                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Trayvon Strange,                                                                  FILED
Petitioner Below, Petitioner                                                  November 3, 2017
                                                                               EDYTHE NASH GAISER, CLERK
vs) No. 16-1137 (Mercer County 16-C-328)                                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Trayvon Strange, pro se, appeals the November 16, 2016, order of the Circuit
Court of Mercer County denying his petition for a writ of habeas corpus. Respondent David
Ballard, Warden, Mt. Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a
summary 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 October of 2014, a Mercer County grand jury indicted petitioner on one count of
first-degree murder. The charge stemmed from an incident where petitioner shot Steven Rhodes
(“the victim”) in the head. Petitioner was twenty-years-old. The parties reached a plea agreement
whereby petitioner would plead guilty to the indictment and the State would agree that the
appropriate disposition of the case would be a life sentence with the possibility for parole. Because
the parties entered into the plea agreement pursuant to Rule 11(e)(1)(C) of the West Virginia Rules
of Criminal Procedure, the mutually-agreed upon sentence recommendation would be binding on
the circuit court.

      However, there was extensive discussion at both the plea and sentencing hearings about
whether, due to petitioner’s age, the circuit court should suspend his life term of incarceration in




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favor of sentencing him as a youthful offender pursuant to West Virginia Code § 25-4-6.1 At the
January 20, 2015, plea hearing, the circuit court (1) questioned whether petitioner was eligible for
youthful offender sentencing because he was pleading guilty to a felony offense punishable by a
life term of incarceration and (2) informed petitioner that, even if he was not excluded from
youthful offender sentencing, it was unlikely to sentence him pursuant to West Virginia Code §
25-4-6 given that he killed another person in a disagreement over a hallway light.

        Being so informed, petitioner told the circuit court that he still would “take this plea.”
During petitioner’s plea colloquy pursuant to Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665
(1975), the circuit court went over the constitutional rights petitioner would be waiving and asked
him whether he was pleading guilty as his own “free and voluntary act.” Petitioner responded,
“Yes.” The circuit court inquired whether petitioner was pleading guilty because he was in fact
guilty. Petitioner answered, “I’m guilty because I shot [the victim].”

        Both of petitioner’s attorneys informed the circuit court that it was in his best interest to
enter into the plea agreement. Petitioner’s attorneys also responded that they were satisfied with
the State’s production of discovery in the case. Petitioner stated that the attorneys represented him
satisfactorily and that he had no complaints regarding their performance. Petitioner testified that
he met with one attorney three times and with the other attorney approximately five times.

        The State proffered the factual basis for petitioner’s guilty plea. The State noted that the
victim, who initially survived being shot, identified petitioner in a 911 call and in a statement to a
police officer. The State noted that the victim told the officer that “it was [petitioner] that had the
gun.”

        Thereafter, the circuit court again asked petitioner whether he was pleading guilty “freely
and voluntarily.” Petitioner responded affirmatively. Finally, the circuit court inquired whether
petitioner still desired that it accept his guilty plea. Petitioner again responded affirmatively,
requesting that the circuit court “accept the plea.” At the conclusion of the plea hearing, the circuit
court found that petitioner entered his guilty plea knowingly and voluntarily, and that he did so
with a full understanding of his constitutional rights. The circuit court further found that the plea
agreement was in the interest of justice and that a factual basis existed for petitioner’s guilty plea.
The circuit court conditionally accepted petitioner’s plea pending a presentence investigation
report.

        At the March 12, 2015, sentencing hearing, the circuit court found that the presentence
investigation report was incorrect in stating that petitioner was eligible for youthful offender
sentencing pursuant to West Virginia Code § 25-4-6. The circuit court definitively ruled that West
Virginia Code § 25-4-6 provided that petitioner was ineligible for youthful offender sentencing
because he was pleading guilty to a felony offense punishable by a life term of incarceration. The

       1
        West Virginia Code § 25-4-6 provides, in relevant part, that “[t]he circuit court may
suspend the imposition of sentence of any young adult, as defined in this section, convicted of or
pleading guilty to a felony offense, other than an offense punishable by life imprisonment.”

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circuit court also repeated that, even if petitioner was eligible under West Virginia Code § 25-4-6,
it was unlikely to sentence him as a youthful offender given the facts of this case. Accordingly, the
circuit court allowed petitioner the opportunity to confer with his attorneys and the opportunity to
withdraw his guilty plea.

        Following two discussions off the record, petitioner informed the circuit court that he did
not desire to withdraw his plea and wanted to continue with the sentencing hearing. Thereafter, the
circuit court found that, because of petitioner’s “young age,” a Mercer County jury would have
made a recommendation of mercy if the case had gone to trial. Therefore, the circuit court accepted
petitioner’s guilty plea and, pursuant to Rule 11(e)(1)(C), imposed the mutually-agreed upon
sentence of a life term of incarceration with the possibility of parole.

        In State v. Strange (“Strange I”), No. 15-0372, 2016 WL 143433, at *2 (W.Va. January 11,
2016) (memorandum decision), petitioner appealed the circuit court’s ruling that he was ineligible
for youthful offender sentencing because he was pleading guilty to a felony offense punishable by
a life term of incarceration.2 This Court affirmed the circuit court’s ruling, finding that it was
consistent with the clear and unambiguous language of West Virginia Code § 25-4-6. Strange I,
2016 WL 143433, at *2.

