance this constitutional argument below, we address
whether to entertain it.
This Court has explicitly stated that, under very narrow circumstances, an
error not properly preserved at the trial court level may be considered on appeal. 11 In
syllabus point two of Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005), we held:
11
Justice Cleckley made the following observations regarding this Court’s
authority to address an issue that was not properly preserved at the circuit court level:
[A]lthough the rule requiring all appellate issues be [properly]
raised first in the circuit court is important, it is not
immutable: Our cases have made clear that the failure to
[properly] raise issues below is not a jurisdictional
prerequisite to an appeal but, rather, is a gatekeeper provision
rooted in the concept of judicial economy, fairness,
expediency, respect, and practical wisdom. Requiring issues
to be [properly] raised at the trial level is a juridical tool,
embodying appellate respect for the circuit court’s advantage
and capability to adjudicate the rights of our citizens.
State v. Greene, 196 W. Va. 500, 505, 473 S.E.2d 921, 926 (1996) (Cleckley, J.,
concurring).
17
A constitutional issue that was not properly preserved
at the trial court level may, in the discretion of this Court, be
addressed on appeal when the constitutional issue is the
controlling issue in the resolution of the case.
Applying this principle of law, we exercise our discretion to address the
constitutional issue presented even though it was not properly preserved below. The issue
raised here, but omitted below, is purely legal in nature and lends itself to resolution on
the existing record. Moreover, the State has thoroughly briefed the constitutional issue in
response to Petitioner’s claim. We view the matter as sufficiently developed to decide
this issue.
Article III, section 4 of the West Virginia Constitution mandates, in part,
that “[n]o person shall be held to answer for treason, felony or other crime . . . unless on
presentment or indictment of a grand jury.” This Court held in syllabus point one of State
v. Haines, 221 W. Va. 235, 654 S.E.2d 359 (2007), that:
“A defendant has a right under the Grand Jury Clause
of Section 4 of Article III of the West Virginia Constitution to
be tried only on felony offenses for which a grand jury has
returned an indictment.” Syl. Pt. 1, State v. Adams, 193 W.
Va. 277, 456 S.E.2d 4 (1995).
Nevertheless, just as an accused may waive his constitutional rights to
assistance of counsel and trial by jury, 12 which are designed for the protection of his or
12
See Syl. Pt. 5, State ex rel. Powers v. Boles, 149 W. Va. 6, 138 S.E.2d 159
(1964) (“A person accused of a crime may waive his constitutional right to assistance of
(continued . . .)
18
her personal rights, an accused may waive the similar personal right of indictment by a
grand jury. An accused may waive sundry constitutional rights and privileges, if he or she
does so intelligently and voluntarily.13 Indeed, a waiver of grand jury indictment is of less
consequence than waiving the right to trial by jury considering the grand jury need find
only probable cause to believe the accused committed the crime, rather than guilt beyond
a reasonable doubt. United States v. Montgomery, 628 F.2d 414, 416 (5th Cir. 1980)
(discussing constitutional waiver in context of Rule 7(b) of Federal Rules of Criminal
Procedure that permits waiver of indictment and prosecution by information for non-
capital felonies).
Accordingly, we hereby hold that a defendant may waive his constitutional
right to a grand jury indictment as provided in article III, section 4 of the West Virginia
Constitution and elect to be prosecuted by information in accordance with the provisions
of Rule 7 of the West Virginia Rules of Criminal Procedure if such waiver is made
intelligently and voluntarily. Based on the record before us, it is clear that Petitioner did
so here when he explicitly waived this constitutional right and elected to be prosecuted by
counsel and his constitutional right to trial by jury [art. III § 14 of the West Virginia
Constitution], if such waivers are made intelligently and understandingly.”).
13
Other significant rights conferred by the United States Constitution can be
waived by criminal defendants. See, e.g., Adams v. U.S. ex rel. McCann, 317 U.S. 269
(1942) (trial by jury); Johnson v. Zerbst, 304 U.S. 458 (1938) (right of counsel); and
Trono v. U.S., 199 U.S. 521 (1905) (protection against double jeopardy).
