                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
William M. Moats,                                                                 February 22, 2013
                                                                               RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.) No. 12-0022 (Taylor County 11-C-92)

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

                               MEMORANDUM DECISION

       Petitioner William M. Moats, pro se, appeals the circuit court’s December 20, 2011 order
denying his petition for a writ of habeas corpus without a hearing. The respondent warden1, by
Laura Young, his attorney, filed a summary response to which 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. For the reasons expressed below, the circuit court’s order is reversed and this
case is remanded for further proceedings. In so holding, this Court finds that this case does not
present a new or significant question of law. For these reasons, a memorandum decision is
appropriate under Rule 21 of the Revised Rules of Appellate Procedure.

        According to documentation petitioner submitted as part of his appendix, 2 his
co-defendant pled guilty to voluntary manslaughter in January of 2004. The co-defendant stated to
the court that his part in the crime “was to hold onto the victim’s arm(s) while [petitioner] held the
victim tightly around his chest and upper body and squeezed until he lost consciousness and fell to
the floor.” Petitioner had been periodically residing with the victim.3


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.
2
  On March 13, 2012, this Court granted the respondent warden’s motion to file a supplemental
appendix which had been submitted with the motion.
3
  At the time, petitioner was on probation for escaping from a juvenile center, an adult felony
conviction.
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       In separate cases, petitioner pled guilty to one count forgery and one count of uttering in
the Circuit Court of Marion County for using the victim’s credit cards and signing the victim’s
name on the receipts, and pled guilty in the Circuit Court of Taylor County to grand larceny in
respect to his theft of the victim’s van. Petitioner was indicted for murder with respect to the
victim’s death in April of 2003.

        Petitioner was represented by counsel, and his attorneys negotiated a plea agreement.
Petitioner agreed to plead guilty to murder in the second degree. The State agreed to recommend
that petitioner be sentenced to ten years in the state penitentiary, to run concurrent with the
sentence for his grand larceny conviction, with credit for time served on that conviction. The State
also agreed to forego filing recidivist charges against petitioner. The plea agreement reflected that
it was “not intended to . . . bind the [Circuit Court of Taylor County] as to acceptance of a plea or as
to sentencing and the defendant has been fully advised that the Court has the authority to reject this
agreement or parts thereof.”

       The circuit court declined to adopt the State’s recommendation on sentencing and imposed
a term of thirty-two years to “run consecutively with the sentence that [petitioner] is current
serving.”4 Petitioner alleges that the only reason he accepted the plea agreement and pled guilty to
second degree murder was his counsel’s advice “to definitively avoid any potential habitual
criminal [recidivist] actions.”

       Petitioner filed two prior petitions for a writ of habeas corpus, and the docket sheet for
those petitions reflects that each was denied without a hearing. Thus, the denials of those petitions
may not bar subsequent habeas petitions. See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606
(1981).5

       Petitioner filed his third habeas petition on November 20, 2011, asserting that counsel

4
  There is some confusion over the nature of petitioner’s sentence in that the circuit court’s orders
denying petitioner’s habeas petitions indicate that it is a concurrent sentence, not a consecutive
one.
5
  In Syllabus Point Two of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). This Court
held as follows:

               A judgment denying relief in post-conviction habeas corpus is res
               judicata on questions of fact or law which have been fully and
               finally litigated and decided, and as to issues which with reasonable
               diligence should have been known but were not raised, and this
               occurs where there has been an omnibus habeas corpus hearing at
               which the applicant for habeas corpus was represented by counsel or
               appeared pro se having knowingly and intelligently waived his right
               to counsel.
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provided ineffective assistance because they “advised him that he faced a life sentence under the
recidivist-enhancement statute, W[est] V[irginia] Code § 61-11-19.”6 Petitioner argued that the
recidivist statute could not have been applied to him “because two of his three previous
penitentiary offenses were committed contemporaneously with the instant principal penitentiary
offense . . . .”7

        The circuit court denied petitioner’s petition by an order entered December 20, 2011. The
circuit court did not address petitioner’s specific argument that his counsel’s advice was incorrect
and the recidivist statute could not have been applied to him. The circuit court ruled, inter alia, that
“the agreement not to charge the Petitioner under the terms of West Virginia Code § 61-11-18 and
§ 61-11-19 was a valid agreement under the West Virginia Rules of Criminal Procedure, and
would not result in a coerced guilty plea.” The docket sheet for the instant case indicates that the
circuit court did not conduct a hearing before denying the petition.

