IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

No. 16-0915

JASMAN MONTGOMERY,

Plaintiff Below, Petitioner

v.

DONNIE AMES, SUPERINTENDENT

MT. OLIVE CORRECTIONAL COMPLEX,

Defendant Below, Respondent

Appeal from the Circuit Court of Mercer County

The Honorable Mark Wills, Judge

Civil Action No. 14-C-463

AFFIRMED

Submitted: January 8, 2019

Filed: April 26, 2019

Joseph T. Harvey, Esq. Patrick Morrisey, Esq. 

Bluefield, West Virginia Attorney General

Counsel for Petitioner Lindsay S. See, Esq.

Solicitor General

Gordon L. Mowen, II, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for Respondent

JUSTICE WORKMAN delivered the Opinion of the Court. 

FILED

April 26, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “In reviewing challenges to the findings and conclusions of the 

circuit court in a habeas corpus action, we apply a three-prong[ed] 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).

2. “On an appeal to this Court the appellant bears the burden of 

showing that there was error in the proceedings below resulting in the judgment of which 

he complains, all presumptions being in favor of the correctness of the proceedings and 

judgment in and of the trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 

S.E.2d 657 (1973).

3. A criminal prosecution requires the existence of an accusation 

charging the commission of an offense. Such an accusation, either in the form of an 

indictment or an information, is an essential requisite of a circuit court’s jurisdiction.

4. A petitioner seeking post-conviction habeas corpus relief may 

successfully challenge a guilty-plea conviction based upon an alleged violation of Rule 7

of the West Virginia Rules of Criminal Procedure only by establishing that the violation 

amounted to a constitutional or jurisdictional error, or by showing that the alleged error 
ii

resulted in a complete miscarriage of justice. In addition, the petitioner must also 

demonstrate that he was prejudiced by the alleged error.

5. “A constitutional issue that was not properly preserved at the trial 

court level may, in the discretion of this Court, be addressed on appeal when the 

constitutional issue is the controlling issue in the resolution of the case.” Syl. Pt. 2, Louk 

v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005).

6. “‘A defendant has a right under the Grand Jury Clause of Section 4 

of Article III of the West Virginia Constitution to be tried only on felony offenses for 

which a grand jury has returned an indictment.’ Syl. Pt. 1, State v. Adams, 193 W. Va. 

277, 456 S.E.2d 4 (1995).” Syl. Pt. 1, State v. Haines, 221 W. Va. 235, 654 S.E.2d 359 

(2007).

7. A defendant may waive his constitutional right to a grand jury 

indictment as provided in article III, section 4 of the West Virginia Constitution and elect 

to be prosecuted by information in accordance with the provisions of Rule 7 of the West 

Virginia Rules of Criminal Procedure if such waiver is made intelligently and voluntarily.

8. “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 
iii

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).

9. “In cases involving a criminal conviction based upon a guilty plea, 

the prejudice requirement of the two-part test established by Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W. Va. 3, 

459 S.E.2d 114 (1995), demands that a habeas petitioner show that there is a reasonable 

probability that, but for counsel’s errors, he would not have pleaded guilty and would 

have insisted on going to trial.” Syl. Pt. 6, State ex rel. Vernatter v. Warden, W. Va. 

Penitentiary, 207 W. Va. 11, 528 S.E.2d 207 (1999). 
1

WORKMAN, Justice:

 In 2011, Petitioner Jasman Montgomery waived his constitutional right to 

grand jury indictment and pled guilty by information to the first-degree murder of 

seventeen-year-old Matthew Flack. He received substantial benefits for proceeding in this 

manner including parole eligibility after serving fifteen years in the penitentiary. 

In 2016, Petitioner filed a second amended petition for writ of habeas 

corpus in the Circuit Court of Mercer County, West Virginia, which was denied. On 

appeal to this Court, Petitioner contended that his guilty plea by information was illegal

and improper under the West Virginia Constitution and Rule 7 of the West Virginia Rules 

of Criminal Procedure (hereinafter “Rule 7”), because he faced a life sentence. Petitioner 

also asserted his guilty plea was involuntary and his trial counsel provided ineffective 

assistance when they allowed him to plead guilty before receipt of the ballistics report 

that revealed Petitioner’s weapon did not fire the fatal shot. 

We affirm the circuit court’s decision. Even though the guilty plea by 

information did not comport with Rule 7, Petitioner implicitly waived that irregularity 

when he expressly waived his constitutional right to an indictment. Moreover, the detail 

of who actually fired the shot that killed the victim was legally immaterial to the issues of 

the voluntariness of Petitioner’s guilty plea and the effectiveness of his counsel 
2

considering the homicide occurred when Petitioner and his co-conspirators perpetrated a 

violent home invasion. 

I. FACTS AND PROCEDURAL HISTORY

On the evening of January 28, 2011, Petitioner, along with Brandon Flack 

and Jacob Thomas, planned to commit a robbery. Petitioner and his co-conspirators 

traveled from Pulaski, Virginia, and drove to Bluefield, West Virginia, with the intent to 

steal money from a car. Upon their arrival shortly after midnight on January 29, 2011, 

they could not locate the car. Petitioner and his co-conspirators changed plans and 

decided to break into the home of David Flack (Brandon Flack’s uncle) and steal money. 

They donned ski masks, approached the back of the Flack residence, and knocked on the 

door. 

Matthew Flack (Brandon Flack’s cousin) and others were inside the home.

