Petition for Writ of Certiorari — Johnnie Franklin Wills, Petitioner v. Karen Pszczolkowski, Superintendent, Northern Correctional Facility

Supreme Court briefOct 18, 2021

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No.:________________

IN THE SUPREME COURT OF THE UNITED STATES

___________

Johnnie Franklin Wills, Petitioner,

Karen Pszczolkowski, Respondent.

___________

On Petition for a Writ of Certiorari to the Supreme Court of Appeals of West Virginia

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Jeremy B. Cooper

Counsel of Record

Blackwater Law PLLC

6 Loop St. #1

Aspinwall, PA 15215

(304) 376-0037

jeremy@blackwaterlawpllc.com

APPENDIX TABLE OF CONTENTS

Document

Page

Memorandum Decision of Supreme Court of Appeals of West Virginia in

Wills v. Pszczolkowski, No 20-0472, (W. Va. July 19, 2021)....................... App. 1

Trial Court order denying post-conviction habeas relief of May 27, 2020............. App. 6

Memorandum Decision of Supreme Court of Appeals of West Virginia in

State v. Wills, No. 16-1199 (W.Va. November 22, 2017)............................ App. 38

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

July 19, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Johnnie Franklin Wills,

Petitioner Below, Petitioner

vs.) No. 20-0472 (Hampshire County 18-C-29)

Karen Pszczolkowski, Superintendent,

Northern Correctional Facility,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Johnnie Franklin Wills, by counsel Jeremy B. Cooper, appeals the Circuit Court

of Hampshire County’s May 27, 2020, order denying petitioner’s petition for a writ of habeas

corpus following his convictions for grand larceny and conspiracy to commit grand larceny, in

addition to receiving an enhanced sentence under a recidivist information. Respondent Karen

Pszczolkowski, Superintendent, Northern Correctional Center, by counsel Gordon L. Mowen II,

filed a response to which petitioner submitted 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 briefs, and the record

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

a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

In March of 2016, petitioner and another individual broke into a residence and stole

property located therein. Petitioner was indicted in May of 2016 of the felony offense of burglary;

the felony offense of conspiracy to commit burglary; the felony offense of grand larceny; the

felony offense of conspiracy to commit grand larceny; and the misdemeanor offense of destruction

of property. Following a jury trial on August 24 and 25, 2016, petitioner was found guilty of the

felony offenses of grand larceny and conspiracy to commit grand larceny. However, he was

acquitted of burglary, conspiracy to commit burglary, and destruction of property. On August 26,

2016, the State filed a recidivist information against petitioner, and on October 21, 2016, petitioner

admitted that he was the same person charged in the recidivist information and that he had

previously been convicted of two qualifying offenses. On November 10, 2016, petitioner was

sentenced to life imprisonment with parole eligibility for the felony offense of grand larceny and

not less than one nor more than five years for the felony offense of conspiracy to commit grand

larceny, with the sentences to run concurrently to one another. Petitioner appealed his sentences

to this Court, and this Court affirmed in a memorandum decision. State v. Wills, No. 16-1199, 2017

App.

WL 5632127 (W. Va. Nov. 22, 2017) (memorandum decision) (“Wills I”).

Acting as a self-represented litigant, petitioner filed a petition for a writ of habeas corpus

on June 1, 2018. The circuit court appointed Jason T. Gain to represent petitioner and file an

amended petition; following several extensions, the amended petition was filed on January 14,

2019. On August 22, 2019, the circuit court held an omnibus evidentiary hearing, during which

petitioner appeared via video conference without objection to that appearance. The court reviewed

the checklist of grounds for post-conviction habeas corpus relief with petitioner, and an amended

Losh list was filed on August 22, 2019, which included additional claims. 1 The court reviewed

petitioner’s constitutional rights regarding the amended Losh list, and evidence was presented. In

addition, the parties stipulated that the records in Hampshire County Case No. 16-F-57 and this

Court’s memorandum decision be made a part of the record in the instant matter. During the

omnibus hearing, petitioner’s trial counsel offered testimony.

