                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS



Raymond Richardson,                                                                 FILED
Petitioner Below, Petitioner                                                     July 30, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.) No. 18-0999 (Kanawha County 17-P-382)                                         OF WEST VIRGINIA


Donnie Ames, Superintendent
Mount Olive Correctional Complex,
Respondent Below, Respondent



                                MEMORANDUM DECISION


       Petitioner Raymond Richardson, by counsel Matthew A. Victor, Esq., appeals the October
23, 2018, order of the Circuit Court of Kanawha County denying his Amended Petition for Writ
of Habeas Corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional
Complex,1 by Holly M. Flanigan, Esq., responded in support of the circuit court’s order.

        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.

       We have described Petitioner’s underlying convictions as follows:

                       During the early morning hours of August 24, 2013, the
               petitioner attacked the sixty-one-year-old victim in her home. The
               petitioner was in the victim’s home for the purpose of selling her
               cocaine. Following an argument regarding the quality and price of
               the cocaine, the petitioner punched the victim in the face and stole
               $103 in cash from the victim. The petitioner was found guilty of the
               following three felony offenses after a jury trial: first degree

       1
          Mr. Ralph Terry was Superintendent of Mount Olive Correctional Complex when
petitioner filed his appeal. Mr. Ames has since become Superintendent of that institution.
               robbery, assault during the commission of a felony, and possession
               with intent to deliver cocaine.

State v. Richardson, No. 17-0850, 2018 WL 1225535, at *1 (W. Va. Mar. 9, 2018) (“Richardson
II”) (internal note omitted). The circuit court sentenced petitioner to “a term of one hundred
years for robbery, an indeterminate term of two to ten years for assault during the commission
of a felony, and an indeterminate term of one to fifteen years for possession with intent to
deliver. The sentences were ordered to be served consecutively.” Id.

        Petitioner appealed his conviction and sentence. State v. Richardson, 2016 WL 5030312
(W. Va. Sept. 16, 2016) (“Richardson I”). He assigned three errors to the trial court. Id. at *1.
First, he argued that the circuit court failed to instruct the jury that assault during the commission
of a felony requires the use of a weapon. Second, petitioner argued that the State had failed to
presented sufficient evidence that petitioner had committed an unlawful taking, an element of first
degree robbery. And, third, petitioner argued that the 100 year sentence for his first degree robbery
sentence was disproportionate to the crime and shocked the conscience. Id. at *3. We affirmed
petitioner’s convictions by memorandum decision in September 2016. Id. at *5

       Petitioner next filed a motion with the circuit court under Rule 35(a) of the West Virginia
Rules of Criminal Procedure, providing for the correction of an illegal sentence. Richardson II at
*1. The circuit court denied the motion and petitioner appealed to this Court. Id. at *2. In March
2018, we affirmed the circuit court’s order by memorandum decision. Id. at *3

         Petitioner filed a petition for writ of habeas corpus in October 2017. The circuit court
appointed counsel for petitioner. Counsel then filed an amended petition and, later, supplements
to the petition. The circuit conducted an omnibus hearing in August 2018 at which petitioner and
his trial counsel testified. On October 23, 2018, the circuit court entered a 61-page order in which
it denied the petition for habeas corpus. That order contained 158 findings of fact, 157 conclusions
of law, and 259 footnotes. Petitioner appeals from that order.

         “Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will
not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.” Syl.
Pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied 424
U.S. 909 (1976). “The Court has also indicated that a circuit court’s final order and ultimate
disposition are reviewed under the abuse of discretion standard, and that conclusions of law are
reviewed de novo.” State ex rel. Justice v. Trent, 209 W. Va. 614, 617, 550 S.E.2d 404, 407 (2001)
(citing State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997)).

        On appeal, Petitioner raises eleven assignments of error that are identical to the arguments
he made before the habeas court. He does not challenge the circuit court’s findings of fact as
“clearly wrong,” nor does he offer any particular arguments as to why the circuit court’s
conclusions of law are erroneous. Our review of the record on appeal, the parties’ argument, and
the circuit court’s order lead us to the conclusion that the circuit court did not abuse its discretion
when it denied petitioner habeas relief.

       “‘A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial
error not involving constitutional violations will not be reviewed.’ Point 4, Syllabus, State ex rel.
McMannis v. Mohn, [163] W.Va. [129], 254 S.E.2d 805 (1979).” Syl. Pt. 2, Edwards v. Leverette, 163
W. Va. 571, 258 S.E.2d 436 (1979). Petitioner raises several, “plain” trial errors that do not
involve alleged constitutional violations, e.g., his fourth assignment of error in which he asserts
that “[u]nder the plain error analysis, the Trial court erred by admitting unduly prejudicial West
Virginia Rules of Evidence, 404(b) evidence.” Those alleged plain errors are not subject to
review in habeas corpus because, “so far as post-conviction remedy is concerned, between
plain error in a trial and error of constitutional dimensions[, o]nly the latter can be a proper
subject of a habeas corpus proceeding.” Id. at 576, 258 S.E.2d at 439.2

         Additionally, several of the alleged errors raised by petitioner are subject to res judicata or
collateral estoppel. Specifically, this Court has already found that petitioner’s 100-year sentence
for first degree robbery violated neither statutory nor constitutional limits. See Richardson I at *4-
*5. So, Petitioner cannot raise that exact question, again, on habeas. State v. Miller, 194 W. Va. 3,
9, 459 S.E.2d 114, 120 (1995) (“Res judicata generally applies when there is a final judgment on
the merits which precludes the parties or their privies from relitigating the issues that were
decided . . . .”).

