                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Michael J. Kanode Sr.,                                                            FILED
Petitioner Below, Petitioner                                                      June 7, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0451 (Mercer County 10-C-445)                                       OF WEST VIRGINIA



Marvin Plumley, Warden, Huttonsville
Correctional Center, Respondent Below,
Respondent


                               MEMORANDUM DECISION
        Petitioner Michael J. Kanode Sr., by counsel Dana P. McDermott, appeals the order of
the Circuit Court of Mercer County, entered December 15, 2011, denying his post-conviction
habeas corpus petition, in part, and affirming, in part. Respondent Warden Marvin Plumley,1 by
counsel Thomas W. Rodd, filed a response and raised cross-assignments of error. Petitioner filed
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       In the early morning hours of August 14, 2007, petitioner used a bolt cutter to cut the
door chain of the home where his then-wife, Sherry Kanode, and the couple’s son, Michael J.
Kanode Jr., and infant daughter were sleeping. He entered the home, straddled Ms. Kanode and
said “We’re going to die; me and you are going to die.” Petitioner pulled out a pistol and shot her
through the ear and neck.

        Petitioner’s son was awakened by his mother’s screaming and the sound of a gunshot.
Petitioner told the son “I killed your mom, and now I’m going to kill myself.” The son called
911. The son heard one gunshot inside the house and heard more shots outside. A neighbor
reported hearing gunshots. Petitioner fled the scene and was arrested several days later.

       Petitioner had threatened to kill his wife before, as recently as July of 2007. She filed a
domestic violence petition against him. On July 31, 2007, the family court judge held a hearing
on the domestic violence petition. The judge ruled from the bench and granted the wife a

       1
       Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current
warden has been substituted as the respondent in this action.
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temporary protective order against petitioner. The Domestic Violence Protective Order was
entered August 1, 2007.

        Petitioner wrote letters to his son after he was arrested and in jail. At trial, petitioner’s son
read a portion of the letters to the jury. The letters were admitted into evidence at trial as State’s
Exhibits 1 and 2. The letters read, in part,

        [T]hat ratt [sic] bitch don’t realize what all this sh*t started from before when
        because she kept pushing sh*t well I’m going to go do my time then f**k it and
        I’m going come back to do life. Nobody believed I was going to do it, but I
        f**ked up and couldn’t finish.

        Nobody believed me when I told them I was going to do what it was, and now I’m
        telling you, if … I spend any more time in here – I will get out one day and will,
        believe me, I will finish what was started with your mom.

        On January 23, 2008, a jury convicted petitioner of malicious assault, burglary, attempted
murder of the first degree, violation of a protective order and assault during the commission of a
felony. Petitioner received the maximum prison sentence for each offense.2 Petitioner filed a
direct appeal of his convictions. On April 8, 2009, this Court denied the petition for appeal
without issuing an opinion.

        On August 26, 2010, petitioner, by counsel, filed an amended petition for writ of habeas
corpus. On April 11, 2011, the circuit court held an evidentiary hearing. Petitioner relied on the
Losh3 list and waived certain grounds. The primary issues raised by petitioner were the validity
of the burglary charge, the related charge of assault during the commission of a felony, and a
double jeopardy argument regarding the wanton endangerment and malicious assault charges.
Petitioner also raised an ineffective assistance of counsel claim.

        On December 15, 2011, the circuit court entered an order affirming the convictions on the
counts of violation of a protective order, malicious assault, and attempted first degree murder. As
discussed more fully below, the circuit court vacated with prejudice the convictions on the
counts of wanton endangerment, burglary, and assault during the commission of a felony. The
circuit court also found ineffective assistance of counsel with regard to those three charges,
stating that,



        2
        On February 26, 2008, the trial court sentenced petitioner to two to ten years for
malicious assault, one to fifteen years for burglary, three to fifteen years for attempted first
degree murder, two to ten years for assault during the commission of a felony, five years for
wanton endangerment, and one year for violation of a protective order, with all sentences to run
consecutively.
        3
        See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (every prisoner is entitled
to one post-conviction habeas corpus hearing in which the prisoner may raise any collateral
issues which have not previously been fully and fairly raised).
                                                   2
               A great deal of the problem with counsel’s performance arose out of him
       not carefully reading the Final Order of Protection issued by the Mercer County
       Family Court Judge. The remaining problem arose out of his failing to read State
       v. Wright, [200 W.Va. 549, 490 S.E.2d 636 (1997)], which is a leading case in
       West Virginia relating to malicious assault and wanton endangerment. These two
       errors led to virtually all of the inadequacies prevalent in his performance. There
       was no motion to dismiss three counts of the indictment, no motions for judgment
       of acquittal, no objections to the instructions relating to these matters, and no
       adequate grounds for a motion made to set aside the verdict of the jury.
       Furthermore, the omissions of counsel with regard to Burglary, Wanton
       Endangerment and Assault during the commission of a felony resulted in
       Petitioner being convicted of three felonies which were unwarranted under the
       circumstances. In short, counsel provided ineffective assistance to Petitioner with
       regard to these three charges.

       On appeal, petitioner raises several assignments of error and Respondent Warden raises
two cross-assignments of error. We note that 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).

        After careful consideration, this Court adopts the findings and conclusions of the circuit
court in this matter. We will address the assignments of error raised by the parties.