On September 27, 2019, the circuit court granted petitioner’s motion for leave to file a

second amended petition; on that date, it also continued the final omnibus hearing. During the

second omnibus hearing on November 7, 2019, petitioner appeared and provided testimony in

support of his habeas petition. During that hearing, a transcript of the closing arguments from the

underlying criminal trial was admitted. The parties were asked to submit proposed findings of fact

and conclusions of law for the circuit court’s consideration. Before issuing its May 27, 2020, order

denying petitioner’s habeas petition, the circuit court also “review[ed] and fully consider[ed] the

records contained in Hampshire County Circuit Court Case No.: 16-F-57; [Wills I]; and exhibits

that were admitted into the evidentiary record on August 22, 2019[,] and November 7, 2019.”

In its thirty-one-page order denying petitioner’s request for habeas relief, the circuit court

addressed each of the grounds petitioner asserted in his second amended petition for habeas corpus.

However, as explained below, only one of those grounds is relevant to this Court’s review of the

error alleged by petitioner—the constitutionality of the recidivist statute. In addressing that issue,

the circuit court found that “to date[,] the recidivist statute remains in effect and constitutional in

the State of West Virginia. Therefore, [p]etitioner is entitled to no relief upon this ground.”

Petitioner appeals from the circuit court’s May 27, 2020, “Order Denying Habeas Corpus.”

This Court reviews a circuit court order denying a habeas petition under the following

standard:

“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).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

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

App.

On appeal, petitioner sets forth argument in support of only one assignment of error: The

circuit court erred by denying relief on petitioner’s claim that the application of the West Virginia

recidivist statute, under the facts of his case, is illegal based upon favorable changes in the law

since his original sentencing. 2 At the outset, petitioner admits that an assignment of error attacking

his recidivist sentence would, under normal circumstances, be res judicata in the underlying habeas

proceeding and in the context of this appeal because it was already ruled upon in petitioner’s direct

appeal. However, he asserts that there is an exception in Syllabus Point 4 of

Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), that permits successive collateral

litigation in the context of a “change in the law, favorable to the applicant, which may be applied

retroactively.” Thus, he contends that this Court may properly consider the issue in the context of

this appeal. Petitioner goes on to argue that the recidivist statute in effect at the time of petitioner’s

sentencing, as interpreted by this Court, is unconstitutionally void for vagueness so his life

recidivist sentence is illegal under Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which was issued

after petitioner’s recidivist sentence was handed down and affirmed by this Court. Petitioner

further asserts that his sentence is disproportionate in violation of Article III, Section 5 of the West

Virginia Constitution and the Eighth Amendment of the United States Constitution.

Petitioner admits that in State v. Mauller, No. 19-0829, 2020 WL 4355079 (W. Va. July

30, 2020) (memorandum decision), this Court considered and rejected an appeal on similar

grounds to the instant appeal; he contends, however, that the facts in Mauller, which specifically

involved the underlying felonies, differ in key ways from the instant case. Petitioner asks that this

Court “simply modify the [State v.] Hoyle[, 242 W. Va. 599, 836 S.E.2d 817 (2019), cert.

denied, 140 S. Ct. 2586 (2020),] test to pass federal constitutional muster, by requiring an

‘elements’ test for violent offenses rather than a ‘residual clause.’”

In Hoyle, this Court set forth the following:

“While our constitutional proportionality standards theoretically can apply

to any criminal sentence, they are basically applicable to those sentences where

there is either no fixed maximum set by statute or where there is a life recidivist

sentence.” Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276

S.E.2d 205 (1981).

“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

Petitioner also alleged that the circuit court erred by denying relief on his other grounds

for habeas relief. On October 2, 2020, petitioner’s counsel filed a “Motion to Permit Filing of a

Pro Se Supplemental Brief” requesting that petitioner be permitted to file a separate brief

addressing the second assignment of error as a self-represented litigant, pursuant to Rule

10(c)(10)(b) of the West Virginia Rules of Appellate Procedure. This Court granted that motion

by order entered on November 12, 2020. Pursuant to that order, petitioner’s brief on that issue was

to be filed no later than December 4, 2020. Petitioner did not submit a brief addressing that issue.

Therefore, pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, we decline

to address the unargued assignment of error.

App.

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 statute.” Syllabus Point 7, State v. Beck, 167 W. Va. 830, 286

S.E.2d 234 (1981).

