                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
                                                                                  March 28, 2014
Plaintiff Below, Respondent                                                   RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs) No. 13-0730 (Fayette County 97-F-116)                                       OF WEST VIRGINIA




Mark A. Yoney,

Defendant Below, Petitioner



                                MEMORANDUM DECISION
       Petitioner Mark. A. Yoney, by counsel James Adkins, appeals the June 26, 2013,
resentencing order entered by the Circuit Court of Fayette County following his convictions for
conspiracy to commit a felony and felony murder in the first degree. Respondent State of West
Virginia, by counsel Scott E. Johnson, filed a response.

        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 September 10, 1997, petitioner was indicted by a Fayette County grand jury on one
count of murder, one count of attempted aggravated robbery, and one count of conspiracy to
commit a felony (attempted aggravated robbery). The State alleged that on June 7, 1997, petitioner
conspired with one adult male, two adult females, and one minor female to forcibly rob the adult
male victim of his money. The victim’s body was discovered outside of his home in Fayette
County on June 9, 1997. An autopsy determined the cause of death to be a gunshot. Petitioner
claims that he tackled and struck the victim but denies shooting him.

        James Billings was appointed by the court to represent petitioner on June 18, 1997, and he
remained petitioner’s counsel through trial and post-conviction motions, including the filing of a
Petition for Appeal with this Court. On October 22, 1997, counsel for petitioner filed numerous
pre-trial motions, but it appears that no orders were ever entered by the circuit court concerning
those motions.1 Motions for scientific evidence, adequate clothing for petitioner, and to dismiss
the indictment were all denied at a November 12, 1997, hearing. However, the motion to sever
petitioner’s trial from the male co-defendant’s trial was granted at that hearing. Petitioner filed a

       1
           Judge Charles M. Vickers presided over petitioner’s trial.

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motion to bifurcate the guilt and mercy phases of the trial and a hearing was held on that motion,
but no order was entered regarding that motion. A jury trial was held in November of 1997, and
during the opening statement, Mr. Billings informed the jury that petitioner had “a year or two
ago” pled guilty to grand larceny for breaking into a garage and car and stealing a purse. On
November 22, 1997, the jury found petitioner guilty of conspiracy to commit the felony of
attempted aggravated robbery and murder in the first degree (felony murder); the jury
recommended mercy. The parties agreed that the charge of attempted aggravated robbery merged
into the charge of felony murder.

        On December 3, 1997, petitioner’s trial counsel filed a motion for a new trial, raising
“prosecutorial overmatch,” ineffective assistance of counsel, and the questionable competency of
his client. In that motion, petitioner’s trial counsel noted he had become aware during trial
preparation that petitioner was of limited intelligence. The motion also states that petitioner
entered a plea of guilty to a prior charge, giving counsel the impression that petitioner could
cooperate in trial. “Contrary to this assumption, however, [petitioner] was not able to cooperate or
assist during the trial, had little or no understanding of trial proceedings and could provide no input
into material issues of evidence or instructions.” The motion also asserts that counsel for petitioner
erred by failing to obtain a psychological evaluation prior to trial.

         A hearing was held on December 10, 1997, to address the motion for a new trial. During
that hearing, trial counsel admitted that he had not spent a great deal of time speaking with his
client prior to trial preparation and stated that he took the entry of petitioner’s plea in a previous
case “incorrectly” when he interpreted that plea to mean that petitioner was competent to enter a
plea. Counsel then informed the court that while they were awaiting the jury verdict, petitioner
“couldn’t relate back to [him] what these people had said,” which led to trial counsel seeking and
obtaining petitioner’s school records. At the December 10, 1997, hearing, trial counsel presented
the circuit court with a series of reports regarding petitioner’s early childhood years through eighth
grade. Petitioner’s scores for oral and auditory perception, as well as visual perception, were at or
below the thirtieth percentile, with some scores as low as one percent. Counsel moved to postpone
the circuit court’s ruling on the motion for a new trial to allow for a psychological evaluation of
petitioner, stating he believed that the lack of a request for a competency exam was trial counsel’s
error. However, the circuit court ruled on the motion, finding that competency had not been raised
until the motion for a new trial and that there was nothing before the court that indicated
incompetency. The circuit court found that while there was an indication that petitioner had a low
level of intelligence, it did not rise to a finding of incompetency. The circuit court also specifically
found that trial counsel had been practicing criminal law for approximately fifteen years and that
“the items that were set out as being ineffective assistance of counsel the [circuit court viewed]
strictly as trial strategy.”

        On February 2, 1998, petitioner was sentenced to the West Virginia State Penitentiary
system for an indeterminate period of one to five years for conspiracy to commit a felony, and to
life with a recommendation of mercy for felony murder in the first degree, with the sentences to
run consecutively. At that time, petitioner’s probation for the prior charge of grand larceny was
revoked, and he was also sentenced to one to ten years of incarceration with credit for time served.

