                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Timothy Dwight Griffith,                                                         FILED
Petitioner Below, Petitioner                                                   December 2, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0288 (Harrison County 10-C-126)                                    OF WEST VIRGINIA



Patrick Mirandy, Warden,

St. Mary’s Correctional Center,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Timothy Dwight Griffith, by counsel Rocco E. Mazzei, appeals the order of the
Circuit Court of Harrison County, entered February 14, 2013, denying his petition for writ of
habeas corpus. Respondent appears by counsel Scott E. Johnson.

       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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       Petitioner was indicted in the September of 2005 Term of Court for the Circuit Court of
Harrison County. Count Four of that indictment charged:

       That on or about the 26th day of May 2005, in Harrison County, West Virginia,
       [petitioner] committed the offense of Robbery in the First Degree by unlawfully
       feloniously and intentionally taking medication belonging to Newpointe
       Pharmacy, located at 463 Emily Drive, Clarksburg, Harrison County, West
       Virginia, to wit: Oxycodone/APAP, Alprazolam and Tussionex Suspension, and
       [petitioner] did then and there take said medication in the presence of Mike
       Kovach, an employee of Newpointe Pharmacy, against his will and by the threat
       of deadly force and by the presenting of a firearm, to wit: a black revolver, with
       the intent to permanently deprive Newpointe Pharmacy of ownership of said
       property, against the peace and dignity of the State.

(Emphasis supplied.)

       Petitioner entered a plea of guilty and was sentenced to a one-to-ten year term of
incarceration for a third-offense shoplifting charge, and a term of forty years for the robbery
charge, with the terms to be served concurrently. Petitioner was resentenced for purposes of

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appeal, and his petition for direct appeal was refused. Petitioner filed a petition for writ of habeas
corpus in the Circuit Court of Harrison County. An omnibus hearing was conducted in July of
2012.

        By order entered February 14, 2013, the circuit court denied the petition for writ of
habeas corpus. On appeal, petitioner asserts three assignments of error: (1) the trial court failed
to find that there was no evidence of presentment of a firearm, no evidence of the threat of
deadly force by presentment of a firearm, and no use of a firearm to support petitioner’s
conviction, because the trial court failed to engage in the appropriate colloquy required by the
West Virginia Rules of Criminal Procedure, Rule 11(f); (2) the circuit court erred in its
determination that petitioner did not suffer ineffective assistance of counsel when he was advised
to plead guilty to robbery in the first degree; and (3) the circuit court erred in determining that
petitioner’s plea was voluntary. We review petitioner’s assignments of error as follows:

               “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).

Syl. Pt. 1, State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012).

        We agree with respondent that petitioner’s first assignment of error does not present an
appropriate basis for habeas corpus relief, because it does not raise an issue of constitutional
significance. We have explained:

               This Court has frequently stressed that the standard for obtaining habeas
       corpus relief differs markedly from that which applies to secure a reversal on
       direct appeal: “A habeas corpus proceeding is not a substitute for a writ of error in
       that ordinary trial error not involving constitutional violations will not be
       reviewed.” Syl. pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254
       S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112
       (1983); see also Syl. pt. 9, State ex rel. Azeez v. Mangum, 195 W.Va. 163, 465
       S.E.2d 163 (1995); State ex rel. Phillips v. Legursky, 187 W.Va. 607, 420 S.E.2d
       743 (1992).

              This limitation on the right to collaterally challenge a criminal conviction
       has special force in instances where the conviction rests upon a guilty plea, where
       the concern for finality is particularly strong. Thus, as we recently stated in
       syllabus point 10 of State ex rel. Vernatter v. Warden, 207 W.Va. 11, 528 S.E.2d
       207 (1999):

                      A habeas petitioner may successfully challenge a guilty-
               plea conviction based upon an alleged violation of Rule 11 of the
               West Virginia Rules of Criminal Procedure only by establishing

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               that the violation constituted a constitutional or jurisdictional error;
               or by showing that the error resulted in a complete miscarriage of
               justice, or in a proceeding inconsistent with the rudimentary
               demands of fair procedure. Moreover, the petitioner must also
               demonstrate that he was prejudiced in that he was unaware of the
               consequences of his plea, and, if properly advised, would not have
               pleaded guilty.

