                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS



Richard Kartman,
Petitioner Below, Petitioner                                                           FILED
                                                                                    April 28, 2020
vs.) No. 19-0307 (Ohio County 09-C-403)                                           EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
J.T. Binion, Superintendent, Huttonsville
Correctional Center,
Respondent Below, Respondent




                               MEMORANDUM DECISION


        Petitioner Richard Kartman, self-represented litigant, appeals the March 6, 2019, order of
the Circuit Court of Ohio County denying his second amended petition for a writ of habeas corpus.
Respondent J.T. Binion, Superintendent, Huttonsville Correctional Center, by counsel Andrea
Nease Proper, 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.

        In January of 2008, petitioner was indicted in the Circuit Court of Ohio County on two
felony charges, first-degree robbery and being a person prohibited from possessing a firearm due
to a prior felony conviction, and on the misdemeanor charge of being a person prohibited from
possessing a firearm due to drug addiction. Trial was set for May 2, 2008.

        On April 29, 2008, petitioner’s court-appointed trial counsel, Attorney Randy Gossett, filed
a motion to withdraw, stating that the attorney-client relationship was “destroyed and irreparable.”
The circuit court continued an April 30, 2008, hearing on the motion after Attorney Gossett could
not appear due to illness. At a May 1, 2008, hearing on the motion, Attorney Gossett stated that
the “biggest problem” was “a total breakdown in communication.” The circuit court did not allow
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Attorney Gossett to withdraw, but appointed Attorney Michael Olejasz as co-counsel to allow for
“more coherent” communication. At a May 8, 2008, hearing, Attorney Gossett withdrew his
motion to withdraw, informing the circuit court that Attorney Olejasz would be assisting in the
case. The circuit court rescheduled petitioner’s trial for May 19, 2008. At a May 16, 2008, hearing,
the circuit court granted petitioner’s motion to bifurcate the trial so that petitioner would be tried
solely on the first-degree robbery charge, but denied a further continuance of the trial.

        On May 19, 2008, the circuit court conducted voir dire and impaneled a jury. Outside of
the jury’s presence, the State objected to petitioner’s disclosure of four witnesses who would testify
that a person named “Cash” subjected petitioner to duress to cause him to commit the robbery.
Attorney Gossett responded that petitioner was “hoping that these people will come forward”
because they would be able to substantiate petitioner’s theory that he committed the robbery under
duress. Attorney Gossett made a proffer that these witnesses would testify that “Cash” was a drug
dealer who was known to frequent petitioner’s apartment, to carry guns, and to rob other drug
dealers. The circuit court ruled that petitioner could testify that “Cash” subjected him to duress if
a proper foundation was laid, but that any other witnesses would not be permitted to do so.

        The State requested that the circuit court rule that petitioner was not permitted to question
the victim, Maria Cunningham, regarding a prior felony conviction Ms. Cunningham had for a
federal drug offense. The circuit court ruled that petitioner was permitted to ask Ms. Cunningham
about her prior felony drug conviction pursuant to Rule 609(a)(2)(A) of the West Virginia Rules
of Evidence. After these rulings, Attorney Gossett requested a recess so that he and Attorney
Olejasz could discuss the same with petitioner.

         After the recess, the parties informed the circuit court that they had reached a plea
agreement, where petitioner would enter an Alford/Kennedy plea to first-degree robbery in
exchange for the dismissal of the other charges. 1 The parties further agreed that petitioner would
be incarcerated for sixty years, but would be eligible for parole in fifteen years instead of twenty
years because there would be no reference to the possession of a firearm. At the beginning of the
plea colloquy, petitioner testified that he was going to enter an Alford/Kennedy plea given the
circuit court’s ruling as to the admissibility of the testimony of petitioner’s trial witnesses and that
he was going to “take” the sentence with the earlier parole eligibility. The circuit court
subsequently questioned petitioner about Attorney Gossett’s previous request to withdraw from
the case:

       Q.     . . . Now, you’ve been represented in this case by [Attorney] Gossett and
       [Attorney] Olejasz. You know and I know we’ve had some discussion regarding
       [Attorney] Gossett. He wanted at one time to withdraw. I kind of split the baby and

       1
         Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in Syllabus Point
1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily,
knowingly and understandingly consent to the imposition of a prison sentence even though he is
unwilling to admit participation in the crime, if he intelligently concludes that his interests require
a guilty plea and the record supports the conclusion that a jury could convict him.”

