Steven J. Dukes v. Donnie Ames, Superintentdent, Mt. Olive Correctional Complex

FILED

May 26, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Steven J. Dukes,

Petitioner Below, Petitioner

vs.) No. 21-0324 (Marion County 2015-C-147)

Donnie Ames, Superintendent,

Mt. Olive Correctional Complex,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Steven J. Dukes, by counsel M. Tyler Mason, appeals the December 17, 2020,

order of the Circuit Court of Marion County that denied his petition for a writ of habeas corpus.

Superintendent Donnie Ames, 1 Mt. Olive Correctional Complex, by counsel Patrick Morrisey and

Katherine M. Smith, responds in support of the circuit court’s order. 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 decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, 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 April 23, 2012, a drug dealer who was cooperating with the police identified petitioner

as her heroin supplier. The police had the drug dealer call petitioner and ask him to deliver heroin

to her home. Police officers saw petitioner leave his residence and drive in the general direction of

the drug dealer’s residence. Based on the drug dealer’s statement and a Maryland arrest warrant

for petitioner’s probation violations, the officers pulled petitioner over. While patting petitioner

down, an officer found that petitioner was carrying bundles of heroin. Petitioner was indicted on

June 4, 2012, for one count of possession of a controlled substance (heroin) with intent to deliver

in violation of West Virginia Code § 60A-4-401(a)(i). Thereafter, petitioner filed a motion in

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Petitioner originally named David Ballard as the respondent in this matter. However,

Donnie Ames is now the superintendent of the Mt. Olive Correctional Complex. Accordingly,

pursuant to Rule 41(c) of the Rules of Appellate Procedure, we substitute Mr. Ames for Mr.

Ballard.

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limine to suppress the evidence obtained from the stop and search of his vehicle and the

subsequent search of his residence. The court denied that motion.

The State offered petitioner a plea deal whereby he would plead guilty to one count of

possession of a controlled substance with intent to deliver in exchange for the State’s promise not

to seek a recidivist conviction. Petitioner rejected that offer. However, he later claimed that his

trial counsel poorly described the elements of the crime to him and led him to believe he could be

found guilty only if he was caught in the act of delivering heroin to the co-operating drug dealer.

At petitioner’s 2012 trial (Case No. 12-F-90), the drug dealer testified that petitioner

supplied her with the heroin she sold to others. The drug dealer also testified that when her supply

of heroin ran low, she would text petitioner the word “good” to let him know that she needed more.

Finally, the drug dealer testified to the events that led to petitioner’s arrest. A jury found petitioner

guilty of one count of possession of a controlled substance (heroin) with intent to deliver.

On September 21, 2012, the State filed a recidivist information against petitioner seeking

an enhancement of petitioner’s sentence based on his conviction for three separate felony offenses:

(1) his 2012 felony conviction for possession of a controlled substance (heroin) with intent to

deliver in violation of West Virginia Code § 60A-4-401(a)(i); (2) a 2000 West Virginia conviction

for felony possession of a deadly weapon by a person having been previously convicted of a felony,

in violation of West Virginia Code § 61-7-7(b)(2); and, at issue in this case, and (3) an April 30,

1992, North Carolina conviction for one count of felony possession of cocaine, in violation of

North Carolina General Statute § 90-95(a)(1).

During petitioner’s recidivist trial, a probation officer and a deputy sheriff testified that

petitioner had additional prior felony convictions, in New York and Maryland, which were not

charged in the recidivist information. Petitioner avers that at his recidivist trial, his counsel failed

to raise his claim that his North Carolina conviction for felony “possession of cocaine” would have

been a misdemeanor in West Virginia. On February 11, 2012, a jury found that petitioner had been

twice or more previously convicted of crimes punishable by penitentiary confinement as alleged

in the recidivist information. The trial court sentenced petitioner on March 19, 2013, to life in

prison with credit for time served.

Petitioner appealed his life recidivist conviction to this Court arguing that (1) the evidence

was insufficient to obtain a conviction; (2) the statements he made to his parole officer should not

have been admitted at trial; and (3) his prior felony convictions from New York and Maryland that

were not charged in his recidivist information should have been excluded from the evidence at his

recidivist trial. In State v. Dukes, No. 13-0649, 2014 WL 1672948 (W. Va. Apr. 25,

2014)(memorandum decision), we found no error and affirmed the circuit court’s recidivist

conviction.