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        On February 11, 1998, petitioner wrote to this Court concerning the deadline for the filing
of his appeal. In that letter, petitioner said that Mr. Billings had told him he had grounds for an
appeal, but that he had to file the same before February 25, 1998. Petitioner stated that he had
submitted numerous request slips to have an attorney appointed and that he filled out his pauper’s
affidavit in January of 1998, but had not received any response. Rodney Teal, then-Clerk of this
Court, responded to petitioner on February 18, 1998, acknowledging receipt of petitioner’s
petition for appeal, stating that petitioner’s case would be assigned to a staff attorney for review
and presentation to this Court. On April 20, 1998, Mr. Billings filed a motion seeking to withdraw
as counsel, writing that “during post trial discovery and during the pretrial and trial in this matter it
became apparent that counsel did not properly interpret certain psychological problems of
[petitioner and that] . . . the facts should be reviewed by another attorney to determine [the]
propriety of those issues for appeal.” By order entered May 7, 1998, the circuit court denied the
motion to withdraw and extended the time period for the filing of petitioner’s appeal for an
additional sixty days. Mr. Billings filed an additional motion to enlarge time, and the deadline was
again extended by this Court to September 8, 1998.

        On September 8, 1998, Mr. Billings filed a Petition for Appeal with this Court, raising as
grounds prosecutorial misconduct, mental incompetence of petitioner, and ineffective assistance
of counsel. On January 12, 1999, Deborah McHenry, then-Clerk of this Court, sent a letter to Mr.
Billings requesting that he “advise if there is any reason you feel that this petition should be
considered timely filed.” On March 5, 1999, this Court entered an order refusing petitioner’s
attempted filing a pro se petition for appeal. In May of 2013, the circuit court consulted with Rory
Perry, Clerk of this Court, and it was determined that this Court had never ruled upon the Petition
for Appeal filed by trial counsel. Further, no evidence was found in the files maintained by the
circuit clerk and this Court that trial counsel ever replied to this Court’s January 12, 1999, letter
regarding the “timeliness” of the filing of the Petition for Appeal.

        On August 26, 2007, petitioner executed a Losh checklist.2 On May 29, 2008, petitioner
appeared for his omnibus habeas corpus hearing concerning petitioner’s pro se habeas petition and
amended petition filed by counsel. The grounds set forth in the amended habeas petition were: 1)
ineffective assistance of counsel, as counsel did not adequately request an examination for
competence prior to trial; 2) ineffective assistance of counsel when counsel disclosed petitioner’s
prior conviction to the jury; 3) ineffective assistance of counsel and the denial of due process of
law when this Court denied petitioner’s pro se petition for appeal without determining whether he
was making a knowing and intelligent waiver of appellate counsel; 4) the State’s failure to provide
discovery as requested by petitioner’s trial counsel in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and Article III, Section 10 of the West
Virginia Constitution; 5) failure to establish petitioner’s mental competency to stand trial; 6)
petitioner was twice placed in jeopardy for the same crime in violation of the Fifth Amendment to
the United States Constitution and Article III, Section 5 of the West Virginia Constitution; and 7)
cumulative errors in the underlying criminal case.

        In its June 26, 2013, order, the circuit court found the following: petitioner’s February 11,

        2
            See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

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1998, letter to this Court was not a knowing and intelligent waiver of his right to appellate counsel;
petitioner’s mental competency was an issue raised both in the amended petition before the circuit
court and the Petition for Appeal filed by trial counsel; it was highly questionable whether
petitioner was possessed of sufficient mental capacity to make a knowing and intelligent waiver of
his right to counsel on appeal; trial counsel’s failure to respond to this Court’s letter of January 12,
1999, and his failure to take reasonable action to ensure that the Petition for Appeal were
considered by this Court is convincing evidence of the existence of ineffective assistance of
counsel; but for the unprofessional conduct or lack of conduct on the part of trial counsel,
petitioner’s Petition for Appeal would have been considered by this Court; and petitioner’s claims
of denial of due process and ineffective assistance of counsel in the prosecution of his direct appeal
clearly rise to the level of probable cause necessitating the issuance of the requested writ. The
circuit court also found that petitioner was entitled to prosecute a direct appeal to this Court as to
his felony convictions, but that, absent an appeal, the circuit court was reluctant to disturb the
jury’s guilty verdicts and the subsequently imposed consecutive sentences in the underlying
criminal case. It went on to find that the appropriate remedial action was for petitioner to be
resentenced, with credit for time served, because such resentencing would enable counsel to timely
file a petition for appeal on petitioner’s behalf. Further, since the circuit court found that petitioner
was denied his constitutional rights to due process and effective assistance of counsel in
prosecuting a direct appeal, it declined to review the remaining grounds for relief raised by
petitioner. The circuit court ordered that a resentencing order be entered for the purpose of
providing petitioner the opportunity to file a petition for appeal. Petitioner appeals from that
resentencing order.

