1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Michael J. Kanode Sr., Petitioner Below, Petitioner

vs) No. 12-0451 (Mercer County 10-C-445)

Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Michael J. Kanode Sr ., by counsel Dana P. McDermott, appeals the order of the Circuit Court of Mercer County, entere d December 15, 2011, denying his post-conviction habeas corpus petition, in part, and affirming, in part. Respondent Warden Marvin Plumley, 1 by counsel Thomas W. Rodd, filed a response and rais ed cross-assignments of error. Petitioner filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

In the early morning hours of August 14, 2007, petitioner used a bolt cutter to cut the door chain of the home where his then-wife, Sh erry Kanode, and the c ouple’s son, Michael J. Kanode Jr., and infant daughter were sleeping. He entered the home, straddled Ms. Kanode and said “We’re going to die; me a nd you are going to die.” Petitioner pulled out a pistol and shot her through the ear and neck.

Petitioner’s son was awakened by his moth er’s screaming and the sound of a gunshot. Petitioner told the son “I killed your mom, and now I’m going to kill myself.” The son called 911. The son heard one gunshot insi de the house and heard more shots outside. A neighbor reported hearing gunshots. Petitioner fled the s cene and was arrested several days later.

Petitioner had threatened to kill his wife be fore, as recently as July of 2007. She filed a domestic violence petition agains t him. On July 31, 2007, the family court judge held a hearing on the domestic violence petition. The judge ruled from the bench and granted the wife a

1 Pursuant to Rule 41(c) of the Rules of A ppellate Procedure, the name of the current

warden has been substituted as the respondent in this action. 

### FILED

June 7, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 temporary protective order agai nst petitioner. The Domestic Violence Protective Order was entered August 1, 2007.

Petitioner wrote letters to his son after he was arrested and in jail. At trial, petitioner’s son read a portion of the letters to the jury. The letters were admitted into evidence at trial as State’s

Exhibits 1 and 2. The le tters read, in part,

[T]hat ratt [sic] bitch don’t realize what all this sh*t starte d from before when because she kept pushing sh*t well I’m going to go do my time then f**k it and I’m going come back to do life. Nobody believed I was going to do it, but I f**ked up and couldn’t finish.

Nobody believed me when I told them I was going to do what it was, and now I’m telling you, if ... I spend any more time in here – I will get out one day and will, believe me, I will finish what was started with your mom.

On January 23, 2008, a jury convicted petitione r of malicious assaul t, burglary, attempted murder of the first degree, violation of a prot ective order and assault during the commission of a felony. Petitioner received the maximu m prison sentence for each offense. 2 Petitioner filed a direct appeal of his convictions. On April 8, 2009, this Court denied the petition for appeal without issuing an opinion.

On August 26, 2010, petitioner, by counsel, file d an amended petition for writ of habeas corpus. On April 11, 2011, the circuit court held an evidentiary hearing. Petitioner relied on the

Losh 3 list and waived certain grounds. The primary issues raised by petitioner were the validity of the burglary charge, the related charge of assault during the commission of a felony, and a double jeopardy argument regarding the wanton e ndangerment and malicious assault charges.

Petitioner also raised an ineffec tive assistance of counsel claim.

On December 15, 2011, the circuit court entered an order affirming the convictions on the

counts of violation of a protective order, malicious assault, and attempted first degree murder. As discussed more fully below, the circuit court vacated with prejudice the convictions on the counts of wanton endangerment, burglary, and assault during the commission of a felony. The

circuit court also found ineffectiv e assistance of counsel with re gard to those three charges, stating that,

2 On February 26, 2008, the trial court senten ced petitioner to two to ten years for malicious assault, one to fifteen years for burgl ary, three to fifteen years for attempted first degree murder, two to ten year s for assault during the commission of a felony, five years for wanton endangerment, and one year for violation of a protective order, with all sentences to run consecutively.

3 See Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981) (every prisoner is entitled to one post-conviction habeas corpus hearing in which the prisoner may raise any collateral issues which have not previously been fully and fairly raised).3 A great deal of the problem with c ounsel’s performance arose out of him not carefully reading the Final Order of Protection issued by the Mercer County Family Court Judge. The remaining problem arose out of his failing to read State v. Wright, [200 W.Va. 549, 490 S.E.2d 636 ( 1997)], which is a leading case in West Virginia relating to malicious a ssault and wanton endangerment. These two errors led to virtually all of the inadequ acies prevalent in his performance. There

was no motion to dismiss three counts of the indictment, no motions for judgment of acquittal, no objections to the instructions relating to these matters, and no adequate grounds for a motion made to set aside the verdict of the jury. Furthermore, the omissions of counsel with regard to Burglary, Wanton Endangerment and Assault during the commission of a felony resulted in Petitioner being convicted of three felonies which were unwarranted under the circumstances. In short, counsel provided ineffective assistance to Petitioner with regard to these three charges.

On appeal, petitioner raises several assignments of error and Respondent Warden raises two cross-assignments of error. We note that this Court reviews appeals of circuit court orders denying habeas corpus relief unde r the following standard:

“In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-pr ong standard of revi ew. 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).

After careful consideration, this Court adopt s the findings and conclusions of the circuit

court in this matter. We w ill address the assignments of e rror raised by the parties.

Petitioner’s Assignments of Error

Petitioner’s first assignment of error is that trial counsel was ineffective when he failed to object to the admission of the letters from the peti tioner to his son. He asse rts that trial counsel should have raised the chain of custody issue beca use Ms. Kanode held the original copies of the letters while the prosecuting attorney had only copies. In response, Respondent Warden argues that the circuit court properly found that petitioner did not meet his burden to prove ineffective

assistance of counsel in this instance.

