STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

Michael Kandis, 

Petitioner Below, Petitioner 

April 15, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 15-0431 (Ohio County 14-C-258) 

David Ballard, Warden,
 

Mt. Olive Correctional Complex,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Michael Kandis, pro se, appeals the March 31, 2015, order of the Circuit Court 

of Ohio County denying his petition for writ of habeas corpus. Respondent David Ballard, 

Warden, Mt. Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a summary 

response, and petitioner filed a reply. 

The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Petitioner was indicted on one count of burglary, one count of conspiracy to commit 

burglary, and three counts of second degree robbery. On July 16, 2013, the State renewed a 

previously-made plea proposal pursuant to which petitioner would plead guilty to the conspiracy 

count and two of the robbery counts. In exchange, the State would dismiss the burglary count and 

the third robbery count. The proposal required petitioner to agree to a “minimum sentence” of ten 

to thirty-six years of incarceration. In other words, while petitioner would be allowed to argue that 

the one- to five-year sentence for conspiracy be served concurrently with the two five- to 

eighteen-year sentences for robbery, he had to agree that he would serve the two robbery sentences 

consecutively to each other. According to a July 24, 2013, letter from petitioner’s counsel, counsel 

recommended that petitioner accept the proposal. In making this recommendation, counsel felt 

that, based upon his consideration of the evidence, “[petitioner’s] options have been exhausted.” 

However, petitioner did not accept the July 16, 2013, plea proposal. 

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Petitioner and the State ultimately entered into a different plea agreement on September 25, 

2013. Petitioner agreed to plead guilty to the three robbery counts and the State agreed to dismiss 

the burglary and conspiracy counts. Petitioner also agreed that he was “waiving his right to 

challenge the validity of this plea agreement by direct appeal[.]” Under the plea agreement, if the 

circuit court imposed consecutive sentences for the three robbery convictions, petitioner would 

face an aggregate sentence of fifteen to fifty-four years of incarceration. However, petitioner 

remained free to argue for concurrent sentencing as to all three convictions. 

At the September 25, 2013, plea hearing, the State stated that it would be recommending 

consecutive sentences. The circuit court asked petitioner whether he was aware that if the court 

ordered that petitioner serve consecutive terms, he would spend a total of fifteen to fifty-four years 

in the State’s custody. Petitioner responded, “Yeah.” The circuit court reminded petitioner that the 

plea agreement was non-binding on the court and that “the [c]ourt may impose whatever legal 

sentence it determines is appropriate notwithstanding any recommendations made by either or 

both of the attorneys.” The circuit court asked whether petitioner understood this. Petitioner 

answered, “I do.” 

The circuit court inquired of petitioner, “Have there been any promises made to you in 

order to get you to enter into this plea agreement, other than the promises contained within it?” 

Petitioner responded, “No, sir.” The circuit court asked whether counsel “fully explained” the plea 

agreement’s terms to petitioner. Petitioner answered, “Yes.” Petitioner also responded 

affirmatively when the circuit court inquired whether he was “completely satisfied” with counsel’s 

representation. At the end of its colloquy with petitioner, the circuit court accepted petitioner’s 

guilty plea to each robbery count and found that petitioner entered his guilty pleas “knowingly, 

intelligently, and of his own free will.” Accordingly, the circuit court convicted petitioner of three 

counts of second degree robbery. 

At a November 14, 2013, sentencing hearing, petitioner argued for concurrent sentencing. 

However, the circuit court imposed consecutive terms for petitioner’s robbery convictions for an 

aggregate sentence of fifteen to fifty-four years of incarceration. Following sentencing, on March 

18, 2014, petitioner’s counsel filed a motion for modification of sentence pursuant to Rule 35(b) of 

the West Virginia Rules of Criminal Procedure, which remains pending. 

On September 8, 2014, petitioner filed a petition for writ of habeas corpus on grounds that 

(1) petitioner should be resentenced so that his time to appeal his convictions is renewed; and (2) 

counsel was ineffective during the plea bargaining process. The circuit court rejected petitioner’s 

claims, finding that (a) “[p]etitioner waived his right to an appeal”; (b) “there has been no evidence 

or argument” that petitioner did not enter his guilty pleas knowingly and voluntarily; and (c) 

“[p]etitioner expressed his satisfaction with [counsel]’s services when questioned by the [c]ourt 

during his plea hearing.” The circuit court addressed petitioner’s factual assertion that counsel was 

battling illness at the time petitioner entered his pleas by finding that it “saw no evidence or 

indication that [counsel] was ill at that time of [p]etitioner’s plea hearing or that his legal abilities 

were impeded in any way during [the] underlying proceedings.” Accordingly, the circuit court 

denied petitioner’s habeas petition. 