         On appeal, petitioner argues that his petition alleges facts sufficient to entitle him to the
appointment of counsel and a hearing under West Virginia’s post-conviction habeas corpus
statute. Petitioner asserts his petition meets that standard because when trial counsel overstates the
lawfully authorized penalty the defendant may receive if he is convicted following trial and the
defendant then pleads guilty solely to avoid that overstated penalty, the defendant has been denied
effective assistance of counsel. See, e.g., Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988),
abrogated on other grounds, Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 176 L.Ed.2d 284

6
  The substantive provisions of the recidivist statute are actually found in West Virginia Code §
61-11-18. West Virginia Code§ 61-11-18(c) provides that “[w]hen it is determined, as provided in
[§ 61-11-19], that such person shall have been twice before convicted in the United States of a
crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in
the state correctional facility for life.”
7
  Petitioner stole the victim’s van at the time of the victim’s death. According to the presentence
report, “[t]he defendant admitted taking the victim’s van and his personal items from the camper”
and also to “returning to the camper a second time.” Petitioner also admitted that “he continued to
use the [victim’s credit] cards after he knew the victim was dead.” In Syllabus of State v.
McMannis, 161 W.Va. 437, 242 S.E.2d 571 (1978), this Court held as follows:

                 Where a prisoner being proceeded against under the habitual
                 criminal statute remains silent or says he is not the same person who
                 was previously convicted and sentenced to the penitentiary offense
                 or offenses alleged in the information, a circuit court has no
                 jurisdiction to impose an enhanced sentence under the statute where
                 the State fails to prove beyond a reasonable doubt that each
                 penitentiary offense, including the principal penitentiary offense,
                 was committed subsequent to each preceding conviction and
                 sentence. W.Va. Code §§ 61-11-18, 19.

    (emphasis added).

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(2010). The respondent warden disputes the interpretation of the recidivist statute petitioner relies
upon to say that his counsel provided him with incorrect advice. The respondent warden also
asserts that petitioner’s counsel were successful in plea negotiations with the State and provided
petitioner with reasonable representation.

       In Syllabus Point One of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973), this
Court held as follows:

               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.

After careful review of the petition and the other documentary evidence contained in the appendix
and the supplemental appendix, this Court concludes that this case should be remanded for a
hearing on petitioner’s claim that his counsel’s advice was incorrect and he could not have
received a life sentence under the recidivist statute. See Syllabus, State v. McMannis, 161 W.Va.
437, 242 S.E.2d 571 (1978) (holding that no jurisdiction exists under the recidivist statute to
impose an enhanced sentence “where the State fails to prove beyond a reasonable doubt that each
penitentiary offense, including the principal penitentiary offense, was committed subsequent to
each preceding conviction and sentence.”). Therefore, the circuit court’s order is reversed and the
case remanded for the appointment of counsel and an omnibus hearing on whether trial counsel’s
advice regarding the recidivist issue was incorrect as well as any other issue cognizable in a habeas
proceeding. See Losh, supra, 166 W.Va. at 764, 277 S.E.2d at 609 (“[T]he post-conviction habeas
corpus statute, W[est] V[irginia] Code, 53-4A-1 et seq. (1967) contemplates that every person
convicted of a crime shall have . . . one omnibus post-conviction habeas corpus hearing at which he
may raise any collateral issues which have not previously been fully and fairly litigated.”).

       For the foregoing reasons, we reverse the December 20, 20111 order of the Circuit Court of
Taylor County and remand this case for the appointment of counsel and an omnibus habeas corpus
hearing.

                                                                           Reversed and Remanded.


ISSUED: February 22, 2013

CONCURRED IN BY:

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