The following standard is applied to claims concerning ineffective as sistance of counsel:

In the West Virginia courts, claims of in effective 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 a4 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). We find no error by the circuit court in denying habeas corpus re lief to petitioner, in part, ba sed on this specific claim of

ineffective assistance of counsel. The circuit court note d that when trial c ounsel was asked why he did not object to the letters at issue, he stated that he re cognized petitioner’s handwriting and

chose not to withhold from the tria l court an item of evidence that he knew was genuine.

Next, petitioner challenges the sufficiency of the evidence to support his convictions. Specifically, he contends that without the ad mission of his letters to his son, there was insufficient evidence of intent to support the conv ictions of malicious assault and attempted first degree murder. Respondent Warden replies that substantial evidence supports petitioner’s convictions, including the test imony of the victim, the tes timony of petitione r’s son, and petitioner’s letters to his son. We have held that,

“[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstanti al, in the light most favorable to the prosecution and must credit all inferences an d credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save th at of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdic t should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To th e extent that our prior cases are inconsistent, they are expre ssly overruled.” Syl. Pt. 3, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton , 196 W.Va. 281, 470 S.E.2d 413 (1996).

Upon our review, this Court finds that the evidence was sufficient to support the petitioner’s convictions of malicious assau lt and attempted first degree murder. Although petitioner attacks the credibility of the victim, Ms. Kanode, there is no question that witness credibility determinations are within the province of the jury. Syl. Pt. 2, State v. Bailey , 151 W.Va. 796, 155 S.E.2d 850 (1967). We see no comp elling reason to disturb that finding on appeal.

Respondent Warden’s Cross-Assignments of Error

Respondent Warden raises two cross-assignmen ts of error in his response. He maintains that the circuit court erred by reversing pe titioner’s convictions for burglary and wanton endangerment. He argues that petitioner committed burglary 4 when he cut the latch chain with

4 The elements of the crime of burglary are set forth in West Virginia Code § 61-3-11, that states, in pertinent part, “[i]f a ny person shall, in the nighttime, br eak and enter, or enter without5 bolt cutters and entered the premises for purposes of committing a violent crime. Petitioner never claimed he had any legal right to enter the home, and he admitted at trial that he did not have such right. Petitioner responds that the family court order did not grant Ms. Kanode exclusive possession of the marital residence. Petitioner argue s he may have been guilty of violation of a protective order, but not a crime against property.

This Court finds that the circ uit court did not abuse its disc retion in reversing petitioner’s burglary conviction. The circuit cour t noted that when the trial cour t recited the elements of the crime to the jury, it used the phrase “the dwelling house belongi ng to Sherry Kanode.” However, in the protective order, the family court did not grant Ms. Kanode excl usive possession of the

marital residence. We find that an essential elem ent of the crime of burgl ary was not met because petitioner was not prohibited from entering the home . Furthermore, as the circuit court stated, “if there was no valid [b]urglary charge, there was no possibility of being convicted of assault during the commission of a fe lony that did not exist.”

Respondent Warden next argues that the ci rcuit court erred in reversing the wanton endangerment conviction 5 on the ground that it was a lesser included offense of malicious

assault. 6 See State v. Wright , 200 W.Va. 549, 490 S.E.2d 636 (1997) (in a single-gunshot case, wanton endangerment is necessarily a lesser included offense of malicious assault). In this case,

a number of witnesses testified th at petitioner fired his pistol multiple times. Respondent Warden argues that the jury could have found that one or more of those additiona l gunshots were fired in sufficiently close proximity to the victim to constitute the separate crime of wanton endangerment, as charged in the indictment. Petitioner responds th at the circuit court did not err

because the indictment restricted the count to the one gunshot fired at the victim.

After careful consideration, this Court finds no abuse of discretion in the circuit court’s decision to reverse the wanton endangerment convict ion as a lesser included offense of malicious

assault. The circuit court noted that the evidence at trial demonstrated that petitioner fired one gunshot in the bedroom of the home, when he s hot Ms. Kanode. Therefore, the circuit court’s

decision is consistent with our precedent.

We note that the circuit court’ s forty-six page order reflects its thorough analysis of the

breaking, or shall, in the daytime, break and en ter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.”

5 The crime of wanton endangerment is set fort h in West Virginia Code § 61-7-12, that provides, in pertinent part, “[ a]ny person who wantonly performs any act with a firearm which

creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony[.]”

6 The crime of malicious assault is set forth in West Virginia C ode § 61-2-9(a), that provides, in pertinent part, “[i]f any person malic iously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provi ded, be guilty of a felony[.]”6 issues raised in the petition for habeas cor pus. Having reviewed the opinion order entered on December 15, 2011, we hereby adopt and incorporat e the circuit court’s well-reasoned findings and conclusions as to all the assignments of error raised by the parties in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Margaret L. Workman (in part) Justice Allen H. Loughry II (in part)

DISSENTING IN PART:

JUSTICE WORKMAN and JUSTICE LOUGHRY concur in the decision to affirm the circuit court’s order regarding petitione r’s convictions of violation of a protective order, malicious assault, attempted first degree murder, and wa nton endangerment. Justice Workman and Justice Loughry dissent from the decision to affirm the circuit court’s order th at vacated petitioner’s convictions of burglary and assaul t during the commission of a felony.