Danny Hundley, Petitioner Below, Petitioner vs) Patrick Mirandy, Warden, Saint Mary’s Correctional Center, Respondent Below, Respondent
No. 16-1111 (Greenbrier County 10-C-94)
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
April 5, 2018
FILED released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
Petitioner Danny Hundley, by counsel Eric M. Francis, appeals the Circuit Court of Greenbrier County’s November 3, 2016, order denying his amended petition for writ of habeas corpus. Respondent Patrick Mirandy, Warden, by counsel Gordon L. Mowen, II and Mary M. Downey, filed a response.1 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, disproportionate sentence, and cumulative error.
This Court has considered the parties’ briefs, oral arguments, and the appendix record on appeal. Under the limited circumstances presented in this case, we find a memorandum decision affirming in part and reversing and remanding in part for further proceedings appropriate under
In May of 2006, petitioner was arrested following his confession to police that he took an all-terrain vehicle (“ATV”) from Jimmy Legg’s residence without permission. Petitioner was later indicted on one count of burglary and one count of grand larceny. Prior to trial, the State offered to dismiss both charges if petitioner would plead guilty to one count of conspiracy to commit burglary. The State further agreed to not seek a recidivist sentence enhancement. Petitioner rejected this proposed plea agreement and instead chose to proceed to trial in January of 2007.
In March of 2007, the circuit court proceeded to trial on the recidivist information, after which a jury found that petitioner was the same individual that was previously convicted of each of the felony offenses identified in the information. That same month, the circuit court sentenced petitioner to a term of life imprisonment as a habitual offender under
In May of 2010, petitioner filed his initial petition for writ of habeas corpus, after which the circuit court ordered that he undergo a psychological evaluation to determine his competency and criminal responsibility at the time of the acts with which he was charged. In June of 2013, the circuit court received the evaluation, which concluded that, despite functioning at a borderline intellectual range, petitioner was competent to stand trial and, at the time of the crime, capable of appreciating the wrongfulness of his acts and conforming his acts to the requirements of the law.
In September of 2014, the circuit court held twо omnibus evidentiary hearings regarding petitioner’s claims. Thereafter, in December of 2014, Petitioner filed a Losh checklist and amended petition for writ of habeas corpus.2 In his amended petition, petitioner set forth only the following grounds for relief: (1) ineffective assistance of counsel and (2) disproportionate sentence. In January of 2015, petitioner filed a supplemental memorandum in support of his amended petition that bolstered his factual support and argument for the grounds raised in the amended petition. Thereafter, by order entered on November 3, 2016, the circuit court denied petitioner’s amended petition for writ of habeas corpus. It is from this order that petitiоner appeals.
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, petitioner raises three assignments of error: 1) that the circuit court erred in failing to find ineffective assistance of counsel; 2) that the circuit court erred in failing to find his recidivist life sentence disproportionate; and 3) cumulative error. We shall address each in turn.
Petitioner first alleges that the circuit court erred in denying him habeas relief based upon ineffective assistance of counsel.3 In his amended petition for writ of habeas corpus in the circuit court, petitioner asserted the following grounds for relief under his claim of ineffective assistance of counsel: 1) failing to communicate with petitioner “in a certain manner” based on his intellectual functioning; 2) failing to adequately meet with petitioner in preparation for his defense; and 3) permitting petitioner to testify at trial.4 Before this Court, however, the complexion of petitiоner’s argument regarding trial counsel’s ineffectiveness changes substantially. Petitioner argues that trial counsel was ineffective for failing to adduce evidence of his limited intellectual functioning at trial for the purpose of advancing a diminished capacity defense.5
[i]n 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.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed of for failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999).
With respect to petitioner’s assertions of ineffective assistance of counsel based upon his intellectual functioning, we address those collectively. Petitioner asserts that his borderline intelligence required trial counsel to “explain the procedure to him in a certain manner” and that trial counsel should have “further investigated” and/or adduced this evidence at trial for the purpose of asserting a diminished capacity defense. Insofar as trial counsel’s manner of explaining the process to petitioner, the circuit court found that petitioner failed to establish that trial counsel’s “performance in communicating with the [p]etitioner was deficient[.]” The circuit court noted that during the habeas evidentiary hearing, petitioner was presented with various materials which he understood in substance and had the opportunity to request further explanation for any words which he may not have understood. We agree with the circuit court that petitioner has failed to demonstrate any sort of deficiency in trial counsel’s manner of communicating and explaining the process to him.