       Likewise, petitioner now argues, as he did in his direct appeal, that the State did not
offer sufficient evidence that he committed an unlawful taking, an element of first degree
robbery, because the victim made inconsistent statements regarding cash removed from her
apartment. But, as we said in Richardson I,

                the jury determined that the victim’s testimony was worthy of belief
                despite her inconsistent statements. The victim explained why she
                initially lied to the police. She was embarrassed and ashamed that
                she had a drug problem and did not want her family and the police—
                some of whom were her customers—to know about the incident. In
                spite of her inconsistent statements to the police, the jury believed
                that the victim told the truth under oath. The victim was cross-
                examined and a reason why she would make up a story about being
                robbed was never developed. The victim’s testimony was
                determined by the jury to be credible and therefore we find no error
                in the circuit court’s finding that there was sufficient evidence of an
                unlawful taking in order to charge petitioner with first degree
                robbery.



        2
          Moreover, “[t]o trigger application of the ‘plain error’ doctrine, there must be (1) an error;
(2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity,
or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995). We have reviewed the record on appeal, the parties’ arguments regarding the
various errors that Petitioner assigns to the trial court and raises now under the “plain error”
doctrine, and the circuit court’s order. Upon review, we concur with the trial court that none meet
the requirements of that doctrine.
Richardson I at *4. Because we have already found no error in the trial court’s finding that there
was sufficient evidence of an unlawful taking, our ruling is res judicata and petitioner may not
raise it again via habeas. Similarly, petitioner is collaterally estopped from relitigating the issue
of the victim’s inconsistent statements, and so is foreclosed from using allegations as to the
victim’s veracity in a collateral attack upon his conviction and sentence for first degree robbery.

        Petitioner also asserts that the circuit court erred when it concluded that the evidence
offered by the State at trial did not amount to a constructive amendment of the charge in the
indictment of first-degree robbery.3 Based on our review of the record in appeal, the parties’
arguments, and the circuit court’s order, we agree with the circuit court that any difference between
the allegations in the indictment and the evidence at trial did not mislead petitioner, subject him to
any additional burden of proof, or otherwise prejudice him and so was an amendment of form,
only. (“An ‘amendment of form’ which does not require resubmission of an indictment to the
grand jury occurs when the defendant is not misled in any sense, is not subjected to any added
burden of proof, and is not otherwise prejudiced.” Syl. Pt. 3, in part, State v. Adams, 193 W.Va.
277, 456 S.E.2d 4 (1995).)

        The indictment informed petitioner that he was charged with first degree robbery,
West Virginia Code § 61-2-12(a) (2000). The indictment also informed petitioner that he was
charged with assault during the commission of a felony, § 61-2-10 (1882), so he was aware that
the State planned to present evidence of bodily harm to the victim. For that same reason, any
difference between the indictment and evidence offered at trial did not subject petitioner to any
added burden of proof. Finally, petitioner’s trial counsel testified repeatedly during the omnibus
hearing that the defense to the robbery charge was that petitioner did not steal, take away, or carry
$103 from Ms. Cool’s apartment, i.e., that the robbery did not occur, at all. So, the means by
which petitioner accomplished the robbery (by threat of force or the commission of violence) was
irrelevant to the defense theory. Any difference between the robbery count in the indictment and
the State’s evidence at trial resulted in, at most, an amendment of form—rather than an
impermissible constructive amendment—to the first degree robbery count of the indictment.

        Finally, petitioner alleges that trial counsel was ineffective by failing to object to the
introduction of Rule 404(b) evidence, failing to investigate a potential juror’s Facebook friendship
with an assistant prosecuting attorney, failing to object to the constructive amendment of the
indictment with regard to the charge of first degree robbery, failing to effectively impeach the
victim, and failing to object to an incomplete jury instruction as to the elements of first degree
robbery.

                       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

       3
          Petitioner also challenges the circuit court’s finding that any error was harmless. Because
we conclude that the circuit court did not err when it found that no constructive amendment of the
first degree robbery charge in the indictment had occurred, we do not address this argument.
                 probability that, but for counsel’s unprofessional errors, the result of
                 the proceedings would have been different.

Syl. Pt. 5, Miller, 194 W. Va. at 3, 459 S.E.2d at 114.

                          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 Syl. Pt. 6.

         Here, the circuit court applied an objective standard to determine that counsel’s
performance was not outside the broad range of professionally competent assistance and that even
if it had been, the results of petitioner’s trial would not have been different. Upon review of the
record on appeal, the parties’ arguments, and the circuit court’s order, we find that the circuit court
did not err in concluding that petitioner had not satisfied the two-pronged test of Strickland v.
Washington. See Syl. Pt. 5, Miller at 3, 459 S.E.2d at 114.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error or abuse of discretion by the circuit court.
Our own review of the record and the parties’ briefs supports the circuit court’s decision to
deny petitioner habeas relief based on the assignments of error presented on appeal. As we
stated above, the circuit court’s order contains detailed findings of fact and conclusions of law
as to the errors raised before the circuit court and again on appeal. In light of our conclusions
that the circuit court’s order and the record before us disclose no clear error or abuse of
discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as
they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a
copy of the circuit court’s October 23, 2018, “Final Order” to this memorandum decision.

        For the foregoing reasons, we affirm.

                                                                                            Affirmed.
ISSUED: July 30, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

DISQUALIFIED:
Justice Margaret L. Workman
