         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2016 Term

                                                                    FILED

                                                               February 12, 2016

                                    No. 14-0780                      released at 3:00 p.m.
                                                                   RORY L. PERRY, II CLERK

                                                                 SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA





                                RICKY VON RAINES,

                                     Petitioner


                                        v.

                         DAVID BALLARD, Warden,

                       Mount Olive Correctional Complex,

                                 Respondent




                  Appeal from the Circuit Court of Logan County

                     The Honorable Eric H. O’Briant, Judge

                            Civil Action No. 12-C-102


                                    AFFIRMED



                          Submitted: January 12, 2016

                           Filed: February 12, 2016


Mark L. French, Esq.                                 Patrick Morrisey, Esq.
Criswell French Condaras PLLC                        Attorney General
Charleston, West Virginia                            David A. Stackpole, Esq.
Counsel for the Petitioner                           Assistant Attorney General
                                                     Charleston, West Virginia
                                                     Counsel for the Respondent


JUSTICE WORKMAN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




              1.     “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).



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



              3.     “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


                                              i
acted, under the circumstances, as defense counsel acted in the case at issue.” Syl. Pt. 6, State

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




                                               ii

Workman, Justice:



                 This case is before the Court upon the appeal of the July 14, 2014, order

denying a petition for habeas corpus brought by the Petitioner, Ricky Von Raines. The

Petitioner argues that: 1) the circuit court erred in failing to find that his trial counsel

provided incorrect and wrong legal advice when he was given the decision to accept or reject

a plea agreement before proceeding to trial; and 2) the Petitioner’s attorney did not prepare

him prior to taking the stand in his own defense.1 Having thoroughly reviewed the parties’2


       1
         The Court permitted the Petitioner to file a pro se reply brief after his counsel did not
file a reply. In the reply brief, the Petitioner argued that: 1) he was given erroneous advice
by his trial attorney that the State could not bring a recidivist action against him if the
Petitioner proceeded to trial because the Petitioner’s past felonies were nonviolent; 2) he was
erroneously advised regarding the Post-conviction Plea Offer (“Post-conviction Offer”); and
3) he was not only threatened by the prosecutor and the circuit court with a harsher sentence
if he did not accept the Post-conviction Plea Offer, but also that he was ordered to accept the
plea by his trial counsel.
        We summarily dispense with these additional arguments raised by the Petitioner in his
reply. Regarding his first argument, the State responded that the Petitioner acknowledged
on the record when rejecting the Pre-trial Plea Offer (“Pre-trial Offer”) that the State could
bring a recidivist action against him. The record supports the State’s position on this point.
Thus, we find no merit to this argument. As for the Petitioner’s second argument, we discuss
the erroneous advice given by the Petitioner’s trial counsel in great detail infra in section III
of this opinion. Regarding the Petitioner’s assertion that his trial counsel ordered him to
accept the Post-conviction Offer, we find no support in the record to substantiate this
assertion. Likewise, there is no support in the record to support the Petitioner’s claim that
he was threatened by the State and the circuit court with a harsher sentence if he failed to
accept the Post-conviction Offer. The transcript of the hearing wherein the Court accepted
the Petitioner’s Post-conviction plea shows that it was entered into knowingly and voluntarily
by the Petitioner.
       2
           Because the Petitioner’s claims stem from the underlying trial in this matter, we refer
                                                                                   (continued...)

                                                 1

briefs and arguments, the joint and supplemental appendices, and all other matters submitted

before the Court, we affirm the circuit court’s decision denying the Petitioner habeas corpus

relief.



               At issue in this case are two plea deals offered by the State. The first is the

Pre-trial Offer and the second is the Post-conviction Offer regarding the recidivist action.

See W. Va. Code § 61-11-18 (2014). Because an understanding of what advice was given

by the Petitioner’s trial counsel in conjunction with each plea is critical to the resolution of

this case, we begin with a close examination of the facts as set out in the record.



