                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Jason William Holstein,

Petitioner Below, Petitioner                                                      FILED

                                                                              March 24, 2017
vs) No. 16-0420 (Kanawha County 15-P-375)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Jason William Holstein, pro se, appeals the April 19, 2016, order of the Circuit
Court of Kanawha County dismissing his petition for a writ of habeas corpus without prejudice
pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus
Proceedings. Respondent David Ballard, Warden, Mount 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.

        On January 19, 2009, petitioner and co-defendants Larry Cantrell and Joshua Taylor
traveled to the home of David Scarbro in Chelyan, West Virginia, with the intent to rob him of
drugs and money. The trio was armed with a handgun and a sawed-off shotgun. Petitioner and Mr.
Cantrell obtained these weapons from a third-party after which they modified the shotgun in
preparation for the instant crimes.

       During the course of the robbery, Mr. Scarbro was repeatedly struck with the guns, causing
him to suffer gaping wounds to his head, face, and other areas of his body, and he was repeatedly
kicked in the ribs. The victim’s wife returned home as the robbery was proceeding. Mrs. Scarbro
reported that, as she neared the residence, she heard her husband arguing with a man. After she
began beating on the front door, it opened, and she was pulled inside the home and thrown into a
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chair. Two masked men and her husband then ran onto the porch, at which time she heard two gun
shots. Mrs. Scarbro found her husband lying motionless on the porch. Mr. Scarbro had been shot
once in the back at close range and died at the scene from his injuries. Mrs. Scarbro did not know
who shot her husband.

        Following an investigation by the Kanawha County Sheriff’s Department, petitioner, Mr.
Cantrell, and Mr. Taylor were arrested. According to Mr. Cantrell, petitioner would not stop
saying that “[petitioner] finally got one, talking about killing someone.” When Mr. Taylor was
questioned by authorities, he stated that, as he ran out of the victim’s home, he saw petitioner shoot
Mr. Scarbro as he lay face down on the porch. In contrast, petitioner denied shooting Mr. Scarbro,
reporting instead that Mr. Taylor said that the gun “just went off.”

       All three men were indicted on two counts of breaking and entering, one count of
attempted armed robbery, and one count of first-degree murder (felony murder). Mr. Cantrell and
Mr. Taylor each pled guilty to first-degree felony murder, and both were sentenced to life
imprisonment with the possibility of parole.

        On April 12, 2010, petitioner entered into a plea agreement with the State, in which he
agreed to plead guilty to first-degree felony murder. In return, the State agreed to dismiss the other
counts in the indictment and to stand silent at sentencing. Later this same day, a plea hearing was
held before the circuit court. During this hearing, the petitioner testified that he read, reviewed, and
discussed the plea agreement with his attorney prior to signing the agreement. The attorney
confirmed this joint review and expressed his belief that the plea was in petitioner’s best interest.
The circuit court asked petitioner whether he understood the crimes he was charged with
committing. Petitioner responded affirmatively. When questioned about his education, petitioner
stated that he had a high school diploma and attended barber college.

        Petitioner informed the circuit court that he was diagnosed with bipolar disorder; however,
the circuit court observed that petitioner met with his attorney for approximately three hours that
morning and asked whether counsel found petitioner to be “lucid” and whether he understood the
purpose of the plea hearing. In response, the attorney described petitioner as “lucid and knows
where he is and why we’re here and what he’s doing.” Petitioner’s attorney also responded
affirmatively when asked whether petitioner was “oriented as to time and place” and able “to recall
past events.”

        Recounting his contact and collaboration with his client, petitioner’s attorney stated he
reviewed discovery received from the State and discussed all counts in the indictment with
petitioner and the defense to be presented based on that evidence. Petitioner’s attorney further
stated that he hired an investigator to interview witnesses, served subpoenas, and was prepared to
go to trial if that was petitioner’s choice.

       In response to the circuit court’s inquiry, petitioner stated that he was completely satisfied
with his attorney’s representation. Specifically, when the circuit court asked petitioner if his
attorney did everything he wanted the attorney to do, petitioner answered, “[h]e’s done everything
I asked.” Furthermore, when the circuit court queried whether petitioner’s attorney entered into
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plea negotiations “with your permission and consent,” petitioner responded, “Yes ma’am. He did.”
Petitioner explained that he had his attorney “consult with my family on my behalf, and we feel
that this is probably for the best.” Petitioner further testified, as follows:

        Q. Has anyone promised you a lenient sentence or made any promise to you other
        than as set forth in the . . . plea agreement?