         In his appeal, petitioner sets forth three assignments of error. He first argues that he was
denied due process of law because the trial court denied his request for a competency examination
after trial counsel raised a good faith doubt as to petitioner’s competence. Petitioner asserts that
when a trial court is made aware of a possible problem with a defendant’s competency, it is an
abuse of discretion to deny a motion for a psychiatric evaluation. Trial counsel raised the issue of
petitioner’s competency to stand trial at a hearing on petitioner’s motion for a new trial in
December of 1997. At that point, counsel requested a delay of sentencing until a psychiatric
evaluation could be performed. Trial counsel admitted that prior to trial, he spent approximately
three hours with petitioner, as the bulk of the trial preparation interviews were done by counsel’s
investigator. Trial counsel stated that when the jury was deliberating at the conclusion of the trial,
counsel had the opportunity to spend some time with petitioner and learned that petitioner was
unable to recall in detail the testimony of specific witnesses or other events during the trial.
Petitioner points to his school transcripts that evidence poor performance. He contends that he was
denied due process of law when trial counsel placed on the record facts to establish a reasonable
concern for petitioner’s competence and the trial court failed to utilize adequate procedures to
obtain a competency examination.

       “Because a trial court is able to observe the demeanor of the defendant and consequently
has a better vantage point than this Court to make determinations regarding mental competency,
we will disturb a lower court’s ruling denying a psychiatric examination and related proceedings
only where there has been an abuse of discretion.” State v. Saunders, 209 W.Va. 367, 379, 549
S.E.2d 40, 52 (2001) (citing State v. Arnold, 159 W.Va. 158, 163, 219 S.E.2d 922, 925 (1975)
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(overruled on other grounds)). Counsel for petitioner did not present any evidence to the circuit
court that petitioner engaged in irrational behavior, had a mental illness, exhibited any behavioral
abnormalities, or had previously been confined due to mental issues, nor was there any testimony
of incompetence. There was no motion for a mental competency evaluation prior to or during the
jury trial, and it appears from the record below that neither the circuit court, the prosecutor, nor
trial counsel had noticed any concerning behavior during the trial or the hearings prior to trial. For
these reasons, we cannot conclude that the circuit court abused its discretion in denying
petitioner’s request for a psychiatric examination.

        Petitioner next claims that he was denied effective assistance of counsel when counsel
disclosed petitioner’s prior conviction for grand larceny to the jury during opening statements.
Petitioner admits that counsel’s intention in disclosing the conviction was to demonstrate that
Jeanette Dotson, the person who turned the murder weapon over to law enforcement, had a reason
to fabricate evidence against petitioner. This highlights the possibility that the disclosure of the
prior conviction was a strategic decision by the defense. We stated in Syllabus Point 10 of State v.
Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992), as follows:

               It is the extremely rare case when this Court will find ineffective assistance
       of counsel when such a charge is raised as an assignment of error on a direct appeal.
       The prudent defense counsel first develops the record regarding ineffective
       assistance of counsel in a habeas corpus proceeding before the lower court, and
       may then appeal if such relief is denied. This Court may then have a fully
       developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

See State v. Smith, 226 W.Va. 487, 493 n.6, 702 S.E.2d 619, 625 n.6 (2010) (“Because we do not
address the defendant's proportionality arguments on the merits—other than concluding that it is
not properly raised on direct appeal—the defendant is not barred from raising that issue in a
petition for writ of habeas corpus ad subjiciendum.”) As set forth above, the circuit court has
already addressed petitioner’s claim of ineffective assistance of trial counsel in the habeas
proceeding. For these reasons, we decline to address this assignment of error at this juncture.

        Petitioner’s final assignment of error is his contention that he was denied presentence
detention credit of 113 days on his aggregate sentence for time served in a prior case, Case No.
96-F-118. Petitioner argues that while he received credit for 220 days spent in jail beginning on
June 8, 1997, he did not receive credit for time served between September 20, 1996, and January 9,
1997.3 According to petitioner, he was arrested on September 20, 1996, and remained incarcerated
until January 9, 1997, at which time his sentence was suspended and he was placed on probation.
Petitioner’s probation from Case No. 96-F-118 was revoked in the original sentencing order
entered by the Circuit Court of Fayette County in 1998 in Case No. 97-F-116. In the resentencing
order entered on June 26, 2013, the circuit court stated that the order revoking probation in Case
No. 96-F-118 shall remain in full force and effect. Petitioner did not file a motion for correction of

       3
         Petitioner claims that this time period entitles him to 113 days of credit, but our
calculations differ from petitioner’s.
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sentence in either Case No. 96-F-118 nor 97-F-116. Because the requested consideration for time
served related to Case No. 96-F-118, which is not the case on appeal to this Court, we decline to
address this assignment of error. However, nothing in this memorandum decision precludes
petitioner from filing a motion before the sentencing court to address this issue.

       For the foregoing reasons, we find that the circuit court did not abuse its discretion in
entering the resentencing order under the facts presented to this Court. We, therefore, affirm the
June 26, 2013, resentencing order entered by the Circuit Court of Fayette County.

                                                                                        Affirmed.

ISSUED: March 28, 2014

CONCURRED IN BY:

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




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