Hearing the knock on the back door, Matthew looked through a curtain and saw three 

masked men standing at the back door. Matthew then ran upstairs to get a gun. As 

Matthew headed up the stairs, one of Petitioner’s co-conspirators kicked in the back door 

and they entered the home. Petitioner and Jacob Thomas were armed with handguns. 

Brandon claimed, and the State did not contest, that he was unarmed. Following 

Matthew, Brandon ran up the stairs and the two began wrestling. Brandon and Matthew 

fought on the landing, and Brandon was shot in the scuffle. Petitioner ran up the stairs, 

pulled out a gun, and shot toward Matthew. 
3

Matthew died as the result of gunshot wounds of his face and chest. The 

medical examiner found the wounds “could be the result of one discharge fired by a 

handgun.” A bullet was recovered from Matthew’s body and sent for ballistic testing. As 

explained below, Petitioner believed he shot Matthew in the face (and testified in court 

that he did) but the ballistics report later revealed that Petitioner’s weapon did not fire the 

fatal shot.1

Following negotiations, Petitioner agreed to plead guilty to first-degree 

murder by way of information in October 2011.2 At the time of the plea, the ballistic 

report was not complete. The plea agreement provided:

1. That the State will file an Information charging Defendant 

Montgomery with the first degree murder of Matthew Flack 

on or about the 29th day of January 2011, and Defendant will 

tender a guilty [plea] to said Information.

2. That the State will refrain from further prosecuting 

Defendant for other possible charges arising from the same 

set of facts and circumstances surrounding the murder of 

Matthew Flack, which charges are now known or should be 

known to the State.

 

1 The parties do not indicate who fired the shot that killed Matthew, but that detail 

is irrelevant to our analysis. 

2 The State pursued the murder charge based on a felony murder theory. Felony 

murder is defined as “[m]urder . . . in the commission of, or attempt to commit, arson, 

kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful 

custody, or a felony offense of manufacturing or delivering a controlled substance[.]” W. 

Va. Code § 61-2-1 (2014). The penalty for felony murder is “confinement in the 

penitentiary for life.” Id., § 61-2-2. 
4

3. That the State and Defendant agree, pursuant to Rule 

11(e)(C) of the Rules of Criminal Procedure, that the proper 

disposition of the case herein is a life sentence with a grant of 

mercy.

4. The Defendant will come forward and provide truthful 

testimony about the facts and circumstances regarding the 

murder of Matthew Flack in any court proceeding. The State 

will join Defendant’s motion for an order requiring the 

Division of Corrections to house him separately from any 

codefendant.

Petitioner agreed to the above terms and, in exchange, waived several 

constitutional rights including the right to be prosecuted by indictment and the right to a 

jury trial. Although not outlined in the plea agreement, Petitioner also received the 

benefit of the State’s agreement to file a motion with the circuit court to strike the 

language “with the use of a firearm” from the information to avoid a firearm 

enhancement penalty against Petitioner. The circuit court granted this motion. 

At the plea hearing on October 17, 2011, Petitioner asserted, under oath, 

that he was entering the plea knowingly, voluntarily, and of his own free will; that no one 

had forced or threatened him to do so; that his counsel informed him of the charges and 

consequences of pleading guilty; and that he was satisfied with the advice and services of 

his counsel. Petitioner also stated that he had reviewed and understood the waiver of his 

right to an indictment, and indicated that he wanted to proceed, knowing he was waiving 

or giving up this right. Further, Petitioner signed a Waiver of Indictment in open court 

and consented to proceeding by way of information. Counsel informed the court during 
5

the guilty plea that “[b]allistic results aren’t back yet, but [Petitioner] has sufficient 

information at length to enter in this plea voluntarily, and he—we went over his rights 

with him yesterday.” Petitioner agreed. 

The circuit court agreed to accept the binding plea agreement, and on 

November 28, 2011, sentenced Petitioner to life in prison, with the recommendation of 

mercy, whereby Petitioner would be eligible for parole after having served fifteen years. 

See W. Va. R. Crim. P. 11(e) (stating court may accept or reject binding plea agreement).

Pursuant to the plea, Petitioner testified for the State at co-defendant 

Brandon Flack’s trial. Petitioner discussed how the men planned the robbery, traveled to 

the Flack residence, and executed a forced entry. State v. Flack, 232 W. Va. 708, 711, 

753 S.E.2d 761, 764 (2013). Petitioner stated that he shot Matthew Flack. Id. During 

cross-examination by defense counsel, Petitioner admitted that he was motivated to plead 

guilty before his co-defendants could because he did not want to go to the penitentiary for 

the rest of his life without the possibility of parole. 

[Flack’s Defense Counsel] Q. They also told you, the first 

guy who gets the plea gets the deal, didn’t they? That’s what 

you came to understand, the first guy that takes a plea gets the 

deal?

[Petitioner] A. Yeah.

Q. And you had to make yourself the best deal you could, in 

the situation . . . . And that’s what you did, isn’t it?

A. Yes, sir.
6

A jury found Brandon Flack guilty of all charges set forth in the indictment: 

first-degree murder, burglary, first-degree robbery, and conspiracy. Because the State had 

pursued the murder charge based on a felony murder theory, the trial court merged the 

counts of first-degree murder and burglary, resulting in the dismissal of the burglary 

conviction. Mr. Flack was sentenced to life imprisonment with eligibility for parole after 

fifteen years for first-degree murder, a determinate term of forty years for first-degree 

robbery, and an indeterminate term of one to five years on the conspiracy offense. The 

trial court ordered all those sentences to run consecutively. Id. at 712, 753 S.E.2d at 765.3

Petitioner filed a petition for habeas corpus in August 2014. Petitioner was 

appointed counsel and subsequently filed an amended petition in October 2014, wherein 

he raised four claims: (1) the guilty plea to first-degree murder by information was 

improper pursuant to Rule 7; (2) his guilty plea was involuntary; (3) ineffective 

assistance of counsel, and (4) excessive bail. Petitioner ultimately withdrew this amended 

petition. 