        A. No, ma’am.

        Q. Has anyone threatened, intimidated, coerced or pressured you in any manner to
        give up your constitutional rights to a trial?

        A. No, ma’am, they haven’t.

        Q. Okay. And are you telling me . . . that you are here today asking me to accept this
        agreement in [sic] your plea of your own free will?

        A. Yes, ma’am. I am.

        Q. This is your decision?

        A. Yes, ma’am.

         Prior to accepting petitioner’s guilty plea, the circuit court addressed with the petitioner
each of the rights he would be relinquishing through his guilty plea, including the presumption of
innocence; the right to a trial before an impartial jury of twelve persons; the State’s burden of
proving his guilt beyond a reasonable doubt; the right against compelled self-incrimination; the
right to present witnesses to testify on his behalf; and the right to question the State’s witnesses and
to confront his accusers. Petitioner testified that he understood each of the rights he would be
relinquishing through his guilty plea.

        Satisfied petitioner understood the rights he would be relinquishing and that the decision to
enter a guilty plea was of his own free will, the circuit court explained the potential sentence that
could be imposed if it accepted his guilty plea to first degree felony murder. Petitioner affirmed his
understanding that he could be sentenced to life in prison without the possibility of parole;
similarly, petitioner’s attorney confirmed that he explained to petitioner what life without the
possibility of parole meant; that sentencing would be entirely in the court’s discretion; and that the
State would stand silent as to sentencing pursuant to the terms of the plea agreement.

        Finally, before allowing petitioner to enter his guilty plea, the circuit court provided him
with another opportunity to confer with his attorney. Petitioner’s attorney informed the circuit
court that he conferred with petitioner, who was ready to proceed at that time. Petitioner then
entered his guilty plea to first-degree murder The circuit court found that petitioner freely and
voluntarily entered his guilty plea with the advice and consultation of competent legal counsel and
had understood the consequences of his plea, including the possible penalties the court could
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impose at sentencing. The circuit court accepted petitioner’s guilty plea and adjudged him guilty of
first-degree murder.

        Subsequent to petitioner’s conviction and prior to his sentencing, the Adult Probation
Department prepared a presentence report. This lengthy report describes petitioner as “well known
to authorities and Officers in the Adult Probation Department, [Division] of Corrections, Home
Confinement, Parole, and Juvenile Probation due to his extensive criminal history[,]” which
includes convictions for eight felony breaking and enterings. As reflected in the report, petitioner
committed the instant crime within three months of being discharged from parole and “admitt[ed]
to planning the robbery in great detail and advising others [Mr. Cantrell and Mr. Taylor] how to
commit such a robbery ‘properly.’” The report also contains statements taken from Mr. Cantrell,
Mr. Taylor, and others, all of which indicated that witnesses observed petitioner shooting the
victim, heard him admit to shooting the victim, or heard him brag about doing so afterward.

       With regard to the question of whether petitioner was remorseful for the instant crime, the
presentence report states:

       Records show [petitioner] has a history of failing to tell the truth and trying to
       manipulate others . . . to extricate himself from problematic situations . . . while, at
       the same time, appearing as though he is seemingly compliant, worthy and capable
       of rehabilitation or change, and sincerely sorry for his actions and wrongdoings. As
       this Officer has repeatedly dealt with [petitioner] for years and is quite familiar with
       him, this Officer cannot stress enough a belief that [petitioner] . . . is masterful at
       appearing remorseful, genuine, and sincere, though all, in this Officer’s opinion, is
       a performance or ruse.

The probation officer concluded the report by stating:

       [Petitioner] . . . expressed no sincere remorse for his actions or towards the victim,
       accepts little to no responsibility, and provided, yet again, a statement that seems to
       indirectly portray himself as a victim of sorts or as someone who is inexperienced
       or a follower . . . It is this Officer’s opinion [ ] [that petitioner] is simply good at
       playing the game.

        The circuit court held a sentencing hearing on June 30, 2010. During this hearing,
petitioner’s attorney confirmed that he had reviewed the presentence report with petitioner. When
the circuit court asked whether there were any factual matters contained in the presentence report
that petitioner wished to raise, his attorney responded, “No. There is nothing that is factually
inaccurate in the report. . . .” Petitioner presented the testimony of four witnesses offered in
mitigation of his sentence: his mother, his stepfather, his youngest brother, and a family friend.
During his allocution, petitioner testified that “I don’t expect to get mercy today” and apologized
to the circuit court, the victim’s family, and to his family and asked for their forgiveness. Upon its
consideration of the witnesses’ testimony and petitioner’s allocution, the circuit court sentenced
petitioner to life imprisonment without the possibility of parole.

