STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Richard L. Lawson Jr., FILED Petitioner Below, Petitioner May 22, 2017 RORY L. PERRY II, CLERK vs) No. 16-0537 (Kanawha County 06-MISC-320) SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden,
Mount Olive Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION Petitioner Richard L. Lawson Jr., by counsel Charles R. Hamilton, appeals the Circuit Court of Kanawha County’s May 23, 2016, order denying his amended petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Gordon L. Mowen, II, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds of ineffective assistance of trial counsel and ineffective assistance of habeas counsel.
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.
In April of 1996, the Kanawha County grand jury indicted petitioner and his co-defendant on one count of first-degree murder, one count of arson, five counts of forgery, and five counts of uttering. These charges stemmed from an incident in which petitioner and his co-defendant murdered Dr. Everette Knapper (“the victim”), stole multiple checks, and attempted to burn down the victim’s residence to conceal their crimes.
In 1997, while the parties were prepared to proceed to trial, petitioner accepted a plea agreement in which he would plead guilty to first-degree murder. As part of the agreement, the State agreed to dismiss the remaining charges and to recommend mercy in exchange for his testimony against his co-defendant. During the plea colloquy, the circuit court thoroughly explained what constitutional rights petitioner was giving up by entering a plea of guilty. Thereafter, petitioner testified as to the factual basis for his plea agreement during which he allegedly included facts that were not previously known by the State or petitioner’s trial counsel. As such, the State decided not to proceed with the plea agreement, and the parties proceeded to trial. Following a jury trial, petitioner was convicted on all counts charged in the indictment. Ultimately, the circuit court sentenced petitioner to consecutive sentences of life in prison
without the possibility of parole for first-degree murder, two to twenty years of incarceration for arson, and one to ten years for each count of forgery and uttering.1
In 2002, petitioner filed his first petition for writ of habeas corpus alleging twelve independent grounds for relief, including whether the circuit court erred in allowing the jury to hear evidence from a West Virginia State Police serologist regarding DNA testing results. After conducting an omnibus evidentiary hearing, the circuit court by order entered February 13, 2006, denied petitioner habeas relief. Thereafter, petitioner appealed the circuit court’s order denying habeas relief to this Court. By order entered on November 28, 2006, this Court granted petitioner’s appeal, and remanded the case to the circuit court with instructions to conduct a full evidentiary hearing on Zain III issues consistent with Syllabus Point Four of In re Renewed Investigation of State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006).2 Thereafter, multiple counsel were appointed and withdrew from representing petitioner. Ultimately, attorney Charles R. Hamilton was appointed on May 21, 2014.
In January of 2015, petitioner, by counsel filed an amended petition for writ of habeas corpus alleging, in part, ineffective assistance of counsel for: (1) failing to prepare him for the plea proceeding; and (2) for not demanding a Zain III review of the serology evidence. In October of the same year, the circuit court held an omnibus evidentiary hearing during which Beverly Selby, petitioner’s trial counsel, and the prosecuting attorney testified. Regarding the issue of preparing petitioner for the plea proceedings, Ms. Selby testified that she and her co counsel3 specifically discussed the plea process and factual basis for the plea with petitioner
1 It is unclear whether petitioner filed a direct appeal of his conviction. 2 This Court held that:
A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be false, whether the prisoner has shown the necessity of a new trial based on the five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).
219 W.Va. at 409, 633 S.E.2d at 763, Syl. Pt. 4 3 Ms. Selby’s co-counsel died prior to the omnibus evidentiary hearing.
“numerous” times, including on the morning in which petitioner was set to enter his plea agreement. Ms. Selby further testified that she met with petitioner approximately forty times during her representation. According to Ms. Selby, while petitioner was reciting the factual basis for his plea, he set forth a completely new set of facts that were inconsistent with his confession. The prosecuting attorney testified that they were unwilling to proceed with the plea agreement because the factual basis for the plea agreement was inconsistent with the facts as they were known by the State and destroyed their case against petitioner’s co-defendant.
With respect to the serology evidence, Ms. Selby testified that an independent laboratory tested the DNA evidence, and reached the same results as the State’s testing. Ms. Selby also consulted with attorney Lonnie Simmons regarding the DNA evidence, who opined that there was no issue with the State’s DNA evidence. After, considering the evidence and the parties’ arguments, the circuit court denied habeas relief by order entered May 23, 2016. This appeal followed.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:
“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.” Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Richard L. Lawson Jr., FILED Petitioner Below, Petitioner May 22, 2017 RORY L. PERRY II, CLERK vs) No. 16-0537 (Kanawha County 06-MISC-320) SUPREME COURT OF APPEALS OF WEST VIRGINIA David Ballard, Warden,
Mount Olive Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION Petitioner Richard L. Lawson Jr., by counsel Charles R. Hamilton, appeals the Circuit Court of Kanawha County’s May 23, 2016, order denying his amended petition for writ of habeas corpus. Respondent David Ballard, Warden, by counsel Gordon L. Mowen, II, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds of ineffective assistance of trial counsel and ineffective assistance of habeas counsel.
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.