For purposes of a life recidivist conviction under West Virginia Code § 6111-18(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. Pts. 10, 11, and 12.

We note that recidivist statutes are designed “to deter felony offenders, meaning persons

who have been convicted and sentenced previously on a penitentiary offense from committing

subsequent felony offenses.” Syl. Pt. 3, in part, State ex rel. Appleby v. Recht, 213 W. Va. 503,

583 S.E.2d 800 (2002) (citation omitted). Petitioner does not dispute that he was convicted of

multiple charges of driving under the influence (“DUI”), third offense; multiple charges of driving

revoked for DUI, third offense; DUI, second offense; domestic battery; escaping while in custody;

grand larceny; conspiracy to commit grand larceny; and being a felon in possession of a firearm.

West Virginia Code § 61-11-18(d) provides for the imposition of a life sentence “[w]hen it is

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

crime punishable by confinement in a penitentiary . . . .” Id.; accord Hoyle, 242 W. Va. at 614,

836 S.E.2d at 832. As indicated above, Hoyle requires that, “[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.” Hoyle, 242 W. Va. at 603, 836 S.E.2d at 821, Syl.

Pt. 12, in part.

This Court has long recognized that the proportionality principle embedded in the West

Virginia Constitution prohibits the imposition of a life recidivist sentence where the defendant’s

underlying conduct did not involve violence or the threat of violence. See generally Wanstreet,

166 W. Va. at 537, 276 S.E.2d at 214. This analysis is precisely what this Court undertook when

it evaluated petitioner’s claim on direct appeal in Wills I.

We disagree with petitioner’s contention that his sentence is unconstitutional under

Dimaya. As we recently found in State v. Plante, No. 19-0109, 2020 WL 6806375, at *5, n.11 (W.

Va. Nov. 19, 2020) (memorandum decision),

[w]e find this argument unavailing for two significant reasons. First, we have

already determined that the language of our recidivist statute, West Virginia Code

§ 61-11-18, is plain and unambiguous. See State ex rel. Appleby v. Recht, 213 W.

Va. 503, 519, 583 S.E.2d 800, 816 (2002)(quoting State ex rel. Chadwell v. Duncil,

App.

196 W.Va. 643, 647, 474 S.E.2d 573, 577 (1996))(providing “[w]e have previously

recognized that West Virginia Code § 61-11-18 is ‘plain and unambiguous. . . .’”).

Second, neither Johnson nor Sessions, the Supreme Court decisions relied upon by

petitioner, involve a recidivist statute, and the principles of statutory construction

contained in those cases are inapplicable to resolve the issue presented herein:

whether, under the facts and circumstances of this case, the imposition of a life

sentence under our recidivist statute is constitutionally disproportionate.

Plante, 2020 WL 6806375, at *5.

For the reasons set forth in our prior holdings, there is no need to modify our recent holding

in Hoyle. Therefore, we find that the circuit court did not err in denying petitioner’s petition for

habeas corpus relief related to the imposition of the recidivist statute or petitioner’s sentence under

that statute.

Affirmed.

ISSUED: July 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

App.

/s/ C. Carter Williams

Circuit Court Judge

Ref. Code: 202735QR

E-FILED | 5/27/2020 12:00 PM

CC-14-2018-C-29

Hampshire County Circuit Clerk

Sonja Embrey

App.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

FILED

November 22, 2017

vs) No. 16-1199 (Hampshire County 16-F-57)

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Johnnie Franklin Wills,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Johnnie Franklin Wills, by counsel Jonie E. Nelson, appeals the Circuit Court

of Hampshire County’s December 7, 2016, order sentencing him as a recidivist to life

imprisonment with mercy following his grand larceny conviction. Petitioner was also sentenced

to an indeterminate term of not less than one year nor more than five years of incarceration for

his conspiracy to commit grand larceny conviction, which was ordered to run concurrently with

his life sentence. The State of West Virginia, by counsel Benjamin F. Yancey III, filed a

response in support of the circuit court’s order. On appeal, petitioner argues that the circuit

court’s imposition of a life sentence is unconstitutionally disproportionate to his crimes.

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 order of the circuit court is appropriate under

Rule 21 of the Rules of Appellate Procedure.