                                Petitioner’s Assignments of Error

        Petitioner’s first assignment of error is that trial counsel was ineffective when he failed to
object to the admission of the letters from the petitioner to his son. He asserts that trial counsel
should have raised the chain of custody issue because Ms. Kanode held the original copies of the
letters while the prosecuting attorney had only copies. In response, Respondent Warden argues
that the circuit court properly found that petitioner did not meet his burden to prove ineffective
assistance of counsel in this instance.

       The following standard is applied to claims concerning ineffective assistance of counsel:

       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

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       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). We find no error by the circuit
court in denying habeas corpus relief to petitioner, in part, based on this specific claim of
ineffective assistance of counsel. The circuit court noted that when trial counsel was asked why
he did not object to the letters at issue, he stated that he recognized petitioner’s handwriting and
chose not to withhold from the trial court an item of evidence that he knew was genuine.

        Next, petitioner challenges the sufficiency of the evidence to support his convictions.
Specifically, he contends that without the admission of his letters to his son, there was
insufficient evidence of intent to support the convictions of malicious assault and attempted first
degree murder. Respondent Warden replies that substantial evidence supports petitioner’s
convictions, including the testimony of the victim, the testimony of petitioner’s son, and
petitioner’s letters to his son. We have held that,

       “[a] criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996).

        Upon our review, this Court finds that the evidence was sufficient to support the
petitioner’s convictions of malicious assault and attempted first degree murder. Although
petitioner attacks the credibility of the victim, Ms. Kanode, there is no question that witness
credibility determinations are within the province of the jury. Syl. Pt. 2, State v. Bailey, 151
W.Va. 796, 155 S.E.2d 850 (1967). We see no compelling reason to disturb that finding on
appeal.

                      Respondent Warden’s Cross-Assignments of Error

       Respondent Warden raises two cross-assignments of error in his response. He maintains
that the circuit court erred by reversing petitioner’s convictions for burglary and wanton
endangerment. He argues that petitioner committed burglary4 when he cut the latch chain with

       4
          The elements of the crime of burglary are set forth in West Virginia Code § 61-3-11, that
states, in pertinent part, “[i]f any person shall, in the nighttime, break and enter, or enter without
                                                  4
bolt cutters and entered the premises for purposes of committing a violent crime. Petitioner never
claimed he had any legal right to enter the home, and he admitted at trial that he did not have
such right. Petitioner responds that the family court order did not grant Ms. Kanode exclusive
possession of the marital residence. Petitioner argues he may have been guilty of violation of a
protective order, but not a crime against property.

        This Court finds that the circuit court did not abuse its discretion in reversing petitioner’s
burglary conviction. The circuit court noted that when the trial court recited the elements of the
crime to the jury, it used the phrase “the dwelling house belonging to Sherry Kanode.” However,
in the protective order, the family court did not grant Ms. Kanode exclusive possession of the
marital residence. We find that an essential element of the crime of burglary was not met because
petitioner was not prohibited from entering the home. Furthermore, as the circuit court stated, “if
there was no valid [b]urglary charge, there was no possibility of being convicted of assault
during the commission of a felony that did not exist.”

        Respondent Warden next argues that the circuit court erred in reversing the wanton
endangerment conviction5 on the ground that it was a lesser included offense of malicious
assault.6 See State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997) (in a single-gunshot case,
wanton endangerment is necessarily a lesser included offense of malicious assault). In this case,
a number of witnesses testified that petitioner fired his pistol multiple times. Respondent Warden
argues that the jury could have found that one or more of those additional gunshots were fired in
sufficiently close proximity to the victim to constitute the separate crime of wanton
endangerment, as charged in the indictment. Petitioner responds that the circuit court did not err
because the indictment restricted the count to the one gunshot fired at the victim.

        After careful consideration, this Court finds no abuse of discretion in the circuit court’s
decision to reverse the wanton endangerment conviction as a lesser included offense of malicious
assault. The circuit court noted that the evidence at trial demonstrated that petitioner fired one
gunshot in the bedroom of the home, when he shot Ms. Kanode. Therefore, the circuit court’s
decision is consistent with our precedent.

       We note that the circuit court’s forty-six page order reflects its thorough analysis of the


breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining
thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be
deemed guilty of burglary.”
       5
         The crime of wanton endangerment is set forth in West Virginia Code § 61-7-12, that
provides, in pertinent part, “[a]ny person who wantonly performs any act with a firearm which
creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony[.]”
       6
        The crime of malicious assault is set forth in West Virginia Code § 61-2-9(a), that
provides, in pertinent part, “[i]f any person maliciously shoot, stab, cut or wound any person, or
by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall,
except where it is otherwise provided, be guilty of a felony[.]”


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issues raised in the petition for habeas corpus. Having reviewed the opinion order entered on
December 15, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings
and conclusions as to all the assignments of error raised by the parties in this appeal. The Clerk is
directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

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

DISSENTING IN PART:

JUSTICE WORKMAN and JUSTICE LOUGHRY concur in the decision to affirm the circuit
court’s order regarding petitioner’s convictions of violation of a protective order, malicious
assault, attempted first degree murder, and wanton endangerment. Justice Workman and Justice
Loughry dissent from the decision to affirm the circuit court’s order that vacated petitioner’s
convictions of burglary and assault during the commission of a felony.




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