                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Terrick Hogan,                                                                     FILED
Petitioner Below, Petitioner                                                  September 3, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-0493 (Kanawha County 18-P-146)                                           OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Terrick Hogan, pro se, appeals the May 9, 2018, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,1 by counsel Julianne Wisman, filed a response
in support of the circuit court’s order. Petitioner filed a reply.

       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 conspired with Shayla Stephenson and Marcus Curtis to rob a fourth person,
Kalvon Casdorph (“the victim”). According to the State, petitioner planned the robbery, Ms.
Stephenson provided the gun, and Mr. Curtis carried the plan out. During the robbery, Mr. Curtis
shot and killed the victim. The three participants were each indicted on one count of conspiracy,
one count of first-degree robbery, and one count of first-degree murder.

       1
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
                                                  1
        On August 15, 2016, the circuit court held a hearing on petitioner’s motion to suppress two
incriminating statements he gave to the police. The court denied the motion. That same day,
petitioner entered a plea agreement with the State. The State agreed to dismiss the conspiracy and
robbery counts of the indictment in exchange for petitioner’s guilty plea to first-degree murder.
The parties agreed the appropriate disposition of petitioner’s case was a life term of incarceration
with the possibility of parole; therefore, pursuant to Rule 11(e)(1)(C) of the West Virginia Rules
of Criminal Procedure, the circuit court would be required to impose that sentence if it accepted
the plea agreement. Petitioner agreed to provide truthful testimony against his co-conspirators, if
necessary. The State agreed not to file a recidivist information against petitioner. Finally, the
parties agreed that petitioner would provide the factual basis for his guilty plea.

         The circuit court held a plea hearing on August 16, 2016. The court noted that petitioner
previously rejected the same proposed plea agreement and explained that petitioner was going to
enter a guilty plea “a couple months or so ago” but “canceled” a prior plea hearing “after [a] while.”
Consequently, the court asked petitioner, “[a]re you sure you now want to do this?” Petitioner
answered, “[y]es.” The circuit court also inquired of the State regarding the nature of the plea
agreement it had with petitioner’s co-conspirator, Mr. Curtis. The assistant prosecutor answered,
“[i]t is the exact same plea agreement.” The court then asked petitioner if he requested that the
court accept the plea agreement and impose a life sentence of incarceration with the possibility of
parole. Petitioner responded, “[y]es, sir.” The court inquired whether petitioner believed the plea
agreement was in his best interests. Petitioner answered in the affirmative.

         Next, the circuit court explained to petitioner the rights he would be giving up by pleading
guilty such as the right to a jury trial, the right to testify in his own defense or to choose to remain
silent, and the right to present witnesses. The court noted that petitioner exercised his right to seek
the suppression of certain evidence at the previous day’s hearing, but that his motion was denied.
The court explained to petitioner that, by pleading guilty, he would waive the right to challenge
such evidentiary rulings on appeal. The court asked if petitioner understood this. Petitioner
responded, “[y]es, I do.” The court inquired of the State as to whether discovery was provided to
the defense. The assistant prosecutor answered affirmatively and noted that “[w]e’ve actually been
to the state police headquarters to review the evidence and to look at all of it, even all of the stuff
that was collected that day.” The circuit court asked petitioner’s attorney to confirm that defense
counsel reviewed the evidence at the state police headquarters. Petitioner’s attorney responded,
“[t]hat is correct, Your Honor.” Petitioner’s counsel further confirmed that counsel was fully aware
of the evidence the State would present at a trial. The court asked petitioner to confirm that he
understood he had the right to move to “eliminate” any evidence that was obtained illegally.
Petitioner indicated that he understood that he had that right and that he was waiving that right by
pleading guilty.

