                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                  FILED
                                                                               April 15, 2016
Farley Rhodes,                                                                 RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 15-0430 (Kanawha County 15-P-132)

David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent




                                MEMORANDUM DECISION

       Petitioner Farley Rhodes, pro se, appeals the April 29, 2015, order of the Circuit Court of
Kanawha County denying his petition for writ of habeas corpus. Respondent David Ballard,
Warden, Mt. Olive Correctional Complex, by counsel Zachary Aaron Viglianco, filed a response,
and 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 August of 2008, petitioner doused his girlfriend with an incendiary fluid and set her
ablaze because she had threatened to leave him. She lingered in the hospital for a month before she
died from her injuries. Petitioner was thereafter indicted for first-degree murder and arson. In
exchange for the dismissal of the arson count, petitioner pled guilty to first-degree murder on
March 11, 2010.1 At his May 27, 2010, sentencing hearing, the trial court denied petitioner’s
request for mercy and sentenced him to a life term of incarceration without the possibility of
parole.

       Following the sentencing hearing, petitioner filed a pro se motion to withdraw his guilty
       1
        We will relate pertinent portions of petitioner’s testimony at the March 11, 2010, plea
hearing during our discussion of the issues raised in this appeal. See infra.

                                                1

plea,2 and petitioner’s counsel filed a motion for reduction of sentence pursuant to Rule 35(b) of
the West Virginia Rules of Criminal Procedure. In the Rule 35(b) motion, petitioner’s counsel
argued that the circuit court should reconsider its decision not to give petitioner an opportunity for
parole. On September 22, 2010, while the post-sentencing motions were pending, petitioner’s
counsel filed an appeal in this Court from the May 27, 2010, sentencing order in State v. Rhodes,
No. 101329. 3 The State filed a motion to dismiss the appeal on the ground that it was
interlocutory. On January 27, 2011, we dismissed petitioner’s appeal without prejudice.

       At an October 14, 2010, hearing, the circuit court’s first inquiry was whether petitioner was
proceeding on his pro se motion to withdraw his guilty plea. Petitioner’s counsel answered, “No.”
Counsel explained that the motion to withdraw petitioner’s guilty plea “is not why we’re here
today.” The circuit court confirmed that petitioner was not pursuing his pro se motion by asking,
“You want me to change my mind about the issue of mercy and that’s it. Is that right?” Petitioner’s
counsel responded, “That’s right.”

         With regard to the motion for reduction of sentence, petitioner’s counsel stated that the
motion was based on matters the circuit court may not have taken into full consideration prior to
sentencing and “new information” that petitioner had consumed Lortab and alcohol prior to setting
his girlfriend on fire. By an order entered February 25, 2013, the circuit court denied the motion on
the ground that petitioner’s sentence was appropriate. In the order, the circuit court noted that it
had carefully weighed the nature of petitioner’s crime and each of his arguments for the reduction
of his sentence including the following: (1) petitioner pled guilty and therefore obviated the need
for a trial; (2) petitioner gave a detailed factual basis for his plea; (3) petitioner expressed remorse
at sentencing; (4) petitioner suffered from an intellectual impairment; (5) petitioner had no prior
felony convictions; and (6) petitioner had an addiction to alcohol and opiates at the time of the
crime. In response to the “new information,” the court found that the information, if true, favored
punishment, and not mitigation. Petitioner appealed the denial of his motion for reduction of
sentence to this Court. In State v. Rhodes, No. 13-0366, 2014 WL 1272552, at *2 (W.Va. March
28, 2014), we affirmed the circuit court’s denial of the Rule 35(b) motion.

        On April 4, 2015, petitioner filed a petition for writ of habeas corpus contending that he
should be resentenced so that he could file another appeal of the May 27, 2010, sentencing order.
Petitioner asserted that counsel raised the alleged involuntariness of his guilty plea in No. 101329,
but failed to pursue the issue after this Court dismissed that appeal as interlocutory. By order
entered April 29, 2015, the circuit court denied petitioner’s habeas petition because good cause
“[did] not exist” for granting the relief requested.

       Petitioner now appeals the circuit court’s April 29, 2015, order denying his habeas petition.