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Petitioner now appeals the circuit court’s March 31, 2015, order denying his habeas 

petition. We apply the following standard of review in such appeals: 

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. 

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In West Virginia, claims of 

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

Washington, 466 U.S. 668 (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). Also, “the right to appeal may be waived.” Asbury v. 

Mohn, 162 W.Va. 662, 665, 256 S.E.2d 547, 549 (1979). Even when a defendant pleading guilty 

preserves the right to appeal, an appeal in such a case lies “as to the voluntariness of the guilty plea 

or the legality of the sentence.” Syl. Pt. 1, State v. Holstein, 235 W.Va. 56, 770 S.E.2d 556 (2015) 

(Internal quotations and citations omitted.) 

On appeal, petitioner does not contend that imposition of consecutive sentences is illegal, 

but only that his guilty pleas were not knowingly and voluntarily entered because counsel 

allegedly promised him that he would receive concurrent sentences. Therefore, assuming 

arguendo, that petitioner did not waive his right to appeal, we find that the only possible ground for 

an appeal was that his guilty pleas were involuntary.1 

Inherent in petitioner’s involuntariness argument is his assertion that counsel should have 

encouraged him to accept the July 16, 2013, plea offer. That plea offer, which was not accepted, 

would have required petitioner to serve two consecutive sentences for second degree robbery. 

Petitioner notes that his acceptance of the September 25, 2013, plea offer resulted in his being 

given three consecutive sentences for second degree robbery. However, according to petitioner, 

counsel advised him that the September 25, 2013, plea offer was the “better deal” in that it did not 

require him to serve any consecutive sentences and allowed him to argue for concurrent sentencing 

with regard to every conviction. We note that in his July 24, 2013, letter to petitioner, counsel 

recommended that he accept the July 16, 2013, plea offer, and find that petitioner’s assertion that 

counsel somehow did not follow up on his recommendation is dubious.2 However, even if 

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Respondent argues that petitioner would have the right to appeal any ruling with regard to 

his motion for modification of sentence which is still pending and that such an appeal would count 

as the one criminal appeal to which petitioner was constitutionally entitled. See Syl., State ex rel. 

Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). We decline to address respondent’s 

argument because we dispose of petitioner’s appeal on other grounds. 

2

Based on our review of counsel’s July 24, 2013, letter, the September 25, 2013, plea 

(continued . . .) 

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counsel’s failure caused petitioner not to accept the July 16, 2013, plea offer, we find that 

petitioner’s complaint is not that he accepted the “harsher” September 25, 2013, plea offer; 

instead, petitioner complains only that, while that plea offer left him free to argue for concurrent 

sentencing with regard to every conviction, he received three consecutive terms of incarceration. 

We return to—and are left with—petitioner’s allegation that his guilty pleas were 

involuntarily entered because counsel promised him that he would receive concurrent sentences. 

The circuit court found that there was “no evidence” that petitioner’s pleas were involuntary. More 

specifically, at the September 25, 2013 plea hearing, when the circuit court asked petitioner 

whether there had been any promises made to petitioner in order to induce him to enter his guilty 

pleas “other than the promises contained within [the September 25, 2013, agreement],” Petitioner 

answered, “No, sir.” The circuit court informed petitioner that the plea agreement was non-binding 

on the court and that “the [c]ourt may impose whatever legal sentence it determines is appropriate 

notwithstanding any recommendations made by either or both of the attorneys.” The circuit court 

asked whether petitioner understood this. Petitioner answered, “I do.” Also, at the plea hearing, the 

State stated that it would be recommending that consecutive sentences be imposed. The circuit 

court asked petitioner whether he was aware that if the court ordered that petitioner serve 

consecutive terms, he would spend a total of fifteen to fifty-four years in the State’s custody. 

Petitioner responded, “Yeah.” Therefore, we determine that the circuit court did not clearly err in 

finding that there was no evidence to counter its determination at the plea hearing that petitioner 

entered his guilty pleas “knowingly, intelligently, and of his own free will.” Accordingly, we 

conclude that the circuit court did not abuse its discretion in denying petitioner’s habeas petition. 

For the foregoing reasons, we affirm the circuit court’s March 31, 2015, order denying 

petitioner’s petition for writ of habeas corpus. 

Affirmed. 

ISSUED: April 15, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

hearing transcript, the November 14, 2013, sentencing hearing transcript, and the March 18, 2014, 

motion for modification of sentence filed by counsel, we cannot say that the circuit court erred in 

finding that the record does not support petitioner’s allegation that illness was hampering 

counsel’s performance during his representation of petitioner. 

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