        Prior to accepting petitioner’s guilty plea, the circuit court asked petitioner if he had any
additional questions for his attorney. Petitioner and his attorney conferred off the record.
Thereafter, petitioner indicated that he wanted to proceed with his guilty plea. The court then asked
petitioner whether he was satisfied with his attorney’s services. Petitioner responded in the
affirmative. The circuit court noted that petitioner’s attorney had “a lot of experience in criminal
                                                   2
cases.” When petitioner was asked if he “had plenty of opportunity to talk with [counsel] and let
him advise [petitioner] about [his] case,” Petitioner answered, “[y]es, I have.”

        The circuit court again inquired whether petitioner was willing to waive his rights and enter
a guilty plea to first-degree murder. Petitioner responded, “[y]es, sir.” The court then asked
petitioner to indicate his plea to the charge of first-degree murder. Before answering, petitioner
conferred again with his attorney. Thereafter, petitioner responded, “[g]uilty.” The circuit court
asked for the factual basis for the guilty plea. After a third consultation with his attorney, petitioner
answered:

        [Petitioner]: On the day in question, I conspired to a commit a robbery, in which . .
        . . the victim—

        The Court: Mr. Casdorph?

        [Petitioner]: —Mr. Casdorph, was killed. And[,] I never intended for anything to
        this magnitude to occur. But—

        The Court: You just intended the robbery to take place?

        [Petitioner]: Yes, Sir.

                ....

        [Assistant Prosecutor]: Judge, it would be the State’s evidence that the robbery . . .
        was 100% orchestrated by [petitioner]. He solicited Mr. Curtis to do the robbery
        via text message that day. As the architect of that plan, he is as guilty as Mr. Curtis
        of [the] murder.

                Also, [petitioner] directed Mr. Curtis to where the firearm was and
        instructed [Ms.] Stephenson to give it to him. Those things would all be in evidence
        if we went to trial. There would be several text messages in which [petitioner] does
        those things.

                ....

        The Court: [Petitioner], do you agree with that?

        [Petitioner]: Yes, sir.

        The circuit court informed petitioner that it was prepared to accept his guilty plea and asked
one more time whether petitioner wanted to change his mind. Petitioner responded, “[n]o, sir.”
Accordingly, the court accepted petitioner’s guilty plea and found that petitioner “voluntarily,
intelligently, knowingly[,] and understandingly waive[d]” his constitutional rights. Accordingly,
the circuit court found petitioner guilty of first-degree murder.
                                                   3
        The circuit court inquired as to whether petitioner’s sentencing should be delayed until
after Mr. Curtis’s sentencing set for the afternoon of August 16, 2016. The court explained that
such a delay might be prudent in the event that “something happens in the Curtis case . . . regarding
that plea,” as it was more difficult to withdraw a guilty plea after sentencing occurred. Therefore,
the circuit court delayed petitioner’s sentencing until after Mr. Curtis’s sentencing. The record
reflects that Mr. Curtis’s sentencing occurred as planned and the circuit court then reconvened
petitioner’s sentencing hearing. After another discussion with his counsel, petitioner waived the
preparation of a presentence investigation report. Thereafter, in accordance with the parties’ plea
agreement, the circuit court sentenced petitioner to a life term of incarceration with the possibility
of parole.

        On March 17, 2017, and April 10, 2017, petitioner filed pro se motions to vacate his guilty
plea, alleging ineffective assistance of counsel. The circuit court denied those motions by order
entered April 25, 2017. Petitioner attempted to appeal the circuit court’s April 25, 2017, order to
this Court. However, this Court refused to docket the appeal by order entered July 5, 2017, due to
noncompliance with court rules.2

        On May 1, 2018, petitioner filed a petition for a writ of habeas corpus, alleging ineffective
assistance of counsel and an involuntary guilty plea. On May 9, 2018, the circuit court denied the
petition, finding that:

       Whereupon, the [c]ourt, after giving due and mature consideration to said written
       petition and after reviewing the official court file in said action, is of the opinion
       that a hearing is not necessary in order for the [c]ourt to make a decision in this
       matter and further finds that good cause or other justification does not exist to grant
       said request. Therefore, the [c]ourt is of the opinion and does hereby ORDER that
       [p]etitioner’s “WRIT OF HABEAS CORPUS” be and the same is hereby DENIED.

