                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


James Jones,                                                                           FILED
Petitioner Below, Petitioner                                                         April 9, 2018
                                                                                  EDYTHE NASH GAISER, CLERK
vs.) No. 17-0093 (Jefferson County 12-C-315)                                      SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA 

Ralph Terry, Acting Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                                                          MEMORANDUM DECISION

        Petitioner James Jones, by counsel Matthew D. Brummond, appeals the Circuit Court of
Jefferson County’s December 29, 2016, order denying his amended petition for writ of habeas
corpus. Respondent Ralph Terry, Acting Warden of Mt. Olive Correctional Complex, by counsel
Robert L. Hogan, filed a response.1 On appeal, petitioner argues that the circuit court erred in
denying his amended petition for writ of habeas corpus without affording him an evidentiary
hearing on his ineffective assistance of counsel claim.

        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 December of 2006, petitioner entered a bar in Jefferson County and began shooting
into the crowd. Three people were shot in the process, one of whom died from his injuries. In
April of 2007, petitioner was indicted on the following counts: (1) one count of first-degree
murder, (2) two counts of attempted first-degree murder, (3) two counts of malicious assault, (4)
six counts of wanton endangerment involving a firearm, (5) three counts of shooting at another
person in a place of public resort, and (6) one count of prohibited person in possession of a
firearm.

              The trial court held a status hearing in May of 2007, during which petitioner advised the
                                                            
              1
        Since the filing of the petition in this case, the warden at Mt. Olive Correctional
Complex has changed, and the acting warden is now Ralph Terry. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.



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trial court that he was not currently competent to stand trial. Petitioner underwent an evaluation
by a mental health expert, who issued a report in July of 2007, opining that petitioner was not
then competent to stand trial. Two additional experts were consulted and each concluded that
petitioner was competent to stand trial. In September of 2007, petitioner’s mental health expert
testified during a competency hearing that petitioner was not competent to stand trial. The trial
court held a second status hearing in November of 2007, during which petitioner advised the trial
court that he was “withdrawing his request for [a] further competency hearing in this matter.”
Petitioner told the trial court that he had made significant improvement in his mental health
treatment, was taking the maximum amount of Trilafon2, and no longer believed that his
competency was at issue. Petitioner’s counsel concurred with the assessment. However, later in
November of 2007, petitioner notified the court of his intention to use a diminished capacity
defense.

        In January of 2008, petitioner entered into a binding Alford3 plea agreement. Per the
agreement, petitioner pled guilty to (1) one count of first-degree murder, (2) two counts of
malicious assault, and (3) six counts of wanton endangerment, in exchange for the State’s
recommendation of mercy and the dismissal of the remaining counts in the indictment. The trial
court sentenced petitioner to an effective sentence of life in prison, with mercy, plus twenty
years. Petitioner did not file a petition for direct appeal.

        In August of 2012, petitioner filed a pro se petition for writ of habeas corpus. Petitioner
was appointed counsel, and in May of 2016, he filed an amended petition raising several
grounds, including ineffective assistance of counsel. Specifically, petitioner asserted that his trial
counsel was ineffective for failing to properly litigate petitioner’s competency, failing to request
a continuance to permit petitioner additional time to consider the plea terms or permitting him to
enter into the plea while mentally incompetent, and failing to properly investigate the case and
make appropriate pretrial motions. Without conducting an evidentiary hearing, the circuit court
denied petitioner’s amended petition by order entered on December 29, 2016. It is from this
order that petitioner appeals.

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

                      “In reviewing challenges to the findings and conclusions of the circuit
              court in a habeas corpus action, we apply a three-prong standard of review. We
              review the final order and the ultimate disposition under an abuse of discretion
              standard; the underlying factual findings under a clearly erroneous standard; and
              questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.
              Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).