                              I. Facts and Procedural History

               On January 13, 2009, the Petitioner was indicted, along with two co­

defendants, Timothy Lambert and Jessica Raines, for robbery in the first degree, malicious

assault, nighttime burglary and conspiracy. Mark Hobbs, who had previously represented

the Petitioner in other criminal matters, was appointed to represent the Petitioner.

                                      A. Pre-trial Offer

               On May 4, 2009, the day before trial, the State extended the Petitioner a plea

offer. The next day, at a pre-trial hearing, the Petitioner’s trial counsel brought to the circuit

court’s attention the Pre-trial Offer. The prosecutor informed the circuit court that the Pre-

          2
        (...continued)
to the Respondent simply as “the State.”

                                                2

trial Offer was to “reduce the charge of burglary to breaking and entering which would carry

a one- to ten-year sentence, and then he [referring to the Petitioner] would plead guilty to the

conspiracy which carries a possible sentence of one to five years.” The prosecutor told the

circuit court that the decision regarding whether the sentence would be concurrent or

consecutive would be left to the court’s discretion. Further, the prosecutor informed the

circuit court that under the terms of this offer, the State would not pursue any recidivist

charge against the Petitioner. Thus, the maximum time in prison faced by the Petitioner

under the offered plea was not less than two nor more than fifteen years.



              Also at the pre-trial hearing, the Petitioner’s trial counsel informed the circuit

court that the State had made the Pre-trial Offer to his client, that he had informed his client

about the offer, that he recommended that his client accept the offer and that his client

rejected the offer. Additionally, the Petitioner’s trial counsel placed on the record before the

court that he had discussed the recidivist issue with his client as follows:

              I’ll be the first to tell you, Judge, I discussed the possibility of
              recidivist with my client, but either I overlooked or didn’t listen,
              but I was thinking all his felonies were non-violent, and I know
              burglary at least for purposes of parole is characterized as a
              violent crime. So I know that if there is a second violent crime
              conviction, that would present a possible factual basis for the
              recidivist to the life sentence rather than doubling the minimum.

The Petitioner was asked directly by the circuit court: 1) if he was aware of the Pre-trial

Offer; 2) if he understood that the State would forgo filing any recidivist action if he took the



                                               3

offer; and 3) if he had informed his attorney to reject the offer. The Petitioner answered

affirmatively to each of the three areas of inquiry by the court. Additionally, the State clearly

expressed its intention to pursue a recidivist charge against the Petitioner and that it was the

State’s position that the Petitioner could be sentenced up to life in the penitentiary if

convicted as a result of the recidivist charge.

                                          B. The Trial

                It is significant that prior to trial, the Petitioner submitted a notice pursuant to

West Virginia Rule of Criminal Procedure 12.13 that he would deny any involvement in the

crime and seek to establish an alibi at trial.4 The trial commenced on May 5, 2009. The

evidence introduced by the State5 revealed that on August 6, 2008, the Petitioner and his co­


       3
           West Virginia Rule of Criminal Procedure 12.1(a) provides:

                        Upon written demand of the attorney for the state stating
                the time, date and place at which the alleged offense was
                committed, the defendant shall serve within 10 days, or at such
                different time as the court may direct, upon the attorney for the
                state a written notice of the defendant’s intention to offer a
                defense of alibi. Such notice by the defendant shall state the
                specific place or places at which the defendant claims to have
                been at the time of the alleged offense and the names and
                addresses of the witnesses upon whom the defendant intends to
                rely to establish such alibi.
       4
       According to his trial counsel’s testimony during the omnibus hearing, the Petitioner
“had always indicated the he was not the one that went in” to the residence where the crimes
occurred.
       5
        The trial transcript was not submitted as part of the appendix record. The facts
regarding the evidence offered at trial are taken from the parties’ respective briefs related to
                                                                                 (continued...)