Insofar as petitioner’s contention that trial counsel was under an obligation to “further invеstigate” his borderline intelligence for the purpose of claiming diminished capacity, petitioner has likewise failed to demonstrate either an objective deficiency or reasonable probability of a different outcome. A psychological evaluation demonstrated that petitioner was competent to stand trial, had an “adequate factual and rational appreciation of the proceedings,” and the capacity to assist his attorney in his defense. Moreover, this evaluation revealed that petitioner was criminally responsible for his offenses and that “[h]is mental disorders would not have prevented him from appreciating the wrongfulnеss of his acts” or “conforming his acts to the requirements of law.” Trial counsel testified that petitioner was “reasonably articulate, understood the process, [and] understood the notion of criminal responsibility[.]”
Moreover, petitioner’s contention that trial counsel foreclosed an opportunity to investigate or advance a “diminished capacity” defense is undermined by the cases he cites in support. In
We therefore conclude that petitioner has failed to establish that his trial counsel was ineffective. Accordingly, we find no error in the circuit court’s refusal of habeas relief on this basis.6
Notes
Nevertheless, we observe that petitioner’s assertion that trial counsel was ineffective for failing to argue that burglary is a not a crime of violence is not well-taken inasmuch as this Court has plainly indicated to the contrary: “[B]urglary and grand larceny [are] crimes that by their very nature involve[] the threat of harm or violence to innocent persons.” State v. Housden, 184 W. Va. 171, 175, 399 S.E.2d 882, 886 (1990). Moreover, the fact that this Court ultimately hereinafter concludes that petitioner’s offenses are in fact disproportionate to his recidivist life sentence is not an implicit endorsement of this assertion of ineffectiveness. Rather, our conclusion is based strictly upon a proportionality assessment that is peculiarly within the province of the Court. With respect to the availability of the trial exhibits, see n.9, infra.
Finally, we note that petitioner advanced two additional arguments in his amended petition, which were addressed by the circuit court, but not argued on appeal: that trial counsel was ineffective for adequately meeting with him to prepare for his defense аnd by allowing him to testify. “Although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). Nevertheless, it is clear that these contentions are neither factually nor legally supportable. Trial counsel testified that his billing records revealed five meetings with petitioner, as well as multiple meetings incident to his court appearances. Further, the record plainly reveals that the trial court warned petitioner and his counsel of the dangers of testifying and engaged in an
Petitioner next asserts that his sentence was unconstitutionally disproportionate because he received a life sentence predicated, in part, upon “traffic offenses,” posing no threat of violence. He further makes specific challenges to the use of the underlying felony driving under the influence (“DUI”) offenses to support the recidivist sentence. While we staunchly disagree with petitioner’s characterization of the predicate DUI charges as mere “traffic offenses” and further find no merit to his challenges to the use of these offenses as predicates to a recidivist enhancement, we agree that under the limited circumstances of this case, the use of a life sentence recidivist enhancement violates thе proportionality principles of the
We address first petitioner’s specific challenges to the sufficiency of the two DUI convictions for use in the recidivist proceeding. Before the circuit court, petitioner argued that as to the DUI convictions, they are insufficient to form the basis of the enhancement due to the age of the misdemeanor conviction underlying the 3rd offense DUI and its use as predicate for both 3rd offense DUIs. Petitioner argues that the misdemeanor offense DUI upon which the 3rd offense convictions were based is greater than ten years old, having occurred in 1986. He cites
[d]espite the fact that a third offense DUI felony conviction pursuant to
West Virginia Code § 17C-5-2(j) (Supp.1995) results from an enhanced misdemeanor, the Legislature intended that this type of felony conviction be used for sentence enhancement in connection with the terms of the recidivist statute,West Virginia Code § 61-11-18 (Supp.1995) .
Syl. Pt. 3, in part, State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996). Therefore, petitioner’s challenges to the validity of the predicate recidivist convictions provide him no relief.
However, as previously noted, before this Court, petitioner focuses exclusively on the nature of the offenses, arguing that neither the DUIs nor the most recent burglary and grand larceny are сrimes of violence and therefore a life sentence enhancement is unconstitutionally disproportionate. This Court has held: “
In that regard, we have held:
The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in
Article III, Section 5 , will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.
Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). As indicated, petitioner сharacterizes his previous felony DUI convictions as “traffic offenses.” As this Court made clear in State ex rel. Appleby v. Recht, 213 W. Va. 503, 516, 583 S.E.2d 800, 813 (2002), “[w]e have little trouble in finding that driving under the influence is a crime of violence supporting imposition of a recidivist sentence.” Moreover, as previously indicated, we have plainly recognized that “burglary and grand larceny [are] crimes that by their very nature involve[] the threat of harm or violence to innocent persons.” Housden, 184 W. Va. at 175, 399 S.E.2d at 886.