       It is from the circuit court’s May 9, 2018, order that petitioner appeals. In Syllabus Point 1
of Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016), we held:

               “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).

       On appeal, petitioner argues that the circuit court was obligated to hold a hearing and
appoint counsel regarding his claims of ineffective assistance of counsel and an involuntary guilty
plea. We reject this argument. In Syllabus Point 3 of Anstey, we reiterated:


       2
           We take judicial notice of the record in Supreme Court No. 17-0524.
                                                  4
               “‘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.’ Syllabus Point 1, Perdue v. Coiner, 156 W. Va. 467, 194
       S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18
       (2004).

237 W. Va. at 412, 787 S.E.2d at 866.

        Here, petitioner argues that, if this Court does not reverse the circuit court’s order and
remand the case for a hearing and appointment of counsel, we should remand the case for the entry
of an order setting forth sufficient findings of fact and conclusions of law. In Syllabus Point 2 of
Watts v. Ballard, 238 W. Va. 730, 798 S.E.2d 856 (2017), we held:

               “West Virginia Code section 53-4A-7(c) (1994) requires a circuit court
       denying or granting relief in a habeas corpus proceeding to make specific findings
       of fact and conclusions of law relating to each contention advanced by the
       petitioner, and to state the grounds upon which the matter was determined.” Syl. Pt.
       1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).[3]

(Footnote added).

        Respondent concedes that the circuit court’s order is “abbreviated,” but argues that the
record is sufficiently well-developed such that a remand for an order in compliance with West
Virginia Code § 53-4A-7(c) is not necessary. We agree and find that a remand is unnecessary
because the August 16, 2016, hearing transcript shows that the issues raised by petitioner are
without merit See State v. VanHoose, 227 W. Va. 37, 50 n.39, 705 S.E.2d 544, 557 n.39 (2010)
(finding that a remand was not necessary because the record was adequately developed in that
case); State ex rel. Farmer v. Trent, 209 W. Va. 789, 794 n.3, 551 S.E.2d 711, 716 n.3 (2001)
(declining to remand the case for the entry of a proper habeas order); State ex rel. Vernatter v.

       3
           West Virginia Code § 53-4A-7(c) provides in pertinent part:

                 When the court [in a post-conviction habeas corpus proceeding]
                 determines to deny or grant relief . . ., the court shall enter an
                 appropriate order . . . . In any order entered in accordance with the
                 provisions of this section, the court shall make specific findings of
                 fact and conclusions of law relating to each contention or
                 contentions and grounds (in fact or law) advanced, shall clearly state
                 the grounds upon which the matter was determined, and shall state
                 whether a federal and/or state right was presented and decided.

Rule 9(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia
imposes a similar requirement for findings of fact and conclusions of law.
                                                   5
Warden, West Virginia Penitentiary, 207 W. Va. 11, 19, 528 S.E.2d 207, 215 (1999) (finding that,
“[w]hile in most circumstances the failure to make specific findings of fact and conclusions of law
regarding an issue raised in habeas proceedings would necessitate a remand, we need not take such
action in the present case[.]”).

       With regard to petitioner’s first claim, in Syllabus Points 3 and 6 of Vernatter, we held:

       3.      “In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-prong 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).

               ....

       6.      In cases involving a criminal conviction based upon a guilty plea, the
       prejudice requirement of the two-part test established by Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.
       Va. 3, 459 S.E.2d 114 (1995), demands that a habeas petitioner show that there is
       a reasonable probability that, but for counsel’s errors, he would not have pleaded
       guilty and would have insisted on going to trial.

207 W. Va. at 13-14, 528 S.E.2d at 209-10. “Failure to meet the burden of proof imposed by either
part of the Strickland/Miller test is fatal to a habeas petitioner’s claim.” Id. at 17, 528 S.E.2d at
213 (citing State ex rel. Daniel v. Legursky, 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995)).