                                                 4

defendants conspired to steal medications and guns from the home of Mr. and Mrs. Goble

McFarland. The Petitioner’s sister, the co-defendant Jessica Raines, was supposed to make

sure that no one was home on the evening of the crime. The Petitioner and his cousin, the

co-defendant Timmy Lambert, entered the McFarland home and began searching for

medication. The two discovered Mrs. McFarland in a bedroom. They tied her up using zip-

ties and demanded that she tell them where the medications and firearms were located. They

continued their search of the home for drugs. The Petitioner and his cousin found

medications and firearms and returned to the bedroom where Mrs. McFarland was located.

The Petitioner struck Mrs. McFarland two to three times in the head, then the men left the

home with the stolen items. Mrs. McFarland received fourteen staples in the back of her

head as a result of being hit.



              The Petitioner testified at trial.6 Prior to his testimony, the circuit court

inquired of the Petitioner as to whether his trial counsel reviewed the “Advice of Defendant’s

Right to Testify” form with him and the Petitioner confirmed that he did. The court asked


       5
        (...continued)
the petition for habeas corpus submitted below and found in the joint appendix, as well as
from the Petitioner’s testimony during his post-conviction plea hearing that occurred on June
24, 2009.
       6
        The Petitioner maintained that his trial counsel told him that “the direct evidence is
putting you at the crime. Now you have to take the [s]tand.” The Petitioner claimed that his
trial counsel had not prepared him to testify and because of the lack of preparation, the
Petitioner “perform[ed] poorly on the stand, and incurr[ed] an additional charge for perjury.”


                                              5

the Petitioner if he had any questions regarding his right to testify or his right to remain silent

and the Petitioner said, “[n]o, I do not.” The circuit court directly asked if the Petitioner

understood “that if you give up your right to remain silent and testify, then anything you say

here today can be used against you” and the Petitioner responded, “[y]es, sir.” The Petitioner

also took an oath to testify truthfully before taking the witness stand. The Petitioner then

testified and denied that he had any role in the crimes. He further denied being present

during the commission of the crimes. Instead, the Petitioner claimed he was at home with

his girlfriend at the time of the crimes. The Petitioner’s girlfriend also testified in an attempt

to corroborate the Petitioner’s story. She admitted, however, that she was asleep during the

time of the crimes.7



               The jury convicted the Petitioner of robbery in the first degree, nighttime

burglary, and conspiracy. The jury acquitted the Petitioner of malicious assault.

                                  C. Post-conviction Offer

               After the Petitioner’s conviction, the State filed a recidivist action against him

pursuant to West Virginia Code § 61-11-18, asserting that the Petitioner had multiple prior

felony convictions. The State offered a plea deal to the Petitioner that required him to:

                      (1) “acknowledge in open Court today that he committed
               the offenses for which he was convicted;”

       7
       At a later plea hearing on the Post-conviction Offer, the Petitioner maintained that
although he drove his accomplices to the McFarland home, he never entered the house.


                                                6

                     (2) plead guilty to Perjury and be sentenced to a term of
              one (1) to five (5) years;
                     (3) be sentenced to a term of one (1) to five (5) years on
              the Conspiracy conviction;
                     (4) be sentenced to a term of one (1) to fifteen (15) years
              on the Burglary conviction;
                     (5) be sentenced to not less than thirty (30) years on the
              Aggravated Robbery conviction;
                     (6) “acknowledge in open court . . . [that the Petitioner is]
              the same person that was convicted of burglary in Case No.
              03-F-42-0”for recidivist purposes and be sentenced to an
              additional five (5) years on that basis; and
                     (7) have all the sentences run concurrently.

It was understood that under this Post-conviction Offer the Petitioner would be eligible for

parole after serving a minimum of ten and one-half years.8



              At a June 23, 2009, status conference, one day before the Petitioner’s recidivist

trial was scheduled to commence, the State explained that the Post-conviction Offer was off

the table. During an explanation to the circuit court concerning the negotiations that had

transpired between the Petitioner and the State relating to the Post-conviction Offer, the

Petitioner’s counsel argued that under the recidivist statute “that the sentence is just life.”

