                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Gary L. Himes,                                                                     FILED
Petitioner Below, Petitioner                                                 February 6, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0227 (Berkeley County 13-C-407)                                     OF WEST VIRGINIA


Evelyn Seifert, Warden,
Northern Correctional Facility
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Gary L. Himes, by counsel Ben J. Crawley-Woods, appeals the February 7,
2014, order of the Circuit Court of Berkeley County denying and dismissing his petition for writ
of habeas corpus. Respondent Evelyn Seifert, Warden, Northern Correctional Facility, by
counsel Cheryl K. Saville, filed her response to which petitioner submitted a reply.

        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 May of 2007, petitioner was indicted in a twelve-count indictment for four felony
counts of attempted robbery in the first degree, two felony counts of conspiracy to commit
robbery in the first degree, one felony count of burglary, one felony count of malicious assault,
one felony count of breaking and entering, one felony count of conspiracy to commit breaking
and entering, one misdemeanor count of petit larceny, and one misdemeanor count of destruction
of property. On or about July 6, 2007, petitioner entered into a plea agreement wherein he agreed
to give a full debriefing concerning the underlying facts and agreed to offer truthful testimony
against his co-defendants should he be required to testify by the State. In exchange, he agreed to
plead guilty to seven counts of the indictment and the State would recommend that petitioner be
sentenced to a term of incarceration of twenty-four years and that all of petitioner’s statutory
sentences run concurrently. Shortly before the trial of the first co-defendant, petitioner asked his
new attorney, R. Steven Redding, to secure a better plea on his behalf, specifically a lower
recommended sentence. Due to the timing of petitioner’s demands, the State viewed the request
as voiding the previous plea agreement. The State then negotiated plea agreements with
petitioner’s co-defendants. Mr. Redding withdrew from representing petitioner because he
anticipated that he may become a witness if petitioner sought to file a motion for enforcement of
the July plea agreement. New counsel, Paul Taylor, was appointed.


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         Petitioner’s co-defendants entered into plea agreements with the State, and petitioner
moved to enforce the July plea agreement on the ground that he told Mr. Redding to get a better
plea deal for him but did not refuse to testify or otherwise abide by the July agreement. A
hearing was held on the motion to enforce the plea agreement, and Mr. Redding was subpoenaed
to testify regarding his conversations with petitioner related to the plea agreement. During the
February 20, 2008, hearing on that motion, petitioner withdrew his motion, released Mr. Redding
without presenting any testimony, and entered into a new plea agreement with the State.
According to the circuit court, the new plea agreement was “nearly identical” to the earlier
agreement, with the exception of the fact that the State did not have to recommend the twenty-
four year sentence to the court. On February 20, 2008, petitioner entered guilty pleas pursuant to
the second plea agreement. At that time, the circuit court engaged petitioner in a dialogue
regarding those matters as set forth in Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975),
and Rule 11 of the West Virginia Rules of Criminal Procedure. Due to the plea agreement issues,
the circuit court asked additional questions of petitioner to make sure that he was aware of the
terms of the new plea agreement as compared to the original plea agreement. The circuit court
ordered an updated presentence investigation.

        On April 4, 2008, the circuit court sentenced petitioner to a determinate sentence of thirty
years of incarceration for his conviction for attempted robbery in the first degree, an
indeterminate term of not less than one nor more than five years of incarceration for his
conviction of conspiracy to commit robbery in the first degree, a determinate sentence of thirty
years of incarceration for his conviction of attempted robbery in the first degree, and an
indeterminate term of not less than one nor more than fifteen years of incarceration for his
conviction of conspiracy to commit burglary. All of these sentences were to be served
concurrently. The court also sentenced petitioner to an indeterminate term of not less than one
nor more than five years of incarceration for his conviction of conspiracy to commit robbery in
the first degree, an indeterminate term of not less than two nor more than ten years of
incarceration for his conviction of malicious assault, and an indeterminate term of not less than
one nor more than ten years for his conviction of breaking and entering. Those sentences were
ordered to run consecutively to one another and consecutively to the other (concurrent)
sentences. The remaining counts of the indictment were dismissed pursuant to the plea
agreement.

        Petitioner appealed raising two assignments of error: excessive sentence and a sentence
disproportionate to his co-defendants. On March 26, 2009, this Court refused that petition for
appeal. Petitioner filed four separate motions for reconsideration of his sentence with the circuit
court, but all were denied. Petitioner then requested the appointment of counsel to aid him in
filing a petition for writ of habeas corpus, and the circuit court appointed Neil Zahradnik.
Petitioner, through counsel, filed his petition for writ of habeas corpus and a Losh list. Mr.
Zahradnik withdrew from representing petitioner because he accepted a governmental position,
and Mr. Crawley-Woods was appointed to represent petitioner. In its February 7, 2014, “Final
Order Denying Petition for Writ of Habeas Corpus ad Subjiciendum,” the circuit court concluded
that petitioner’s claims regarding the proportionality of his sentence and ineffective assistance of
counsel failed to show any constitutional error. Therefore, the circuit court found that an
evidentiary hearing was not warranted.