                                                            
              2
                  Trilafon is marketed as an anti-psychotic medication.
              3
                  North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
                                                               2
 
        On appeal, petitioner contends that the circuit court erred in not holding an evidentiary
hearing on his ineffective assistance of counsel claim. Specifically, petitioner argues that the
circuit court abused its discretion in relying upon the first prong of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to summarily dismiss his petition for writ of
habeas corpus without holding an evidentiary hearing. We disagree.

              To begin, petitioner acknowledges, evidentiary hearings are not proper in every case:

                      [a] court having jurisdiction over habeas corpus proceedings may deny a
              petition for a writ of habeas corpus without a hearing and without appointing
              counsel for the petitioner if the petition, exhibits, affidavits or other documentary
              evidence filed therewith show to such court’s satisfaction that the petitioner is
              entitled to no relief.

Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). The decision to hold a
hearing rests in the “sound discretion” of the circuit court. Tex S. v. Pszczolkowski, 236 W.Va.
245, 253, 778 S.E.2d 694, 702 (2015) (citation omitted). Although petitioner urges this Court to
conclude that he was entitled to a hearing as we found in State ex rel. Watson v. Hill, 200 W.Va.
201, 488 S.E.2d 476 (1997) and State ex rel. Nazelrod v. Hun, 199 W.Va. 582, 486 S.E.2d 322
(1997), our decisions in those cases were predicated on the finding that “[a]n examination of the
ineffective assistance of counsel claim requires an examination of facts not developed in the
appellant’s trial transcript.” Id. at 584, 486 S.E.2d at 324. “Without any findings whatsoever, this
Court can exercise no meaningful review, and is compelled to order a hearing.” Watson, 200
W.Va. at 205, 488 S.E.2d at 479-80. Petitioner’s underlying record, however, was sufficiently
developed to allow the circuit court to conclude that he was unable to establish that counsel’s
representation was deficient.4

        Petitioner’s first allegation regarding his trial counsel’s ineffectiveness is that counsel
failed to properly litigate petitioner’s mental capacity issue. However, evidence of trial counsel’s
effort to investigate petitioner’s history of mental illness was sufficiently established at many
stages during the proceedings below. Only one month after petitioner was indicted, his trial
                                                            
              4
                  Claims of ineffective assistance of counsel

              are to be governed by the two-pronged test established in Strickland v.
              Washington . . . (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, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (internal citation omitted).
A claim may be disposed of for failure to meet either prong of the test. Syl. Pt. 5, in part, State ex
rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of
proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner’s claim.”
State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213
(1999) (citation omitted).
 

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counsel notified the State of his intention to assert a mental competency defense. Petitioner
underwent an evaluation by his own mental health expert, who opined that petitioner was not
competent to stand trial. Petitioner then underwent two more mental health evaluations and those
experts opined that petitioner was, in fact, competent to stand trial. As such, a competency
hearing was scheduled and petitioner’s own expert testified as to why he believed petitioner was
not competent to stand trial. In reviewing the record of trial counsel’s questioning of the expert,
the habeas court found that “[t]he questions posed by trial counsel were entirely appropriate to
allow his expert witness to explain his opinions regarding the [p]etitioner’s competency and
inability to assist in his own defense, despite understanding the proceedings. In this regard,
counsel’s performance was not deficient under an objective standard of reasonableness . . . .”

       Further, the record indicates that petitioner himself chose to withdraw his competency
defense. The trial court’s order from the November of 2007 status hearing sets forth that

       [t]he [d]efendant informed this [c]ourt that he was withdrawing his request for
       further competency hearing in this matter. The [d]efendant made known to the
       [c]ourt the significant and marked improvement of his mental state due to the
       medical treatment he is receiving at the Eastern Regional Jail. His medication
       levels have been increased several times, each time yielding a benefit to the
       [d]efendant. He is currently taking the maximum amount of trilophan [sic] and no
       longer believes that his competency is an issue. His counsel concurred with this
       assessment.