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        Petitioner appealed his conviction and sentence to this Court. In State v. Holstein, 235
W.Va. 56, 59, 770 S.E.2d 556, 559 (2015), petitioner argued (1) his guilty plea to first-degree
murder was not entered knowingly, voluntarily, and intelligently; and (2) his sentence was
disproportionate to the sentences imposed upon his co-defendants. With regard to the first issue,
we found that the circuit court properly accepted petitioner’s guilty plea on the ground that “[t]he
record is simply bereft of any such evidence” that he did not enter his plea knowingly, voluntarily,
and intelligently id. at 67, 770 S.E.2d at 567.

       With regard to the second issue, we reiterated the following:

               [D]isparate sentences for codefendants are not per se unconstitutional.
       Courts consider many factors such as each codefendant’s respective involvement in
       the criminal transaction (including who was the prime mover), prior records,
       rehabilitative potential (including post-arrest conduct, age[,] and maturity), and
       lack of remorse. If codefendants are similarly situated, some courts will reverse on
       disparity of sentence alone.

Id. at 68, 770 S.E.2d at 568 (internal quotations and citations omitted). We further noted the
probation officer’s opinion regarding the sincerity of petitioner’s expressed remorse and recitation
of petitioner’s extensive criminal history. Id. Therefore, we concluded that—even if the statements
identifying petitioner as the shooter, contained in the officer’s presentence report, were
inaccurate—the circuit court did not abuse its discretion by imposing a harsher sentence upon
petitioner than the sentences imposed upon his co-defendants. Id. Accordingly, we affirmed
petitioner’s conviction and sentence. id. at 68-9, 770 S.E.2d at 568-9.

        On September 3, 2015, petitioner filed a petition for a writ of habeas corpus raising the
following grounds for relief: (a) his sentence was unconstitutionally disproportionate; and (b) his
attorney provided ineffective assistance during plea negotiations. With regard to petitioner’s
second claim, his allegations of ineffective assistance can be grouped into the following
categories: (1) his attorney’s failure to investigate and familiarize himself with the facts of
petitioner’s case; (2) his attorney’s failure to move for a psychological evaluation; (3) his
attorney’s failure to object to the statements in the presentence report that identified petitioner as
the shooter; (4) his attorney’s failure to offer adequate evidence in mitigation at sentencing; and (5)
his attorney’s advice caused him to expect that he would receive a life sentence of incarceration
with the possibility of parole.

        By order entered on April 19, 2016, the circuit court found that “no hearing [was] required”
on petitioner’s grounds for relief and dismissed the petition pursuant to Rule 4(c) of the West
Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings, which provides, as
follows: “If the petition contains a mere recitation of grounds without adequate factual support, the
court may enter an order dismissing the petition, without prejudice, with directions that the petition
be refiled containing adequate factual support. The court shall cause the petitioner to be notified of
any summary dismissal.” As part of its order, the circuit court directed that “a copy of this order
[be served] upon the petitioner.”

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       Petitioner now appeals the circuit court’s April 19, 2016, order dismissing without
prejudice 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). A court having jurisdiction
over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing
or appointment of counsel “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.” Syl. Pt. 1,
Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

       On appeal, petitioner contends that his factual allegations were sufficient to warrant a
habeas corpus hearing and appointment of counsel prior to any ruling on his petition. Respondent
counters that the circuit court properly dismissed the petition based on our decision in Holstein.
We agree with respondent.

        With regard to petitioner’s first ground for relief, petitioner asserts that he expected to
receive life imprisonment with the possibility of parole and the fact that he did not means that he
received a harsher sentence than both of his co-defendants, who received life sentences under
which they will become parole eligible. We find that the record contradicts petitioner’s contention
that he expected to receive life imprisonment with the possibility of parole because, during his
allocution, he stated that “I don’t expect to get mercy today.” Holstein, 235 W.Va. at 63, 770
S.E.2d at 563. Moreover, we found in Holstein that the circuit court did not abuse its discretion by
imposing a harsher sentence upon petitioner than the sentences imposed upon his co-defendants,
noting that such sentence disparity among co-defendants was “not per se unconstitutional.” id. at
68, 770 S.E.2d at 568 (quoting Syl. Pt. 3, State v. Robey, 233 W.Va. 1, 754 S.E.2d 577 (2014)).
Therefore, we conclude that petitioner’s contention that his sentence was unconstitutionally
disproportionate was previously and finally adjudicated in Holstein.

