                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 


Charles N. Brannon,

Petitioner Below, Petitioner                                                      FILED 

                                                                              October 10, 2018
vs) No. 17-0629 (Wood County 16-P-6)                                           EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Karen Pszczolkowski, Superintendent,1
Northern Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Charles N. Brannon, by counsel D. Shane McCullough, appeals the June 12,
2017, order of the Circuit Court of Wood County that denied his petition for post-conviction
habeas corpus relief. Respondent Karen Pszczolkowski, Superintendent of the Northern
Correctional Center, by counsel Gordon Mowen, II, responded in support of the circuit court’s
order.

        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 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.

       In February of 2004, Petitioner Charles N. Brannon entered a cafe in Parkersburg,
displayed a pistol, and demanded cash from Jennifer Waybright in the presence of two other
individuals. Petitioner was thereafter indicted for robbery in the first degree, as well as three
counts of wanton endangerment involving a firearm.

        Prior to trial, the State made two plea offers: The first provided that if petitioner pled
guilty to first-degree robbery, the State would agree to a forty-year sentence cap. The second
plea offer contemplated that if petitioner pled guilty to first-degree robbery with a firearm
specification, the State would agree to a thirty-year sentence cap and the remaining charges
would be dismissed. The pretrial colloquy transcript indicates that petitioner’s trial counsel,
Wells Dillon, apprised petitioner of both of these offers and petitioner rejected them.

        At trial, the State called various witnesses, including Daniel Leroy Mullens. The State
elicited testimony from Mr. Mullens regarding his inconsistent statements to the investigating
police officers. Mr. Mullens testified that: (1) he gave petitioner a ride on the night of the crime;
(2) he observed the cash register drawer in the café and the firearm carried by petitioner; and (3)

       1
          Effective July 1, 2018, the positions formerly designated as “wardens” are now
“superintendents.” See W.Va. Code § 15A-5-3.
                                                 1

petitioner gave Mr. Mullens a small amount of money for the ride after the robbery occurred.
While petitioner contends this evidence made Mr. Mullens an accessory to the robbery, both Mr.
Mullens and the State denied the existence of any agreement limiting the prosecution of Mr.
Mullens in exchange for his testimony.

        A jury found petitioner guilty on all four counts on November 4, 2004. The jury
answered a special interrogatory finding that the robbery was committed with the use of a
firearm. The trial court sentenced petitioner on March 4, 2005, to a term of sixty years for his
conviction of first-degree robbery; one indeterminate term of one to five years for his conviction
of wanton endangerment involving a firearm regarding the victim (Ms. Waybright), a sentence to
run concurrent with the robbery conviction; and lastly, two additional indeterminate terms of one
to five years for the other convictions of wanton endangerment involving a firearm, both to run
consecutively after completion of the robbery sentence.

        After trial, a new lawyer, Susan Paxton, filed petitioner’s motion for reconsideration of
sentence on July 7, 2005, which the trial court refused. Ms. Paxton also filed petitioner’s direct
appeal, which this Court refused on December 14, 2005. Thereafter, petitioner filed a pro se
habeas petition. The habeas court appointed counsel who filed an amended petition on October
14, 2016. Following a February 6, 2017, omnibus evidentiary hearing, the habeas court denied
relief by order entered June 12, 2017. Petitioner now appeals the denial of habeas relief.

       We apply the following standard of review in habeas appeals:

               “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, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

       Petitioner raises four assignments of error on appeal. Petitioner first argues that the
habeas court abused its discretion in denying petitioner’s claims of ineffective assistance of trial
and appellate counsel. This Court applies the following two-part Miller/Strickland test when
weighing ineffective assistance claims:

               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 reasonable probability that, but for counsel’s unprofessional errors, the
       result of the proceedings would have been different.

State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995).