On January 28, 2015, petitioner, acting as a self-represented litigant, filed a petition for a

writ of habeas corpus arguing that, at his recidivist trial, (1) the circuit court erred in admitting

records of petitioner’s North Carolina felony conviction which were not properly authenticated,

and in admitting testimony concerning prior convictions not charged in the recidivist information;

and (2) his counsel was ineffective for not objecting to the admission of those records and that

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testimony. By order entered on April 1, 2015, the habeas court found that petitioner was not

entitled to relief and summarily dismissed petitioner’s habeas petition without appointment of

counsel or an evidentiary hearing. Petitioner appealed the circuit court’s order to this Court. We

denied relief. See Dukes v. Ballard, No. 15-0382, 2016 WL 1550773 (W. Va. Apr. 15, 2016)

(memorandum decision).

On July 2, 2015, petitioner sought to file a second habeas petition in the circuit court.

Habeas counsel was appointed and filed petitioner’s Losh list 2 on October 9, 2019, alleging

ineffective assistance of counsel and an excessive sentence. Petitioner argued that (1) his trial

counsel failed to adequately explain the charge of possession with intent to deliver heroin and the

evidence against him which prevented him from making a knowing and intelligent evaluation of

the proposed plea agreement; (2) his trial counsel failed “to raise the issue of proportionality of the

recidivist statute as applied to [him;]” and (3) “disproportionality of the recidivist statute to his

case.” On June 18, 2020, petitioner filed a “Submission of Additional Authority in Support of

Amended Writ of Habeas Corpus” in which he discussed the Court’s recent decision in State v.

Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019). At petitioner’s omnibus evidentiary hearing on

July 20, 2020, petitioner’s counsel argued that petitioner’s recidivist life sentence was

disproportionate. Petitioner then testified that, at trial, he believed he had been accused of the

actual delivery of heroin as opposed to possession of and intent to deliver heroin.

By order entered on December 17, 2020, the habeas court denied relief finding that

petitioner’s trial counsel’s performance was neither objectively nor subjectively deficient and that

there was no evidence that trial counsel failed to fully explain the charges to petitioner. The habeas

court also found that trial counsel fully informed petitioner of his options regarding the plea

bargain offered by the State and the risk that the application of the recidivist statute could result in

an enhanced sentence if he was found to be guilty by a jury. The habeas court further stated that

while [petitioner] makes a strong argument against the proportionality of his life

sentence in his petition, this State’s most recent case law has upheld the application

of a life sentence under the recidivist statute for a conviction for the delivery of

heroin, finding that specific offense to be inherently dangerous and therefore a

qualifying trigger under the recidivist statute.

Finally, the habeas court found that, under State v. Norwood, 242 W. Va. 149, 832 S.E.2d 75

(2019), petitioner’s prior convictions for “possession of a deadly weapon by a person having been

convicted of a felony and . . . possession with intent to deliver heroin, carried with them the

potential for actual violence.” Therefore, the habeas court concluded that petitioner’s recidivist life

sentence did not violate constitutional proportionality principles.

Petitioner now appeals and raises three assignments of error. Petitioner first argues that the

Court should apply the plain error doctrine to overturn his recidivist conviction on the ground that

his 1992 North Carolina conviction for felony possession of cocaine would have been a

misdemeanor under West Virginia law punishable by six months in jail. We disagree.

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

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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). Petitioner admits, however,

that he did not raise this assignment of error below but asserts that this Court should consider his

argument due to plain error.

Our standard of review for issues not properly preserved for appeal, or not

presented to the trial court for resolution prior to an appeal, is plain error. There are

four elements that must be shown to exist before plain error applies: “To trigger

application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain;

(3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W.Va.

3, 459 S.E.2d 114 (1995).

State v. Davis, 232 W. Va. 398, 407, 752 S.E.2d 429, 438 (2013). As set forth below, since we

find no error, petitioner is not entitled to relief under this doctrine.

In 2012, when petitioner’s recidivist information was filed, and in 2013, when his recidivist

conviction was obtained, West Virginia Code § 61-11-18(c) provided in pertinent part: “When it

is determined . . . that such person shall have been twice convicted in the United States of a crime

punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the

state correctional facility for life.” (Emphasis added.) In West Virginia, “[o]ffenses . . . punishable

by confinement in the penitentiary are felonies; all other offenses are misdemeanors.” W. Va. Code

§ 61-11-1. (Emphasis added.) “It is the punishment prescribed by statute which determines whether

the offense be felony or not[.]” State ex rel. Cogar v. Haynes, 154 W. Va. 805, 810, 180 S.E.2d

492, 496 (1971) (internal quotation and citation omitted).