       2
        Petitioner identified his pro se motion to withdraw his guilty plea as a “motion to repeal,”
and the State filed a response to it on October 14, 2010. The motion itself was not entered into the
record until October 18, 2010.
       3
           We take judicial notice of the record in No. 101329.

                                                   2

We apply the following standard of review in such 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).

        On appeal, petitioner contends that his counsel were ineffective in failing to file an appeal
challenging the voluntariness of his guilty plea. In West Virginia, claims of ineffective assistance
of counsel are governed by the two-pronged 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). Respondent asserts that because the record shows that
petitioner’s guilty plea was voluntary, counsel made a sound strategic decision to focus on
petitioner’s motion for reduction of sentence.4 See Syl. Pt. 6, in part, id. at 6-7, 459 S.E.2d at
117-18 (“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.”) (Emphasis
added.) Under the facts and circumstances of this case, we agree with respondent and find that if
petitioner’s involuntariness claim lacks merit, counsel were not ineffective in failing to challenge
his guilty plea on appeal.

         Petitioner contends that his guilty plea was involuntary because (1) he was under the
influence of drugs at the time that he pled guilty; and (2) he was low-functioning because of his
intellectual impairment. We have reviewed the transcript of the March 11, 2010, plea hearing and
find that the circuit court engaged petitioner in a colloquy pursuant to Call v. McKenzie, 159
W.Va. 191, 220 S.E.2d 665 (1975), to determine the voluntariness of petitioner’s guilty pleas.
Initially, the circuit court questioned petitioner about any medications he was taking at the time.
Petitioner and his counsel answered that petitioner was taking Depakote and an unspecified
antidepressant. The circuit court went through a series of questions to determine whether petitioner
understood “what we’re talking about.” The circuit court asked petitioner “[where do] you think
we are,” to which petitioner responded, “[i]n court.” The circuit court asked, “[a]re you
understanding me?” Petitioner answered, “Yes.” Based on petitioner’s answers, and those of his

       4
         Respondent also argues that petitioner’s appeal of the denial of his motion for reduction of
sentence counted as the one criminal appeal to which he was constitutionally entitled. See Syl.,
State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). We decline to address this
argument because we can dispose of petitioner’s appeal on other grounds.


                                                 3

counsel, the circuit court concluded, as follows:

               Okay. It seems like from your statements . . . not only does
       [petitioner]—he’s not only lucid, attentive[,] and able to comprehend this morning,
       but fully, completely about as fully and completely as you can be—understands the
       nature of these proceedings, what he is up against, the case, the charges, and he is
       able to give a lot of thought, productive type of thought, you know, based on
       information about his case before formulating, I guess, his decision to enter [the
       plea] agreement.

        With regard to petitioner’s limited intellectual capacity, the circuit court gave petitioner
three different opportunities to stop the process of pleading guilty, explaining that “you can say no
at any time” and that “[y]ou can change your mind and we’ll go back to where we were[.]”5 Each
time, petitioner wished to continue with his guilty plea, stating that “I just want to get it done and
get it over with.” At another point, petitioner stated, “I just want to plead.” The circuit court
concluded that petitioner “intelligently, freely, voluntarily, and knowingly” relinquished his
fundamental rights “as outlined by me and as also set forth in the [w]ritten [p]lea” by entering his
guilty plea. Given petitioner’s answers and the circuit court’s findings at the plea hearing, we
determine that petitioner’s claim that his guilty plea was involuntary lacks merit. Therefore, we
likewise reject petitioner’s claim that counsel were ineffective in failing to file an appeal
challenging the voluntariness of his guilty plea. Accordingly, we conclude that the circuit court did
not abuse its discretion in denying petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s April 29, 2015, order denying
petitioner’s petition for a writ of habeas corpus.

                                                                                            Affirmed.

ISSUED: April 15, 2016

CONCURRED IN BY:

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




       5
         According to petitioner’s court-ordered forensic psychological evaluation, not only was
petitioner responsible for his crime, but he was also able to assist his attorneys and to “accept [the]
terms of a plea if one is offered” provided that those terms were adequately explained to him.

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