        On October 3, 2016, petitioner filed a petition for a writ of habeas corpus pro se alleging
that (1) his guilty plea was not knowingly and voluntarily entered because of his trial attorneys’
erroneous advice that he was eligible for youthful offender sentencing; and (2) his attorneys failed
to provide effective assistance because they conducted an inadequate investigation and allowed
him to plead guilty without a full understanding of the potential for youthful offender sentencing.
By order entered on November 16, 2016, the circuit court denied petitioner’s habeas petition
without a hearing or appointment of counsel. First, the circuit court found that, at the sentencing
hearing, it “allowed [petitioner] the opportunity to withdraw his guilty plea once he was notified
that he was not eligible for youthful offender sentencing.” The circuit court further found that it
would not have sentenced petitioner as a youthful offender given that he killed a man over “an
argument about a light bulb.” Second, the circuit court found that petitioner’s trial attorneys’
advice “to plead guilty was not outside the broad range of professionally competent assistance”
given the weight of evidence, which it summarized as follows:

       [Petitioner] also admitted that he had some past problems with the victim and [the
       victim] had a bad habit of turning off the lights in the stairway in the hallway. He
       indicated that[,] on the day of the incident[,] he and [the] victim were arguing and
       he thought [the] victim pulled a machete. He initially left the apartment building[,]
       but returned a short time later with a gun and shot the victim in the back of the head.

       2
         Because the plea agreement required only that petitioner be given a life term of
incarceration with the possibility of parole, the circuit court retained discretion whether to employ
available alternative sentencing options. See Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496
S.E.2d 221 (1997) (holding that sentencing orders are reviewed only for an abuse of discretion);
Strange I, 2016 WL 143433, at *1 (same).

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        Petitioner now appeals the circuit court’s November 16, 2016, order denying his habeas
petition. 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, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). In syllabus point 3 of
Anstey, we 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. 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) [(per
       curiam)].”

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

       On appeal, petitioner first contends that his guilty plea was not knowing and voluntary
because his attorneys were mistaken with regard to his eligibility for youthful offender sentencing.
Respondent counters that the circuit court properly found that petitioner’s plea was voluntarily and
knowingly entered. We agree with respondent.

         The circuit court found that, at the sentencing hearing, it allowed petitioner the
opportunity to withdraw his guilty plea once he was informed that he was not eligible for youthful
offender sentencing. In Strange I, we similarly found that “the circuit court allowed petitioner the
opportunity to confer with his counsel and the opportunity to withdraw his guilty plea.” 2016 WL
143433, at *1. As we noted in Strange I, “petitioner agreed to proceed upon his guilty plea.” Id.
Moreover, at the earlier plea hearing, the circuit court (1) questioned whether petitioner was
eligible for youthful offender sentencing; and (2) informed petitioner that, even if he was not
excluded from youthful offender sentencing, it was unlikely to sentence him pursuant to West
Virginia Code § 25-4-6 given that he killed another person in a disagreement over whether a
hallway light should have been left on or off in their apartment complex. Therefore, we find that
petitioner was fully informed at both the plea and sentencing hearings that there was little to no
possibility of being sentenced as a youthful offender. We conclude that both petitioner’s initial
decision to plead guilty and his decision not to withdraw his plea at the sentencing hearing were
knowingly and voluntarily made.

       Second, petitioner contends that his attorneys were ineffective because they conducted an
inadequate investigation and allowed him to plead guilty without a full understanding of the
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potential for youthful offender sentencing. Respondent counters that the circuit court properly
found that petitioner’s attorneys provided effective assistance. We agree with respondent.

       We set forth the applicable standards for reviewing claims of ineffective assistance in
syllabus points 3, 4, and 6 of State ex rel. Vernatter v. Warden, West Virginia. Penitentiary, 207
W.Va. 11, 528 S.E.2d 207 (1999):

       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).

       4.      “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.” Syllabus point 6, 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.

With regard to the potential for youthful offender sentencing, we have already found that petitioner
was fully informed by the circuit court that it disagreed with his attorneys that he could be
sentenced pursuant to West Virginia Code § 25-4-6.

        With regard to the attorneys’ overall performance, we concur with the circuit court’s
finding that their advice that petitioner should plead guilty “was not outside the broad range of
professionally competent assistance.” We find that petitioner’s allegation of an inadequate
investigation is not supported by the record. The plea hearing transcript reflects that there was
discovery given by the State to the defense. During the State’s proffer of evidence, the assistant
prosecutor discussed that a witness statement had been disclosed to the defense. Petitioner’s
attorneys also commented on the State’s production of discovery in that they informed the circuit
court that they were satisfied with the State’s disclosure. Also, during the plea colloquy, the circuit
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court noted that there had been two prior hearings where it denied defense motions to suppress
certain evidence. Therefore, we find that the record reflects that petitioner’s attorneys provided
effective assistance and that their advice in favor of a guilty plea was not based on unpreparedness
for trial, but because, as they told the circuit court, the plea was in petitioner’s best interest.

        The plea agreement was in petitioner’s best interest because of its preservation of the
possibility of parole with regard to a life sentence in light of the substantial evidence of guilt.3
Both the State’s proffer at the plea hearing and the circuit court’s findings in its November 16,
2016, order detail the evidence of petitioner’s guilt. Therefore, we find that, even assuming
arguendo that petitioner’s attorneys were deficient in some way, petitioner has not shown that he
would have not pleaded guilty and insisted on going to trial. Accordingly, given the record in this
case, we conclude that the circuit court properly denied petitioner’s habeas petition without a
hearing or appointment of counsel.

        For the foregoing reasons, we affirm the circuit court’s November 16, 2016, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                         Affirmed.


ISSUED: November 3, 2017

CONCURRED IN BY:

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




       3
        Given petitioner’s young age, if he is eventually released on parole, he has the prospect of
having a life outside prison before he becomes elderly.

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