                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Kenneth James Heard, Petitioner Below,                                             FILED
Petitioner                                                                       March 31, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0300 (Ohio County 02-C-66)                                          OF WEST VIRGINIA



Marvin Plumley, Warden, Huttonsville
Correctional Center, Respondent Below,
Respondent


                                 MEMORANDUM DECISION

        Petitioner Kenneth James Heard, by counsel John M. Jurco, appeals the Circuit Court of
Ohio County’s February 27, 2013, order denying his petition for writ of habeas corpus.
Respondent Warden Marvin Plumley, by counsel Joseph E. Barki III, filed a response. Petitioner
filed a reply. On appeal, petitioner alleges that the circuit court erred in denying his petition for
writ of habeas corpus for the following reasons: 1) West Virginia’s kidnapping statute is
unconstitutional; 2) his guilty plea to kidnapping was involuntary; 3) his guilty plea was not
supported by sufficient evidence and/or there is a question of actual guilt upon the plea; and 4)
equitable considerations merit relief.

        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.

        On April 10, 1991, petitioner and two women entered the home of Forton Capp, held him
at gunpoint, tied him to a chair, ransacked his home for valuables, and left with stolen items in
Mr. Capp’s Cadillac. Mr. Capp eventually freed himself and called the police, who spotted the
Cadillac and a pursuit ensued. The pursuit ended in a wreck, and petitioner and one female were
arrested. Petitioner was taken to Brooke County Jail where he began to go into drug withdrawal
and was transported to Weirton Medical Center. Three days later, petitioner struck a corrections
officer stationed in his room and initiated a struggle, during which petitioner bit the officer and
gained possession of his firearm. After detaining multiple security and staff members in his room,
petitioner eventually exited and Ms. Kerr, a nurse, volunteered to help him exit the building.
Petitioner demanded Ms. Kerr’s car keys and then grabbed her by the neck and pointed the gun at
her as he led Ms. Kerr out of the building to her vehicle. Petitioner forced Ms. Kerr into her
vehicle and exited the parking lot, after which a police pursuit was initiated that ended in
collision. Ms. Kerr was injured in this collision.
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        Following a guilty plea in 1991, petitioner was convicted of one count of kidnapping, one
count of malicious assault, one count of escape from confinement, two counts of grand larceny,
and one count of aggravated robbery. Petitioner was sentenced to the following terms of
incarceration: life, with a mercy recommendation, for the kidnapping conviction (Count I); two to
ten years for the malicious assault conviction (Count II); one to five years for the escape from
confinement conviction (Count III); one to ten years for the grand larceny conviction (Count IV);
thirty years for the robbery conviction (Count V); and one to ten years for the second grand
larceny conviction (Count VI). The circuit court ordered Counts I through IV to run concurrently,
and further ordered Counts V through VI to run concurrently, though consecutively to Counts I
through IV.

        In April of 2002, petitioner filed a pro se petition for writ of habeas corpus in the circuit
court, after which he was appointed counsel and an amended petition was filed. The circuit court
held an omnibus hearing in February 2013, after which it denied petitioner habeas relief. It is
from the order denying relief that petitioner appeals.1

       We have previously held that

               “[i]n 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).

Syl. Pt. 1, State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012). To begin,
petitioner argues that the trial court violated his due process protections afforded under Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), when it made the determination that petitioner
had not returned Ms. Kerr unharmed and, thus, that petitioner was not entitled to a reduced
sentence under West Virginia Code § 61-2-14A(b)(3). Petitioner argues that our kidnapping
statute is therefore unconstitutional under Blakely because it allows for a judge, and not a jury, to
make determinations that could enhance a defendant’s sentence. The Court, however, finds no
merit to these arguments. We have already settled the issue of our kidnapping statute’s
constitutionality.

       We have held that

              [o]ur kidnaping statute, W.Va.Code § 61-2-14a (1999), does not provide
       for the enhancement of a defendant’s sentence beyond the statutory maximum
       based on additional facts found by the trial judge in violation of the constitutional

       1
        According to petitioner, he has discharged all sentences other than the sentence for
kidnapping. As such, petitioner’s arguments in support of his petition for appeal concern only the
charge of, and sentence for, the crime of kidnapping.
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       right to a trial by jury as interpreted by the United States Supreme Court in Blakely
       v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Syl. Pt. 2, State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). It is clear that the alleged error
of which petitioner complains, that the trial court judge made the determination as to whether or
not petitioner returned his kidnapping victim unharmed, is not a violation of petitioner’s
constitutional right to a jury trial as discussed in Blakely. As such, we find no error in regard to
the circuit court denying petitioner habeas relief on this issue.