        With regard to petitioner’s second ground for relief, claims of ineffective assistance of
counsel are governed by the two-prong test established in Strickland v. Washington, 466 U.S. 668
(1984): (a) counsel’s performance was deficient under an objective standard of reasonableness;
and (b) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995). Petitioner’s allegations of ineffective assistance are based on the following asserted
deficiencies: (1) his attorney’s failure to investigate and familiarize himself with the facts of
petitioner’s case; (2) his attorney’s failure to move for a psychological evaluation; (3) his
attorney’s failure to object to the statements in the presentence report that identified petitioner as
the shooter; (4) his attorney’s failure to offer adequate evidence in mitigation at sentencing; and (5)
his attorney’s advice implying that he would receive a life sentence of incarceration with the
possibility of parole. We address these allegations seriatim.
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        First, our decision in Holstein reflects that petitioner and his attorney received discovery
from the State and discussed all counts in the indictment and the defense to be presented based on
that evidence. 235 W.Va. at 61, 770 S.E.2d at 561. Moreover, the transcript of the April 12, 2010,
plea hearing reflects that petitioner’s attorney stated that he hired an investigator to interview
witnesses, served subpoenas, and was prepared to go to trial if that was petitioner’s choice.
Petitioner contends that his attorney should also have filed a motion to obtain the grand jury
transcript, but fails to state how that transcript would have aided the defense except for a vague
allegation that it could have been used to impeach witnesses. We find that such an allegation is
insufficient to show ineffective assistance given that petitioner waived his right to present and
cross-examine witnesses by pleading guilty. We similarly reject petitioner’s contention that his
attorney should have retained an expert in crime scene reconstruction given that he also waived his
right to have the State prove its case beyond a reasonable doubt.

       Second, we find that petitioner’s attorney’s failure to move to have petitioner undergo a
psychological evaluation was not ineffective assistance given our finding in Holstein that, “even if
we were to assume . . . petitioner’s alleged bipolar diagnosis is accurate, the record flatly
contradicts his contention that his guilty plea was not intelligently and voluntarily made.” Id. at 67,
770 S.E.2d at 567. We explained that “[petitioner’s] answers to the circuit judge’s questions were
responsive and clear” and that “[he] repeatedly assured the circuit judge that he understood each of
the constitutional rights that he would be waiving through his guilty plea and that the decision to
plead guilty was his alone.” Id.

        Third, we find that petitioner’s attorney’s failure to object to the witness statements
contained in the presentence report did not affect the outcome of petitioner’s sentencing hearing
given our finding that, even if those statements were inaccurate, the circuit court did not abuse its
discretion by imposing a harsher sentence upon petitioner than the sentences imposed upon his
co-defendants. Id. at 68, 770 S.E.2d at 568.

        Fourth, we find that petitioner’s contention that his attorney’s failure to offer adequate
evidence in mitigation at sentencing morphs on appeal into an argument that defendants who plead
guilty to first-degree murder should have a right to move for a bifurcated mercy phase similar to
the right of defendants who proceed to trial to make such a motion. Respondent counters that
petitioner’s argument is without merit given the facts of his case. We agree with respondent and
find that petitioner pled guilty and was sentenced at separate hearings. At the June 30, 2010,
sentencing hearing, petitioner’s attorney presented the testimony of his mother, his stepfather, his
youngest brother, and a family friend. Id. at 63, 770 S.E.2d at 563. Therefore, we reject petitioner’s
contention that his attorney failed to offer adequate evidence in mitigation.

        Finally, as previously noted, we find that petitioner’s contention that his attorney’s advice
caused him to expect that he would receive life imprisonment with the possibility of parole is
contradicted by the statement petitioner made during his allocution that “I don’t expect to get
mercy today.” Id. Therefore, we find petitioner’s allegations of ineffective assistance of counsel
lack merit and do not warrant a habeas corpus hearing or appointment of counsel. Accordingly, we
find that the circuit court did not abuse its discretion in dismissing petitioner’s habeas petition with
regard to both claims asserted therein.
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        For the foregoing reasons, we affirm the circuit court’s April 19, 2016, order dismissing
petitioner’s petition for a writ of habeas corpus.1

                                                                                         Affirmed.

ISSUED: March 24, 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




       1
        As noted by the circuit court, because it dismissed petitioner’s habeas petition pursuant to
Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings, the
dismissal will not bar petitioner from filing future petitions.

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