The prosecutor, however, disagreed, stating that the life sentence is “just an additional

sentence he’s going to get” and that the prosecutor was going “to ask for 80 years[.]” In


       8
        The offer was conveyed by trial counsel to the Petitioner, but the Petitioner rejected
the offer and made a counter-offer. Under the Petitioner’s counter-offer, the Petitioner would
be sentenced to forty years, with discharge at twenty years and parole eligibility in ten years.
The State rejected the counter-offer and was planning to seek the maximum sentence.


                                               7

response to the prosecutor’s argument, the Petitioner’s trial counsel said: “Judge, if that’s

correct law, I’ve told my client wrong and I want that to be right up front, because I told him

that the only sentence tomorrow would be if he’s convicted, that he would be sentenced to

life and be eligible after 15 years.”



               Prior to the foregoing argument, the Petitioner’s trial counsel had not taken a

position on whether his client should take the Post-conviction Offer. After the State made

its position clear, the Petitioner’s trial counsel stated that

               [i]f the Court is inclined to think that it can sentence to life and
               then also sentence on the underlying crimes, I do recommend
               this offer. Of course, I know . . . [the prosecutor] is
               withdrawing it, but I may add it would be withdrawn only
               because of my mistake in the application of the law to the facts.”


               Thereafter, the circuit court explained to the Petitioner’s trial counsel that with

“multiple convictions occurring on the same day, arising from separate acts” meant that

“there can only be one enhancement.” The court further explained that it could give separate

sentences on the other convictions and could also determine that the sentences should run

consecutively.



               The Petitioner’s trial counsel informed the circuit court that the Petitioner had

rejected the plea due to “erroneous advice.” As the Petitioner’s trial counsel told the circuit

court:

                                                8

                     Judge, if the Court is inclined to think that they can still
              sentence under the underlying offense, then this offer was
              basically rejected because of erroneous advice. He asked me
              “what’s the worst that could happen,” and I said the worst that
              could happen is a life sentence with an eligibility, which I
              checked the Code again, a parole eligibility date of 15 years.

                      If the Court is inclined to think not only can he get a life
              sentence, but it can go back and sentence him for the underlying
              aggravated robbery, my advice would be entirely different from
              when this offer was made. If the Court is inclined to think that
              it can do that, then my opinion on this offer would drastically
              change.

The circuit court again explained to the Petitioner’s trial counsel that only one of the

convictions could be enhanced, but that the State could seek consecutive sentencing.



              At this point, the prosecutor put the Post-conviction Offer back on the table.

After the Petitioner’s trial counsel conferred with the Petitioner, the Petitioner accepted the

offer so long as he could keep his right to appeal.9 The State agreed to this.



              The next day, June 24, 2009, a plea hearing was held in which the Petitioner

pled guilty to both the recidivist and the perjury charges. The Petitioner testified that he went

over all the documents regarding the Post-conviction Offer, read them himself, discussed it


       9
        The Petitioner appealed this issue, arguing that his three felony convictions resulting
from the McFarland robbery should be treated as one conviction subjecting the Petitioner to
only one term of incarceration – life with parole eligibility in fifteen years. This Court
rejected that argument in State v. Von Raines, No. 101296, (W.Va. Apr. 18,
2011)(memorandum decision).

                                               9

“[t]horoughly” with his trial counsel, and “completely comprehend[ed] it.” The Petitioner

further testified that he met with his trial counsel between ten and fifteen times since the

criminal matter started and that they had been together constantly during the trial. When

asked by the circuit court if he was satisfied with the work his trial counsel had done for him

during the case, the Petitioner stated, “I’m more than satisfied, yes.” The court also asked

the Petitioner if there was anything that he could think of that he asked of his trial counsel

that his trial counsel failed to follow up on. The Petitioner responded, “Not at the current

time, no.” Finally, the court asked the Petitioner if he was satisfied overall with his trial

counsel compared to other attorneys he had had in other counties. The Petitioner responded,

“Completely, yes.”