        Next, the Court finds no error in the circuit court’s denial of relief in regard to petitioner’s
alleged involuntary guilty plea. According to petitioner, his plea was involuntary due to the
conditions of his confinement at the time. Petitioner alleges that correctional officers at the
Brooke County Jail treated him inhumanely because of his prior assault on a corrections officer
when he escaped from the hospital. As such, petitioner argues that the main reason he accepted
the plea agreement was to escape these conditions. However, the Court notes that the record
shows that the trial court addressed petitioner’s concerns in regard to the terms of his confinement
and his desire to be moved to a state facility during the plea colloquy.

        West Virginia’s seminal case on whether a guilty plea was given voluntarily and
knowingly is Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975). In Call, our Court
established several guidelines that trial courts should follow in ascertaining whether a defendant’s
plea of guilty is voluntarily and knowingly made. In addition to advising the defendant of the
numerous constitutional rights he waives by pleading guilty, the trial court should recite the terms
of the plea agreement and should assure itself that there is no coercion or undue pressure on the
defendant to enter a plea. Id. at 198, 220 S.E.2d at 671.

        While petitioner’s desire to be transferred out of a county facility may have been one of
his motivations for accepting the plea agreement, it was not the only basis and it was considered
and discussed at the plea hearing. In fact, the trial court expressly asked if petitioner’s desire to be
moved from the Brooke County Jail was the only reason he was pleading guilty, and petitioner
stated that it was not. Further, petitioner expressly stated on the record that he was guilty of the
crimes to which he was pleading. Additionally, the trial court stated that the terms of confinement
of which petitioner complained, including being housed in a separate cell and an inability to
communicate with other inmates, were reasonable considering his prior escape. For these reasons,
the Court finds that petitioner’s guilty plea was voluntary and the circuit court did not err in
denying him habeas relief on this issue.

        Next, the Court finds no error in the circuit court denying petitioner relief in regard to his
allegation that his guilty plea to kidnapping was not supported by sufficient evidence. This
argument is based upon petitioner’s plea colloquy, during which he claimed that he never
intended to take Ms. Kerr as a shield and did not point a gun at her or otherwise force her to
accompany him in her vehicle. The Court finds no merit to this argument. Ms. Kerr testified in the
criminal proceedings and clearly stated that she did not volunteer petitioner her car and that he
pointed a firearm at her to force her to comply with his demands. There was clearly sufficient
evidence for the trial court to accept petitioner’s guilty plea to kidnapping.

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      Further, in discussing the requirement of Rule 11(f) of the West Virginia Rules of
Criminal Procedure that a trial court determine the factual accuracy of a plea, we have held that

       [w]hile such purpose is obviously laudatory, this Court has never deemed it
       constitutionally necessary for a trial court to undertake the inquiry required by
       Rule 11(f). And other courts appear in general agreement that absent special
       circumstances “‘there is no constitutional requirement that a trial judge inquire into
       the factual basis of a plea.’” United States v. McGlocklin, 8 F.3d 1037, 1047 (6th
       Cir.1993) (en banc), cert. denied, 511 U.S. 1054, 114 S.Ct. 1614, 128 L.Ed.2d 341
       (1994) (citation omitted). Rather, only when the defendant claims his factual
       innocence while pleading guilty, a situation not present in this case, is a court
       constitutionally required to undertake such a procedure. See North Carolina v.
       Alford, 400 U.S. 25, 37–39, 91 S.Ct. 160, 167–68, 27 L.Ed.2d 162 (1970); see also
       Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983); Willett v. Georgia, 608 F.2d
       538, 540–41 (5th Cir.1979).

State ex rel. Farmer v. Trent, 209 W.Va. 789, 796, 551 S.E.2d 711, 718 (2001). Based upon this
prior holding, it is clear that the trial court had before it sufficient evidence upon which to accept
petitioner’s guilty plea to kidnapping, and the circuit court did not err in denying petitioner relief
in this regard.

        Finally, the Court finds no merit in petitioner’s contention that, as a matter of equity, he is
entitled to habeas relief. Without citing to any case law or other authority, petitioner simply
asserts that because he has served over twenty years of incarceration for his crimes and has
discharged all the sentences other than the kidnapping sentence, he should be released. The Court
is unpersuaded by this argument and finds no error in the circuit court’s denial of relief in this
regard.

        For the foregoing reasons, the circuit court’s February 27, 2013, order denying petitioner’s
petition for writ of habeas corpus is hereby affirmed.


                                                                                            Affirmed.

ISSUED: March 31, 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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