                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Timothy P. Shafer,
Petitioner Below, Petitioner
                                                                                    FILED
                                                                               February 9, 2018
vs) No. 17-0439 (Kanawha County 16-P-343)                                      EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Karen Pszczolkowski, Warden,
Northern Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Timothy P. Shafer, by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s Final Order Denying Petitioner’s Amended Petition for Writ of Habeas
Corpus, entered on April 25, 2017. Respondent Karen Pszczolkowski, Warden, Northern
Correctional Center, by counsel Zachary Aaron Viglianco, filed a response. On appeal, petitioner
argues that (1) he received ineffective assistance from his trial counsel, and (2) the State violated
the terms of its plea agreement with petitioner by arguing in favor of the sentence imposed by the
circuit court when responding to petitioner’s direct appeal to this Court.

        This 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.

                              Factual and Procedural Background

       Pursuant to a plea agreement in July of 2014, petitioner pled guilty to one count of first-
degree murder in the commission of a first degree robbery (felony murder), one count of
conspiracy, three counts of burglary by breaking and entering, and two counts of grand larceny.
In exchange, the State agreed to recommend that the circuit court sentence petitioner to life in
prison with mercy on the felony murder charge, and to stand silent on whether his remaining
sentences should run consecutively or concurrently to one another. The parties’ agreement was
not binding on the circuit court. Additionally, the agreement was silent as to positions the parties
may advance on appeal, should an appeal be taken.

       Following a lengthy colloquy, the circuit court accepted petitioner’s guilty plea.
Consistent with the parties’ agreement, the State recommended that petitioner receive mercy.
Despite the recommendation, the circuit court sentenced petitioner to a life sentence without
mercy for felony murder, an indeterminate sentence of one to five years for conspiracy, one to

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fifteen years on each conviction for burglary by breaking and entering, and one to ten years on
each conviction for grand larceny. The circuit court ordered that the sentences run consecutively.

        Thereafter, petitioner filed a direct appeal to this Court, challenging his sentence as
disproportionate to his offenses. In affirming petitioner’s sentence, this Court described the
factual background of petitioner’s offenses as follows:

              In early 2014, Mr. Shafer was a drug addict, using heroin and
       methamphetamine. He contends that his girlfriend at the time, Megan Hughes,
       was also addicted to drugs and that they would use drugs together.

               Mr. Shafer, Ms. Hughes, and a friend of the couple, Jessica Wilson,
       conspired to rob Nancy Lynch (“the victim”) of money to buy illegal drugs. The
       victim was sixty-six years old, and she lived alone with her dog, Hazel, in St.
       Albans, West Virginia. Mr. Shafer claimed he and Ms. Hughes got the idea to rob
       the victim after he and Hughes had a chance encounter with the victim. During
       the encounter, the victim told Mr. Shafer and Ms. Hughes that she had been
       robbed three or four times in the past but that she did not report the robberies
       because she feared repercussions from the robbers.

               Sometime on the evening of January 3 or 4, 2014, Mr. Shafer and Ms.
       Wilson decided to rob the victim in her home. Mr. Shafer maintains that he
       targeted the victim because he did not believe she would report the robbery. There
       is no evidence in the record to suggest that Mr. Shafer or Ms. Wilson were under
       the influence of drugs at this time. Mr. Shafer and Ms. Wilson left on foot from
       Ms. Wilson’s home. According to Mr. Shafer, he took a toy gun and put it in his
       pants, intending to use it to threaten the victim. He contended that Ms. Wilson
       took a long kitchen knife and put it in her pants. Neither Mr. Shafer nor Ms.
       Wilson wore masks or gloves. Mr. Shafer claims that he did not believe any
       violence would be necessary to rob the victim.

               When Mr. Shafer and Ms. Wilson arrived at the victim’s home, the victim
       was not there. They waited for her, and she later returned home from a shopping
       trip to K–Mart. Mr. Shafer, Ms. Wilson, and the victim spoke together outside the
       home until Mr. Shafer lifted his shirt so that the victim could see the gun and
       insisted that they all go into the house. Mr. Shafer later told police that the victim
       did not take him seriously. In response to the victim’s indifference, he asserts that
       Ms. Wilson pulled the knife out of her pants and pushed the victim inside. Once
       inside the house, Ms. Wilson demanded money and pills. The victim told Ms.
       Wilson that she had $13 in her purse, but upon inspection of the purse, Ms.
       Wilson found $16 and an ATM card. According to Mr. Shafer, Ms. Wilson
       ordered the victim to provide her with the pin number to the card, but the victim
       responded with a string of different numbers.

              Mr. Shafer theorized that Ms. Wilson was angered by the victim’s lies
       about the amount of money in the purse and the ATM card pin number. He told

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       police that Ms. Wilson told him to look away, and that as soon as he looked away,
       Ms. Wilson began quickly stabbing the victim in the chest and neck area. Mr.
       Shafer said he turned around as soon as he heard the stabbing and watched Ms.
       Wilson stab the victim to death. The victim was stabbed nineteen times. After the
       victim fell to the floor, Ms. Wilson covered her with a blanket. Ms. Wilson put
       the victim's dog, which had been outside during the attack, in the house.