“‘The primary purpose of our recidivist statutes, [currently, West Virginia Code §§ 61-11-

18 and -19] is to deter felony offenders, meaning persons who have been convicted and sentenced

previously on a penitentiary offense, from committing subsequent felony offenses.’ Syllabus point

3, in part, State v. Jones, 187 W.Va. 600, 420 S.E.2d 736 (1992).” Syl. Pt. 3, State ex rel. Appleby

v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002). “If a defendant is twice convicted of a

penitentiary offense he falls within the ambit of West Virginia Code § 61-11-18 [2000].” Appleby

at 519, 583 S.E.2d at 816. “For purposes of a recidivist proceeding, whether a conviction for a

certain crime qualifies as a crime punishable by confinement in a penitentiary is a question of law

for the court.” Syl. Pt. 5, State v. Costello, 245 W. Va. 19, 857 S.E.2d 51 (2021).

Petitioner was indicted in 1992 in North Carolina for possession with intent to sell and

deliver four grams of cocaine base. Later that month, petitioner pled guilty to “possession of

cocaine” in violation of North Carolina General Statute § 90-95(a), a Class 1 felony offense,

punishable by a maximum term of five years of imprisonment. Petitioner was sentenced to two

years of incarceration in the North Carolina Division of Corrections, which the North Carolina

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court suspended for a five-year-term of unsupervised probation. Petitioner’s “Transcript of Plea”

provides his acknowledgement that the maximum term of incarceration for his felony offense was

five years and that the “mandatory minimum sentence” was two years. Following petitioner’s 2012

recidivist case in West Virginia, a jury found that petitioner “ha[d] been twice or more convicted

in the United States of a crime punishable by confinement in a penitentiary.”

In North Carolina, “[t]he line between felonies and misdemeanors . . . depend[s] upon

whether the offense is punishable by imprisonment in the penitentiary or capitally, in both cases

the offense is a felony; otherwise it is a misdemeanor.” Jones v. Brinkley, 93 S.E. 372, 373 (N.C.

1917). Here, petitioner concedes that, in 1992, when he was convicted of “possession of cocaine”

North Carolina classified that crime as a Class I felony and that the punishment for a Class One

felony at that time was “imprisonment up to five years or a fine or both.” Thus, because petitioner’s

North Carolina conviction carried a mandatory minimum sentence of two years and a maximum

sentence of five years in a penitentiary operated by North Carolina’s Department of Corrections,

petitioner’s conviction was a valid predicate felony offense for the purpose of a life recidivist

enhancement under West Virginia Code § 61-11-18(c) (2000); see also State v. Lewis, 235 W. Va.

694, 705 n.30, 776 S.E.2d 591, 602 n.30 (2015) (finding no error in the trial court’s determination

that a defendant’s prior Virginia offense was a valid predicate felony offense for the purpose of a

recidivist enhancement under § 61-11-18, in part, because “a penitentiary sentence was imposed

on the petitioner in Virginia.”).

Accordingly, because “[i]t is the punishment prescribed by statute which determines

whether the offense be felony or not,” petitioner’s North Carolina Class 1 offense of possession of

cocaine, given its penitentiary sentence, would be classified as a felony offense in West Virginia.

Cogar, 154 W. Va. at 810, 180 S.E.2d at 496. Petitioner’s 1992 North Carolina conviction was

punishable by confinement in a penitentiary and, therefore, was a valid predicate offense for the

purpose of a life recidivist enhancement under West Virginia Code § 61-11-18 (2000). This result

is consistent with, and carries out the purpose of, West Virginia’s recidivist statutes of deterring

repeat felons, such as petitioner, from committing subsequent crimes. See Appleby, 213 W. Va. at

507, 583 S.E.2d at 804, Syl. Pt. 3; Norwood, 242 W.Va. at 152, 832 S.E.2d at 78, Syl. Pt. 5.

Accordingly, we find no plain error.

In petitioner’s second assignment of error, he argues that his recidivist life sentence is so

disproportionate that it is unconstitutional under Article III, Section 5 of the West Virginia

Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or

unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the

offense.”).

In determining whether a punishment is constitutionally impermissible under Article III,

Section 5, “consideration is given to the nature of the offense, the legislative purpose behind the

punishment, a comparison of the punishment with what would be inflicted in other jurisdictions,

and a comparison with other offenses within the same jurisdiction.” Syl. Pt. 5, in part, Wanstreet

v. Bordenkircker, 166 W. Va. 523, 276 S.E.2d 205 (1981).

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“A criminal sentence may be so long as to violate the proportionality principle implicit in

the cruel and unusual punishment clause of the Eighth Amendment to the United States

Constitution.” Syl. Pt. 7, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980).

Punishment may be constitutionally impermissible, although not cruel or

unusual in its method, if it is so disproportionate to the crime for which it is inflicted

that it shocks the conscience and offends fundamental notions of human dignity,

thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a

penalty that is not proportionate to the character and degree of an offense.