                                                   2
       said: Don’t do that. I denied the motion, and I appointed [Attorney] Olejasz to work
       with [Attorney] Gossett. How has that worked out for you?

       A.      Well, the problem we had with [Attorney] Gossett was that I didn’t feel that
       things were coming along as they should. There was—I know that the time I was
       facing here was great and un—you know, I just—I don’t believe that there’s enough
       time, but . . . .

       Q.     I’m not talking about now. You got two—what I consider to be two good
       lawyers—

       A.       I’m thinking—I’m taking the plea today because where we’re at, and I think
       it’s the smart thing to do; they’ve both advised me of it. They’ve advised me of the
       case and what I have to go against. So[,] . . . .

       Q.        And[,] you’re willing to go through with it?

       A.        Yes.

       Q.     I’ve already gone over with you that you don’t have to do this, and we’ve
       already discussed that?

       A.        Yes, Judge.

(Emphasis added.).

       The State provided the evidentiary basis for the guilty plea. The State proffered that on
January 6, 2008, a loud bang woke Ms. Cunningham while she was sleeping in her apartment. Ms.
Cunningham observed petitioner with a firearm inside her apartment. Petitioner told Ms.
Cunningham to lay on the ground and to “give me your shit.” Ms. Cunningham took a shoebox
which was sitting next to her and threw it at petitioner, and petitioner left Ms. Cunningham’s
apartment without actually taking anything. 2

         Later in the hearing Attorney Olejasz stopped the proceeding, informing the circuit court
that “I believe [petitioner] has changed his mind.” A discussion was held off the record. When the

       2
           West Virginia Code § 61-2-12(a) provides:

       (a) Any person who commits or attempts to commit robbery by:

       (1) Committing violence to the person, including, but not limited to, partial
       strangulation or suffocation or by striking or beating; or (2) uses the threat of deadly
       force by the presenting of a firearm or other deadly weapon, is guilty of robbery in
       the first degree and, upon conviction thereof, shall be imprisoned in a state
       correctional facility not less than ten years.
                                                  3
proceeding resumed, the circuit court inquired of Attorney Olejasz, “Anything?” Attorney Olejasz
answered, “No, Your Honor.” Accordingly, the circuit court proceeded with the plea hearing. The
circuit court accepted petitioner’s Alford/Kennedy plea, sentenced him to sixty years of
incarceration for first-degree robbery, and dismissed the other charges at the State’s request. In
State v. Kartman, No. 11-0042 (W. Va. May 16, 2011) (memorandum decision), this Court
considered the sentence of sixty years of incarceration stemming from petitioner’s conviction for
first-degree robbery and affirmed the circuit court’s judgment, finding that the sentence was not
excessive.

        On November 20, 2009, petitioner filed a petition for a writ of habeas corpus. Petitioner’s
first habeas counsel withdrew from the case “due to a breakdown in communications.” Petitioner
requested the removal of his next habeas counsel and asked that he be allowed to represent himself.
The circuit court granted petitioner’s requests on November 21, 2014. On May 22, 2015, petitioner
filed a motion for appointment of counsel. By order entered on October 26, 2015, the circuit court
appointed habeas counsel who filed the second amended habeas petition accompanied by a
verification from petitioner on August 21, 2017. The circuit court held an omnibus hearing on the
second amended habeas petition on February 2, 2018. At the omnibus hearing, petitioner testified
on his own behalf and presented the testimony of Attorney Gossett, Attorney Olejasz, and a person
who stated that she was unable to contact trial counsel with information helpful to petitioner’s
defense. Respondent cross-examined petitioner and the other witnesses. By order entered on
March 6, 2019, the circuit court denied the second amended habeas petition. It is from the circuit
court’s March 6, 2019, order that petitioner now appeals.

