                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Jason Rea,
Petitioner Below, Petitioner                                                          FILED
vs.) No. 16-0542 (Berkeley County 15-C-41)
                                                                                   April 10, 2017
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
Patrick A. Mirandy, Warden,                                                           OF WEST VIRGINIA

St. Marys Correctional Center,
Respondent Below, Respondent


                                 MEMORANDUM DECISION

        Petitioner Jason Rea, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of
Berkeley County’s May 12, 2016, order denying his petition for post-conviction habeas corpus
relief. Respondent Patrick A. Mirandy, Warden, by counsel Cheryl K. Saville, filed a response.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying habeas
relief when (1) his trial counsel was constitutionally ineffective, and (2) the circuit court violated
Rule 11 of the West Virginia Rules of Criminal Procedure by failing to inform him of his
maximum potential prison sentence, rendering his pleas involuntary.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        In November of 2006, petitioner stabbed Brian Stratton thirty-seven times and also
stabbed Mr. Stratton’s grandmother when she attempted to intervene.1 As a result of the incident,
petitioner was indicted on two counts of attempted first-degree murder, two counts of malicious
wounding, and two counts of burglary by breaking and entering.

        In September of 2007, the circuit court held a pre-trial hearing. At that hearing,
petitioner’s counsel stated that

       [a]fter some discussions with [the State] this morning, and a lengthy discussion
       with [petitioner] yesterday evening out at the jail, [petitioner] has indicated to me

       1
         Due to the stabbing, Mr. Stratton was in full cardiac arrest when he arrived at the
hospital. It was reported that doctors had to directly massage Mr. Stratton’s heart to revive him
and that part of one lung was removed.
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       – excuse me, judge – that he is prepared to enter a change of plea this morning.
       This is without any agreement from the State. It is a non-agreement change of
       plea.

Thereafter, the circuit court engaged in a plea colloquy with petitioner. During the plea colloquy,
the circuit court asked petitioner, “do you know what the maximum sentence could be that you
could have imposed against you on these charges would be [sic]?” Petitioner answered, “[y]es,
sir.” The circuit court and petitioner then discussed in detail the potential prison term for each
count as follows: three to fifteen years for each count of attempted first-degree murder; two to
ten years for each count of malicious assault; and one to fifteen years for each count of burglary.
At the hearing, petitioner also indicated that no one pressured him to enter his pleas and that he
was satisfied with his trial counsel’s advice and representation. The circuit court also asked
petitioner if he and his trial counsel had sufficiently “sat down . . . and taken the time to discuss
[the] case[,]” and petitioner answered in the affirmative. At the conclusion of the hearing,
petitioner pleaded guilty to four counts (one count of attempted first-degree murder; two counts
of malicious wounding; and one count of burglary) and “no contest” to the remaining two counts
(one count of burglar and one count of attempted first-degree murder).

       In February of 2008, petitioner was sentenced to prison for three to fifteen years for each
count of attempted first-degree murder; two to ten years on each count of malicious assault; and
one to fifteen years on each count of burglary, all to be served consecutively. Petitioner’s
cumulative prison sentence was twelve to eighty years.

        Later in 2008, petitioner filed an ethics complaint against his trial counsel. In hand­
written documents filed with his complaint, petitioner claimed that his trial counsel told him
before the plea hearing in September of 2007 that if the case went “to trial . . . [petitioner] would
be found guilty and would receive the full 12-80 years.” Further, petitioner stated in those
documents that his trial counsel “constantly hammered into [petitioner’s] head that [he] had no
defense and was gonna be found guilty of everything and given the full 12-80 if [he] went to
trial.”

        In 2011, petitioner was resentenced for purposes of appeal. Petitioner appealed the
resentencing order on the ground that the circuit court erred in sentencing him to the maximum
potential prison term. By memorandum decision, this Court affirmed petitioner’s sentence. See
State v. Rea, No. 11-1324, 2013 WL 149623 (W.Va. Jan. 14, 2013) (memorandum decision).

        In January of 2015, petitioner filed the underlying petition for post-conviction habeas
corpus relief. Among his grounds, petitioner argued (1) that he received ineffective assistance of
trial counsel due to many alleged insufficiencies in his trial counsel’s representation (including
lack of proper advice); and (2) that the circuit court failed to inform petitioner of the maximum
potential consecutive prison term for his crimes, in violation of the requirement in Rule 11 of the
West Virginia Rules of Criminal Procedure. In May of 2015, the State filed a response asking the
circuit court to dismiss the petition.



