                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Roger Lee Smith,
Petitioner Below, Petitioner                                                           FILED
                                                                                  September 19, 2014
                                                                                 RORY L. PERRY II, CLERK
vs) No. 14-0231 (Barbour County 14-C-7)                                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Karen Pszczolkowski, Warden, Northern Correctional Facility,
Respondent Below, Respondent

                               MEMORANDUM DECISION

        Petitioner Roger Lee Smith, appearing pro se, appeals the February 7, 2014, order of the
Circuit Court of Barbour County that denied his petition for a writ of habeas corpus. Respondent
Warden,1 by counsel Laura Young, filed a summary response.

        The 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 and a co-defendant robbed the congregation at a church during a religious
service. Petitioner entered into a plea agreement, by which he agreed to plead guilty to one count
of armed robbery and to cooperate in the investigation of his co-defendant. In exchange, the State
agreed to dismiss the remaining twenty-three counts of the indictment and to recommend that
petitioner’s sentence be served concurrently with a separate sentence for an unrelated offense out
of Doddridge County. On November 20, 1991, the Circuit Court of Barbour County sentenced
petitioner to 100 years in prison and ordered that his sentence be served concurrently with his
Doddridge County sentence.

        However, on July 24, 1992, the United States District Court for the Northern District of
West Virginia (“federal district court”) sentenced petitioner for a separate federal felony offense
and directed that its sentence be served consecutively to petitioner’s sentence in the instant case.
Consequently, petitioner’s counsel filed a motion for reconsideration in the Circuit Court of
Barbour County of sentence arguing that (1) petitioner’s sentence in the instant case was too long;
and (2) in the alternative, petitioner’s effective sentence date in the instant case should be altered to
begin after the sentenced imposed by the federal district court. Following a hearing on petitioner’s


        1
         Pursuant to Rule 41(c) of the West Virginia Revised Rules of Appellate Procedure, the
name of the current public officer has been substituted as the respondent in this action.
                                                1

motion on December 8, 1992, the circuit court refused to reconsider petitioner’s sentence on
December 14, 1992.

        Subsequent to the denial of his motion for reconsideration of sentence, petitioner has filed
multiple petitions for a writ of habeas corpus that the circuit court has denied without a hearing and
without appointing counsel. In petitioner’s most recent habeas petition—his third—petitioner
noted that he raised fourteen grounds in his second petition, but that “[t]he only issue reraised in
this [petition] will be ineffective assistance of counsel.”

        The circuit court divided petitioner’s ineffective assistance claims into three categories: (1)
failure of counsel to conduct an adequate investigation; (2) unlawful inducement of petitioner to
agree to the plea bargain, which was subsequently not followed by the circuit court; and (3)
counsel’s failure to file a direct appeal. First, the circuit court found that counsel undertook an
adequate investigation of petitioner’s case by requesting that petitioner be psychologically and
physiologically examined. The examination found that petitioner was criminally responsible and
competent to stand trial. Furthermore, “Petitioner’s answers suggested a ‘fake bad’ response set,
wherein an individual may try to present himself as either worse or sicker than is actually the
case[.]” The circuit court further noted that the evidence against petitioner was “overwhelming.”
Thus, the circuit court concluded that it “cannot determine that Counsel’s performance was
ineffective as it relates to [the] investigation of this matter.”

        Second, the circuit court found that petitioner was not promised concurrent sentencing as
an inducement for him to plead guilty and that the court followed the State’s recommendation to
direct that petitioner’s sentence be served concurrently with his Doddridge County sentence.
Petitioner’s consecutive sentences resulted from an order of the federal district court and,
therefore, “[a]ny relief from that Order should be sought in the Federal system, not through a State
habeas petition.” The circuit court further found that petitioner was not a victim of disparate
sentencing notwithstanding the fact that petitioner’s co-defendant received only fifty years in
prison while petitioner received a 100-year prison term. The circuit court determined that
petitioner was the more culpable co-defendant, reasoning as follows:

       The fact that the other co-defendant . . . was sentenced to 50 years was not
       predicated upon his going to trial or not going to trial. It was predicated upon the
       fact he was found guilty by a jury of his peers of the charge of armed robbery. The
       Court determined that [petitioner] was a more culpable defendant than [the
       co-defendant] in as much as [petitioner] was actually in the church with the gun[.] .
       . . That the [co-defendant] was much younger—looked to [petitioner] as an
       authority figure. And not to mitigate his culpability, but certainly [the
       co-defendant] did not cause the same difficulty that [petitioner] caused. That is the
       terrorizing of a large group of individuals, some of whom were children, and this
       was certainly foremost in the Court’s decision to sentence [petitioner] to a term of
       100 years in [prison].



                                                  2

The circuit court further found that (1) petitioner understood that the penalty for armed robbery
was a term of not less than ten years;2 (2) petitioner was told that “he could not later move to
withdraw his plea if he received a sentence [with which] he disagreed”; and (3) petitioner entered
his plea of guilty “freely, knowledgably, and voluntarily.” Accordingly, the circuit court rejected
petitioner’s contentions that counsel unlawfully induced him to plead guilty and that the court did
not follow the State’s recommendation for concurrent sentencing.