In April of 1996, the Kanawha County grand jury indicted petitioner and his co-defendant on one count of first-degree murder, one count of arson, five counts of forgery, and five counts of uttering. These charges stemmed from an incident in which petitioner and his co-defendant murdered Dr. Everette Knapper (“the victim”), stole multiple checks, and attempted to burn down the victim’s residence to conceal their crimes.
In 1997, while the parties were prepared to proceed to trial, petitioner accepted a plea agreement in which he would plead guilty to first-degree murder. As part of the agreement, the State agreed to dismiss the remaining charges and to recommend mercy in exchange for his testimony against his co-defendant. During the plea colloquy, the circuit court thoroughly explained what constitutional rights petitioner was giving up by entering a plea of guilty. Thereafter, petitioner testified as to the factual basis for his plea agreement during which he allegedly included facts that were not previously known by the State or petitioner’s trial counsel. As such, the State decided not to proceed with the plea agreement, and the parties proceeded to trial. Following a jury trial, petitioner was convicted on all counts charged in the indictment. Ultimately, the circuit court sentenced petitioner to consecutive sentences of life in prison
without the possibility of parole for first-degree murder, two to twenty years of incarceration for arson, and one to ten years for each count of forgery and uttering.1
In 2002, petitioner filed his first petition for writ of habeas corpus alleging twelve independent grounds for relief, including whether the circuit court erred in allowing the jury to hear evidence from a West Virginia State Police serologist regarding DNA testing results. After conducting an omnibus evidentiary hearing, the circuit court by order entered February 13, 2006, denied petitioner habeas relief. Thereafter, petitioner appealed the circuit court’s order denying habeas relief to this Court. By order entered on November 28, 2006, this Court granted petitioner’s appeal, and remanded the case to the circuit court with instructions to conduct a full evidentiary hearing on Zain III issues consistent with Syllabus Point Four of In re Renewed Investigation of State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006).2 Thereafter, multiple counsel were appointed and withdrew from representing petitioner. Ultimately, attorney Charles R. Hamilton was appointed on May 21, 2014.
In January of 2015, petitioner, by counsel filed an amended petition for writ of habeas corpus alleging, in part, ineffective assistance of counsel for: (1) failing to prepare him for the plea proceeding; and (2) for not demanding a Zain III review of the serology evidence. In October of the same year, the circuit court held an omnibus evidentiary hearing during which Beverly Selby, petitioner’s trial counsel, and the prosecuting attorney testified. Regarding the issue of preparing petitioner for the plea proceedings, Ms. Selby testified that she and her co counsel3 specifically discussed the plea process and factual basis for the plea with petitioner
1 It is unclear whether petitioner filed a direct appeal of his conviction. 2 This Court held that:
A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be false, whether the prisoner has shown the necessity of a new trial based on the five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).
219 W.Va. at 409, 633 S.E.2d at 763, Syl. Pt. 4 3 Ms. Selby’s co-counsel died prior to the omnibus evidentiary hearing.
“numerous” times, including on the morning in which petitioner was set to enter his plea agreement. Ms. Selby further testified that she met with petitioner approximately forty times during her representation. According to Ms. Selby, while petitioner was reciting the factual basis for his plea, he set forth a completely new set of facts that were inconsistent with his confession. The prosecuting attorney testified that they were unwilling to proceed with the plea agreement because the factual basis for the plea agreement was inconsistent with the facts as they were known by the State and destroyed their case against petitioner’s co-defendant.
With respect to the serology evidence, Ms. Selby testified that an independent laboratory tested the DNA evidence, and reached the same results as the State’s testing. Ms. Selby also consulted with attorney Lonnie Simmons regarding the DNA evidence, who opined that there was no issue with the State’s DNA evidence. After, considering the evidence and the parties’ arguments, the circuit court denied habeas relief by order entered May 23, 2016. This appeal followed.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:
“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.” Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
On appeal to this Court, petitioner argues that the circuit court erred in finding that he received effective assistance of trial counsel during his plea hearing. Specifically, petitioner argues that trial counsel failed to salvage the plea agreement. The Court, however, does not agree. 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 review of the record supports the circuit court’s decision to deny petitioner post-conviction habeas corpus relief based on his claim of ineffective assistance of trial counsel, which was also argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignment of error. Given our conclusion that the circuit court’s order and the record before us reflect 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 May 23, 2016, order to this memorandum decision.
Petitioner also alleges that he received ineffective assistance of his first habeas counsel because that counsel failed to argue that trial counsel was ineffective for not preparing him for the plea hearing. This Court has held: It is the extremely rare case when this Court will find ineffective assistance of counsel . . . . The prudent defense counsel first develops the record
regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim.
Syl. Pt. 10, in part, State v. Triplett, 187 W.Va. 760, 421 S.E. 2d 511 (1992). Petitioner is raising habeas counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues to believe that prior habeas counsel was ineffective, the preferred way of raising these ineffective assistance counsel claims is to file a subsequent petition for a writ of habeas corpus raising these specific issues in the court below. See Syl. Pt. 4, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (While a prior habeas corpus hearing is res judicata as to all matters either raised or should have been raised at the habeas corpus hearing, “an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing.”).4
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: May 22, 2017
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
4 We express no opinion as to the merits of any subsequent claim for ineffective assistance of habeas counsel.