After withdrawing his request for further competency assessment, petitioner’s trial counsel filed
a notice of intent to use a diminished capacity defense, which again raised the issue of
petitioner’s mental health. The habeas court, in its order denying petitioner’s petition, found

       that trial counsel promptly asserted a mental health defense, engaged the expert in
       services of a respected expert witness, secured the testimony of that witness, and
       substantially litigated the matter over a period of months. In the intervening time
       [p]etitioner was treated for his mental health issues while incarcerated in the
       regional jail, resulting in the [p]etitioner himself asserting that his competence
       was no longer at issue, a position which counsel agreed with at hearing [sic] on
       November 2, 2007. These facts do not suggest that counsel was in any way
       ineffective.

       Accordingly, the habeas court found that there were sufficient facts in the record to
determine that petitioner’s trial counsel did not fail to litigate his mental health issue. In fact, the
record demonstrates that petitioner’s trial counsel continuously pursued a mental competency
defense until petitioner himself withdrew it, and even then, trial counsel raised the issue again.
Therefore, we find no error in the habeas court’s conclusion that a hearing was unnecessary to
develop this claim.

       In his petition, petitioner also alleged that his counsel was ineffective for failing to
request a continuance during the plea hearing so that he could have more time to consider the
plea. Additionally, petitioner alleged that his trial counsel was ineffective when he allowed him


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to enter a guilty plea while he was incompetent. Again, we find that sufficient evidence in the
record below established that petitioner was not entitled to relief in this regard. The prosecutor
read the plea agreement aloud on the record. Petitioner agreed to the agreement as it had been
read, voluntarily entered into his plea agreement, did not assert that he was not competent to do
so, and did not assert that he needed additional time to think about the plea agreement.

      Petitioner offered the following testimony concerning his understanding of the plea
agreement:

               Q:     All right, sir. I guess the first person I will ask would be, Mr.
                      Jones, I just saw [your trial counsel] execute the written form of
                      [the plea agreement] as the prosecutor was just reading from. I
                      know that you were here in court listening to what [the prosecutor]
                      read, is that the correct agreement you have?

               A:     Yes, I do believe it is.

               Q:     Okay. If we go forward on this, I am going to ask a whole lot more
                      questions about your understanding, but you understood that is
                      what you are entered into?

               A:     Yes.

        Later in the plea colloquy, the trial court again addressed whether petitioner understood
the terms of the plea agreement and the potential consequences.

               Q: 	   Are you aware [the prosecutor] just went through out loud the
                      penalties for each of the offenses?

               A: 	   Yes, I am.

               Q: 	   Is that the way you understood them the way they were articulated
                      on the record?

               A:     	Yes, sir.

               Q: 	   You understand those are the ultimate penitentiary sentences?

               A:     	Yes, sir.

               Q: 	   You understand that the plea to the murder in the first degree
                      charge would be with mercy so you would be eligible for parole
                      but not until at least 15 years?

               A:     	Yes, sir.



                                                 5

 
                Q:      Do you understand that?

                A:      Yes, sir.

                Q:      Then there is the issue of the other consecutive sentences; do you
                        understand all of that?

                A:      Yes, sir.

At that time, petitioner’s trial counsel stated

        “[l]et me interject. I just want to for [sic] the record in discussing this plea with
        the victims and coming up with it, I just want to be clear to the [d]efendant, he
        understands that they do have a right to come in 15 years when he is eligible for
        parole, I just want to make sure for the record there is no agreement that they will
        not come to the parole hearings just for the record?”

To which the trial court responded:

                Q:      You
                          	 understood that?

                A:      I understand
                           	         that.

Moreover, the plea hearing transcript demonstrates that petitioner was given multiple
opportunities to decline to enter into the plea agreement and proceed to trial instead. After going
through the counts to which petitioner pled guilty, the trial court continued its questioning into
petitioner’s readiness and voluntary agreement.