On May 3, 2016, petitioner was indicted on one felony count each of burglary,

conspiracy to commit burglary, grand larceny, and conspiracy to commit grand larceny, and one

misdemeanor count of destruction of property.1 Petitioner proceeded to trial on these charges on

August 24, 2016. A jury found petitioner guilty of grand larceny and conspiracy to commit grand

larceny, but he was acquitted of the other charges.

Following the jury’s verdict, the State filed a “Recidivist Information” detailing

petitioner’s prior felony convictions. Specifically, in addition to his grand larceny and conspiracy

to commit grand larceny felonies, petitioner was convicted on October 28, 2013, of the felony

These charges stemmed from an incident during which petitioner and a codefendant

entered onto another individual’s property without permission. Petitioner claimed that while he

was looking for a spare car part, his codefendant burgled the individual’s home. Petitioner’s

codefendant was charged with the same crimes as petitioner, pled guilty to all of them, and

testified against petitioner at petitioner’s trial.

App.

offense of third-offense driving on a license revoked for driving under the influence (“DUI”).2

On April 18, 2011, petitioner was convicted of the felony offense of attempted grand larceny. On

January 24, 2007, petitioner was convicted of the felony offense of third offense DUI.3 On

March 6, 2006, petitioner was convicted of the felony offense of being a felon in possession of a

firearm. Again, on June 6, 2006, petitioner was convicted of the felony offense of being a felon

in possession of a firearm. On April 22, 2002, petitioner was convicted of three separate felonies

that arose from separate incidents: one third offense DUI conviction and two driving while on a

license revoked for DUI, third offense, convictions. Due to these prior felony convictions, the

State requested that petitioner be sentenced to life in prison for his most recent grand larceny

conviction.

On October 21, 2016, the circuit court held a hearing on the “Recidivist Information.”

Petitioner admitted that he was the same person convicted of the crimes listed above. On

November 10, 2016, due to petitioner’s prior felony convictions, the circuit court sentenced

petitioner to life imprisonment with parole eligibility after fifteen years for his grand larceny

conviction. Petitioner was also sentenced to an indeterminate term of not less than one year nor

more than five years of incarceration for his conspiracy to commit grand larceny conviction. This

sentence was ordered to run concurrently with his life sentence. The circuit court entered its

“Sentencing Order” memorializing petitioner’s sentence on December 7, 2016. It is from this

order that petitioner appeals.

On appeal, petitioner argues that his recidivist life sentence is disproportionate to his

crimes. Petitioner argues that the triggering offenses of grand larceny and conspiracy to commit

grand larceny were nonviolent offenses. Although he was originally charged with burglary and

his codefendant pled guilty to burglary, petitioner states that he did not break into the home from

which the goods were stolen and that he “was at another area of the property looking for a piece

of pipe to fix his muffler.” Petitioner recognizes that “a propensity for violence may have

existed” while petitioner’s codefendant burgled the home, but states that “no violence occurred.”

Petitioner also argues that he “does not have a conviction for actual crimes of violence.”

Petitioner urges this Court to give “minimal weight” to his felony DUI convictions because of

the age of some of his convictions. In sum, petitioner argues that his criminal record “only

involves convictions that demonstrate a propensity for violence.”4

The portion of our recidivist statute applicable to petitioner’s case provides that “[w]hen

it is determined . . . that such person shall have been twice before 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.” W.Va. Code § 61-11-18(c). This Court has

previously stated that the primary purpose of this statute “is to deter felony offenders, meaning

At this same time, petitioner was also convicted of the misdemeanor offenses secondoffense DUI, domestic battery, and escaping while in custody.

Petitioner was also then convicted of the misdemeanor offense of driving on a suspended

license. These convictions were obtained in Virginia.

Petitioner also admits to “numerous misdemeanors that involve crimes of violence[.]”

App.

persons who have been convicted and sentenced previously on a penitentiary offense, from

committing subsequent felony offenses.” Syl. Pt. 3, in part, State ex rel. Appleby v. Recht, 213

W.Va. 503, 583 S.E.2d 800 (2002) (citation omitted). Further, “West Virginia Code § 61-11-18

is designed to deter those who are incapable of conforming their conduct to legitimately enacted

obligations protecting society[,]” and we have noted that “[s]tates have a valid interest in

deterring and segregating habitual criminals[.]” Appleby, 213 W.Va. at 517, 583 S.E.2d at 814

(citations omitted).