        Here, we find that the August 16, 2016, plea and sentencing transcript wholly refutes
petitioner’s allegations of ineffective assistance of counsel. First, while his motion was denied, the
transcript reflects that petitioner’s counsel filed a motion to suppress the two incriminating
statements petitioner gave to the police. Second, petitioner argues that he was a drug user—not a
murderer—and that counsel should have investigated his compromised mental state at the time of
the crime. As the transcript reflects, not only did petitioner plead guilty to first-degree murder but
he also provided the factual basis for his plea by stating that he conspired to rob the victim and
that, during the robbery, the victim was killed. Petitioner agreed with the State’s proffer that he
was the “architect” of the robbery. Therefore, based on our review of the record, we concur with
respondent’s position that nothing within the record indicates that petitioner would have insisted
on going to trial. Third, petitioner generally argues that his attorney failed to investigate his case.
We find that this claim is contradicted by the proffers of the assistant prosecutor and petitioner’s
counsel during the plea hearing that the State provided discovery to the defense and that each
party’s attorney went to the state police headquarters “to review the evidence.” Next, petitioner
alleges that his attorney failed to meet with him an adequate number of times. Petitioner concedes
that his attorney met with him approximately ten or twelve times in a six-month period. We find
petitioner’s concession is in accord with his answer at the plea and sentencing hearing that he “had
                                                  6
plenty of opportunity to talk with [counsel] and let him advise [petitioner] about [his] case[.]”
Accordingly, we find that this claim of ineffective assistance is without merit.

         Fifth, petitioner alleges that his attorney failed to challenge the disparity between
petitioner’s plea agreement and Ms. Stephenson’s plea agreement. Petitioner alleges that Ms.
Stephenson pled guilty to one count of conspiracy and was sentenced to one to five years of
incarceration. According to the State’s proffer at petitioner’s hearing—with which petitioner
agreed—Ms. Stephenson only provided the gun for the robbery, while Mr. Curtis was the shooter
and petitioner was the “architect” of the robbery. Upon questioning from the circuit court, the
assistant prosecutor stated that Mr. Curtis and petitioner received “the exact same plea agreement.”
Therefore, based on our review of the record, we find that any disparity between Ms. Stephenson’s
plea agreement and the plea agreement offered to both Mr. Curtis and petitioner was justified by
their respective roles in the crime.4 Similarly, petitioner argues that his attorney should have raised
certain “defects” in the indictment based solely on petitioner’s self-serving perception regarding
each co-conspirator’s role in the crime. Given the basis for this argument, we find that it is without
merit.

        Sixth, petitioner argues that his attorney failed to obtain all of the text messages between
petitioner and Mr. Curtis. Respondent counters that, even if petitioner’s attorney failed to obtain
the totality of the text messages, nothing indicates that the outcome of petitioner’s plea and
sentencing hearing would have been different. We agree with respondent. Here, not only did
petitioner plead guilty to first-degree murder but he also provided the factual basis for his plea.
Immediately thereafter, the circuit court asked petitioner a third time whether he wanted to proceed
with the hearing or whether he wanted to change his mind. Petitioner responded that he did not
wish to change his mind. Therefore, we reject this claim under the second prong of the
Strickland/Miller test.

         Finally, petitioner alleges that his attorney failed to inform him of Mr. Curtis’s own
misgivings about entering into the plea agreement that the State proposed to each of them. We find
that this issue was raised twice at petitioner’s hearing. When the assistant prosecutor informed the
circuit court that petitioner and Mr. Curtis were each offered the same plea agreement, she noted
that, when Mr. Curtis believed that he might have to testify against petitioner, “he got cold feet[.]”
Additionally, the circuit court temporarily continued petitioner’s hearing so that he would not be
sentenced until after Mr. Curtis’s sentencing in case “something happens in the Curtis case . . .