              Upon accepting the Petitioner’s plea, the circuit court sentenced him a term of:

two to fifteen years on the burglary charge;10 thirty years on the robbery charge; and one to

five years on the conspiracy charge. The sentences were to run consecutively. The court also

sentenced the Petitioner to a term of one to ten years on the perjury charge. The perjury

sentence was to run concurrently with the conspiracy sentence.11




       10
        The Petitioner’s conviction for burglary was enhanced pursuant to West Virginia
Code § 61-11-18.
       11
      The circuit court noted that the State represented that “it would be a 10 ½ year
minimum sentence before he would be eligible for parole considerations.”

                                              10

                                   D. Habeas Proceeding

              On April 25, 2012, the Petitioner filed a petition for writ of habeas corpus. The

Petitioner alleged that his trial counsel was ineffective based upon erroneous advice provided

before trial and that his trial counsel failed to adequately prepare the Petitioner for his trial

testimony. On October 23, 2013, the circuit court held an omnibus hearing during which

both the Petitioner and his trial counsel testified.



              The Petitioner initially testified that his trial counsel told him regarding the Pre­

trial Offer that no recidivist proceeding would stand because two of the three prior felonies

had to be violent and a prior conviction that was reduced to attempted burglary was not a

violent crime. The Petitioner understood that under the Pre-trial Offer “it was a one to ten

and a one to five, to run consecutive or I face the recidivist statute.” The Petitioner further

stated that he knew that he “either had an option of two felony charges that could have been

one to ten years or two to fifteen, depending on what the court did . . . [o]r a life sentence

[with parole eligibility after fifteen years] if . . . [he] went to trial”and were convicted. The

Petitioner further testified that his trial counsel “said they cannot sentence you on both of

those underlying charges. It has to be one or the other, either what you are convicted for or

the habitual recidivist act.” According to the Petitioner, he rejected the Pre-trial Offer

because of his counsel’s advice regarding sentencing.




                                               11

              The Petitioner also testified on cross-examination that he maintained his

innocence throughout the case. Significantly, the Petitioner told the circuit court that

                     [t]he reason why I refused t[o] accept it [the Pre-trial
              Offer] is because the State was trying to say that I had
              involvement, that Vickie McFarland had gotten hurt in the
              process of the robbery. They was trying to pin it all basically on
              me to say that I broke into that residence and I never entered the
              McFarland residence. I proved that at trial and got found not
              guilty of it [referring to malicious assault].

The Petitioner admitted that he understood the Pre-trial Offer made by the State. The

Petitioner maintained, however, that he did not know if he rejected the Pre-trial Offer he

could possibly receive a life sentence as a recidivist conviction, plus sentences on the

additional convictions to run consecutively. The Petitioner also testified that his trial counsel

recommended to him to accept the offer. As the Petitioner testified, his trial counsel “said

to [him] . . . that the State had recommended the plea offer and he said it was significantly

less time than what you are indicted on.”



              The Petitioner’s trial counsel testified at the omnibus hearing that he spoke

with the Petitioner about taking the Pre-trial Offer. The Petitioner’s trial counsel discussed

the possibility of a recidivist sentence with the Petitioner and inquired about the nature of the

Petitioner’s previous convictions in order to “determine if a substantial portion of them were

violent.” Trial counsel further testified that he “highly recommended” the Pre-trial Offer to

the Petitioner. According to the Petitioner’s trial counsel, even a court reporter, who was



                                               12

in the room at the time, told the Petitioner that he “was not using his head for not taking this

plea because to (sic) many bad things can happen with the nature of the offenses.” His trial

counsel stated that the reason the Petitioner rejected the Pre-trial Offer was “because he

didn’t feel his involvement was worth accepting the two to fifteen or that risk.” The

Petitioner’s trial counsel indicated that the Petitioner never once asked if he was going to get

additional time beyond life imprisonment on the recidivist charge. The Petitioner’s trial

counsel explained that the entire reason he placed the Pre-trial Offer upon the record before

the circuit court was because he believed that the offer should have been accepted by the

Petitioner.