       The Court likewise made clear in Vernatter that “a prisoner may not collaterally
       attack a guilty plea under Rule 11 where ‘all that is shown is a failure to comply
       with the formal requirements of the Rule.’” 207 W.Va. at 20, 528 S.E.2d at 216
       (quoting United States v. Timmreck, 441 U.S. 780, 785, 99 S.Ct. 2085, 2088, 60
       L.Ed.2d 634 (1979)); see also Thomas v. Leverette, 161 W.Va. 224, 227, 239
       S.E.2d 500, 502 (1977) (pointing out that Call v. McKenzie, 159 W.Va. 191, 220
       S.E.2d 665 (1975), the precursor to Rule 11, merely “suggested specific inquiries
       that should be made of the defendant at the time his guilty plea is taken in order to
       forestall future attack on the guilty plea by way of a habeas corpus proceeding.
       Call acknowledged that the failure of the trial court to follow each suggested
       inquiry would not invalidate the guilty plea.”). In simpler terms, a failure to
       comply with Rule 11 is not by necessary implication a failure to comply with due
       process. See Haase v. United States, 800 F.2d 123, 127 (7th Cir.1986) (“Rule 11
       is a device for protecting [the voluntariness of a guilty plea,] but the scope of the
       Rule does not equal the more limited scope of the constitutional right.”); Salazar
       v. Warden, Utah State Prison, 852 P.2d 988, 991-92 (Utah 1993).

State ex rel. Farmer v. Trent, 209 W.Va. 789, 794, 551 S.E.2d 711, 716 (2001). For the reasons
explained in more detail below, the trial court’s failure to establish at the plea hearing whether an
actual firearm was used or presented in the commission of the crime does not meet the
requirements for review that we set forth in Syllabus Point 10 of Vernatter, as described above.1

        Our review of petitioner’s second assignment of error is 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),
and subsequently adopted by this Court in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
In Syllabus Point 5 of Miller, we stated:

              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

       1
         Because petitioner’s third assignment of error—that his plea was not voluntary—rests on
the same facts as his first, we also find no merit therein. A habeas petitioner seeking to overturn
his guilty plea bears the burden of persuasion with respect to the voluntariness of the plea. See
Syl. Pt. 3, State ex rel. Clancy v. Coiner, 154 W.Va. 857, 179 S.E.2d 726 (1971) (“The burden of
proving that a plea was involuntarily made rests upon the pleader.”); accord Syl. Pt. 1, State ex
rel. Wilson v. Hedrick, 180 W.Va. 689, 379 S.E.2d 493 (1989).
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       reasonable probability that, but for counsel’s unprofessional errors, the result of
       the proceedings would have been different.

Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to
a habeas petitioner’s claim. State ex rel. Daniel v. Legursky, 195 W.Va. 314, 321, 465 S.E.2d
416, 423 (1995).

         The plea ultimately accepted by the trial court resulted from the second agreement
entered into between the State and petitioner. The first plea was withdrawn, by leave of court,
after petitioner’s counsel—different counsel than the attorney who represented petitioner through
his initial plea negotiations—advised the Court that he was unable to provide a factual basis for
the plea. Petitioner testified at his omnibus hearing that his relief counsel discussed petitioner’s
co-defendant’s assertion that a toy gun was used, and advised petitioner to withdraw the plea on
that basis. Counsel, Teresa Cogar, also testified at the omnibus hearing. She confirmed that she
and co-counsel Nancy Ulrich discussed the co-defendant’s possible use of a toy gun with
petitioner, and that they conveyed to petitioner the concern that the robbery victim perceived that
the gun was real and would testify as such. Ms. Cogar confirmed that as a result of negotiations
leading to the second plea agreement, the State agreed not to file a recidivist information, and to
recommend a sentence of twenty years of incarceration for the robbery.2 These terms were not
offered in the earlier agreement.

       Petitioner’s challenge centers on his assertions that an actual firearm was not used in the
commission of the crime, and that his co-defendant showed the butt of a toy gun to the pharmacy
employee, but did not “present” the gun as required by W.Va. Code § 61-2-12. Petitioner stated
that, while he was a party to the robbery, he waited in the car while his co-defendant went into
the pharmacy, and he also stated that the toy gun that was used was discarded. We find that, for
the purposes of our discussion, our consideration of these assertions is co-extensive; petitioner
was not present during the portion of the robbery when the instrument was shown, and the
instrument was not recovered for police to verify co-defendant’s statement that it was a toy. We
must consider whether counsel’s actions were reasonable in light of the unverified assertions,
and we find that they were.

        Counsel and petitioner each testified that counsel advised petitioner that a toy gun would
not satisfy the statutory requirements, but that the robbery victim was expected to testify that he
did not believe the gun was a toy. It was also unclear how the gun was shown to the victim.
Based on the testimony at the omnibus hearing, we find that petitioner was fully informed of the
state of the evidence as it related to the charges against him. Counsel’s actions were reasonable
and, in fact, secured more favorable plea agreement terms. There is no indication that counsel
made unprofessional errors, and thus we cannot envisage a different outcome of these
proceedings.

       For the foregoing reasons, we affirm.




       2
           By the time of the entry of his plea, petitioner had amassed a substantial criminal record.
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                                       Affirmed.

ISSUED: December 2, 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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