19
information.14 Petitioner’s Waiver of Indictment was filed in open court after the circuit
court had ascertained from Petitioner that he had received a copy of the information, was
familiar with it, and agreed to proceed in this manner.
14
At the plea hearing, the circuit court addressed Petitioner’s constitutional waiver
at length:
THE COURT: Now, do you know and understand that
you have a constitutional right to be indicted by the grand
jury. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: I’m going to need for you to speak up
for me, and make sure you answer out loud all the questions
that I ask you. Okay?
THE DEFENDANT: All right.
THE COURT: Now, let me explain what a grand jury
is. A grand jury is made up of 16 citizens of this county, and
they’re brought in, and the prosecuting attorney presents what
they believe the evidence would be against you. It takes at
least 15 members of the grand jury to be present for there to
be a quorum.
After they hear the evidence, at least 12 members of
the grand jury [have] to agree to have charges brought against
you. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And the standard they use is what’s
called probable cause, and that is that they believe there’s a
probability that based upon the information introduced by the
prosecutor the crime may have been committed. Do you
understand that?
(continued . . .)
20
THE DEFENDANT: Yes, sir.
THE COURT: Now, do you understand you can waive
your right to be charged by the grand jury and agree to this
case being proceeded against you on an information filed by
the prosecutor? Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Now, you have an absolute
constitutional right to be charged by way of the indictment by
a grand jury, and the only way that an information can be
filed against you charging you with any offenses is that you
have to agree to the filing of the information and a waiver of
the charges be presented to the grand jury. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that a grand jury
may or may not indict you based upon what they hear—the
evidence—from the prosecutor? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, do you understand that if you
waive indictment by the grand jury this case is going to
proceed against you on the prosecuting attorney’s information
just as if you had been indicted? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, have you discussed the option of
waiving your right to indictment by the grand jury with your
attorneys?
THE DEFENDANT: Yes.
THE COURT: Do you understand what your rights are
regarding indictment by the grand jury?
(continued . . .)
21
B. Petitioner’s Guilty Plea Was Voluntary
Petitioner also contends that his guilty plea was involuntary. Although
Petitioner did not raise this ground in his second amended petition, the circuit court
addressed this claim because Petitioner raised it in earlier pleadings as part of the Losh
checklist.15 The circuit court found that Petitioner knowingly and intelligently waived his
THE DEFENDANT: Yes.
THE COURT: Has anyone threatened you to get you
to waive your right to indictment by the grand jury?
THE DEFENDANT: No.
THE COURT: Has anyone promised you anything,
apart from this plea agreement, to cause you to waive your
right to indictment by the grand jury?
THE DEFENDANT: No.
THE COURT: Okay. Have you understood everything
up to this point?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about
anything I’ve spoken to you about so far?
THE DEFENDANT: No.
THE COURT: Understanding everything I’ve told
you, Mr. Montgomery, and having no questions, do you wish
to waive your right to indictment by the grand jury?
THE DEFENDANT: Yes.
15
See Losh v. McKenzie, 166 W. Va. 762, 768, 277 S.E.2d 606, 611 (1981) (listing
prominent grounds most frequently raised by petitioners in habeas corpus proceedings).
22
constitutional rights and freely, voluntarily, and intelligently entered into the plea
agreement. We agree.
A habeas petitioner seeking to overturn his guilty plea bears the burden of
persuasion with respect to the voluntariness of the plea. See Syl. Pt. 3, State ex rel.
Clancy v. Coiner, 154 W. Va. 857, 179 S.E.2d 726 (1971) (“The burden of proving that a
plea was involuntarily made rests upon the pleader.”); accord Syl. Pt. 1, State ex rel.
Wilson v. Hedrick, 180 W. Va. 689, 379 S.E.2d 493 (1989). As the United States
Supreme Court has noted, statements made at plea allocutions “carry a strong
presumption of verity” and “constitute a formidable barrier” in any subsequent collateral
proceeding. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Petitioner claims that his counsel failed to educate him about the
consequences of his guilty plea and misrepresented his involvement in the crime without
even knowing that exact involvement because the ballistics report was not completed.