               Directly after the killing, Mr. Shafer and Ms. Wilson left the victim’s
       house with the victim’s ATM card, two pistols, a camera with lenses, jewelry, and
       prescription medications. They tried to withdraw cash using the ATM card, but
       the pin numbers they tried failed. They returned to Ms. Wilson’s home where Ms.
       Hughes was waiting. Ms. Hughes sorted through the stolen property. Mr. Shafer
       and Ms. Wilson then went back to the victim’s home to steal one of the victim's
       cars. Mr. Shafer used the stolen car to drive to a separate location where he traded
       the victim’s property for heroin, prescription narcotics, and $150. He used the
       money he acquired to buy methamphetamine from another person. Upon
       acquiring the drugs, Mr. Shafer drove back to Ms. Wilson’s home where he, Ms.
       Wilson, and Ms. Hughes used the drugs.

               The next day, Mr. Shafer returned to the victim’s home with Ms. Hughes.
       They took jewelry, pills, a flat-screen television, and the victim’s checkbook from
       the home. Within a week of the victim's death, Mr. Shafer and Ms. Hughes again
       went to the victim’s home to take the victim’s second car. Mr. Shafer asserted that
       the victim’s dog was alive during these trips. Mr. Shafer, Ms. Wilson, and Ms.
       Hughes pawned the victim’s jewelry, sold one of the two cars for scrap, and Mr.
       Shafer used the victim’s checkbook to write six checks to himself.

               Sometime during the weeks following the victim’s death, Mr. Shafer took
       the victim’s mail, which had been accumulating in her mailbox, after Ms. Wilson
       told him she had seen a police officer near the house. A neighbor who was
       concerned that she had not seen the victim called the police. The police visited the
       victim’s home twice but could see no evidence of foul play and noted that the
       victim’s doors were locked.

              A friend discovered the victim’s decaying body on January 26, 2014. The
       friend had gone to the victim’s home to check on her. When she arrived at the
       home, she found a door unlocked and went inside. In addition to finding her
       friend dead, the friend also found the dead body of the victim’s dog. Police
       believed the dog’s death was the result of neglect.

State v. Shafer, 237 W. Va. 616, 618–19, 789 S.E.2d 153, 155–56 (2015).

       In rejecting petitioner’s challenge to his sentence, this Court stated as follows:

       With the strongest conviction, we conclude that the facts surrounding Mr.
       Shafer’s involvement in the victim’s death warrant the sentence imposed by the

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       circuit court. Mr. Shafer’s decision to target, threaten, and frighten a vulnerable,
       elderly woman was calculated and deliberate. His repeated ransacking of the
       victim’s home, his neglect of the victim’s dog, and his attempt to thwart police
       investigation all show his utter disregard for the sanctity of life and his lack of
       remorse for his involvement in the victim’s murder. Since before his incarceration
       in 2010, he has made little effort to conform his behavior to law, having chosen to
       perpetuate his drug habit and reject opportunities to alleviate his addiction. In
       light of the totality of Mr. Shafer’s conduct, and given that his sentence falls
       within the statutory limits imposed for felony murder, the sentence imposed upon
       him does not shock the conscience or offend fundamental notions of human
       dignity. His heinous actions justify his permanent removal from society.

Id. at 623, 789 S.E.2d at 160.

        After the appointment of counsel, petitioner filed the instant petition for a writ of habeas
corpus before the circuit court arguing two grounds for relief. First, petitioner asserted that trial
counsel was ineffective by (1) failing to secure a forensic examination to assess petitioner’s
capacity, competency, or criminal responsibility in light of petitioner’s drug problem, and (2)
insisting that petitioner accept a “disastrous” plea agreement. Second, petitioner asserted that the
State breached the plea agreement when the Office of the Attorney General argued in favor of
petitioner’s life-without-mercy sentence in response to petitioner’s direct appeal to this Court.
Following an omnibus hearing, in which the circuit court heard testimony from petitioner and his
trial counsel, the circuit court denied petitioner’s habeas petition by order entered on April 25,
2017. This appeal followed.

                                            Discussion

        This Court has set forth the following standard for review of a circuit court’s denial of a
petition for writ of habeas corpus:

               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). With this standard in
mind, we turn to petitioner’s arguments on appeal.

        First, petitioner argues that his trial counsel was ineffective because he (1) failed to
investigate and present a diminished capacity defense, (2) failed to object to prejudicial language
in petitioner’s pre-sentence report, and (3) recommended that petitioner accept a “disastrous”
plea agreement that resulted in petitioner serving a life sentence. We have held as follows with
respect to claims of ineffective assistance of counsel:




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               5.      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.