In March 2016, Petitioner filed a second amended petition and alleged that 

pleading guilty to first-degree murder by information was illegal and improper because it 

is an offense punishable by life imprisonment. Petitioner relied upon Rule 7, which 

 

3

In the appeal of Brandon Flack’s habeas corpus petition, this Court stated: 

“robbery is not a lesser included offense of felony murder predicated on burglary. 

Therefore, double jeopardy does not prohibit the imposition of a punishment for both 

crimes.” Flack v. Ballard, 239 W. Va. 566, 587, 803 S.E.2d 536, 557 (2017).
7

provides: “[a]n offense which may be punished by life imprisonment shall be prosecuted 

by indictment. Any other felony offense may be prosecuted by information if the 

indictment is waived.”4Id., in part. 

Petitioner also argued that his trial counsel was ineffective because they 

allowed him to plead guilty by information, and counsel advised him to plead guilty even 

though the ballistics report was not completed. Petitioner stated that the ballistics report 

ultimately revealed that the bullet removed from the victim was not fired by Petitioner’s 

handgun. Petitioner also noted that the Post-Mortem Investigation confirmed that the 

victim died of two gunshot wounds that were inflicted by the same bullet. 

With regard to relief, Petitioner requested that the circuit court consider 

placing him on probation or home confinement. In the alternative, Petitioner requested 

that his counsel be allowed to negotiate a more reasonable plea agreement with the State 

or proceed to trial if necessary.

The State 5responded that although the charging document was not in 

accordance with Rule 7, the fact that Petitioner waived grand jury indictment and elected 

 

4 Petitioner also contended that the Grand Jury Clause of the Fifth Amendment to 

the United States Constitution was violated. He has since abandoned that claim.

5 We refer to Respondent Donnie Ames, Superintendent, Mt. Olive Correctional 

Complex, as “the State.” 
8

to plead by way of information was, at most, harmless error. A proper charging document 

would not have resulted in any change in the outcome, namely, a conviction of firstdegree murder with the possibility of parole. The State also asserted that Petitioner 

received effective assistance of counsel; the issue of whose bullet killed the victim was 

immaterial under a felony murder charge in a case where several co-defendants broke 

into a home at night and the victim was shot to death.6 

The circuit court held an omnibus evidentiary hearing on July 26, 2016. 

Petitioner did not testify nor did he offer evidence. The circuit court heard argument by 

counsel. 

By order entered August 30, 2016, the circuit court denied Petitioner’s 

second amended petition. It held that although Petitioner’s guilty plea by information was 

not in accordance with the West Virginia Rules of Criminal Procedure, this alleged Rule 

7 “right” to a grand jury presentment of first-degree murder “is not one borne of the 

[State] Constitution.” The circuit court noted that it was unaware of any legal authority to 

support the notion that this procedural irregularity necessitated relief in habeas corpus. 

See e.g., State ex rel. Farmer v. Trent, 209 W. Va. 789, 794, 551 S.E.2d 711, 716 (2001) 

(stating prisoner may not collaterally attack guilty plea where all that is shown is failure 

 

6 See Syl. Pt. 7, State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978) (“The crime 

of felony-murder in this State does not require proof of the elements of malice, 

premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs 

accidentally during the commission of, or the attempt to commit, one of the enumerated 

felonies.”). 
9

to comply with formal requirements of Rule 11 of West Virginia Rules of Criminal 

Procedure).

The circuit court also held that Petitioner failed to prove that his trial 

counsel was ineffective. It noted that given the circumstances of the case, the plea deal 

accepted by Petitioner and the resulting sentence was in his best interest. Finally, the 

lengthy plea colloquy demonstrated that Petitioner was fully informed about the 

consequences of the plea agreement and his decision to plead guilty was voluntary.

II. STANDARD OF REVIEW

This Court reviews a circuit court’s dismissal of a habeas petition 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[ed] 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). Further, “[o]n an 

appeal to this Court the appellant bears the burden of showing that there was error in the 

proceedings below resulting in the judgment of which he complains, all presumptions 

being in favor of the correctness of the proceedings and judgment in and of the trial 

court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).
10

III. DISCUSSION

A. Petitioner Waived His Right To An Indictment

Petitioner first contends that the circuit court erred by rejecting his claim 

that pleading guilty to first-degree murder by information was illegal and improper. 

Petitioner argues that the circuit court “erroneously assumed that the requirement of an 

indictment in cases that may be subject to life imprisonment stemmed” from Rule 7. 

Petitioner’s assertion is disingenuous. The circuit court focused on the Rule 7 violation 

because that was the precise argument advanced by Petitioner.

The issue is whether a defendant, who has waived his constitutional right to 

grand jury indictment and pled guilty by information, is entitled to post-conviction 

habeas corpus relief by simply showing his plea did not comply with the requirements of 

Rule 7. We begin with Rule 7, which provides the procedure for a defendant to waive

grand jury indictment:

(a) Use of Indictment or Information. – An offense which 

may be punished by life imprisonment shall be prosecuted by 

indictment. Any other felony offense may be prosecuted by 

information if the indictment is waived. Any misdemeanor 

may be prosecuted by indictment or information. An 

information may be filed without leave of court.