However, Petitioner’s statements at the plea hearing demonstrate that he entered the
guilty plea voluntarily with full knowledge of the charge and the consequences of plea.
Moreover, Petitioner was aware that the ballistics report was not yet completed and he
still chose to accept the plea. Petitioner knew exactly what the consequences of his guilty
plea would be because they were outlined in the binding plea agreement itself and
discussed at length by the circuit court during the plea colloquy. This evidence convinces
us that Petitioner’s guilty plea represented his voluntary and intelligent choice.
23
Petitioner’s guilty plea is not rendered invalid simply because he is now
motivated by the unfounded belief that he could possibly have obtained a more favorable
plea offer from the State had he waited on the results of the ballistics report. As discussed
above, Brandon Flack—who was not even armed with a weapon—was convicted of first-
degree murder, first-degree robbery, and conspiracy, and received a lengthy prison
sentence. Thus, the results of the ballistics report were not only inconsequential to the
criminal charges Petitioner faced, they were wholly unrelated to the voluntariness of his
guilty plea.16
16
Even if Petitioner did miscalculate the nature of the evidence against him, our
analysis of the issue would not change. As the United States Supreme Court has
recognized,
[o]ften the decision to plead guilty is heavily influenced by
the defendant’s appraisal of the prosecution’s case against
him and by the apparent likelihood of securing leniency
should a guilty plea be offered and accepted. Considerations
like these frequently present imponderable questions for
which there are no certain answers; judgments may be made
that in the light of later events seem improvident, although
they were perfectly sensible at the time. The rule that a plea
must be intelligently made to be valid does not require that a
plea be vulnerable to later attack if the defendant did not
correctly assess every relevant factor entering into his
decision. A defendant is not entitled to withdraw his plea
merely because he discovers long after the plea has been
accepted that his calculus misapprehended the quality of the
State’s case or the likely penalties attached to alternative
courses of action.
Brady v. U.S., 397 U.S. 742, 756-57 (1970).
24
C. Petitioner Has Not Demonstrated Ineffective Assistance of Counsel
Finally, Petitioner raises an ineffective assistance of counsel claim. Claims
of ineffective assistance of counsel are governed by the two-pronged test established in
Strickland v. Washington, 466 U.S. 668 (1984), and subsequently adopted by this Court
in syllabus point five of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995):
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 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 Hill v. Lockhart, 474 U.S. 52 (1985), the United States Supreme Court
held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Id. at 58. In the context of guilty pleas, the
second prong, or prejudice requirement of Strickland, focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process. “In
other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Id. at 59. Consistent with Hill, this
Court held in syllabus point six of Vernatter, 207 W. Va. 11, 528 S.E.2d 207, that
[i]n cases involving a criminal conviction based upon a
guilty plea, the prejudice requirement of the two-part test
established by Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194
25
W. Va. 3, 459 S.E.2d 114 (1995), demands that a habeas
petitioner show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.
With regard to the first prong of Strickland, Petitioner contends his trial
counsel, Phillip Scantlebury and David Smith, were ineffective when they: (1) allowed
him to enter into a guilty plea to first-degree murder based upon information; (2)
misrepresented that Petitioner’s bullet killed the victim before the forensic report was
received; and (3) failed to explain the potential mitigating circumstances had they waited
to receive the ballistics report. As explained below, these arguments are without merit.