       This Court reviews circuit court orders denying habeas relief under the following standard:

               “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); see also Syl. Pt. 1, State ex
rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975) (holding that “[f]indings of
fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or
reversed on appeal by this Court unless such findings are clearly wrong”).

        On appeal, petitioner challenges the circuit court’s denial of three of his claims of
ineffective assistance of trial counsel. Respondent counters that the circuit court properly denied
the second amended habeas petition. We agree with respondent.

       We review ineffective assistance claims as follows:

              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,
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       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.[3]

Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (Footnote added.). Furthermore,

               [i]n 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, id. at 6-7, 459 S.E.2d at 117-18.

        Petitioner first argues that the circuit court erred in finding that Attorney Gossett would
have impeached Ms. Cunningham’s testimony, notwithstanding her prior history of being a State’s
witness, and that Attorney Gossett and Attorney Olejasz conducted an adequate investigation. At
the omnibus hearing, Attorney Gossett testified that when he was an assistant prosecutor from
1994 to 2000, there was one instance when he located Ms. Cunningham and had her come to court
to be a witness for another assistant prosecutor. Attorney Gossett stated that “it wasn’t my case”
and that he would impeach Ms. Cunningham’s testimony at petitioner’s trial. The impeachment of
Ms. Cunningham was also raised at trial when the circuit court ruled that she could be questioned
about her prior felony drug conviction.

        Attorney Gossett testified that he attempted to find the people on petitioner’s witness list,
but did not subpoena anyone for trial because he “couldn’t find any of these people.” Attorney
Gossett explained that “nobody let me in” when he knocked on their doors. Attorney Gossett
further testified that he had conversations with the drug taskforce personnel working in the area of
the robbery and discussed with petitioner that the involvement of the drug taskforce could aid his
defense.

       Attorney Olejasz testified that he conducted legal research into petitioner’s case and that
he and Attorney Gossett twice went to the convenience store near Ms. Cunningham’s apartment
to speak to the person who allegedly saw petitioner going to and coming from the apartment.
Attorney Olejasz further testified that the State produced a CD of Ms. Cunningham’s 911 call in
discovery.

         Petitioner now contends that his trial counsel’s testimony is contradicted by the allegations
set forth in his second amended verified petition. “An appellate court may not decide the credibility

       3
        The second prong of the Strickland/Miller standard is often referred to as the prejudice
prong. See State v. Hutton, 235 W. Va. 724, 739, 776 S.E.2d 621, 636 (2015).
                                               5
of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.” State
v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). With regard to habeas
proceedings, we have stated that “[i]n cases where there is a conflict of evidence between defense
counsel and the defendant, the circuit court’s findings will usually be upheld.” State ex rel. Daniel
v. Legursky, 195 W. Va. 314, 327, 465 S.E.2d 416, 429 (1995). Based on our review of the record,
particularly the omnibus hearing transcript and the second amended verified petition, we conclude
that the circuit court did not commit clear error in finding that Attorney Gossett was willing to
impeach Ms. Cunningham’s testimony and that Attorney Gossett and Attorney Olejasz conducted
an adequate investigation of the claims against petitioner.

       Next, petitioner argues that Attorney Gossett had an actual conflict of interest. Petitioner
contends that if a conflict of interest actually affects the adequacy of representation, there is no
need to demonstrate prejudice in order to obtain habeas relief pursuant to Culyer v. Sullivan, 446
U.S. 335, 349 (1980). In this regard,

       [t]he Strickland Court recognized that a claim of ineffective assistance of counsel
       arising from counsel’s conflict of interest presents a special case subject to the
       standard articulated by [Sullivan]. . . . To establish ineffective assistance of counsel
       on conflict of interest grounds, a petitioner must establish that (1) his attorney
       labored under “an actual conflict of interest” that (2) “adversely affected his
       lawyer’s performance.” See Sullivan, 446 U.S. at 348. After a petitioner satisfies
       this two-part test, prejudice is presumed. Sullivan, 446 U.S. at 349. . . .

Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir. 2001), aff’d, 535 U.S. 162 (2002).