(b) Waiver of Indictment. – Any felony offense which is not 

punishable by life imprisonment may be prosecuted by 

information if the defendant, after having been advised of the 

nature of the charge and of his or her rights by a written 

waiver signed by the defendant and his or her counsel and 

filed as a part of the record, waives prosecution by 

indictment.
11

W. Va. R. Crim. P. 7, in part. 

An information is an agreement between the State and the defendant to 

proceed without the formalities of a grand jury indictment. In certain situations, the 

defendant and the State benefit by proceeding by way of information. By waiving the 

constitutional right to an indictment, “the defendant can obtain a speedier disposition of 

the charges against him and the State is spared the time and expenses of unnecessary 

Grand Jury proceedings.” People v. Menchetti, 561 N.E.2d 536, 538 (N.Y. 1990).

7

Petitioner relies on State ex rel. McGilton v. Adams, 143 W. Va. 325, 102 

S.E.2d 145 (1958), and State ex rel. Firestone v. Adams, 145 W. Va. 194, 113 S.E.2d 830 

(1960), for the proposition that his conviction is utterly void in the absence of an 

indictment considering the Rule 7 irregularity. However, these cases are patently 

distinguishable as they involved the transfer of adjudicated delinquents to an adult 

penitentiary when there was no charging instrument—information or indictment—and no 

 

7 See also Fed. R. Crim. P. 7 comments (noting the “[o]pportunity to waive 

indictment and to consent to prosecution by information will be a substantial aid to 

defendants, especially those who, because of inability to give bail, are incarcerated 

pending action of the grand jury, but desire to plead guilty. This rule is particularly 

important in those districts in which considerable intervals occur between sessions of the 

grand jury. In many districts where the grand jury meets infrequently a defendant unable 

to give bail and desiring to plead guilty is compelled to spend many days, and sometimes 

many weeks, and even months, in jail before he can begin the service of his sentence, 

whatever it may be, awaiting the action of a grand jury.”). 
12

conviction.

8 Moreover, McGilton and Firestone were decided before this Court adopted 

the West Virginia Rules of Criminal Procedure in 1981—“the paramount authority 

controlling criminal proceedings before the circuit courts of this jurisdiction[.]” State v. 

Wallace, 205 W. Va. 155, 156, 517 S.E.2d 20, 21 (1999). In Wallace, this Court 

recognized that “Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure now 

requires only that ‘[t]he indictment or the information shall be a plain, concise and 

definite written statement of the essential facts constituting the offense charged.’” Id. at 

159, 517 S.E.2d at 24 (emphasis added).

Consequently, Petitioner’s related argument—that the circuit court lacked 

jurisdiction to accept the plea because there was no indictment—lacks merit. Petitioner 

offers no support for that categorical argument, and we are aware of none. Rule 7 clearly 

provides that a criminal defendant may be charged by indictment or information. Other 

courts examining this issue have found that the constitutional right to be charged by a 

 

8

In McGilton, this Court granted relief in habeas corpus recognizing that “a 

juvenile court is without authority to sentence a person to confinement in the penitentiary 

of this State.” Id. at 325, 102 S.E.2d at 145, syl. pt. 1, in part. Moreover, we held that 

“[t]he incarceration of a person in the penitentiary of this State for an offense for which 

there was no presentment or indictment by a grand jury violates the provisions of Article 

III, Section 4, of the Constitution of this State and is therefore void.” Id., syl. pt. 2; see 

also Firestone, 145 W. Va. at 195-96, 113 S.E.2d at 831 (granting relief in habeas corpus 

when petitioner (adjudicated delinquent) was determined unfit for confinement in 

Industrial School for Boys and subsequently transferred to State Penitentiary at 

Moundsville, without being indicted by grand jury). The syllabus points of McGilton and

Firestone are valid points of law considering the distinctive facts of those cases. This 

Court has repeatedly stated that a syllabus point is to be read in the light of the opinion.

Farley v. Worley, 215 W. Va. 412, 426, 599 S.E.2d 835, 849 (2004).
13

grand jury is a personal right of the defendant and does not go to the court’s subject 

matter jurisdiction because it may be waived. See, e.g., Malone v. Com., 30 S.W.3d 180, 

184 (Ky. 2000) (“Provisions to the effect that no person shall be held or required to

answer, or held for or put upon trial, for a criminal offense, or for a specified kind or 

grade of offense, except by or upon indictment have been construed, in most jurisdictions 

as not being mandatory or jurisdictional in character but merely conferring a personal 

privilege which may be waived.”).9

Nevertheless, we are mindful that an information acts in lieu of or as a 

substitute for an indictment and its validity is therefore essential to a circuit court’s 

jurisdiction. It is axiomatic that a criminal prosecution requires the existence of an 

accusation charging the commission of an offense. Such an accusation, either in the form 

of an indictment or an information, is an essential requisite of a circuit court’s

jurisdiction. See, e.g., Malone, 30 S.W.3d at 183 (“In Kentucky, subject matter 

jurisdiction over a felony offense may be invoked either by a grand jury indictment or by 

information in cases where the individual consents.”); accord Wells v. Sacks, 184 N.E.2d 

 

9 See also McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (citing 

Rule 7(b) of Federal Rules of Criminal Procedure and finding “the constitutional right to 

be charged by grand jury indictment simply does not fit the mold of a jurisdictional 

defect, because it is a right that plainly may be waived.”); United States v. Jones, 177 

F.2d 476, 478 (7th Cir. 1949) (“The right to indictment by a grand jury is a right 

guaranteed by the Federal Constitution . . . but an intelligent accused may waive any 

constitutional right that is in the nature of a privilege to him, or that is for his personal 

protection or benefit.”). 
14

449 (Ohio 1962). Thus, if an accused has not validly waived his or her constitutional 

right to an indictment, an indictment is still the mandatory charging instrument. 