       4
        As respondent points out, in Syllabus Point 2 of State v. Buck, 173 W. Va. 243, 314 S.E.2d
406 (1984), we held:

                       Disparate sentences for codefendants are not per se
               unconstitutional. Courts consider many factors such as each
               codefendant’s respective involvement in the criminal transaction
               (including who was the prime mover), prior records, rehabilitative
               potential (including post-arrest conduct, age[,] and maturity), and
               lack of remorse. If codefendants are similarly situated, some courts
               will reverse on disparity of sentence alone.
                                                  7
regarding that plea.” Therefore, based on our review of the record, we find that, at the time of his
plea, petitioner was aware that Mr. Curtis had not yet been sentenced and conclude that none of
petitioner’s allegations of ineffective assistance warrants a hearing and appointment of counsel.

        With regard to petitioner’s claim that his guilty plea was involuntary, “[a] habeas petitioner
seeking to overturn his guilty plea bears the burden of persuasion with respect to the voluntariness
of the plea.” Farmer, 209 W. Va. at 794, 551 S.E.2d at 716 (citing Syl. Pt. 3, State ex rel. Clancy
v. Coiner, 154 W. Va. 857, 179 S.E.2d 726 (1971)). In Call v. McKenzie, 159 W. Va. 191, 220
S.E.2d 665 (1975), we found:

       Where there is a transcript of the colloquy which occurred between the court and
       the accused before the acceptance of the plea of guilty, and where that transcript
       conclusively demonstrates that there was a knowing and intelligent waiver of those
       rights necessarily surrendered as a result of a guilty plea, the issue is res judicata
       in a subsequent action in habeas corpus and the petition for habeas corpus may be
       summarily dismissed without an evidentiary hearing.

Id. at 195, 220 S.W.2d at 669.

        Here, petitioner first alleges that his attorney assisted the State in coercing him into
accepting the plea agreement. More specifically, petitioner argues that he was intimidated into
accepting the plea agreement after his attorney advised him of the possible consequences under
the West Virginia habitual offender statute, West Virginia Code §§ 61-11-18 and 61-11-19. We
find that petitioner fails to allege that counsel’s advice was erroneous or that counsel provided the
advice in a threatening way. Rather, petitioner argues that the threat was implicit in the mere fact
that the advice was provided. We find that petitioner’s recidivism was a legitimate issue in the
case. As reflected in the plea and sentencing transcript, the State believed that petitioner had at
least one prior violent felony, based on which it could have sought a sentence enhancement
pursuant to West Virginia Code § 61-11-18(a). That fact is the reason that the parties agreed to a
provision in the plea agreement that the State would not file a recidivist information. Therefore,
we find that it was prudent—not threatening—for counsel to advise petitioner regarding the
possible application of the habitual offender statute if petitioner chose not to accept the plea
agreement. As to the remainder of petitioner’s allegations supporting this claim, we find that they
are unsupported in fact and in direct contradiction to the explicit statements made by petitioner
during his plea colloquy. Based on our review of the record, we conclude that petitioner’s claim
that his guilty plea was involuntary is without merit.

        In summary, although the circuit court’s May 9, 2018, order is not in compliance with West
Virginia Code § 53-4A-7(c), neither of petitioner’s two habeas claims warranted a hearing and
appointment of counsel. Therefore, we find that a remand for specific findings of fact and
conclusions of law is unnecessary and affirm the May 9, 2018, order as the record supports the
circuit court’s denial of petitioner’s habeas petition.



                                                  8
        For the foregoing reasons, we affirm the circuit court’s May 9, 2018, order denying
petitioner’s petition for a writ of habeas corpus.5

                                                                                        Affirmed.




ISSUED: September 3, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




       5
         As respondent notes, a denial of a habeas petition without a hearing and appointment of
counsel does not trigger the application doctrine of res judicata, pursuant to Syllabus Point 2 of
Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), to bar subsequent petitions. Therefore,
petitioner remains free to file future petitions provided that the allegations therein are factually
supported. See Id. at 771, 277 S.E.2d at 612.
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