Nevertheless, although we have regarded petitioner’s underlying and triggering offenses as crimes of violence in general, our guiding syllabus point requires the Court to look beyond these generalities to the specific circumstances surrounding the crimes to ensure constitutional proportionality. “[W]e have historically adopted a rather strict and narrow construction of our recidivist statute[]” and “consistently viewed [it] in a restrictive fashion in order to mitigate its harshness.” Wanstreet, 166 W. Va. at 525, 528, 276 S.E.2d at 207-08, 209.
In that regard, our guiding syllabus point requires the Court to “determine if [the offenses] involve actual or threatened violence to the person . . . .” Syl. Pt, 7, in part, Beck, 167 W. Va. 830, 286 S.E.2d 234 (emphasis added). In State ex rel. Boso v. Hedrick, 182 W. Va. 701, 391 S.E.2d 614 (1990), the Court found that a recidivist sentence based, in part, upon breaking and entering and night-time burglary was disproportionate. The Court noted that breaking and entering is not “per se a crime of violence” and that the night-time burglary was committed in an unoccupied dwelling. Id. at 709, 391 S.E.2d at 622. The Court further noted that the record was devoid of any indication that “any weapons were used in these crimes or that there was a threat of violence to any person.” Id. Moreover, in State v. Davis, 189 W. Va. 59, 61, 427 S.E.2d 754, 756 (1993), the Court similarly found a recidivist life sentence disproportionate where “[t]here [was] no suggestion that actual violence was used or was threatened in the course of the commission of the crime.”
Finally, in State v. Miller, 184 W. Va. 462, 465, 400 S.E.2d 897, 900 (1990), the Court found a recidivist life sentence disproportionate where, despite the presence of actual violence in the triggering оffense, the predicate offenses were either decidedly non-violent or “posed only a threat of violence.” Noting that “the propensity for violence is an important factor to be considered,” the Miller Court noted the absence of a “‘discernible trend of violence.’” Id. (quoting State v. Oxier, 179 W. Va. 431, 434, 369 S.E.2d 866, 869 (1988) (J. Miller, dissenting)).
Inasmuch as this Court has directed that “the third felony is entitled to more scrutiny than the preceding felony convictions since it provides the ultimate nexus to the sentence,” we are compelled to place particular emphasis on petitioner’s grand larceny and burglary offenses. Wanstreet, 166 W. Va. at 534, 276 S.E.2d at 212. Like the cases discussed above, petitioner’s grand larceny and burglary offenses involved no actual or even threatened violence. Petitioner absconded with an ATV from the separately accessible basement of the Leggs’ home under cover of night, without interacting with anyone. While the home was not unoccupied, the evidence reveals that the Leggs’ basement lacked interior access to their home. The evidence appears undisputed that petitioner was well-acquainted with the Leggs and regularly borrowed the ATV at issue with permission. While providing neither a legal or factual “excuse” for petitioner’s crimes, it is clear that these circumstances demonstrate an offense of neither actual nor threatened harm. Accordingly, we find that under the highly partiсularized circumstances presented herein, petitioner’s recidivist life sentence is unconstitutionally disproportionate.11
For the foregoing reasons, we affirm the circuit court’s determination that petitioner is not entitled to habeas relief for ineffective assistance of counsel. However, we find that petitioner’s sentence was unconstitutionally disproportionate to his offenses and therefore reverse the circuit court’s order of March 27, 2007, imposing a life sentence and remand for resentencing as to the burglary and grand larceny charges. See State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979) (outlining options upon vacation of recidivist sentencing).
Affirmed, in part, and reversed and remanded, in part.
ISSUED: April 5, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
DISSENTING:
Justice Allen H. Loughry II
Ketchum, J., concurring:
I concur in the majority’s conclusion that petitioner’s recidivist life sentence was unconstitutionally disproportionate. While I agree that petitioner’s burglary and grand larceny convictions lacked sufficient indicia of “actual or threatened” violence, I also maintain that driving under the influence (“DUI”) likewise lacks “actual or threatened” violence. Despite dicta contained in our precedent suggesting otherwise, it is clear that driving under the influence is not a categorical “crime of violence” constitutionally sufficient to justify a recidivist conviction. The United States Supreme Court has flatly characterized DUI as “non-violent.” Solem v. Helm, 463 U.S. 277 (1983). See also Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001) (holding that DUI is not a crime of violence); U. S. v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001) (holding that DUI is not a conviction of a crime of violence), reh’g denied, 262 F.3d 479 (5th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (holding that DUI and homicide by intoxicated use of a vehicle are not crimes of violence); U.S. v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001) (same).
As these courts have observed, “a drunk driving accident is not the result of plan, direction, or purpose, but of recklessness at worst and misfortune at best.” U. S. v. Rutherford, 54 F.3d 370, 372 (7th Cir. 1995). Nor is “violence” the necessary precursor to serious physical harm; serious physical harm may occur as a result of all manner of wrongful or merely negligent acts. Simply because serious harm does or is even likely to occur, the nature of the act is not transformed into one of “violence.” Accordingly, I respectfully concur.