                                                 2

        Petitioner claims that his trial counsel’s and appellate counsel’s errors deprived him of
effective assistance of counsel. With regard to his trial counsel, petitioner’s arguments vaguely
presume that trial counsel’s performance was deficient. Furthermore, petitioner applies a
standard different from Miller/Strickland, that is, instead of arguing that, but for the alleged
errors, the result of his trial “would have been different,” petitioner asserts the errors “could
have” affected the trial’s outcome. Petitioner bases his claim on the following actions, or
inactions, by trial counsel: (1) trial counsel did not file a motion for a change of venue; (2) trial
counsel did not request a competency evaluation of petitioner; (3) trial counsel was unsuccessful
in suppressing a photo array; (4) trial counsel did not challenge the constitutionality of the
wanton endangerment and robbery statutes; (5)/(6) trial counsel did not convincingly explain the
two plea offers to petitioner; (7) trial counsel did not clearly explain the effects of a “firearm
enhancement” or “good time” on the length of petitioner’s sentence; (8) trial counsel did not
explain the State’s burden of proof to petitioner; (9) trial counsel did not present a reasonable
defense at trial; (10) trial counsel was unsuccessful in suppressing or attacking the testimony of
Mr. Mullens; (11) trial counsel failed to move for a judgment of acquittal when the State did not
introduce a firearm into evidence; (12) trial counsel coerced petitioner into admitting he
committed the crimes at sentencing; and (13) trial counsel withdrew after trial and allowed
another attorney to pursue post-trial motions and the appeal. With regard to petitioner’s
appellate counsel, petitioner contends (14) she failed to consult with him and to file an
appropriate and complete appeal.

        The trial record establishes that many of the “errors” alleged by petitioner were, in fact,
strategic decisions made by counsel. As we have oft said, strategic decisions fall outside the
scope of a Miller/Strickland challenge.

               In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Syl. Pt. 6, State v. Miller, 194 W.Va. at 6, 459 S.E.2d at 117. “What defense to carry to the jury,
what witnesses to call, and what method of presentation to use is the epitome of a strategic
decision, and it is one that we will seldom, if ever, second guess.” Id. at 16, 459 S.E.2d at 127.

        Moreover, the “strong presumption that counsel’s actions were the result of sound trial
strategy . . . can be rebutted only by clear record evidence that the strategy adopted by counsel
was unreasonable.” State v. LaRock, 196 W.Va. 294, 309, 470 S.E.2d 613, 628 (1996) (citation
omitted). Petitioner bore the responsibility of proving ineffective assistance in his habeas
proceeding, and of creating a sufficient record. Instead of clear evidence, many of petitioner’s
allegations are pure speculation.

       After reviewing the record presented, we find no error in the circuit court’s decision
regarding the effectiveness of petitioner’s counsel. Viewed objectively, counsels’ performance

                                                 3

was not deficient. More importantly, even if we presume that counsel engaged in unprofessional
errors, the record fails to establish any reasonable probability that, in the absence of those
presumed errors, the result of the proceedings would have been different. Put simply, the record
fails to prove petitioner’s claim petitioner was deprived of effective assistance of counsel.

         Petitioner’s second assignment of error is that the circuit court erred in its interpretation
of the criminal statutes under which petitioner was convicted. The State’s indictment alleged
petitioner committed robbery when he took money from the victim “by the threat of deadly force
by the presentation of a firearm[.]” See W.Va. Code § 61-2-12(a)(2) (“Any person who commits
. . . robbery by . . . us[ing] the threat of deadly force by the presenting of a firearm . . . is guilty of
robbery in the first degree[.]”). The indictment also alleged three counts of “wanton
endangerment involving a firearm.” See W.Va. Code § 61-7-12 (defining wanton endangerment
involving a firearm as, “Any person who wantonly performs any act with a firearm which creates
a substantial risk of death or serious bodily injury to another[.]”).

        Petitioner asserts that the circuit court erred when it failed to find his convictions are
constitutionally invalid because, at trial, the State failed to introduce “actual, physical evidence
of a ‘firearm.’” Additionally, petitioner argues that his convictions are constitutionally invalid
because the State failed to prove, beyond a reasonable doubt, that the pistol he used met the
definition of a firearm found in two statutes regarding probation and parole. Those statutes –
W.Va. Code §§ 62-12-2(d) [1999] and -13(b)(1)(A) [1999]2 – identically define a firearm as an
instrument that will “expel a projectile by the action of an explosive, gunpowder, or any other
similar means.” Petitioner contends he was denied due process because the State failed to proffer
evidence to the jury to establish the pistol was a “firearm” as defined in the probation and parole
statutes.