              Concerning the Petitioner’s claim that his trial counsel failed to prepare him

to testify at trial, his trial counsel testified that he could not remember the specifics of what

he discussed with the Petitioner. Explaining further, trial counsel testified:

              I do remember going to the jail and I’m sure I gave like most
              clients, the point/counterpoint about what is good and bad that
              can happen if you testify. I probably told him as I mentioned
              earlier. I don’t know in recent memory that I can remember a
              client who was acquitted that testified.



              Following the omnibus hearing, the circuit court found, by order entered July

14, 2014, that the only pre-trial advice given to the Petitioner was that trial counsel told him

that the Petitioner could possibly face a life sentence. The circuit court found:



                                               13

               Trial counsel specifically told Petitioner that a conviction of a
               second violent crime could serve as the basis for a life sentence
               as a recidivist offender. There was no discussion between trial
               counsel and Petitioner prior to trial as to how he might be
               sentenced if there were multiple convictions in the jury trial. .
               . . Trial counsel testified that . . . he advised his client that if he
               were convicted of a violent crime, the State could proceed with
               a recidivist action.

The circuit court further found the Petitioner’s contention that “had he received correct

advice as to what his sentence could be for multiple convictions, he would have accepted the

plea offer made prior to trial[,]” to be “incongruous with Petitioner’s own testimony that he

was innocent of the crimes charged[.]” Instead, the court found that he rejected the Pre-trial

Offer because “[t]hey [the State] was [sic] trying to pin it all basically on . . . [the Petitioner]

. . . .” The court expressly found the Petitioner’s trial counsel to be “the more credible

witness” on this issue. The court denied the Petitioner’s request for relief on the ground that

his trial counsel failed to accurately advise him regarding the possible sentences.



               Further, the circuit court, finding the Petitioner’s trial counsel’s testimony to

be the more credible, also determined that trial counsel had discussed the Petitioner’s trial

testimony with him in deciding whether the Petitioner should testify. The circuit court

rejected the Petitioner’s claim that he was entitled to habeas relief “because trial counsel

failed to advise him not to lie on the stand. . . .”




                                                 14

                                  II. Standard of Review

              We have previously held:

              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). Applying this

standard of review, we examine the issues before us.



                                   III. Discussion of Law

               We first address the Petitioner’s assertion that his trial counsel provided him

with incorrect or deficient legal advice when he was presented with the decision either to

accept a plea agreement or reject it and proceed to trial. Our standard for evaluating

counsel’s effectiveness is well settled. In syllabus point five of State v. Miller, 194 W. Va.

3, 459 S.E.2d 114 (1995), this Court adopted the following two-pronged test established by

the United States Supreme Court:

              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.

Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5. This Court provided further guidance

in Miller:


                                              15

              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.

Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6.



              We have applied the foregoing Miller/Strickland standards for evaluation of

ineffective assistance of counsel claims to cases involving guilty pleas. See Syl. Pt. 3, Becton

v. Hun, 205 W. Va. 139, 516 S.E.2d 762 (1999) (applying Strickland and Miller in holding

that “[o]bjective professional standards dictate that a criminal defense attorney, absent

extenuating circumstances, must communicate to the defendant any and all plea bargain

offers made by the prosecution. The failure of defense counsel to communicate any and all

plea bargain proposals to the defendant constitutes ineffective assistance of counsel, absent

extenuating circumstances.”); Syl. Pt. 6, State ex rel. Vernatter v. Warden, 207 W. Va. 11,

528 S.E.2d 207 (1999) (“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.”). Moreover, in Buffey v. Ballard, ___ W. Va. ___, ___S.E.2d ___,



                                                16

2015 WL 7103326 (W. Va. November 10, 2015), we discussed “[t]he critical nature of plea

negotiations” in the context of effective assistance of counsel during the pre-plea stage.

Buffey, 2015 WL 7103326, at *7 (citing Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012)12).