Having obtained from the circuit court precisely what he sought, it ill 

behooves Petitioner now to complain that his waiver of indictment was improper under 

Rule 7 because he was charged by information with an offense punishable by life 

imprisonment. As this Court stated in State v. Wade, 174 W. Va. 381, 384, 327 S.E.2d 

142, 146 (1985), Rule 7 “implements the requirements of” the constitutional right to 

grand jury indictment under article III, section 14 of the West Virginia Constitution. Rule 

7 does not create a right separate and distinct from the constitution. Consequently, when 

Petitioner expressly waived his constitutional right to an indictment, he implicitly waived 

the Rule 7 irregularity. 

In Wallace, we discussed the interplay between the constitutional mandate 

and Rule 7:

Article III, § 14 of the West Virginia Constitution 

mandates, in part, that in all criminal trials “the accused shall 

be fully and plainly informed of the character and cause of the 

accusation.” Rule 7(c)(1) is coterminous with this 

constitutional command. As we stated in Syllabus point 2 of 

State v. Miller, “[a]n indictment need only meet minimal 

constitutional standards, and the sufficiency of an indictment 

is determined by practical rather than technical 

considerations.” 

Wallace, 205 W. Va. at 160, 517 S.E.2d at 25 (footnotes omitted and emphasis added).
15

The requirements of Rule 7 serve a salutary purpose and should ordinarily 

be observed. Nevertheless, this Court has recognized that a technical violation of the 

West Virginia Rules of Criminal Procedure does not give rise to habeas relief. For 

instance, in State ex rel. Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999), the 

petitioner argued that he was denied due process as a result of the trial court failing to 

meet certain requirements of Rule 11 of the West Virginia Rules of Criminal Procedure 

in the course of his guilty plea colloquy. Vernatter, 207 W. Va. at 19, 528 S.E.2d at 215. 

In Vernatter, the trial court violated Rule 11 by failing to advise the petitioner that he was 

waiving a variety of constitutional protections, including the right to a trial and the right 

to confront accusers. This Court found the claims were not cognizable in an action for 

post-conviction relief under the West Virginia Post-Conviction Habeas Corpus Act:

10

 

“[t]he requirements of Rule 11, while they assist in ensuring that guilty pleas comport 

with this basic constitutional requirement, are not of themselves of constitutional 

significance.” Vernatter, 207 W. Va. at 19-20, 528 S.E.2d at 215-16. 

This Court went on to hold in Vernatter that a petitioner may successfully 

challenge a guilty-plea conviction in a habeas proceeding based upon an alleged violation 

of Rule 11 “only by establishing that the violation constituted a constitutional or 

jurisdictional error; or by showing that the error resulted in a complete miscarriage of 

justice, or in a proceeding inconsistent with the rudimentary demands of fair procedure.” 

 

10 See W. Va. Code §§ 53-4A-1 to -11 (2016).
16

Vernatter, 207 W. Va. at 14, 528 S.E.2d at 210, syl. pt. 10, in part. In addition, the 

petitioner must also demonstrate that he was prejudiced by the alleged error. Id.; accord

State ex rel. Farmer v. Trent, 209 W. Va. at 794, 551 S.E.2d at 716 (noting prisoner may 

not collaterally attack guilty plea under Rule 11 where all that is shown is failure to 

comply with formal requirements of Rule).

Applying the principles enunciated in Vernatter to the issue before us, we 

hereby hold that a petitioner seeking post-conviction habeas corpus relief may 

successfully challenge a guilty-plea conviction based upon an alleged violation of Rule 7

of the West Virginia Rules of Criminal Procedure only by establishing that the violation 

amounted to a constitutional or jurisdictional error, or by showing that the alleged error 

resulted in a complete miscarriage of justice. In addition, the petitioner must demonstrate 

that he was prejudiced by the alleged error. 

In this case, all that Petitioner has alleged and shown is that the circuit court 

failed to comply with the formal requirements of Rule 7 when it accepted his guilty plea

by information when the offense was punishable by life imprisonment. At no point in the 

proceedings below did Petitioner show that his guilty plea by information was 

involuntary or that he was prejudiced by this alleged error. To the contrary, Petitioner 

admitted at Brandon Flack’s trial that he was strongly motivated to be the first of his codefendants to accept the plea offer by the State to secure the best deal. The State’s 

agreement to waive indictment and proceed to prosecution by information was therefore 
17

substantially favorable to Petitioner and he has shown no prejudice. Accordingly, 

Petitioner’s claimed Rule 7 violation is insufficient to warrant post-conviction habeas 

corpus relief. 

Petitioner raises a new challenge on appeal, namely, that his right to a 

grand jury indictment under the State Constitution was violated. W. Va. Const. art. III § 

4. Because Petitioner did not advance this constitutional argument below, we address 

whether to entertain it. 

This Court has explicitly stated that, under very narrow circumstances, an 

error not properly preserved at the trial court level may be considered on appeal. 11 In 

syllabus point two of Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005), we held:

 

11 Justice Cleckley made the following observations regarding this Court’s 

authority to address an issue that was not properly preserved at the circuit court level:

[A]lthough the rule requiring all appellate issues be [properly] 

raised first in the circuit court is important, it is not 

immutable: Our cases have made clear that the failure to 

[properly] raise issues below is not a jurisdictional 

prerequisite to an appeal but, rather, is a gatekeeper provision 

rooted in the concept of judicial economy, fairness, 

expediency, respect, and practical wisdom. Requiring issues 

to be [properly] raised at the trial level is a juridical tool, 

embodying appellate respect for the circuit court’s advantage 

and capability to adjudicate the rights of our citizens.