Nonetheless, sentences imposed may not run afoul of Article III, § 5 of the West Virginia

Constitution, which provides, in relevant part, that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be

proportioned to the character and degree of the offense.” We have held that “a criminal sentence

may be so long as to violate the proportionality principle implicit in the cruel and unusual

punishment clause of the Eight Amendment of the United States Constitution and Article III, § 5

of the West Virginia Constitution.” State v. Davis, 189 W.Va. 59, 61, 427 S.E.2d 754, 756

(1993) (citations omitted). Therefore, we utilize the following framework to determine whether a

life sentence imposed pursuant to our recidivist statute violates the proportionality principle:

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

the recidivist life sentence, although consideration is also given to the 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, in part, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). “[A]lthough sole

emphasis cannot be placed on the character of the final felony, it is entitled to closer scrutiny

than the other convictions, ‘since it provides the ultimate nexus to the sentence.’” State v. Miller,

184 W.Va. 462, 465, 400 S.E.2d 897, 900 (1990) (citations omitted). We also “generally require

that the nature of the prior felonies be closely examined. While not exclusive, the propensity for

violence is an important factor to be considered before applying the recidivist statute.” Id.

Applying these pronouncements to petitioner’s case, we do not find that petitioner’s life

sentence violates the proportionality principle. We begin by noting petitioner’s ten prior felony

convictions and that the purpose of our recidivist statute is to “deter those who are incapable of

conforming their conduct to legitimately enacted obligations protecting society.” Appleby, 213

W.Va. at 517, 583 S.E.2d at 814. In other words, the recidivist statute was designed to deter and

put a stop to habitual criminals.

In analyzing petitioner’s specific convictions, and looking first to his triggering offense

of grand larceny, we note that while petitioner was not convicted of burglary, his codefendant

pled guilty to that charge. Petitioner acknowledges that his codefendant burgled the victim’s

home while he was at a different spot on the victim’s property and that “a propensity for violence

may have existed.” We have previously held that “burglary and grand larceny [are] crimes that

by their very nature involve[] the threat of harm or violence to innocent persons[,]” where the

defendant burgled a home and took approximately $6,000 in personal property. State v. Housden,

App.

184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990). Petitioner admits to being on the victim’s

property while his codefendant burgled the victim’s home; thus, the potential for harm or

violence, had the property owner returned home, existed. See id. at 174, 399 S.E.2d at 885 (“The

potential for threatened harm or violence to either the victim, had he returned home at the time

the crime was committed or to another innocent person such as the victim’s son, who testified

that he was regularly checking on the home for his father, still existed at the time the appellant

committed the crime.”)

However, even if we ignore the fact that petitioner was present during the burglary his

codefendant was convicted of committing and accept petitioner’s contention that his grand

larceny neither threatened nor actually involved violence, we have also held that “sole emphasis

cannot be placed on the character of the final felony” and that prior felonies must be “closely

examined.”5 In so doing, we note that petitioner, having twice been convicted of third offense

DUI, has had no less than six DUI convictions. We have previously stated that “[t]he dangers

inherent in driving on the public streets while under the influence of an intoxicant are obvious.”

State ex rel. Appleby v. Recht, 213 W.Va. 503, 516, 583 S.E.2d 800, 813 (2002) (citation

omitted). “[O]perating an automobile while under the influence is reckless conduct that places

the citizens of this State at great risk of serious physical harm or death.” Id. (internal quotations

and citation omitted). Accordingly, we have had “little trouble in finding that driving under the

influence is a crime of violence supporting imposition of a recidivist sentence.” Id. Thus, given

petitioner’s numerous prior crimes, including these crimes of violence, we find no error in the

imposition of a recidivist sentence.

For the foregoing reasons, the circuit court’s December 7, 2016, sentencing order is

hereby affirmed.

Affirmed.

ISSUED: November 22, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

We also reiterate that, while the propensity for violence is an important factor to

consider in applying the recidivist statute, it is not the exclusive factor. Miller, 184 W.Va. at 465,

400 S.E.2d at 900.

App.

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