        We reject petitioner’s constitutional challenge to the validity of his convictions. In State
v. Young, 134 W.Va. 771, 61 S.E.2d 734 (1950), this Court examined the language of the
robbery statute (W.Va. Code § 62-2-12) and concluded that the statute criminalizes the mere
threat of using a firearm to steal money from another. In Young, we upheld a conviction where
the robber made a gesture indicating he had a concealed weapon, and the victim thought he had a
gun. In State v. Combs, 175 W.Va. 765, 338 S.E.2d 365 (1985), we likewise upheld a conviction
where the defendant put his hand in his pocket and gestured in a way that the victim believed he
had a gun. Moreover, a first-degree robbery conviction may be upheld even if the defendant did
not use a real firearm: in State v. Massey, 178 W.Va. 427, 359 S.E.2d 865 (1987), the robber
used a toy handgun; and in State v. Phillips, 199 W.Va. 507, 485 S.E.2d 676 (1997), the robber
used an air gun. Accordingly, all that is necessary to support a conviction is “action by the
defendant as would reasonably lead the victim to believe he had possession of a firearm.”
Massey, 178 W.Va. at 432, 359 S.E.2d at 870.

        The trial record establishes that petitioner used a firearm when he robbed Ms. Waybright.
The trial record also includes eyewitnesses testimony that petitioner displayed a pistol. There is
no requirement in either the robbery statute or the wanton endangerment statute that the State


        2
         The Legislature has amended these two statutes several times since petitioner’s
February 2004 offense. None of the amendments affects the outcome of this case.
                                                    4

introduce into evidence at trial the actual firearm used in those crimes. Instead, the State may
obtain a conviction regarding the possession or use of a firearm through any relevant evidence.
See Rule 402, West Virginia Rules of Evidence. To find otherwise would enable a defendant to
escape conviction by disposing of a firearm after the commission of a crime. Here, the jury
answered a special interrogatory specifically finding that petitioner used a firearm. Thus, the jury
found, beyond a reasonable doubt, that petitioner used a firearm during the robbery, and, in so
doing, wantonly endangered the safety of three individuals.

        In his third assignment of error, petitioner asserts that the State engaged in prosecutorial
misconduct. First, petitioner alleges that Mr. Mullens could be considered an accessory before or
after the fact. Petitioner also avers, with certainty, that the State provided Mr. Mullens some sort
of incentive to testify against petitioner, and that there must be a “gentlemen’s agreement”
between Mr. Mullens and the State that the State would not pursue charges against Mr. Mullens
if he testified against petitioner. Third, petitioner claims Mr. Mullens gave conflicting statements
before and during trial and the State knew it was using perjured testimony when it offered Mr.
Mullens as a witness. Petitioner asserts he is entitled to habeas relief due to this misconduct.

        The circuit court rejected petitioner’s arguments, as do we, because the record does not
support the existence of any misconduct by the State in this matter. Petitioner’s trial counsel
moved for the disclosure of any agreements between the State and Mr. Mullens, and the State
responded that there was no agreement. Mr. Mullens also testified he had no agreement with the
State. Additionally, the parties questioned Mr. Mullens before the jury concerning his conflicting
statements. It is well established that the credibility of a witness is to be tested through cross-
examination, and that “[c]redibility determinations are for a jury and not an appellate court.” Syl.
Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Accordingly, because
petitioner wholly fails to support his claim, we find no error.

        Petitioner’s fourth and final assignment of error concerns various evidentiary rulings in
his original criminal trial. For example, petitioner contends that the police improperly used a
photo array and denied him access to exculpatory evidence by failing to provide him with reports
regarding similar robberies. Overall, petitioner contends that there was insufficient evidence to
support his conviction.

        We reject petitioner’s fourth assignment of error. Petitioner could have challenged these
evidentiary rulings in his 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). More
importantly, in a habeas proceeding, this Court is highly deferential to a jury’s verdict.

               A convicted defendant who presses a claim of evidentiary insufficiency
       faces an uphill climb. The defendant fails if the evidence presented, taken in the
       light most agreeable to the prosecution, is adequate to permit a rational jury to
       find the essential elements of the offense of conviction beyond a reasonable
       doubt. Phrased another way, as long as the aggregate evidence justifies a
       judgment of conviction, other hypotheses more congenial to a finding of
       innocence need not be ruled out. We reverse only if no rational trier of fact could

                                                 5

       have found the essential elements of the crime beyond a reasonable doubt.

State v. LaRock, 196 W.Va. at 303, 470 S.E.2d at 622. Here, the record contains substantial
evidence to support, beyond a reasonable doubt, the essential elements of petitioner’s convictions
for first-degree robbery and wanton endangerment. Accordingly, we find no error.

       For the foregoing reasons, we affirm the circuit court’s June 12, 2017, order denying
habeas relief.

                                                                                        Affirmed.


ISSUED: October 10, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry, II, suspended and therefore not participating.




                                                6