State v. Greene, 196 W. Va. 500, 505, 473 S.E.2d 921, 926 (1996) (Cleckley, J., 

concurring).
18

A constitutional issue that was not properly preserved 

at the trial court level may, in the discretion of this Court, be 

addressed on appeal when the constitutional issue is the 

controlling issue in the resolution of the case.

Applying this principle of law, we exercise our discretion to address the 

constitutional issue presented even though it was not properly preserved below. The issue 

raised here, but omitted below, is purely legal in nature and lends itself to resolution on 

the existing record. Moreover, the State has thoroughly briefed the constitutional issue in 

response to Petitioner’s claim. We view the matter as sufficiently developed to decide 

this issue.

Article III, section 4 of the West Virginia Constitution mandates, in part, 

that “[n]o person shall be held to answer for treason, felony or other crime . . . unless on 

presentment or indictment of a grand jury.” This Court held in syllabus point one of State 

v. Haines, 221 W. Va. 235, 654 S.E.2d 359 (2007), that:

“A defendant has a right under the Grand Jury Clause 

of Section 4 of Article III of the West Virginia Constitution to 

be tried only on felony offenses for which a grand jury has 

returned an indictment.” Syl. Pt. 1, State v. Adams, 193 W.

Va. 277, 456 S.E.2d 4 (1995).

Nevertheless, just as an accused may waive his constitutional rights to 

assistance of counsel and trial by jury, 12 which are designed for the protection of his or 

 

12 See Syl. Pt. 5, State ex rel. Powers v. Boles, 149 W. Va. 6, 138 S.E.2d 159 

(1964) (“A person accused of a crime may waive his constitutional right to assistance of 

(continued . . .)
19

her personal rights, an accused may waive the similar personal right of indictment by a 

grand jury. An accused may waive sundry constitutional rights and privileges, if he or she 

does so intelligently and voluntarily.13 Indeed, a waiver of grand jury indictment is of less 

consequence than waiving the right to trial by jury considering the grand jury need find 

only probable cause to believe the accused committed the crime, rather than guilt beyond 

a reasonable doubt. United States v. Montgomery, 628 F.2d 414, 416 (5th Cir. 1980) 

(discussing constitutional waiver in context of Rule 7(b) of Federal Rules of Criminal 

Procedure that permits waiver of indictment and prosecution by information for noncapital felonies).

Accordingly, we hereby hold that a defendant may waive his constitutional 

right to a grand jury indictment as provided in article III, section 4 of the West Virginia 

Constitution and elect to be prosecuted by information in accordance with the provisions 

of Rule 7 of the West Virginia Rules of Criminal Procedure if such waiver is made 

intelligently and voluntarily. Based on the record before us, it is clear that Petitioner did 

so here when he explicitly waived this constitutional right and elected to be prosecuted by 

 

counsel and his constitutional right to trial by jury [art. III § 14 of the West Virginia 

Constitution], if such waivers are made intelligently and understandingly.”).

 

13 Other significant rights conferred by the United States Constitution can be 

waived by criminal defendants. See, e.g., Adams v. U.S. ex rel. McCann, 317 U.S. 269 

(1942) (trial by jury); Johnson v. Zerbst, 304 U.S. 458 (1938) (right of counsel); and

Trono v. U.S., 199 U.S. 521 (1905) (protection against double jeopardy).
20

information.14 Petitioner’s Waiver of Indictment was filed in open court after the circuit 

court had ascertained from Petitioner that he had received a copy of the information, was 

familiar with it, and agreed to proceed in this manner. 

 

14 At the plea hearing, the circuit court addressed Petitioner’s constitutional waiver

at length:

THE COURT: Now, do you know and understand that 

you have a constitutional right to be indicted by the grand 

jury. Do you understand that?

THE DEFENDANT: Yeah.

THE COURT: I’m going to need for you to speak up 

for me, and make sure you answer out loud all the questions 

that I ask you. Okay?

THE DEFENDANT: All right.

THE COURT: Now, let me explain what a grand jury 

is. A grand jury is made up of 16 citizens of this county, and 

they’re brought in, and the prosecuting attorney presents what 

they believe the evidence would be against you. It takes at 

least 15 members of the grand jury to be present for there to 

be a quorum.

After they hear the evidence, at least 12 members of 

the grand jury [have] to agree to have charges brought against 

you. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And the standard they use is what’s 

called probable cause, and that is that they believe there’s a 

probability that based upon the information introduced by the 

prosecutor the crime may have been committed. Do you 

understand that?

(continued . . .)
21

 

THE DEFENDANT: Yes, sir.

THE COURT: Now, do you understand you can waive 

your right to be charged by the grand jury and agree to this 

case being proceeded against you on an information filed by 

the prosecutor? Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Now, you have an absolute 

constitutional right to be charged by way of the indictment by 

a grand jury, and the only way that an information can be 

filed against you charging you with any offenses is that you 

have to agree to the filing of the information and a waiver of 

the charges be presented to the grand jury. Do you understand 

that?

THE DEFENDANT: Yes.