Syl. Pt. 5, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851(1983).

We find that petitioner’s life recidivist sentence is not constitutionally disproportionate.

The appropriateness of a life recidivist sentence under our constitutional

proportionality provision found in Article III, Section 5, will be analyzed as

follows: We give initial emphasis to the nature of the final offense which triggers

the recidivist life sentence, although consideration is also given to the other

underlying convictions. The primary analysis of these offenses is to determine if

they involve actual or threatened violence to the person since crimes of this nature

have traditionally carried the more serious penalties and therefore justify

application of the recidivist statute.

Syl. Pt. 7, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981). As noted above,

[f]or purposes of a life recidivist conviction under West Virginia Code § 61-

11-18(c), two of the three felony convictions considered must have involved either

(1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim

such that harm results. If this threshold is not met, a life recidivist conviction is an

unconstitutionally disproportionate punishment under Article III, Section 5 of the

West Virginia Constitution.

Hoyle, 242 W. Va. at 603, 836 S.E.2d at 821, Syl. Pt. 12.

Petitioner’s life recidivist sentence is constitutional under Hoyle. The 2012 recidivist

information filed against him was based on his convictions for felony possession of cocaine, felony

possession of a deadly firearm, and felony possession with intent to deliver heroin. Petitioner

argues that his conviction for felony possession of a deadly firearm was “not a crime of direct

violence” because “[t]his activity would not be illegal, but would be constitutionally protected, if

it were not for his prior felony conviction.” This argument fails under State v. Plante, No. 19-0109,

2020 WL 6806375 (W. Va. Nov. 19, 2020) (memorandum decision), in which the Court found

that the

petitioner’s conviction for possession of a firearm not registered to defendant in the

National Firearms Registration and Transfer Record unquestionably involves a

serious crime that endangers the public. This conviction therefore also involves a

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threat of violence, or substantial impact upon the victim such that harm results

under Hoyle.

Id. at *7.

Here, petitioner’s conviction for felony possession of a deadly weapon by a prohibited

person “unquestionably involves a serious crime that endangers the public” and carries an inherent

threat of violence. “[P]ossession of a firearm by a prohibited person is certainly a crime that

involves a threat of violence” and, therefore, is a “sufficient [predicate offense] for the application

of the recidivist life sentence pursuant to West Virginia Code § 61-11-18(c).” State v. Gaskins,

No. 18-0575, 2020 WL 3469894, at *4 (W. Va. June 25, 2020) (memorandum decision), cert.

denied sub nom. Gaskins v. West Virginia, 141 S. Ct. 2578 (2021).

Because at least two of petitioner’s three predicate felony convictions involved either a

threat of violence or a substantial impact on the victim such that harm results, we find that his life

recidivist enhancement is not an unconstitutionally disproportionate punishment.

In petitioner’s third and final assignment of error, he argues that the circuit court committed

reversible error when it failed to grant petitioner habeas corpus relief based upon the errors

committed by trial counsel, appellate counsel, and prior habeas counsel. Specifically, petitioner

argues that his counsel was ineffective because counsel failed to argue constitutional

proportionality issues regarding petitioner’s sentence. Petitioner further argues that his trial

counsel, appellate counsel, and habeas counsel failed to address the fatal defect in the State’s

recidivist information concerning his North Carolina conviction.

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.

Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (the “Strickland/Miller test”).

In deciding ineffective of assistance claims, a court need not address both

prongs of the conjunctive standard of 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), but may dispose of such a claim based solely on a petitioner’s failure

to meet either prong of the test.

Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

Petitioner claims his trial counsel and habeas counsel were ineffective because they failed

to (1) argue proportionality issues with regard to his sentence, and (2) address the “fatal defect”

concerning the State’s recidivist information regarding his North Carolina conviction. We

disagree. Regarding the first prong of the Strickland/Miller test, because petitioner’s life recidivist

sentence is valid, it is clear that neither his trial counsel’s nor his habeas counsel’s performance

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was deficient under an objective standard of reasonableness. Under § 6-11-18 (2000) and Hoyle,

petitioner’s life sentence is statutorily and constitutionally lawful. Thus, because petitioner cannot

satisfy both prongs of the Strickland/Miller test, his ineffective assistance of counsel claim fails.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 26, 2022

CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William D. Wooton

DISSENTING:

Chief Justice John A. Hutchison

I dissent to the majority’s resolution of this case. I would have set this case for oral

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs

and the issues raised therein, I believe a formal opinion of this Court was warranted—not a

memorandum decision. Accordingly, I respectfully dissent.

NOT PARTICIPATING:

Justice C. Haley Bunn

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