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        With regard to petitioner’s sentence, the court noted there was no allegation that the
sentences were based upon an impermissible factor or that they were outside statutory limits. The
court found that petitioner’s sentences for his convictions of attempted robbery did not have a
statutory maximum, so an analysis under the proportionality rule was appropriate. Thereafter, it
concluded that petitioner’s sentence clearly did not violate the proportionality rule. It further
found that the sentence appeared to be appropriate for the crimes for which petitioner was
convicted. According to the circuit court, the defendants’ “crime spree included: entering a
restaurant with dark clothing, masks, and latex gloves carrying guns and a machete while
demanding money; a forcible home invasion where the defendants demanded money and drugs
from the occupant; a severe beating of a victim (including breaking his occipital bone and
causing trauma to the face and head) after the victim allegedly cut them off in traffic; and
breaking a window of a business to steal items therein.” The circuit court also took into
consideration petitioner’s criminal history, which includes numerous misdemeanor convictions.

        Regarding petitioner’s claim of ineffective assistance of counsel, the circuit court stated
that petitioner’s single factual contention was that Mr. Redding’s representations to the assistant
prosecuting attorney were false and caused the State to withdraw from the plea, causing
petitioner to receive a more severe sentence. The circuit court concluded that the claim was
insufficient under the appropriate standard because petitioner was given a chance to challenge
the issue but waived it. The court noted that effective assistance of counsel was not an issue
typically subject to waiver because it is not properly considered until the conclusion of the case.
However, petitioner raised the issue in the form of a motion to enforce a plea agreement and then
chose to withdraw the motion. The circuit court went on to find that it was clear that petitioner
could not prove ineffective assistance of counsel, as there could be no showing that the
sentencing outcome would have been different.

        In conclusion, the circuit court found no constitutional error with the issues raised by
petitioner and concluded that each of petitioner’s claims and his petition as a whole failed to
establish probable cause that he was entitled to relief and no factual development could entitle
petitioner to relief. The circuit court denied petitioner’s petition for habeas relief, and petitioner
appeals from that order.

   After careful consideration, this Court finds that the circuit court did not err in denying habeas
corpus relief to petitioner. We apply the following standard of review in habeas cases:

               In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions
       of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Further, “‘[a] habeas
corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.’ Syllabus Point 4 of State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) Cert. Denied, 464 U.S. 831, 104 S.Ct. 110, 78
L.Ed.2d 112 (1983).” Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

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        On appeal, petitioner sets forth two assignments of error. First, he contends that the
circuit court committed reversible error in denying petitioner’s claim of a constitutionally
disproportionate sentence. Petitioner argues that although his sentence was constitutional under
the applicable statutes, the circuit court went out of constitutionally proportional bounds in
sentencing petitioner to prison for a minimum term nearly double that of co-defendant Mr. Bates
and years longer than co-defendant Mr. Ernst. In support of his argument, petitioner asserts that
Mr. Bates was the “main perpetrator” of the crimes with which the co-defendants were charged
and that Mr. Bates has a lengthy criminal history. However, Mr. Bates received a determinate
sentence of twenty-four years of incarceration. He also argues that Mr. Ernst was convicted of
three more felonies than petitioner and had several prior convictions, but Mr. Ernst received an
effective sentence of thirty-two to forty-five years of incarceration. Thus, both co-defendants
received lesser sentences than petitioner’s sentence of thirty-four to fifty-five years of
incarceration.

        Petitioner further argues that even if this Court finds petitioner’s sentence constitutionally
proportionate, the sentence must be overturned on the basis of the improper factors considered
by the circuit court that contributed to petitioner’s sentence. However, petitioner admits that he
failed to argue the use of impermissible factors in his habeas petition, so the same must be
considered as plain error. He contends that the circuit court relied on petitioner’s purported use
of a firearm in sentencing him despite the State’s concession that there was no evidence that
petitioner was in possession of a firearm. Petitioner further argues that the additional
impermissible factor used by the court in sentencing was the consideration of the breakdown of
petitioner’s plea agreement, as the same was discussed several times during the criminal
proceeding.