THE COURT: Do you understand that a grand jury 

may or may not indict you based upon what they hear—the 

evidence—from the prosecutor? Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now, do you understand that if you 

waive indictment by the grand jury this case is going to 

proceed against you on the prosecuting attorney’s information 

just as if you had been indicted? Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now, have you discussed the option of 

waiving your right to indictment by the grand jury with your 

attorneys?

THE DEFENDANT: Yes.

THE COURT: Do you understand what your rights are 

regarding indictment by the grand jury?

(continued . . .)
22

B. Petitioner’s Guilty Plea Was Voluntary

Petitioner also contends that his guilty plea was involuntary. Although 

Petitioner did not raise this ground in his second amended petition, the circuit court 

addressed this claim because Petitioner raised it in earlier pleadings as part of the Losh

checklist.15 The circuit court found that Petitioner knowingly and intelligently waived his 

 

THE DEFENDANT: Yes.

THE COURT: Has anyone threatened you to get you 

to waive your right to indictment by the grand jury?

THE DEFENDANT: No.

THE COURT: Has anyone promised you anything, 

apart from this plea agreement, to cause you to waive your 

right to indictment by the grand jury?

THE DEFENDANT: No.

THE COURT: Okay. Have you understood everything 

up to this point?

THE DEFENDANT: Yes. 

THE COURT: Do you have any questions about 

anything I’ve spoken to you about so far?

THE DEFENDANT: No.

THE COURT: Understanding everything I’ve told 

you, Mr. Montgomery, and having no questions, do you wish 

to waive your right to indictment by the grand jury?

THE DEFENDANT: Yes. 

15 See Losh v. McKenzie, 166 W. Va. 762, 768, 277 S.E.2d 606, 611 (1981) (listing 

prominent grounds most frequently raised by petitioners in habeas corpus proceedings). 
23

constitutional rights and freely, voluntarily, and intelligently entered into the plea 

agreement. We agree.

A habeas petitioner seeking to overturn his guilty plea bears the burden of 

persuasion with respect to the voluntariness of the plea. See Syl. Pt. 3, State ex rel. 

Clancy v. Coiner, 154 W. Va. 857, 179 S.E.2d 726 (1971) (“The burden of proving that a 

plea was involuntarily made rests upon the pleader.”); accord Syl. Pt. 1, State ex rel. 

Wilson v. Hedrick, 180 W. Va. 689, 379 S.E.2d 493 (1989). As the United States 

Supreme Court has noted, statements made at plea allocutions “carry a strong 

presumption of verity” and “constitute a formidable barrier” in any subsequent collateral 

proceeding. Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Petitioner claims that his counsel failed to educate him about the 

consequences of his guilty plea and misrepresented his involvement in the crime without 

even knowing that exact involvement because the ballistics report was not completed. 

However, Petitioner’s statements at the plea hearing demonstrate that he entered the 

guilty plea voluntarily with full knowledge of the charge and the consequences of plea.

Moreover, Petitioner was aware that the ballistics report was not yet completed and he 

still chose to accept the plea. Petitioner knew exactly what the consequences of his guilty 

plea would be because they were outlined in the binding plea agreement itself and 

discussed at length by the circuit court during the plea colloquy. This evidence convinces 

us that Petitioner’s guilty plea represented his voluntary and intelligent choice. 
24

Petitioner’s guilty plea is not rendered invalid simply because he is now 

motivated by the unfounded belief that he could possibly have obtained a more favorable 

plea offer from the State had he waited on the results of the ballistics report. As discussed 

above, Brandon Flack—who was not even armed with a weapon—was convicted of firstdegree murder, first-degree robbery, and conspiracy, and received a lengthy prison 

sentence. Thus, the results of the ballistics report were not only inconsequential to the 

criminal charges Petitioner faced, they were wholly unrelated to the voluntariness of his 

guilty plea.16

 

16 Even if Petitioner did miscalculate the nature of the evidence against him, our 

analysis of the issue would not change. As the United States Supreme Court has 

recognized,

[o]ften the decision to plead guilty is heavily influenced by 

the defendant’s appraisal of the prosecution’s case against 

him and by the apparent likelihood of securing leniency 

should a guilty plea be offered and accepted. Considerations 

like these frequently present imponderable questions for 

which there are no certain answers; judgments may be made 

that in the light of later events seem improvident, although 

they were perfectly sensible at the time. The rule that a plea 

must be intelligently made to be valid does not require that a 

plea be vulnerable to later attack if the defendant did not 

correctly assess every relevant factor entering into his 

decision. A defendant is not entitled to withdraw his plea 

merely because he discovers long after the plea has been 

accepted that his calculus misapprehended the quality of the 

State’s case or the likely penalties attached to alternative 

courses of action.

Brady v. U.S., 397 U.S. 742, 756-57 (1970).
25

C. Petitioner Has Not Demonstrated Ineffective Assistance of Counsel

Finally, Petitioner raises an ineffective assistance of counsel claim. Claims 

of ineffective assistance of counsel are governed by the two-pronged test established in 

Strickland v. Washington, 466 U.S. 668 (1984), and subsequently adopted by this Court 

in syllabus point five of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995):

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.

In Hill v. Lockhart, 474 U.S. 52 (1985), the United States Supreme Court 

held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas 

based on ineffective assistance of counsel.” Id. at 58. In the context of guilty pleas, the 

second prong, or prejudice requirement of Strickland, focuses on whether counsel’s 

constitutionally ineffective performance affected the outcome of the plea process. “In 

other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that 

there is a reasonable probability that, but for counsel’s errors, he would not have pleaded 

guilty and would have insisted on going to trial.” Id. at 59. Consistent with Hill, this 

Court held in syllabus point six of Vernatter, 207 W. Va. 11, 528 S.E.2d 207, that 

[i]n cases involving a criminal conviction based upon a 

guilty plea, the prejudice requirement of the two-part test 

established by Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 
26

W. Va. 3, 459 S.E.2d 114 (1995), demands that a habeas 

petitioner show that there is a reasonable probability that, but 

for counsel’s errors, he would not have pleaded guilty and 

would have insisted on going to trial.