First, this Court gives substantial deference to the judgment of defense
counsel on review of an ineffective assistance claim particularly in guilty plea cases. See
Vernatter, 207 W. Va. at 17, 528 S.E.2d at 213 (“The petitioner’s burden in this regard is
heavy, as there is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance[.]’”) (quoting Strickland, 466 U.S. at 689). In
many cases, as the Fourth Circuit Court of Appeals has aptly stated, “[w]here there is no
defense on the merits and the prosecution’s case is readily provable, nothing is gained for
the defendant by pleading not guilty” and a client should be advised strongly to plead
guilty. United States v. Jones, 392 F.2d 567, 569 n.3 (4th Cir. 1968). Therefore, we
decline to find that Petitioner’s trial counsel was ineffective by advising him to plead
guilty to first-degree murder by way of information considering the overwhelming
evidence of his guilt. Under these circumstances, it was eminently reasonable for counsel
26
to recommend that Petitioner consent to the filing of an information so that he could
accept this plea offer. As Petitioner admitted at Brandon Flack’s trial, he wanted to plead
guilty before his co-defendants could because he was trying to avoid a life sentence
without the possibility of parole.
Second, Petitioner offers no evidentiary support for his claim that trial
counsel misrepresented that it was Petitioner’s bullet that killed the victim before receipt
of the ballistics report. In any event, it would be quite reasonable for one to assume that
Petitioner’s weapon fired the fatal shot when Petitioner himself believed he shot Matthew
Flack in the face.
And third, Petitioner wholly ignores the nature of his crimes and potential
sentences when he speculates that had counsel waited to receive the ballistics report, this
“mitigating” evidence would somehow assure a more favorable plea deal. This evidence
was in no way mitigating considering Petitioner participated in a violent home invasion
during which the victim was shot and killed. Petitioner faced the same charges as his co-
defendants—first-degree murder, first-degree robbery, and conspiracy—even if Petitioner
did not personally do the killing and even if he had no intent to kill. State v. Sims, 162 W.
Va. 212, 248 S.E.2d 834.
We recognize that
[t]he principal value of counsel to the accused in a criminal
prosecution often does not lie in counsel’s ability to recite a
27
list of possible defenses in the abstract, nor in his ability, if
time permitted, to amass a large quantum of factual data and
inform the defendant of it. Counsel’s concern is the faithful
representation of the interest of his client and such
representation frequently involves highly practical
considerations as well as specialized knowledge of the law.
Often the interests of the accused are not advanced by
challenges that would only delay the inevitable . . . A
prospect of plea bargaining, the expectation or hope of a
lesser sentence, or the convincing nature of the evidence
against the accused are considerations that might well suggest
the advisability of a guilty plea without elaborate
consideration [of pursuits that would ultimately prove futile].
Tollett v. Henderson, 411 U.S. 258, 267-68 (1973).
Accordingly, because Petitioner has failed to establish deficient
performance by trial counsel—the first prong of Strickland—this Court need not engage
in analysis of the second prong.17 But even if this Court were to assume that counsel’s
performance was deficient, Petitioner has also failed to show how he was prejudiced.
With regard to the prejudice prong of Strickland, Petitioner does not state
there is a reasonable probability that he would have rejected the State’s plea offer and
gone to trial. Rather, Petitioner contends that but for his counsel’s ineffective assistance,
“he would have asked them to see if a better plea deal could be reached had he known
that the bullet [that killed Matthew Flack] was not fired from his weapon.” Petitioner
17
When deciding ineffective-assistance-of-counsel claims, a court need not
address both prongs of Strickland, but may dispose of the claim based solely on a
petitioner’s failure to meet either prong. Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195
W. Va. 314, 465 S.E.2d 416 (1995).
28
essentially wants to negotiate a more favorable plea agreement without the risk of losing
the benefits he received from the plea deal he accepted. As a result, Petitioner’s allegation
falls short of the Hill/Vernatter standard and is insufficient to establish actual prejudice.
Hill, 474 U.S. at 59; Vernatter, 207 W. Va. at 18, 528 S.E.2d at 214; see also Short v.
U.S., 471 F.3d 686, 696-97 (6th Cir. 2006) (“petitioner’s claim of prejudice rests upon an
assertion that he wound up with a less favorable plea or sentence than he otherwise would
have accepted with the advice of competent counsel. Such a claim is insufficient to
establish actual prejudice.”).
IV. CONCLUSION
We affirm the August 30, 2016, order of the Circuit Court of Mercer
County.
Affirmed.
29