       12
         The State argues that “this Court has not directly addressed the situation where
alleged ineffective assistance of trial counsel caused a criminal defendant [to] decline a plea
offer and proceed to a jury trial resulting in a less favorable outcome.” The State directs the
Court’s attention to the United States Supreme Court’s decision in Lafler and urges this
Court to adopt the following language from that decision:

              [A] defendant must show that but for the ineffective advice of
              counsel there is a reasonable probability that the plea offer
              would have been presented to the court (i.e., that the defendant
              would have accepted the plea and the prosecution would not
              have withdrawn it in light of intervening circumstances), that the
              court would have accepted its terms, and that the conviction or
              sentence, or both, under the offer’s terms would have been less
              severe than under the judgment and sentence that in fact were
              imposed.

Lafler, 132 S. Ct. at 1385; see Foster v. Ballard, No. 14-1023, 2015 WL 6756866, at * 5
(W.Va. Nov. 4, 2015) (memorandum decision) (involving trial counsel’s failure to convey
plea offer to petitioner and relying upon United States Supreme Court’s decision in Missouri
v. Frye, 132 S.Ct. 1399, 1409 (2012) – decided the same day as Lafler – requiring that “[t]o
establish prejudice in this instance, it is necessary to show a reasonable probability that the
end result of the criminal process would have been more favorable by reason of a plea to a
lesser charge or a sentence of less prison time.”).
        While we have discussed Lafler with approval in Buffey and other memorandum
decisions, we see no need to expand our law in the factual context of the instant case, as
requested by the State. See Minda v. Ballard, No. 14-0334, 2015 WL 1235229, at *1 (W.Va.
Mar. 16, 2015) (memorandum decision) (upholding circuit court’s denial of habeas relief
after examining the petitioner’s claim of ineffective assistance of counsel regarding the
State’s plea offer in light of United State’s Supreme Court decision in Lafler); see also
Danny S. v. Ballard, No. 13-0946, 2015 WL 424957, at *25 (W.Va. Jan. 30, 2015)
(memorandum decision) (affirming circuit court’s denial of habeas relief based upon
application of Miller and Lafler where petitioner claimed trial counsel failed to tell him about
Kennedy plea and that he did not understand that there was Kennedy plea, where he did not
                                                                                  (continued...)

                                              17

                The Petitioner’s alleged ineffective assistance of counsel is largely premised

upon the advice that the Petitioner’s trial counsel gave to him prior to the Post-conviction

Offer at which time it was evident from the record that his trial counsel did not correctly

understand the application of the recidivist statute.13 The Petitioner claims his trial counsel

told him that his prior convictions could not be used in the application of the recidivist statute

because they were not violent crimes. The Petitioner further contends that his trial counsel

told him that he could not receive consecutive sentences in addition to an enhanced sentence.

The record, however, simply fails to support the Petitioner’s contentions. As the circuit court

found, “no such pre-trial advice was given other than to tell [the] Petitioner that he could

possibly face a life sentence.” Further, finding trial counsel was the more credible witness,14


       12
         (...continued)
have to admit guilt). Significantly, in Lafler, the Supreme Court resolved the ineffective
assistance of counsel claim applying Strickland. Lafler, 132 S.Ct. at 1384-1391. Further,
the Lafler decision was the result of a defendant being offered a favorable plea and rejecting
the favorable plea on advice of counsel, which advice was undisputedly deficient. Id. at
1383. The defendant then went to trial and after the jury convicted him, he received a
sentence that was much harsher than that offered in the rejected plea. Id. The facts now
before us are distinguishable from those in Lafler. In the instant matter, the Petitioner’s trial
counsel “highly recommended” to the Petitioner that he accept the Pre-trial Offer as the
sentence exposure under the terms of the offer was significantly less than if he went to trial
and faced a recidivist action. As discussed in greater detail infra, the Petitioner’s rejection
of the plea was not due to any advice given by trial counsel, but emanated from the Petitioner
maintaining that he was innocent of the charges and believing the State was trying to pin
everything on him.
       13
            See W. Va. Code § 61-11-18.
       14
        As we have previously recognized,“where there is a conflict of evidence between
defense counsel and the defendant, the circuit court’s findings will usually be upheld.” State
                                                                                 (continued...)

                                               18

the circuit court determined that the reason the Petitioner rejected the Pre-trial Offer was due

to his claim he was innocent of the crimes charged, not because of any “expressed concern”

he could get time in addition to the life sentence.