With regard to the first prong of Strickland, Petitioner contends his trial 

counsel, Phillip Scantlebury and David Smith, were ineffective when they: (1) allowed 

him to enter into a guilty plea to first-degree murder based upon information; (2) 

misrepresented that Petitioner’s bullet killed the victim before the forensic report was 

received; and (3) failed to explain the potential mitigating circumstances had they waited 

to receive the ballistics report. As explained below, these arguments are without merit. 

First, this Court gives substantial deference to the judgment of defense 

counsel on review of an ineffective assistance claim particularly in guilty plea cases. See

Vernatter, 207 W. Va. at 17, 528 S.E.2d at 213 (“The petitioner’s burden in this regard is 

heavy, as there is a ‘strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance[.]’”) (quoting Strickland, 466 U.S. at 689). In 

many cases, as the Fourth Circuit Court of Appeals has aptly stated, “[w]here there is no 

defense on the merits and the prosecution’s case is readily provable, nothing is gained for 

the defendant by pleading not guilty” and a client should be advised strongly to plead 

guilty. United States v. Jones, 392 F.2d 567, 569 n.3 (4th Cir. 1968). Therefore, we 

decline to find that Petitioner’s trial counsel was ineffective by advising him to plead 

guilty to first-degree murder by way of information considering the overwhelming 

evidence of his guilt. Under these circumstances, it was eminently reasonable for counsel 
27

to recommend that Petitioner consent to the filing of an information so that he could 

accept this plea offer. As Petitioner admitted at Brandon Flack’s trial, he wanted to plead 

guilty before his co-defendants could because he was trying to avoid a life sentence 

without the possibility of parole. 

Second, Petitioner offers no evidentiary support for his claim that trial 

counsel misrepresented that it was Petitioner’s bullet that killed the victim before receipt 

of the ballistics report. In any event, it would be quite reasonable for one to assume that 

Petitioner’s weapon fired the fatal shot when Petitioner himself believed he shot Matthew 

Flack in the face. 

And third, Petitioner wholly ignores the nature of his crimes and potential 

sentences when he speculates that had counsel waited to receive the ballistics report, this 

“mitigating” evidence would somehow assure a more favorable plea deal. This evidence 

was in no way mitigating considering Petitioner participated in a violent home invasion 

during which the victim was shot and killed. Petitioner faced the same charges as his codefendants—first-degree murder, first-degree robbery, and conspiracy—even if Petitioner 

did not personally do the killing and even if he had no intent to kill. State v. Sims, 162 W. 

Va. 212, 248 S.E.2d 834. 

We recognize that 

[t]he principal value of counsel to the accused in a criminal 

prosecution often does not lie in counsel’s ability to recite a 
28

list of possible defenses in the abstract, nor in his ability, if 

time permitted, to amass a large quantum of factual data and 

inform the defendant of it. Counsel’s concern is the faithful 

representation of the interest of his client and such 

representation frequently involves highly practical 

considerations as well as specialized knowledge of the law. 

Often the interests of the accused are not advanced by 

challenges that would only delay the inevitable . . . A 

prospect of plea bargaining, the expectation or hope of a 

lesser sentence, or the convincing nature of the evidence 

against the accused are considerations that might well suggest 

the advisability of a guilty plea without elaborate 

consideration [of pursuits that would ultimately prove futile]. 

Tollett v. Henderson, 411 U.S. 258, 267-68 (1973).

Accordingly, because Petitioner has failed to establish deficient 

performance by trial counsel—the first prong of Strickland—this Court need not engage 

in analysis of the second prong.

17 But even if this Court were to assume that counsel’s 

performance was deficient, Petitioner has also failed to show how he was prejudiced. 

With regard to the prejudice prong of Strickland, Petitioner does not state 

there is a reasonable probability that he would have rejected the State’s plea offer and 

gone to trial. Rather, Petitioner contends that but for his counsel’s ineffective assistance, 

“he would have asked them to see if a better plea deal could be reached had he known 

that the bullet [that killed Matthew Flack] was not fired from his weapon.” Petitioner 

 

17 When deciding ineffective-assistance-of-counsel claims, a court need not 

address both prongs of Strickland, but may dispose of the claim based solely on a 

petitioner’s failure to meet either prong. Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 

W. Va. 314, 465 S.E.2d 416 (1995).
29

essentially wants to negotiate a more favorable plea agreement without the risk of losing 

the benefits he received from the plea deal he accepted. As a result, Petitioner’s allegation 

falls short of the Hill/Vernatter standard and is insufficient to establish actual prejudice. 

Hill, 474 U.S. at 59; Vernatter, 207 W. Va. at 18, 528 S.E.2d at 214; see also Short v. 

U.S., 471 F.3d 686, 696-97 (6th Cir. 2006) (“petitioner’s claim of prejudice rests upon an 

assertion that he wound up with a less favorable plea or sentence than he otherwise would 

have accepted with the advice of competent counsel. Such a claim is insufficient to 

establish actual prejudice.”).

IV. CONCLUSION

We affirm the August 30, 2016, order of the Circuit Court of Mercer 

County. 

 Affirmed.