STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Joshua Stevens, FILED Petitioner Below, Petitioner April 25, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 13-0691 (Berkeley County 12-C-807) OF WEST VIRGINIA

Evelyn Seifert, Warden, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Joshua Stevens, by counsel Christopher J. Prezioso, appeals an order of the Circuit Court of Berkeley County entered May 20, 2013, which denied his petition for writ of habeas corpus. Respondent Evelyn Seifert, Warden,1 by counsel Christopher C. Quasebarth, filed a response.

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.

Petitioner was the subject of two multi-count indictments dated October 19, 2010. In the first indictment, he and his co-defendant, Falon S. Mauck, were charged with five counts of forgery with a credit card belonging to victim Robin Johnson and one count of conspiracy to commit forgery of a credit card. Petitioner and his co-defendant were also charged with breaking and entering Johnson’s automobile and petit larceny with regard to various items totaling approximately $265.00 in value. Additionally, the pair was charged with the first degree robbery of Matthew R. Martinez, having been accused of striking and beating him and using a knife to take and carry away money of an unknown amount. Also with regard to victim Martinez, petitioner and his co-defendant were charged with malicious assault, assault during the commission of a felony, and conspiracy to commit robbery.

In the second indictment, petitioner was charged with burglary and grand larceny in connection with the breaking and entering of the home of William Wasson II. Petitioner was accused of stealing money and items totaling approximately $3,279.00 in value. Petitioner was also charged with the attempted burglary of a garage adjoining the dwelling house of victim Pursuant to Rule 41(c) of the Rules of Appellate Procedure, we have substituted the respondent party’s name with Warden Evelyn Seifert because petitioner is currently incarcerated at the Northern Correctional Facility.

Donald Bryarly and the burglary of Mr. Bryarly’s home. Moreover, petitioner was charged with the offenses of breaking and entering of an automobile owned by victim Bobbie J. Madden; petit larceny of items taken therefrom totaling approximately $141.00 in value; and misdemeanor destruction of property, namely, the destruction of the automobile’s passenger and driver side windows and causing damages in the amount of $650.00. He was also charged with obstructing an officer; the breaking and entering of an automobile, namely, a Martinsburg City Police cruiser; petit larceny of money and property taken therefrom; and misdemeanor destruction of property resulting from damage to the driver side window of the police cruiser. Petitioner was further charged with burglary and first degree arson of the dwelling house belonging to victim Clifford E. Taylor, Jr., and grand larceny and third degree arson of a 1998 Ford Explorer Sport automobile owned by victim Nicole Gregory. Finally, Petitioner was charged with the domestic battery of Falon Mauck (his co-defendant under the first indictment).

On or about March 28, 2011, Petitioner pleaded guilty under Alford2 circumstances to the following felony charges for which the statutory sentences were imposed, pursuant to the plea agreement: one count of burglary (one to fifteen years of incarceration); one count of attempted burglary (one to three years); one count of arson in the first degree (a determinate eight years); one count of grand larceny (one to ten years); one count of forgery of a credit card (one to ten years); and one count of robbery in the first degree (a determinate twenty-five years). Petitioner also pleaded guilty to the misdemeanor offenses of one count of domestic battery (time served) and three counts of breaking and entering an automobile (time served). The sentences for the felony convictions were ordered to run consecutively to the misdemeanors and to each other.

Petitioner’s motion for reconsideration of sentence was denied by order entered September 1, 2011.3 Petitioner filed a petition for writ of habeas corpus on October 17, 2012. During an omnibus evidentiary hearing conducted on March 20, 2013, petitioner, inter alia, specifically waived certain allegations set forth on the Checklist of Grounds for Post-Conviction Habeas Corpus Relief, see Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), and also waived the attorney-client privilege with regard to communications with his trial attorney. Petitioner, his mother, and his trial counsel testified at the omnibus hearing. In a Final Order Denying Petition for Writ of Habeas Corpus entered May 20, 2013, the circuit court denied petitioner’s request for habeas relief. This appeal followed.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

North Carolina v. Alford, 400 U.S. 25 (1970). Under Alford, “[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.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987).

Petitioner did not directly appeal his conviction or sentence.

“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).