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        In March of 2016, the circuit court held an evidentiary hearing.2 At the hearing, four
witnesses testified: petitioner, his mother, his father, and his sister. All four witnesses testified
that petitioner’s trial counsel failed to inform them of the potential maximum prison term of
twelve to eighty years. According to these witnesses, petitioner’s trial counsel led them to
believe that the sentence would be two years in a youthful offender program or, potentially, three
to fifteen years in prison. The witnesses also claimed that petitioner’s trial counsel failed to
sufficiently investigate the case or raise any defenses, including a potential mental health
defense. The circuit court also admitted into evidence the documents petitioner filed with his
ethics complaint against his trial counsel wherein he admitted that he was informed of the
potential maximum prison sentence of twelve to eighty years.

        By order entered on May 12, 2016, the circuit court denied petitioner’s habeas petition.
The circuit court found that petitioner’s trial counsel adequately informed petitioner of his
potential maximum sentence, as evidenced by petitioner’s admissions in his ethics complaint.
Further, the circuit court found that petitioner clearly indicated during the plea colloquy that he
understood his decision to enter his pleas of guilty; that he was not coerced into entering those
pleas; and that he knew the potential maximum sentence for his crimes, which he repeated for
the circuit court at that time.3 The circuit court noted that petitioner’s trial counsel had no
obligation to inform family members of the nuances of petitioner’s legal situation. Petitioner also
stated at the plea hearing that he and his trial counsel had discussed his case, and he was satisfied
with counsel’s representation. For those reasons, the circuit court denied petitioner habeas relief.
This appeal followed.

          We apply the following standard to our review of a circuit court’s order denying habeas
review:

                  “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). Further, a
habeas petitioner bears the burden of establishing that he is entitled to the relief sought. See
Markley v. Coleman, 215 W.Va. 729, 734, 601 S.E.2d 49, 54 (2004); Syl. Pts. 1 and 2, State ex
rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486, 487 (1966).



          2
         It appears from the record on appeal that petitioner’s trial counsel passed away before
the date of the omnibus evidentiary hearing.
          3
        The circuit court also noted that petitioner likely waived his Rule 11 contention because
he failed to include the issue in his direct appeal. Regardless of this finding, the circuit court
analyzed petitioner’s claim on the merits.
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        On appeal, petitioner first argues that the circuit court erred in denying his claim that his
trial counsel was constitutionally ineffective. We have previously held that


               “[i]n 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.” Syllabus point 5, State v.
       Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 3, Ballard v. Ferguson, 232 W.Va. 196, 751 S.E.2d 716 (2013). We have also explained
that

       [i]n reviewing counsel’s performance, courts must apply an objective standard
       and determine whether, in light of all the circumstances, 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. Thus, a reviewing court asks whether a
       reasonable lawyer would have acted, under the circumstances, as defense counsel
       acted in the case at issue.

Miller, 194 W.Va. 3, 6-7, 459 S.E.2d 114, 117-18, syl. pt. 6. Moreover, we have held that “‘[o]ne
who charges on appeal that his . . . counsel was ineffective . . . must prove the allegation by a
preponderance of the evidence.’ Syllabus Point 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d
445 (1974).” Syl. Pt. 4, State ex rel. Kitchen v. Painter, 226 W.Va. 278, 700 S.E.2d 489 (2010).

        Petitioner claims that his trial counsel did not adequately prepare his defense and failed to
inform him of the maximum potential prison sentence of twelve to eighty years, thus coercing
him into entering his pleas of guilty/“no contest.” Petitioner further contends that his trial
counsel failed to meet with him for a lengthy period at the outset of his case; failed to obtain a
mental health evaluation; and failed to provide him with a copy of his indictment. Respondent
argues that many of petitioner’s factual assertions are not supported by the record on appeal, but
that petitioner’s own statements show that his trial counsel informed him of the potential twelve
to eighty years prison term. We agree.

        Regarding his trial counsel’s alleged failure to inform him of the maximum potential
sentence of twelve to eighty years, petitioner clearly stated in two documents filed in relation to
the ethics complaint that his trial counsel made him aware of that potential prison term. In those
documents, petitioner stated that his trial counsel told him that if he lost at trial, he “would
receive the full 12-80 years” and that his trial counsel “constantly hammered into [his] head that
[he] had no defense and was gonna be found guilty of everything and given the full 12-80 if [he]
went to trial.” Based on these statements, it is clear that petitioner admitted that his trial counsel
properly informed him of the maximum potential sentence. As petitioner’s factual claim about

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his trial counsel lacks merit, his related legal claim of ineffective assistance deriving therefrom
must fail.