              Our review of the record, including the omnibus evidentiary hearing transcript,

supports the circuit court’s assessment of the evidence presented before it. The habeas court

found that “[i]t is clear from Petitioner’s own testimony, and that of trial counsel, that

Petitioner, contrary to advice of counsel, proceeded to trial because he believed that the State

could not meet its burden of proof that he was guilty of the crimes charged, rather than any

threat of punishment.” Despite the Petitioner’s contention that he would have accepted the

Pre-trial Offer from the State, but for his trial counsel’s alleged erroneous advice, we find

the facts render the Petitioner’s argument untenable. Significantly, the Petitioner uses the

facts from the Post-conviction Offer to support his position that but for the wrong advice

given in connection with the Post-conviction Offer, he would not have rejected the Pre-trial

Offer. The Petitioner’s argument ignores the fact that the incorrect information trial counsel

gave the Petitioner regarding the recidivist statute occurred after the Petitioner rejected the

Pre-trial Offer – an offer his trial counsel recommended the Petitioner accept. Thus, the

Petitioner cannot meet the first prong of Miller/Strickland as he has failed to show that his




       14
         (...continued)
ex rel. Daniel v. Legursky, 195 W. Va. 314, 327, 465 S.E.2d 416, 429 (1995).

                                              19
trial counsel’s performance was deficient under an objective standard of reasonableness

regarding the Pre-trial Offer. See Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5.



              Further, in reviewing the undisputedly erroneous advice provided by the

Petitioner’s counsel in conjunction with the Post-conviction Offer, the circuit court found:

                      It is clear from the record, and uncontested, that trial
              counsel had a mistaken belief that the Trial Court could not
              sentence Petitioner for multiple convictions to any additional
              time in addition to a life sentence if he was found guilty of being
              a habitual criminal with at least two prior qualifying felony
              convictions. However, that did not become an issue until the
              day of the scheduled trial in the habitual offender proceeding.
              That misunderstanding by [t]rial counsel was corrected by the
              Trial Court. Thereafter, Petitioner and trial counsel had the
              opportunity to thoroughly discuss the matter, and the Petitioner
              ultimately received the benefit of his plea bargain with the State
              at the habitual offender proceeding, a sentence with a parole
              eligibility date in less time (ten and one half years) than life in
              prison (minimum fifteen years).



              Although trial counsel’s “performance was deficient under an objective

standard of reasonableness[,]” the circuit court, the State, and trial counsel realized the

Petitioner had been given erroneous advice that caused him to reject the Post-conviction

Offer initially. See id. The State re-extended the Post-conviction Offer and the Petitioner

accepted that offer. The re-extending of the Post-conviction Offer cured any prejudice that

could have been caused by the erroneous advice given. Thus, the circuit court correctly

determined that the Petitioner cannot meet the second prong of the Miller/Strickland test as


                                              20

he cannot establish “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.” See id.



               Finally, we address the Petitioner’s second assigned error that his attorney did

not prepare him adequately for cross-examination nor did his attorney explain the

ramifications of lying under oath. Succinctly stated, the Petitioner cannot meet either of the

prongs necessary to prove ineffective assistance of counsel on this issue. See id. The circuit

court, finding the Petitioner’s trial counsel to be more credible, concluded that trial counsel

did prepare the Petitioner to testify “in his ‘point/counterpoint’ discussion in deciding

whether the Petitioner would testify and, if so, what he claimed to be the truth.” Further, the

Petitioner voluntarily decided to take the witness stand in his own defense with full

knowledge of his right to remain silent. We, therefore, find no error in the circuit court’s

denial of habeas relief on this issue and the circuit court’s rejection of the “Petitioner’s claim

that he is entitled to relief because trial counsel failed to advise him not to lie on the stand.”



                                        IV. Conclusion

               Based upon the foregoing, the circuit court’s decision to deny the petition for

habeas corpus relief is affirmed.



                                                                                       Affirmed.



                                               21
