Andrew Perry v. Donnie Ames

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Andrew Scott Perry,
Petitioner Below, Petitioner FILED
November 4, 2020
vs.) No. 19-0538 (Wayne County 18-C-121) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Donnie Ames, Superintendent, Mt. Olive
Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Andrew Scott Perry, by counsel Paul R. Cassell, appeals the Circuit Court of
Wayne County’s May 30, 2019, order denying his third petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent of Mt. Olive Correctional Complex, by counsel Holly
M. Flanigan, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in summarily dismissing his third petition for writ of habeas corpus.
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.
In July of 2005, petitioner was indicted on one count of first-degree murder. Petitioner
entered into a plea agreement with the State whereby he agreed to plead guilty, and, in exchange,
the State agreed to stand silent at petitioner’s sentencing. At sentencing, petitioner argued for
mercy, but the circuit court sentenced him to life imprisonment without mercy. Petitioner filed two
direct appeals, which were refused by this Court in 2006 and 2007. In August of 2010, with the
assistance of counsel, petitioner filed his first petition for a writ of habeas corpus. On November
11, 2011, and April 18, 2012, the circuit court conducted an omnibus hearing. Regarding the
potential habeas ground of “unfulfilled plea bargain,” the Court questioned petitioner in the
following exchange:
[The Court]: Nineteen, unfulfilled plea bargain, meaning that you had a
plea to a specific—specifically, a plea and also a sentence that
was not fulfilled, that basically your plea agreement was not
upheld by the Prosecutor or the Court. Do you believe there’s
any evidence of that?
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[Petitioner]: No.
[The Court]: Okay. So, that one’s waived.
The circuit court further questioned petitioner whether he understood that he could not “come back
later and raise any of these issues that you waived today,” and petitioner responded, “[y]es sir.”
By order entered on July 16, 2012, the circuit court denied petitioner’s first habeas petition, which
this Court affirmed in Perry v. Ballard, No. 12-0941, 2013 WL 2462195 (W. Va. June 7,
2013)(memorandum decision).
Petitioner later filed a self-represented second petition for a writ of habeas corpus. After
reviewing the second petition, the record in petitioner’s prior habeas and various trial court records,
but without holding any hearing or appointing counsel, the circuit court denied petitioner’s second
petition on February 13, 2017. Petitioner appealed this denial, which this Court affirmed in Perry
v. Terry, No. 17-0178, 2018 WL 1040364 (W. Va. Feb. 23, 2018)(memorandum decision). Finally,
petitioner, through counsel, filed a third petition for a writ of habeas corpus in November of 2018.
The circuit court summarily dismissed the third petition without holding a hearing, finding that
petitioner expressly waived the issue of unfulfilled plea bargain at the omnibus hearing. The circuit
court dismissed petitioner’s third petition by order entered on May 30, 2019. It is from the May
30, 2019, order that petitioner now 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).
We also bear in mind that
[o]ur post-conviction habeas corpus statute, W.Va. Code § 53–4A–1 et seq.
(1981 Replacement Vol.), clearly contemplates that a person who has been
convicted of a crime is ordinarily entitled, as a matter of right, to only one post-
conviction habeas corpus proceeding during which he must raise all grounds for
relief which are known to him or which he could, with reasonable diligence,
discover.
Syl. Pt. 1, Gibson v. Dale, 173 W. Va. 681, 319 S.E.2d 806 (1984). We further note that
[a] prior omnibus habeas corpus hearing is res judicata as to all matters
raised and as to all matters known or which with reasonable diligence could have
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been known; however, an applicant may still petition the court on the following
grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing;
newly discovered evidence; or, a change in the law, favorable to the applicant,
which may be applied retroactively.