                Q: 	    You’re leading the [c]ourt to believe that you know what you are
                        doing, that you understand what you have been charged with, and
                        the consequences of your plea, and that your desire is to go ahead
                        and plead guilty, freely and voluntarily, is that right, Mr. Jones?

                A:      	Yes, sir.

After finding that petitioner understood the nature of the offenses, the consequences of the plea,
and his voluntariness in entering into the plea, the trial court stated

               Now, sir, if you desire to stand upon your plea of guilty, you will now sign
        the written guilty plea form. Before you sign it, read it and go over it with your
        lawyer and make sure you understand it all. I advise you if you sign that form,
        you are pleading guilty to these offenses we have been talking about.

                 Mr. Jones, let me make one point I usually make before this. I often refer
        to this as the dotted line or point of no return, because up until this point all of the



                                                   6

 
       questions that I am asking you are to make sure that you know what your rights
       are and give you the chance to go the other way.

              By signing on the written plea, you are telling us that you want to go this
       way. After today you couldn’t come in and change your mind and say, hey, you
       know, I wanted to do it a different way. You are stuck with it. Basically, the only
       way that you could get out of it, after signing on the dotted line, would be if we
       were to get a pre-sentence report that somehow convinces the [c]ourt that the plea
       wasn’t a good plea, that it didn’t serve the ends of justice, but otherwise you
       wouldn’t be able to withdraw it yourself; do you understand that?

To which, petitioner responded “[y]es.” The trial court then stated, “I want you to look at it
pretty hard and make sure this is what you want to do.” Petitioner then signed the plea agreement
in open court. Despite having questioned petitioner several times regarding the voluntariness of
his plea and whether he desired to proceed in that matter, the trial court once again provided
petitioner the opportunity to change his mind. It stated:

               Now, Mr. Jones, I always ask this question one last time. Even though I
       made a big deal about saying this was the point of no return, I always make one
       last offer every time I take a plea.

               We like to think that any time a person wants a trial, that we can extend a
       full and fair and proper trial and that a person can have available to them all the
       constitutional rights that are available in this country. We do our level best to
       make sure of that.

               I assure you that if what you really want is a trial, we would do our level
       best to make sure you got a fair one.

              And if you got convicted as a result of that trial, you would have the right
       to appeal your conviction down to the West Virginia Supreme Court of Appeals
       and make sure they thought you got a full, fair and proper trial.

               Those are valuable rights. Are you sure you want to give up those rights
       and stand on this plea, which if you do, will result in your immediate conviction
       for the offenses that we have been discussing here this morning? Do you wish to
       stand upon your plea?

To which petitioner again answered in the affirmative.

        In its order dismissing petitioner’s habeas petition, the habeas court, after reviewing the
record, found that

        [a]t no point in the 40-page plea hearing transcript does the [p]etitioner suggest
       that he is unhappy with his counsel or that he wished to have a continuance.



                                                7

 
       Instead, the [p]etitioner clearly stated the opposite, that [his trial counsel] had
       acted as a good lawyer on his behalf:

       THE COURT: Okay. Mr. Jones, you are represented by [your trial counsel]. He is
       here with you today. Have you fully discussed your case with him and explained
       to [your trial counsel] everything that you know about your case to put him in a
       good position as you can to represent you?

       THE DEFENDANT: Yes, sir.

       THE COURT: Has [your trial counsel] done what you hope and expect a lawyer
       would do, has he sat down, pulled up a chair, and talked about your case and
       talked about your defense?

       THE DEFENDANT: Yes, he has.

       THE COURT: Has he been a good lawyer?

       THE DEFENDANT: Yes, he has.

After quoting the plea colloquy, the habeas court found that “[p]etitioner’s self-serving claims,
made eight years after his plea entry, that on the day of the plea entry he wanted to have
additional time to consider the plea is not supported by the record.”

