### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Gary Stanley, 

### FILED

Petitioner Below, Petitioner April 10, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 13-1095 (Kanawha County 06-MISC-311)

OF WEST VIRGINIA

Mark Williamson, Warden, Denmar Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Gary Stanley, by counsel Barron M. Helgoe, appeals the order of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus. Respondent, Mark Williamson, Warden, Denmar Correctional Center, by counsel Derek A. Knopp, filed a response, to which petitioner replied. Petitioner argues that he received ineffective assistance of counsel when he entered a guilty plea to voluntary manslaughter and kidnapping.

This 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.

This appeal stems from the circuit court’s denial of petitioner’s habeas corpus petition following an August 13, 2013, omnibus evidentiary hearing. 1 Petitioner’s convictions stem from an indictment returned in 2003, charging him with first degree murder and kidnapping. Petitioner was alleged to have participated in the killing of his roommate, Deran Mazujian, in Dunbar, West Virginia. According to the record, one of petitioner’s co-defendants, Ulysses Anthony Bellamy, stated that he and another co-defendant, Michael Varnado, began beating the victim in the victim’s bedroom. Bellamy waited with the victim while petitioner traveled to Walmart to purchase bullets. 2 When petitioner returned with the bullets, he beat the victim, and Bellamy shot

1 As petitioner notes, this is the second time that this Court has addressed petitioner’s request for habeas relief. Petitioner filed his first habeas petition pro se with the circuit court in 2006, which was denied by order entered on January 12, 2007. On appeal, this Court remanded the matter to the circuit court by order entered on July 27, 2007, on the issue of ineffective assistance of counsel. After numerous changes of petitioner’s habeas counsel, an amended habeas petition was filed on May 20, 2013. The circuit court held an omnibus hearing on August 13, 2013, and denied the petition by order entered on September 17, 2013.

1the victim through a pillow. The victim’s body was wrapped in a blanket, placed in a box, and dumped over a hillside near Wertz Avenue in Charleston. The autopsy revealed that the victim died from multiple blunt force injuries to the head and a gunshot wound to the face.

Petitioner ultimately reached a plea agreement with the State. 3 The non-binding agreement allowed petitioner to plead guilty to voluntary manslaughter and kidnapping. According to the agreement, the State would not oppose a sentence of life with mercy for kidnapping; would defer to the circuit court on the appropriate sentence for voluntary manslaughter; but would reserve the right to argue that the two sentences run consecutively. Importantly, the State indicated on the record before the circuit court that both parties were aware that sentencing was in the sole discretion of the circuit court and that the parties’ recommendations were not binding upon the court.

The circuit court sentenced petitioner to a determinate term of fifteen years for voluntary manslaughter and a term of life with mercy for kidnapping. The circuit court ordered that the sentences be served consecutively.

In his habeas petition to the circuit court and on appeal of the denial thereof to this Court, petitioner makes the same argument -- that his guilty plea was not entered knowingly, voluntarily, or intelligently because of inaccurate advice by his plea counsel. Petitioner contends that his counsel told him and his family that he would only serve ten years in prison with regard to the kidnapping and a term of only three to fifteen years for voluntary manslaughter, and that the sentences would run concurrently. Plea counsel disputed petitioner’s account and testified at the omnibus hearing that he would not have made promises to petitioner regarding petitioner’s sentence. Plea counsel testified that he would have told petitioner that he would not anticipate petitioner receiving life without mercy, but would not have stated anything further with respect

to the maximum sentence.

In the habeas proceeding, the circuit court found that the record from the plea hearing reflected that petitioner was properly questioned in all respects regarding his understanding of the rights he was waiving by entering a guilty plea, the terms of the agreement, and that the court was not bound by any sentencing recommendations or arguments of the parties. The circuit court denied petitioner’s habeas petition by order entered September 17, 2013, and this appeal

followed.

This Court applies the following standard of review in regard to a circuit court’s denial of a habeas petition: “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, in part, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Moreover, this Court has stated that “[a]n ineffective assistance of counsel claim presents a mixed question of law and fact[.]” State ex rel. Daniel v.

2 While at Walmart, petitioner told an individual in the parking lot, “If you give me a ride back to Dunbar, you’ll see somebody get killed.”

3 Petitioner’s plea counsel was Edward Rebrook, III.

2Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416, 422 (1995). Therefore, “we review the circuit court’s findings of historical fact for clear error and its legal conclusions de novo . This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court’s findings of underlying predicate facts more deferentially.” Id.

On appeal, petitioner argues that his plea counsel was ineffective because, several days prior to the entry of his plea, the State sent petitioner’s counsel a proposed plea agreement that included an incorrect sentence for the offense of kidnapping. This letter stated that the sentence for kidnapping was three to ten years, which all parties agree was in error. Petitioner’s plea counsel forwarded the letter to petitioner without catching the mistake therein.

The mistake in the proposed plea document was noticed on the day of petitioner’s plea hearing and his counsel advised petitioner of the correct possible sentence. Petitioner argues that his counsel should have ensured that petitioner was not faced with having to make a last second decision of such magnitude.

The record reflects that petitioner’s counsel and the assistant prosecutor set forth on the record at the plea hearing that the State had sent petitioner’s counsel a plea agreement with the incorrect sentence for kidnapping and plea counsel admitted that he sent petitioner a letter referencing the incorrect sentence in that document. Plea counsel stated that he explained the correct sentence to petitioner that morning. The exchange between plea counsel, the State, and circuit judge took place at the bench without petitioner being present. In his habeas petition, petitioner argues that he should have been asked to confirm his counsel’s representations that he explained the accurate sentencing possibilities.

In addition, petitioner contends that he received a sentence more severe than expected and constitutionally disproportionate to the sentence imposed on the admitted killer. Petitioner states that Bellamy pled guilty to first degree murder with a firearm and was sentenced to life with mercy, and the kidnapping charge was dismissed.

Respondent Warden argues that, although petitioner’s counsel erred in sending petitioner the document listing an incorrect kidnapping sentence, counsel corrected the error as soon as it was discovered, and importantly, in advance of the plea hearing. As respondent notes, the erroneous plea document was corrected, explained to petitioner, and he proceeded to enter his plea. Also, petitioner understood that the agreement did not bind the judge to impose a specific sentence. Finally, with respect to comparing petitioner’s sentence to Bellamy’s, the record shows that the victim died of blunt force injury and a gunshot. As respondent argues, petitioner was no

less to blame for the victim’s death.

Our review of the record reflects no clear error or abuse of discretion by the circuit court. Having reviewed the circuit court’s “Order Denying Petition for Writ of Habeas Corpus” entered on September 17, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned

3findings and conclusions as to the assignment of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order 4 to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 10, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

4 We note that the handwriting on page 2 of the circuit court’s order is how the document

exists in the circuit clerk’s file.

4