1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Nathaniel Showalter

, Petitioner Below

, Petitioner

vs ) No. 1 8

- 0 128 ( Mercer County 17

- C

- 428 )

J

. T

. Binion, Superintendent,

Huttonsville Correctional Center

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Nathaniel Showalter

, pro se
, appeals the January 26 , 201 8 , order of the Circuit

Court of Mercer County d eny ing his petition for a writ of habeas corpus

. Respondent J.T. Binion, Superintendent, Huttonsville Correctional Center

, 1 by counsel Zachary Aaron Viglianco , file d a

response in support of the circuit court’s order

.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon c onsideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On June 23, 2014, a robbery occurred at the First Community Bank in Bluefield, West Virginia. Detective K.L. Adams of the Bluefield Police Department interviewed petitioner. During the interview, petitioner confessed to the bank robbery. On February 10, 2015, petitioner was

indicted for first

- degree robbery

.

Subsequently, petitioner filed a motion to suppress the confession he gave during the

intervi ew with Detective Adams

. On June 11, 2015, the circuit court held a hearing on the motion.

1 Since the filing of the appeal in this case, the superintendent at Huttonsville Correctional

Center has changed and the superintendent is now J.T. Binion . The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens” are now designated “superintendents.” See W.Va. Code § 15A

- 5

- 3. 

### FILED
December 20, 2019

EDYTHE NASH GAISER

, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

Detective Adam s testified that he read petitioner’ s rights to him pursuant to Miranda v. Arizona

, 384 U.S. 436 (1966) ; that petitioner signed a Miranda rights waiver form prior to giving his

statement; and that he advised petitioner that petitioner did not have to sp eak to him. Detective

Adams further testified that petitioner’ s confession corroborated facts of the r obbery, including his description of the pellet gun used during the commission of the offense, the black clothing worn,

and the direction in which the robber fled following the crime. While petitioner also testified at the suppression hearing, the circuit court found petitioner’s testimony “incredible.” The circuit court denied the motion to suppress, finding that petitioner’s confession “ was voluntary and not the product of duress or coercion by law enforcement.”

Petitioner’s trial commenced on October 2 7 , 2015. After the close of all evidence , the

circuit court instructed the jury on second

- degree robbery and bank robbery as lesser

- included

o ffenses of first

- degree robbery. Specifically, the court’s charge stated:

The offense charged in the indictment in this case is first

- degree robbery. One of four verdicts may be returned by you under this indictment. They are: guilty

of first

- degree robbery; guilty of second

- degree robbery; guilty of bank robbery; or not guilty.

. . . .

Before [petitioner] can be convicted of first

- degree robbery, the State of West Virginia must overcome the presumption that [petitioner] is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that [petitioner], in Mercer County, West Virginia, on or about J une 23, 2014, did feloniously take, from the presence of employees of First Community Bank, against their will, U.S. currency belonging to First Community Bank and in the custody and control of the bank’s employees by the threat of presenting a firearm, pu tting the employees in fear by the threat of the presented firearm with the intent to permanently deprive First Community Bank thereof.

If after impartially considering, weighing, and comparing all the evidence, both that of the State and that of [peti tioner], the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these

elements of first

- degree robbery, you may find [petitioner] guilty of first

- degree robbery as charged.

If the jury and eac h member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of first

- degree robbery, you

shall find [petitioner] not guilty of first

- degree robbery and deliberate on the lesser

included offense of second

- d egree robbery as hereinafter instructed.

. . . . [The circuit court the n instructed the jury as to the elements necessary to convict petitioner of second

- degree robbery.]3 If after impartially considering, weighing, and comparing all the evidence,

both that of the State and that of [petitioner], the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these

elements of second

- degree robbery, you may find [petitioner] guilty of second

degree robb ery as charged.

If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of second

- degree robbery, you shall find [petitioner] not guilty of second

- degree robbery and deliberate on the lesser included offense of bank robbery as hereinafter instructed.

. . . .

Before [petitioner] can be convicted of bank robbery, the State of West Virginia must overcome the presumption that [petitioner] is innocent and prove to

the satisfaction of the jury beyond a reasonable doubt that [petitioner], in Mercer County, West Virginia, on or about June 23, 2014, did feloniously take from the presence of First Community Bank employees, against their will, U.S. currency belonging to First Community Bank, and in the custody and control of the bank’s employees, by putting said employees in fear with the intent to permanently deprive First Community Bank thereof.

If after impartially considering, weighing, and comparing all the evidence,

both that of the S tate and that of [petitioner], the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these

elements of bank robbery, you may find [petitioner] guilty of bank robbery.