        We agree with the habeas court’s finding that the record during the proceedings below
was sufficient to establish that the trial counsel’s performance was not ineffective regarding
petitioner’s competence, readiness, and voluntariness in entering into the plea agreement. In Call
v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we observed that “[t]he most common
issues in [h]abeas corpus cases are whether there were, indeed, knowing and intelligent waivers,
whether there were facts outside the record which improperly caused the defendant to enter his
plea, and whether defendant’s counsel was indeed competent.” Id. at 196, 220 S.E.2d at 669-70.
We found that these issues “can all be finally resolved in the careful taking of the original plea”
and outlined certain inquiries that should be made prior to the acceptance of a plea. Id. at 196,
220 S.E.2d at 670. Where a plea bargain has been entered into, “the trial court should spread the
terms of the bargain upon the record and interrogate the defendant concerning whether he
understands the rights he is waiving by pleading guilty and whether there is any pressure upon
him to plead guilty other than the consideration admitted on the record.” Id. at 191, 220 S.E.2d at
667, Syl. Pt. 4. Additionally,

               [a] trial court should spread upon the record the defendant’s education,
       whether he consulted with friends or relatives about his plea, any history of
       mental illness or drug use, the extent he consulted with counsel, and all other
       relevant matters which will demonstrate to an appellate court or a trial court
       proceeding in [h]abeas corpus that the defendant’s plea was knowingly and
       intelligently made with due regard to the intelligent waiver of known rights.



                                                8

 
Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5. Based on the evidence outlined above, it is clear that
petitioner voluntarily entered into the plea agreement despite the circuit court’s having offered
him ample opportunity to request more time to think on his actions. Further, petitioner indicated
on the record that he was not intoxicated by his medication and understood his rights and the
consequences of his actions in accepting a plea agreement. Accordingly, we find no abuse of
discretion in the circuit court’s conclusion that a hearing was unnecessary on this claim as it was
sufficiently developed in the record below.

        Finally, petitioner alleged that his trial counsel was ineffective for failing to investigate
the case and make certain pretrial motions. Specifically, petitioner argues that his trial counsel
was ineffective for failing to request a change of venue due to pretrial publicity. However, in
dismissing the habeas petition, the habeas court found that petitioner failed to present any facts
that supported his contention that there was

       locally extensive present hostile sentiment against him at the time of his plea
       entry and trial scheduled for later that same month. Nor does his present assertion
       that in 2008 the case was the ‘talk of the town’ meet the burden which would have
       been necessary to justify a change of venue . . . .

We have previously found that “[w]idespread publicity, of itself, does not require change of
venue, and neither does proof that prejudice exists against an accused, unless it appears that the
prejudice against [the accused] is so great that he cannot get a fair trial.” Syl. Pt. 1, State v.
Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982). Accordingly, petitioner failed to set forth
facts sufficient to prove that his trial counsel’s actions in declining to request a change of venue
were ineffective.  

        The preceding excerpts from the plea hearing, as well as the excerpts from the habeas
court’s order describing the record below, support the denial of petitioner’s amended petition.
These excerpts reveal that petitioner had his mental competency thoroughly evaluated, was
adequately apprised of his right to decline to enter into his plea agreement on the day of his plea
hearing, understood the effects of his choice to enter into the plea agreement, and that he was not
confused, incompetent, or reluctant to enter the plea agreement. Petitioner also testified to his
satisfaction with his trial counsel’s representation during the plea hearing and never indicated
that he was unhappy with his trial counsel’s performance. In fact, petitioner did not raise any
issue with his trial counsel’s performance until four years after the plea hearing had passed.
While we agree that it is often difficult to assess a trial counsel’s performance on the record,
under the limited circumstances of this case we find that the circuit court’s denial was warranted
because the records were sufficient to show that petitioner was entitled to no relief. Accordingly,
we find no error.

       For the foregoing reasons, we affirm the circuit court’s December 29, 2016, order
denying petitioner’s amended petition for writ of habeas corpus.

                                                                                          Affirmed.

ISSUED: April 9, 2018


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CONCURRED IN BY:

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




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