Syl. Pt. 4, Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
On appeal, petitioner argues that the circuit court erred in summarily dismissing his third
petition for writ of habeas corpus because he contends that he did not knowingly and intelligently
waive his right to assert that his underlying plea agreement went unfulfilled and because he
appropriately alleged that his prior habeas counsel was ineffective for failing to assert the claim in
his first habeas petition. Without addressing the specific facts underlying petitioner’s allegations
of an unfulfilled plea bargain, we find that he is entitled to no relief, given his explicit waiver of
an unfulfilled plea bargain claim during the omnibus hearing in his first habeas proceeding. 1
West Virginia Code § 53-4A-3(a), in relevant part, provides that
[i]f the petition, affidavits, exhibits, records and other documentary evidence
attached thereto, or the record in the proceedings which resulted in the conviction
and sentence, or the record or records in a proceeding or proceedings on a prior
petition or petitions filed under the provisions of this article, or the record or records
in any other proceeding or proceedings instituted by the petitioner to secure relief
from his conviction or sentence (if any such record or records are part of the official
court files of the court with whose clerk the petition is filed or are part of the official
court files of any other court within the same judicial circuit as the court with whose
clerk such petition is filed and are thus available for examination and review by
such court) show to the satisfaction of the court that the petitioner is entitled to no
relief, or that the contention or contentions and grounds (in fact or law) advanced
have been previously and finally adjudicated or waived, the court shall by order
entered of record refuse to grant a writ, and such refusal shall constitute a final
judgment.
As detailed in the record, petitioner was represented by counsel with respect to his first
petition for a writ of habeas corpus, including having counsel present at the omnibus hearing. In
his first petition, petitioner raised claims of ineffective assistance of trial counsel “in failing to
properly analyze [petitioner’s] mental state and possible mental health defenses,” involuntary
guilty plea, “that petitioner received a severer sentence than expected,” excessive sentence, and
that petitioner “received mistaken advice as to the plea or parole eligibility.” Notably, petitioner
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Although the circuit court dismissed petitioner’s ineffective assistance of habeas counsel
claim on the ground that it was previously and finally adjudicated or waived, we note that this
Court may affirm the decision for any just reason appearing from the record. Syl. Pt. 4, N.C. v.
W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984) (“‘This Court may, on appeal, affirm the judgment
of the lower court when it appears that such judgment is correct on any legal ground disclosed by
the record, regardless of the ground, reason or theory assigned by the lower court as the basis for
its judgment.’ Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).”).
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did not raise the issue of an unfulfilled plea bargain. In fact, when asked directly by the court about
the possible ground of an unfulfilled plea bargain at the omnibus hearing, petitioner acknowledged
that there was no evidence of any such claim. Accordingly, the circuit court stated that the possible
ground of an unfulfilled plea bargain was thereby waived, which brought no objection by
petitioner.
In denying petitioner’s second habeas petition, the circuit court found that petitioner was
adequately represented by habeas counsel who explained the Losh list to him when he previously
waived claims at the omnibus hearing. Petitioner now argues that this alleged waiver was not
knowingly and intelligently made but provides no evidence in support of his contention. See Ford
v. Coiner, 156 W. Va. 362, 196 S.E.2d 91 (1972) (holding that “the burden of proof rests on
petitioner to rebut the presumption that he intelligently and knowingly waived any contention or
ground for relief which theretofore he could have advanced on direct appeal.”). The record reflects
that petitioner was represented by counsel at the omnibus hearing and that during said hearing, the
habeas court questioned petitioner directly about the issue of his plea bargain and whether said
plea was unfulfilled, to which petitioner specifically and explicitly acknowledged that there was
no evidence to support any such claim. Accordingly, we find no error.
Finally, despite finding that petitioner waived the unfulfilled plea bargain claim, we
conclude that the same claim is barred by res judicata. Here, petitioner was afforded an omnibus
hearing for his first habeas corpus petition. We have long held that “all matters raised and as to all
matters known or which with reasonable diligence could have been known” are barred by res
judicata except for claims of ineffective assistance of habeas counsel, newly discovered evidence,
and/or favorable changes in the law. Losh, 166 W. Va. at 762, 277 S.E.2d at 606, syl. pt. 4. On
appeal, petitioner couches his unfulfilled plea bargain claim within an ineffective assistance of
habeas counsel claim, but the unfulfilled plea bargain claim was a matter that petitioner knew of
or could have known “with reasonable diligence” at the time of the omnibus hearing in his first
habeas proceeding. Id. Therefore, we find that petitioner’s unfulfilled plea bargain claim is barred
by res judicata, and he is entitled to no relief on his third habeas petition.
For the foregoing reasons, we affirm the circuit court’s May 30, 2019, order denying
petitioner’s third petition for writ of habeas corpus.
Affirmed.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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