If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of bank robbery, you shall find [petitioner] not guilty.

Following deliberations, the jury found petitioner guilty of first

- d egree robbery. The circuit

court subsequently sentenced petitioner to sixty years of incarceration. In State v. Showalter , No.

16

- 0086, 2017 WL 75958 (W.Va. Jan. 9, 2017) (memorandum decision) , petitioner challenged his conviction, arguing that the circuit co urt erred in denying hi s motion to suppress his confession.

This Court found “ no error in the denial of the motion to suppress ” and affirmed petitioner’s

conviction. Id. at *3.

On December 7, 2017, petitioner filed a petition for a writ of habeas corp us, arguing that (1) his sentence of sixty years of incarceration was unconstitutionally disproportionate to his offense; and (2) his trial counsel failed to object when the instruction as to bank robbery did not

include the element of “ the use of a danger ous weapon .” See W.Va. Code § 61

- 2

- 12(c). By order entered January 26, 2018, the circuit court found that petitioner’s grounds for relief were without merit and denied the habeas petition.4

It is from the circuit court’s January 26, 2018, order that petitioner now appeals. In Syllabus

Point s 1 and 3 of Anstey v. Ballard , 237 W. Va. 411, 787 S.E.2d 864 (2016 ), we held:

1. “In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three

- prong st andard 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).

. . . .

3. “‘A court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other documentary

evidence filed therewith show to such court ’ s satisfaction that the petitioner is entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner , 156 W. Va. 467, 194 S.E.2d 657 (1973).” Syl. Pt. 2, Wh ite v. Haines , 215 W. Va. 698, 601 S.E.2d 18 (2004).

On appeal, petitioner raises a single assignment of error: his trial counsel was ineffective

in failing to object when the circuit court’ s instruction on the offense of bank robbery did not

include the element of “ the use of a dangerous weapon .” See W.Va. Code § 61

- 2

- 12(c). 2 In

S yllabus P oint 5 of State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995), we held:

In the West Virginia courts, claims of ineffective assistanc e of counsel are to be governed by the two

- pronged test established in Strickland v. Washington

,

2 West Virginia Code § 61

- 2

- 12(c) provides, in full:

If any person: (1) By force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of anot her any property or money or any other thing of value belonging to, or in the care, custody, control, management or possession of, any bank, he shall be guilty of a felony and, upon conviction, shall be confined in the penitentiary not less than ten nor

mo re than twenty years; and (2) if any person in committing, or in attempting to commit, any offense defined in the preceding clause (1) of this subsection, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or d evice, disabling chemical substance or an electronic shock device, he shall be guilty of a felony and, upon conviction, shall be confined in the penitentiary not less than ten years nor more than twenty

- five years.5

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. [ 3 ]

(footnote added). “ 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, 1 7 , 528 S.E.2d 207, 21 3 (1999) (citing State ex rel. Daniel v. Legursky , 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995) ).

Respondent argues that petitioner cannot show that trial counsel’s failure to object to any alleged erroneous instruction regarding bank robbery prejudiced him. We agree and note that a jury is presumed to follow the court’s instructions. See State v. Corey, 233 W.Va. 297 , 310 n.22,

758 S .E.2d 117 , 130 n.22 (2014) (instruction to disregard improper testimony) (citing Syl. P t. 2, in part, Rice v. Henderson , 140 W.Va. 284, 83 S.E.2d 762 (1954) ) ; State v. Miller , 197 W. Va. 588, 605

- 6, 476 S.E.2d 535, 552

- 53 (1996) ( instruction to view the evidence a nd decide the case

without bias ).

Here, the circuit court instructed the jury not to deliberate on a lesser

- included offense until it found petitioner not guilty as to the preceding offense. The jury never deliberated on petitioner’s guilt or innocence as to bank robbery given that it convicted petitioner of first

- degree robbery

, the greater offense. B ased on our review of the record, we find that petitioner has failed to establish that he was prejudiced in any way by the circuit court’s charge to the jury. Accordingly, we conclude that the circuit court did not abuse its discretion in denying the habeas petit i on.

For the foregoing reasons, we affirm the circuit court’s January 26, 2018, order denying petitioner’s petition for a writ of habeas corpus.

Affirmed

.

ISSUED : December 20, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

3 The second prong of the Strickland/Miller test is often referred to as the prejudice prong.

See State v. Hutton , 235 W.Va. 724, 739, 776 S.E.2d 621, 636 (2015).