         With relation to his trial counsel’s alleged failures to arrange a mental health evaluation,
to meet with him, and to provide a copy of his indictment, petitioner relies solely on his own
filings, letters, and testimony. As to the mental health evaluation, there is no evidence aside from
petitioner’s self-serving statements that he gave his trial counsel any indication that a mental
health evaluation may be necessary. Further, petitioner has not shown that he has any mental
health diagnosis or concern that would have been found if an evaluation was performed. As such,
it is unclear how he satisfies the second prong of the Strickland/Miller test because he failed to
establish that the outcome of the proceedings would have been different but for the failure to
obtain a mental evaluation.

        Notably, contrary to many of his current claims, petitioner stated at the plea hearing that
he adequately met with his trial counsel to discuss the case and that he was satisfied with his trial
counsel’s advice and representation. He also failed to mention at that hearing that he was not
provided with any required documentation, such as an indictment. Given petitioner’s
contradictory statements about his trial counsel, petitioner essentially asks this Court to discount
the circuit court’s reliance on his positive statements about his trial counsel from the plea hearing
and credit the negative statements he made about his trial counsel thereafter. We decline to do so.
We have often explained that this Court generally defers to a circuit court’s findings based on
weight and credibility determinations. We have held that “[a] reviewing court cannot assess
witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).
Indeed, this Court has explained that “a trial court’s credibility determinations are entitled to
special deference.” Bartles v. Hinkle, 196 W.Va. 381, 389, 472 S.E.2d 827, 835 (1996). The
circuit court resolved the contradiction in petitioner’s statements about his trial counsel by
crediting his statements from the plea hearing. We find no reversible error in those findings. For
that reason, petitioner’s first assignment of error lacks merit.

        Next, petitioner argues that the circuit court should have granted his habeas petition on
the ground that Rule 11 of the West Virginia Rules of Criminal Procedure was violated during
his plea hearing. Initially, we note that habeas relief is not a substitute for ordinary trial error.
This Court has stated that

       [h]abeas corpus serves as a collateral attack upon a conviction under the claim
       that the conviction was obtained in violation of the state or federal constitution.
       While our legislature, through the enactment of W.Va.Code, 1931 [§] 53-4A-1
       through 11, as amended has provided a broad and effective post-conviction
       review, we still maintain a distinction, so far as post-conviction remedy is
       concerned, between plain error in a trial and error of constitutional dimensions.
       Only the latter can be a proper subject of a habeas corpus proceeding. As
       succinctly expressed in Point No. 4 of the Syllabus of State ex rel. McMannis v.
       Mohn, [163] W.Va. [129], 254 S.E.2d 805 (1979): “A habeas corpus proceeding

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       is not a substitute for a writ of error in that ordinary trial error not involving
       constitutional violations will not be reviewed.”

Edwards v. Leverette, 163 W.Va. 571, 576, 258 S.E.2d 436, 439 (1979). Petitioner fails to
indicate how his claim that the circuit court’s plea colloquy violated Rule 11 rises to the level of
a constitutional due process violation.

        However, assuming the claim is reviewable in a habeas proceeding, we find no error.
According to petitioner, the circuit court failed to inform him of his maximum potential prison
sentence during the plea colloquy in September of 2007, thus violating Rule 11. Petitioner
further argues that the circuit court’s alleged failure rendered his subsequent pleas involuntary.
Rule 11(c) provides as follows:

       Before accepting a plea of guilty or nolo contendere, the court must address the
       defendant personally in open court and inform the defendant of, and determine
       that the defendant understands, the following:

               (1) The nature of the charge to which the plea is offered, the
               mandatory minimum penalty provided by law, if any, and the
               maximum possible penalty provided by law[.]

W.Va. R. Crim. Proc. 11(c). Contrary to petitioner’s assertions, the record on appeal
demonstrates that the circuit court informed petitioner of the minimum and maximum prison
term for each count involved and that petitioner expressly confirmed that he understood the
same. During the plea colloquy petitioner stated the applicable minimum and maximum prison
terms for each count. While petitioner argues that he was not informed that his prison sentence
could be imposed consecutively rather than concurrently, a reading of the plea colloquy reveals
that it was apparent from the context that petitioner faced the penalty for each count separately
and that he could be sentenced to the prison term related to each of the six counts at issue.
Consequently, we find that the circuit court did not violate Rule 11 in its plea colloquy with
petitioner. Therefore, petitioner’s second assignment of error is also without merit.

       For the foregoing reasons, the circuit court’s May 12, 2016, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

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

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