        Third, the circuit court found that, as a criminal defendant who entered a guilty plea, if
petitioner had filed a direct appeal, he would have generally been restricted to raising (a)
voluntariness of the guilty plea; and (b) legality of the sentence. See Syl. Pt. 1, State v. Sims, 162
W.Va. 212, 248 S.E.2d 834 (1978). Thus, “[h]aving determined that Petitioner entered a plea
voluntarily, and that the sentence in this matter was legal, it appears that counsel could reasonably
have determined that there existed no non-frivolous grounds for direct appeal.” Therefore, the
circuit court declined to find that counsel’s failure to file a direct appeal constituted ineffective
assistance.3

      As a general matter, the circuit court noted that it knew petitioner’s counsel as “an able and
capable attorney”4 and, given the amount of evidence against petitioner, “counsel’s negotiations
on behalf of [petitioner] were extremely effective.” Accordingly, the circuit court concluded that
“none of the grounds in the [instant] petition are meritorious” and denied petitioner’s request for
habeas relief.

       Petitioner now appeals the circuit court’s February 7, 2014, order denying his instant
habeas petition. 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

       2
           See W.Va. Code § 61-2-12(a).
       3
          In West Virginia, claims of ineffective assistance of counsel are governed by the
two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984), which requires the
following: (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. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995) (adopting Strickland).
       4
         Judge Waters presided in petitioner’s criminal case, considered and denied petitioner’s
motion for reconsideration of sentence, and also presided in petitioner’s first habeas proceeding,
while Judge Moats presided in petitioner’s second and third habeas proceedings. Judge Moats
incorporated by reference the previous orders denying petitioner’s first two habeas petitions into
his February 7, 2014, order, denying the instant petition. In the instant order, Judge Moats also
extensively quoted Judge Waters’ findings from (1) the denial of the motion for reconsideration of
sentence; and (2) the denial of the first habeas petition.
                                                  3
       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). In addition, “[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).

        On appeal, petitioner argues that (1) the circuit court erred in finding that he received
effective assistance without first appointing counsel to develop evidence at a habeas corpus
hearing; and (2) the circuit court erred in finding that his 100-year prison term for armed robbery
was not disproportionate to the crime charged.5 We address the second issue first because we find
that petitioner had a post-conviction hearing on whether his sentence was too long on December 8,
1992, when the circuit court heard petitioner’s counsel’s motion for reconsideration of sentence. It
was at this hearing at which the circuit court made its findings that petitioner was the more
culpable co-defendant because (a) petitioner was the individual in the church with a gun; (b)
petitioner’s co-defendant was much younger and looked to petitioner as an authority figure, and (c)
the terrorizing of a large group of individuals was foremost in the circuit court’s decision to
sentence petitioner to 100 years in prison. Given these findings, we conclude that petitioner and his
co-defendant were not similarly situated and, therefore, the circuit court did not err in determining
that petitioner’s 100-year sentence did not violate the proportionality principle enshrined in the
United States and West Virginia Constitutions.6

        With regard to whether petitioner is entitled to a habeas corpus hearing on his claim of
ineffective assistance of counsel, respondent warden argues that, pursuant to Perdue, the
appointment of counsel and a habeas corpus hearing is unnecessary if the record shows to the
circuit court’s satisfaction that the petitioner is entitled to no relief. We agree.



       5
          Because West Virginia Code § 61-2-12(a) does not set a maximum term for armed
robbery, proportionality review is available to petitioner. See State v. Rogers, 167 W.Va. 358, 360,
280 S.E.2d 82, 84 (1981). However, as a general matter, we note that “[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.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
Given that petitioner’s proportionality argument is primarily based on his contention that he is a
victim of disparate sentencing, we further note that “[d]isparate sentences for codefendants are not
per se unconstitutional” and that “[i]f codefendants are similarly situated, some courts will reverse
on disparity of sentence alone.” Syl. Pt. 2, in part, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406
(1984) (emphasis added).
       6
           See U.S. Const., amend. 8.; W.Va. Const., art. 3, § 5.

                                                  4

        In State ex rel. Watson v. Hill, 200 W.Va. 201, 205, 488 S.E.2d 476, 480 (1997), this Court
directed the circuit court to hold a hearing on a habeas petitioner’s ineffective assistance of counsel
claim. However, this Court indicated that the outcome of the case would have been different if the
circuit court made findings adequate to show that petitioner’s claim would have failed under the
applicable Strickland/Miller standard for ineffective assistance,7 stating that “[i]f that was the
court’s reasoning, it should have been included in the order[.]” 200 W.Va. at 204, 488 S.E.2d at
479. In the instant case, the circuit court concluded that (1) counsel’s performance did not fall
below an objective standard of reasonableness, stating “none of [petitioner’s] grounds” in that
regard were meritorious; and (2) assuming, arguendo, if counsel made mistakes, such errors were
not the “but for” cause of petitioner’s decision to plead guilty because the evidence against
petitioner was “overwhelming.” 8 More specifically, given the amount of evidence against
petitioner, the circuit court concluded that counsel’s plea negotiations on behalf of petitioner were
“extremely effective.” Furthermore, the circuit court supported its conclusions with findings that
had such specificity that they showed that the court possessed more than a passing familiarity with
both petitioner’s case and petitioner’s counsel. Accordingly, in light of the circuit court’s
satisfactory findings and conclusions, we conclude that the court did not abuse its discretion in
denying petitioner’s instant habeas petition.

       For the foregoing reasons, we affirm.


                                                                                            Affirmed.

ISSUED: September 19, 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




       7
           See n. 3, supra.
       8
         Because petitioner entered a guilty plea, the second prong of the Strickland/Miller
standard is modified to ask whether petitioner would have insisted on going to trial, but for
counsel’s alleged errors. See State ex rel. Vernatter v. Warden, West Virginia Penitentiary, 207
W.Va. 11, 18, 528 S.E.2d 207, 214 (1999).
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