               We have held: “To trigger application of the ‘plain error’ doctrine, there
       must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
       seriously affects the fairness, integrity, or public reputation of the judicial
       proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In
       Miller, we stated that plain error is error that is clear or obvious. Syl. Pt. 8, id. We
       also stated that an error affected a defendant's substantial rights when it was
       prejudicial or affected the outcome of the case. Syl. Pt. 9, id. The Defendant, not
       the State, bears the burden of persuading the Court on this issue. Syl. Pt. 9, id.

State v. Herbert, __ S.E.2d __, 2014 WL 6734007 at *12 (W.Va. November 25, 2014). In this
case, we find that petitioner has failed to trigger the application of the plain error doctrine.
Petitioner’s argument ignores the circuit court’s statement that it did not “have to worry about
the firearm enhancement,” as the State did not introduce any evidence at the plea hearing to
indicate that petitioner possessed a firearm at the time of the commission of the crimes at issue.
Petitioner fails to cite any law that supports his contention that the circuit court’s consideration
of Mr. Bates’ cooperation and petitioner’s lack of cooperation was an impermissible factor in
sentencing. Thus, there was no plain error. In addition, “‘[s]entences imposed by the trial court,
if within statutory limits and if not based on some [im]permissible factor, are not subject to
appellate review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).”
Syl. Pt. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). As set forth above, petitioner
does not contend that his sentence violated statutory limits. Therefore, we affirm the circuit

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court’s denial of habeas relief on this ground.

        Petitioner’s second assignment of error is that the circuit court committed reversible error
in denying petitioner’s claim of ineffective assistance of counsel regarding his plea agreements.
In his motion to enforce the plea agreement filed before the circuit court, petitioner argued that
he directed Mr. Redding to attempt further plea negotiations, attempts at such negotiations were
unsuccessful, and petitioner stood ready to perform under the original plea agreement. Petitioner
argues that he could not assert ineffective assistance of counsel at that point because the damage
was not apparent until after the circuit court improperly utilized the plea negotiation breakdown
as a factor of sentencing. He is critical of Mr. Redding’s failure to document the substance of his
communications with the State, which would have avoided the alleged miscommunication that
resulted in the voiding of the original plea deal. Petitioner further contends that there is a
reasonable probability that he would have received closer to the recommended twenty-four year
sentence of incarceration but for Mr. Redding’s ineffective assistance.

               “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.” Syl. Pt. 5, State v. Miller,
       194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 3, State v. Watson, 200 W.Va. 201, 488 S.E.2d 476. Further, when reviewing counsel’s
performance, courts must determine whether “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.” Syl. Pt. 6, in
part, Miller, 194 W.Va. at 6, 459 S.E.2d at 117. Based upon the record before this Court, we find
that petitioner has failed to satisfy his burden to establish ineffective assistance of counsel.

        While the assertions of the parties differ as to petitioner’s instructions to Mr. Redding, it
is undisputed that the State determined the original plea agreement with petitioner to be void.
Petitioner subpoenaed Mr. Redding to testify at the hearing on the motion to enforce the original
plea agreement, but Mr. Redding was never called to testify because petitioner, with the
assistance of his then-counsel, reached a new plea agreement with the State. Like the first plea
agreement, certain counts of the indictment would be dismissed under the new plea agreement.
However, because the co-defendants had already entered into their respective plea agreements
with the State, petitioner was no longer asked to testify against his co-defendants. In addition, the
State was not required to make any recommendation to the circuit court as to sentencing.

       “A plea bargain standing alone is without constitutional significance; in itself it is a mere
executory agreement which, until embodied in the judgment of a court, does not deprive an
accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that
implicates the Constitution.” State v. Palmer, 206 W.Va. 306, 309, 524 S.E.2d 661, 664 (1999)
(quoting Mabry v. Johnson, 467 U.S. 504, 507-08 (1984)). “We have traditionally applied rules
of contract law to plea agreements.” Palmer, 206 W.Va. at 309, 524 S.E.2d at 664. Thus, when

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petitioner instructed Mr. Redding to renegotiate the terms of the plea agreement, even if those
instructions were simply to try to obtain a lesser recommended sentence, the State apparently
understood that to mean that petitioner was no longer in agreement with the terms of the plea
agreement. While it may have been prudent for Mr. Redding to prepare a letter confirming the
details of his discussion with the State, his failure to do so does not satisfy the standards set forth
in Strickland and Miller. We, therefore, conclude that petitioner has failed to show that Mr.
Redding provided ineffective assistance of counsel in the underlying matter. Further, because the
circuit court, rather than the State, determines the sentence following the entry of a plea of guilty,
petitioner has failed to show that but for Mr. Redding’s alleged errors the result would have been
different. See W.Va. R. Crim. Proc. 11(e)(1)(B).

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: February 6, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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