         Here, petitioner suggests that Attorney Gossett had an actual conflict of interest because
(1) Ms. Cunningham worked as a confidential informant, whose credibility Attorney Gossett was
unwilling to impeach given his prior employment as an assistant prosecutor; and (2) Attorney
Gossett told petitioner that he thought petitioner was guilty. As discussed above, Attorney Gossett
testified that his only involvement as an assistant prosecutor with Ms. Cunningham was locating
her and having her to come to court to be a witness for a prosecution that “wasn’t my case.”
Attorney Gossett further testified that he had no recollection of telling petitioner he believed that
petitioner was guilty. Pursuant to Guthrie and Legursky, the circuit court, which had the
opportunity to observe the demeanor of both Attorney Gossett and petitioner at the omnibus
hearing, had the responsibility of weighing the evidence. Therefore, we conclude that the circuit
court’s finding that there was no evidence of an actual conflict was supported by the record and
not clearly erroneous.

        Finally, petitioner argues that he was functionally denied assistance of counsel given
Attorney Gossett’s statement, in his pretrial motion to withdraw, that the attorney-client
relationship was “destroyed and irreparable,” and, therefore, prejudice is presumed pursuant to
United States v. Cronic, 466 U.S. 648 (1984). The United States Supreme Court has said that
prejudice may be presumed in certain very narrow circumstances, such as where the deprivation
of counsel is obvious and egregious. See Bell v. Cone, 535 U.S. 685, 695 (2002) (citing Cronic,
466 U.S. at 658-59). The Supreme Court identified three such circumstances: (1) “complete denial
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of counsel” at “a critical stage”; (2) constructive denial of counsel where “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing”; and (3) instances where “counsel
is called upon to render assistance under circumstances where competent counsel very likely could
not.” Bell, 535 U.S. at 695-96.

         Here, petitioner’s trial counsel were not called upon to render assistance in any
circumstance where they likely could not do so. With regard to the other two situations identified
in Bell, petitioner initially argues that there was a complete denial of counsel at the May 1, 2008,
hearing on the motion to withdraw because Attorney Gossett failed to adequately inform the circuit
court of the difficulties between petitioner and counsel. Based on our review of the hearing
transcript, we find that Attorney Gossett stated that he was limiting his comments to the court due
to the attorney-client privilege. Moreover, petitioner’s alleged reasons to mistrust Attorney Gossett
are contradicted by the record. As found by the circuit court, Attorney Gossett did not have any
conflict of interest that adversely affected his representation of petitioner. While petitioner
contends that the “sham” duress defense was foisted on him—which would have caused him to
perjure himself by admitting to a robbery that he did not commit—Attorney Gossett and Attorney
Olejasz testified that petitioner suggested that the duress defense be used given his version of the
facts. Therefore, we find that petitioner’s arguments that there was a complete denial of counsel
are not supported by the record.

        Petitioner further argues that there was a constructive denial of counsel because Attorney
Gossett and Attorney Olejasz coerced him into pleading guilty during the recess following the
circuit court’s evidentiary rulings. Petitioner argues that this coercion occurred during a meeting
in the courthouse restroom initially involving petitioner and Attorney Olejasz, and then also
involving Attorney Gossett and the prosecutor. Attorney Olejasz specifically testified that no such
meeting took place in the courthouse restroom. The May 19, 2008, trial transcript reflects that
petitioner decided to enter an Alford/Kennedy plea following the circuit court’s evidentiary rulings
because he wanted to “take” the sentence with the earlier parole eligibility. The transcript further
reflects that petitioner was informed that “you don’t have to do this” and that the proceeding was
stopped and an off-the-record discussion held when it was believed that petitioner may have
changed his mind about pleading guilty. Therefore, we find that there was no constructive denial
of counsel and that the circuit court properly rejected petitioner’s claims alleging ineffective
assistance of counsel. We conclude that the circuit court did not abuse its discretion in denying the
second amended habeas petition.

        For the foregoing reasons, we affirm the circuit court’s March 6, 2019, order denying
petitioner’s second amended petition for a writ of habeas corpus.

                                                                                           Affirmed.




                                                  7
ISSUED: April 28, 2020

CONCURRED IN BY:

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




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