On appeal, petitioner raises three assignments of error. First, petitioner argues that he was entitled to habeas relief because he received ineffective assistance of counsel below because trial counsel failed to adequately explain and investigate the case; failed to properly explore mental defenses; and coerced petitioner into accepting the plea. More specifically, petitioner argues that trial counsel failed to hire an investigator to review petitioner’s claim that the armed robbery was a “drug deal” gone bad and that he only acted in self-defense. Petitioner contends that if there had been a proper investigation, he would most likely not have pled guilty to the crimes for which he was indicted. He contends further that he advised trial counsel that he wanted “certain witnesses”4 to be interviewed and subpoenaed but that counsel failed to do either. Furthermore, petitioner argues that he was not afforded the opportunity to assert any mental defenses regarding his capacity to commit the charged crimes.5 He contends that he had “no recollection” of some of the alleged crimes due to his abuse of Xanax and use of methadone; that he was previously hospitalized due to his drug addiction and mental disorders; and that, prior to his arrest, he was “depressed” and suicidal. Petitioner argues that trial counsel failed to arrange a competency or mental defense evaluation prior to execution of the plea agreement. Finally, petitioner argues that he was coerced into entering into the plea agreement. He asserts that after he informed trial counsel that he did not want to accept a plea but, instead, wanted to go to trial, counsel contacted petitioner’s mother who then told petitioner that he “had to take the plea” or else he was “never coming home.” Petitioner argues that the discussion with his mother affected him “both ‘emotionally’ and ‘mentally[,]’” and unduly pressured him into accepting the plea. For the foregoing reasons, petitioner argues that he was denied effective assistance of trial counsel.

Petitioner’s second assignment of error is that the circuit court erred in denying his request for habeas relief because he did not have a rational understanding of the law and was mentally incompetent to enter a plea. Petitioner claims that, at the time he entered into the plea agreement, he was depressed, confused, and suffered from several forms of mental illness.6 On appeal, petitioner fails to identify the “certain witnesses” to whom he refers.

See Syl. Pt. 3, in part, State v. Joseph, 214 W.Va. 525, 590 S.E.2d 718 (2003) (holding that “[t]he diminished capacity defense is available . . . to permit a defendant to introduce expert testimony regarding a mental disease or defect that rendered the defendant incapable, at the time the crime was committed, of forming a mental state that is an element of the crime charged.”).

On appeal, petitioner fails to identify the mental illnesses from which he suffered at the time he entered his plea. Indeed, the circuit court’s order concluded that petitioner “specifies no current or past diagnosed mental disorders or addictions that affected his competency.” The Petitioner argues that he should have undergone a competency evaluation. See Syl. Pt. 3, in part, State v. Kent, 213 W.Va. 535, 584 S.E.2d 169 (2003) (holding that the standard for determining whether a defendant is competent to stand trial or plead guilty is that he or she “‘must exhibit a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational, as well as factual, understanding of the proceedings against him.’” (internal citations omitted)).

In his final assignment of error, petitioner argues that the circuit court committed reversible error in denying petitioner’s request for habeas relief because his sentence of an indeterminate term of four to thirty-eight years of incarceration to be served consecutively to a determinate sentence of thirty-three years is excessive, cruel, and inhuman and, thus, violates the Eighth Amendment to the United States Constitution. He further argues that his sentence is grossly disproportionate to the sentence of his co-defendant, who received a sentence of two to fifteen years of incarceration.

Having carefully reviewed the circuit court’s order, this Court concludes that the circuit court did not abuse its discretion in denying petitioner’s request for habeas corpus relief. The circuit court specifically addressed petitioner’s claim of ineffective assistance of counsel and, given petitioner’s own testimony and the testimony of his trial counsel and mother, the circuit court properly concluded that petitioner failed to satisfy the two-pronged test for proving that trial counsel was ineffective.7 Likewise, with regard to petitioner’s claim that he was incompetent to enter a plea, we find that the circuit court properly concluded that petitioner’s claims of incompetency due to mental illness and drug addiction are not supported by the record, including petitioner’s own testimony. Finally, the circuit court did not abuse its discretion in concluding that petitioner’s sentence was neither excessive nor grossly disproportionate to that of his co-defendant. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to all of the assignments of error raised herein. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions and direct the Clerk to attach a copy of the circuit court’s May 20, 2013, Final Order Denying Petition for Writ of Habeas Corpus to this memorandum decision.

circuit court specifically noted that, during the plea dialogue, petitioner “admitted that he was not under the influence at that time and was never treated for any mental health or addiction issues.”

See Syl. Pt. 3, Ballard v. Ferguson, 232 W.Va. 196, 751 S.E.2d 716 (2013), which held that “[i]n 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.” Syllabus point 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 25, 2014 CONCURRED IN BY: Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II