               6.     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.

Syl. Pts. 5 and 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

        Petitioner states that he informed his counsel of his long history of mental health
problems, including ongoing and untreated depression and attention deficit disorder, as well as a
his pervasive methamphetamine and pill addiction. Petitioner’s assertion here is essentially that
he lacked the competency to stand trial, but counsel failed to pursue such a defense. As the
circuit court noted, the test for competency to plead guilty is the same as the test for competency
to stand trial. See State v. Cheshire, 173 W. Va. 123, 125, 313 S.E.2d 61, 63 (1984)(“The test for
mental competency to stand trial and the test for mental competency to plead guilty are the
same.”). And, “[t]o be competent to stand trial, a defendant must exhibit a sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding and a
rational, as well as factual, understanding of the proceedings against him.” Id. at syl. pt. 1
(citation omitted).

        However, contrary to petitioner’s assertion, there appears to have been no serious
question regarding petitioner’s competency, either at time of the offenses or at the time he
entered his guilty plea. At the plea hearing, petitioner was able to provide a detailed factual
recitation of his criminal conduct that spanned fourteen pages of the plea hearing transcript. His
explanations of the events were clear and his descriptions of the crime were specific. Indeed,
when questioned directly by the court as to whether he “knew what [he] was doing” when he
undertook the commission of the crimes and “did what [he] intended to do,” petitioner
responded, “Yes, your honor.” Additionally, at the omnibus hearing, trial counsel testified that he
was aware of petitioner’s purported mental health history and drug problem, and, as a result,
consulted with forensic evaluator Dr. Timothy Saar. Based on this consultation, Dr. Saar advised
trial counsel that there was no good-faith basis upon which to request a competency evaluation.
Trial counsel also testified that there was nothing about petitioner’s demeanor that caused him to
question petitioner’s sanity or competency. Therefore, we cannot conclude that trial counsel was
objectively deficient by failing to pursue a competency evaluation.

        Petitioner also contends that trial counsel was ineffective by failing to object to
“gratuitous” and “inflammatory” comments contained in petitioner’s pre-sentence investigation

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report. Here, petitioner fails not only to identify the alleged problematic comments in his brief,
but, more importantly, how they might have prejudiced him. Accordingly, we find no merit in
petitioner’s argument.

         Petitioner’s final contention that his trial counsel was ineffective is that counsel
recommended that petitioner accept a “disastrous” plea agreement. Petitioner argues that he
could have obtained the same result had he lost at trial. While this may be true, that in no way
makes the plea agreement “disastrous” or “ineffective assistance of counsel per se,” as petitioner
asserts. First, as the circuit court correctly found based upon the testimony of trial counsel at the
omnibus hearing, the evidence against petitioner was “overwhelming;” he gave three separate
statements admitting to his participation in the crimes; and had two codefendants who could have
testified against him. Proceeding to trial posed little chance for acquittal on any of the charges
petitioner would have been facing. Second, the plea agreement secured by counsel included two
valuable concessions in petitioner’s favor: dismissal of a first-degree robbery charge and the
State’s recommendation that petitioner receive mercy at sentencing. We cannot find that it was
objectively unreasonable for trial counsel to recommend that petitioner accept the agreement.
Thus, upon our review of the record, we reject petitioner’s claim in his first assignment of error
that his trial counsel was ineffective.

        In his second and final assignment of error, petitioner claims that the State violated the
terms of the plea agreement when the Office of the Attorney General argued in support of the
circuit court’s sentence in its defense of petitioner’s direct appeal to this Court. In relevant part,
the agreement provided as follows:

       In regard to disposition, the State of West Virginia recommends commitment to
       the penitentiary on all counts, and further recommends Mercy pertaining to the
       First Degree Murder charge contained in Count Four. Also, the State of West
       Virginia will stand silent as to whether the sentences on the other counts should
       run consecutive to or concurrent therewith.

        This Court has held that “[a]s a matter of criminal jurisprudence, a plea agreement is
subject to principles of contract law insofar as its application insures a defendant receives that to
which he is reasonably entitled.” State ex rel. Brewer v. Starcher, 195 W. Va. 185, 192, 465
S.E.2d 185, 192 (1995) (citation omitted). In the present case, it is undisputed that the State
complied with every aspect of the agreement when petitioner entered his guilty plea. At that
point, the State fulfilled its end of the bargain. Petitioner can point to no language in the plea
agreement that binds the State to advance or forgo any argument in the event petitioner appealed
his sentence to this Court. Therefore, we reject petitioner’s far-fetched claim that the State
breached the agreement by arguing in support of the sentence in a subsequent appeal to this
Court.

                                            Conclusion

      For the foregoing reasons, we affirm the Circuit Court of Kanawha County’s Final Order
Denying Petitioner’s Amended Petition for Writ of Habeas Corpus, entered on April 25, 2017.



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                                         Affirmed.

ISSUED: February 9, 2018

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




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