DISSENTING AND WRITING SEPARATELY:
Loughry, J., dissenting:
I would affirm the circuit court’s denial of habeas corpus relief to Petitioner Hundley. The majority completely disregards our well-established precedent indicating that burglary is, by its nature, а crime of violence. In fact, after articulating that this Court has recognized that all of the petitioner’s predicate crimes are crimes of violence, the majority nonetheless determines that his recidivist life sentence violates the proportionality requirements of
In syllabus point seven of State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981), this Court held:
The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in
Article III, Section 5 , will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine
if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.
The majority correctly finds that the petitioner’s two predicate offenses, both third offense felony DUIs, properly form the basis of a recidivist sentence. However, on the issue of whether the petitioner’s final offense, burglary, was sufficient to merit a life sentence, the majority’s analysis goes badly awry.
First, the majority runs afoul of our law by acknowledging this Court’s recognition that “burglary [is a] crime[] that by [its] very nature involve[s] the threat of harm or violence to innocent persons,” State v. Housden, 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990), and then immediately contradicts itself by finding that the burglary under the specific facts of this case did not involve actual or threatened harm. If burglary by its very nature involves actual or threatened harm, examining the “facts” of the burglary is a transparent attempt to evade the necessary consequence of our precedent.
In addition, in reaching its decision that the petitioner’s night-time burglary is insufficient to merit a recidivist life sentence, the majority relies on three cases that are wholly inapposite to the facts of the instant case and “cherry-picks” language from the cases to justify its outcome. The majority acknowledges that the burglary in this case was into the basement of an occupied dwelling, Nevertheless, the majority relies on State ex rel. Boso v. Hedrick, 182 W.Va. 701, 391 S.E.2d 614 (1990), despite the fact that the night-time burglary in that case occurred in an unoccupied dwelling. Similarly, the majority selectively relies on language from State v. Davis, 189 W.Va. 59, 427 S.E.2d 754 (1993), without acknowledging in that case that the final or triggering felony
was a simple breaking and entering of a building, not a dwelling, which resulted in the theft of approximately $10.00. There is no suggestion that actual violence was used or was threatened in the course of the commission of the crime. The business, at the time, was closed at night and no one was present on the premises.
Id., 189 W.Va. at 61, 427 S.E.2d at 756 (emphasis added). The final decision relied on by the majority is State v. Miller, 184 W.Va. 462, 400 S.E.2d 897 (1990). In Miller, this Court found a recidivist sentence disproportionate based on the predicate оffenses which were forgery and uttering, false pretenses, and breaking and entering a gas station. Significantly, none of these cases involved the burglary of an occupied dwelling.
In sharp contrast to the cases relied upon by the majority, the petitioner entered the basement of a dwelling at night while the occupants of the dwelling were asleep. Further, the petitioner admitted that he had been drinking on the day of the crime. Obviously, these circumstances created a significant threat of violence to the occupants of the dwelling. It is instructive to compare the instant case with the facts in State v. Housden, wherein this Court upheld a recidivist life sentence imposed on a habitual offender fоr his burglary of the victim’s home even though the offender claimed he was aware that the victim was not at home at the time of the
In its zeal to reach its outcome, the majority conveniently ignores the fact that this Court has repeatedly recognized that the crime of burglary inherently involves the threat of violence. In Martin v. Leverette, 161 W.Va. 547 554-555, 244 S.E.2d 39, 43-44 (1978), this Court indicated that “[b]oth crimes [burglary and armed robbery] are serious and involve the threat of violence against persons, if not actual violence in the case of armed robbery.” Id., at 554-55, 244 S.E.2d at 43-44. Moreover, in State v. Evans, 203 W.Va. 446, 508 S.E.2d 606 (1998), this Court “expressly reject[ed] [the appellant’s] contention that burglary does not constitute a crime of violence.” Id., at 450, 508 S.E.2d at 610 (citing Martin v. Leverette, 161 W.Va. 547, 555, 244 S.E.2d 39, 43-44 for the proposition that burglary is a “serious [crime] and involve[s] the threat of violence against persons”). In the case at bar, the burglary involved the threat of violence to those who were asleep in the dwelling at the time of the burglary. Under a straightforward application of this Court’s precedent, the petitioner’s life sentence is constitutionally proportionate to his crimes. Accordingly, I respectfully dissent.
exchange with petitioner clearly expressing petitioner’s desire to testify in his own defense. Accordingly, we find that the circuit court likewise correctly dispensed with these arguments.