Allman v. Sallaz

Cindy Allman, Petitioner Below, Petitioner v. J.D. Sallaz, Superintendent, Lakin Correctional Center, Respondent Below, Respondent

No. 19-0012

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 6, 2020

(Harrison County 15-C-262-3)

MEMORANDUM DECISION

Petitioner Cindy Allman, by counsel Chad L. Taylor, appeals the Circuit Court of Harrison County's December 6, 2018, order denying her petition for a writ of habeas corpus. Respondent J.D. Sallaz, Superintendent, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner argues that the habeas court erred in concluding that the State did not deny petitioner a material term of her plea agreement and in finding that her trial counsel was not ineffective.

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.

In October of 2009, petitioner and her co-defendant entered the home of Terry K. Lewis ("the victim") in search of money and valuables while another co-defendant waited in a nearby vehicle. After entering the home, petitioner and a co-defendant armed themselves with knives from the victim's kitchen. A co-defendant entered the victim's bedroom, where he lay sleeping next to his eight-year-old grandson, and stabbed the victim, who then stumbled into the hallway searching for help. Petitioner then stabbed the victim several more times in the hallway.¹ Petitioner and the co-defendants fled but were arrested approximately three weeks later based upon a tip concerning the crime.

In May of 2010, petitioner was indicted on one count of felony murder and one count of conspiracy to commit burglary. Prior to trial, petitioner entered into a plea agreement whereby she agreed to plead guilty to one count of felony murder in exchange for the State's agreement to dismiss the conspiracy to commit burglary charge and to join petitioner in recommending a sentence of life with mercy. The plea agreement noted that the plea was not binding and that sentencing would be in the circuit court's discretion. The plea agreement further noted that the agreement "in no way vitiates any right that any of the victims of the offenses charged against the defendant may have under the laws of the State of West Virginia." During the later-held omnibus hearing, both petitioner's trial counsel and the prosecutor testified that it was their understanding that the victim's family agreed at that time with the recommendation of life with mercy.

The trial court held a sentencing hearing in October of 2010.² Petitioner's counsel requested that she be sentenced to life with mercy, arguing factors such as petitioner's age, mental competency, past abuse, remorsefulness, intellect, and lack of criminal history. The State also recommended that petitioner be sentenced to life with mercy due to her young age. The trial court then heard statements from the victim's family. Although, as noted above, both petitioner's counsel and the prosecutor were under the impression that the family agreed with the recommendation of life with mercy, each of the seven family members who spoke requested that the trial court show petitioner no mercy. One of the victim's sisters explained the family's dissatisfaction with the plea agreement:

Your Honor, our family willfully agreed to the plea agreements of this robbery that ended up in murder for these three people [petitioner and her two co-defendants], but because of the statements that were made in the courtroom by these individuals during their plea hearing, I respectfully ask, Your Honor, to please reconsider our offer of mercy in your decisions.

. . . .

Your Honor, I ask that you please consider the option that mercy be denied, even though . . . we offered it to these three people.

Following the family members' statements, petitioner expressed to the trial court her remorse for her actions. At the conclusion of the hearing, the trial court sentenced petitioner to life without mercy by order entered on November 24, 2010. In support of this sentence, the trial court noted that petitioner's acceptance of responsibility was questionable and the facts of the case would "cry out for a jury in hearing this case to not grant any mercy." Petitioner subsequently filed a motion for reconsideration, which the trial court ultimately denied. On June 19, 2013, the trial court conducted a second sentencing hearing pertaining solely to petitioner and, by order entered July 1, 2013, reimposed the original sentence of life imprisonment without the possibility of parole. Petitioner appealed her sentence to this Court, and we affirmed the sentence. See State v. Allman, 234 W. Va. 435, 765 S.E.2d 591 (2014).

Thereafter, petitioner, without representation, filed a petition for a writ of habeas corpus in June of 2015. In October of 2015, petitioner was appointed counsel and filed an amended petition for a writ of habeas corpus raising several grounds for relief. Relevant to this appeal, petitioner argued that her plea agreement was unfulfilled and that her trial counsel provided ineffective assistance. The habeas court held an omnibus hearing in January of 2016 wherein petitioner was permitted to argue her claims. Both petitioner's trial counsel and the prosecutor testified that, at the sentencing hearing, they were under the assumption that the victim's family agreed with the recommendation of life with mercy. Both learned of the family's change of heart only when the family testified at the sentencing hearing. While petitioner's trial counsel testified that he wished he had objected to the family's testimony at trial, at the omnibus hearing he felt that objecting could have jeopardized petitioner's plea agreement.

The habeas court denied petitioner's amended petition for a writ of habeas corpus. In its order, the habeas court found that, although there seemed to be an understanding that the family supported the plea agreement, the family's support of the plea was never made a part of the plea agreement. Further, the plea agreement was between petitioner and the State, and, as the agreement provides, the rights of the victim's family were in no way restricted by the agreement. Moreover, petitioner did not ask to withdraw her guilty plea on the basis of the misunderstanding. As such, the habeas court found that the State fulfilled its obligations under the plea agreement. Regarding petitioner's claims of ineffective assistance of counsel, the habeas court found that the trial court relied on a multitude of factors in reaching its decision regarding petitioner's sentence, apart from the family's disagreement with the plea agreement. Further, both the prosecutor and petitioner's trial counsel testified at the omnibus hearing that the State had a strong case against petitioner and that the plea agreement was the most favorable option for her. Lastly, neither attorney for either of petitioner's co-defendants objected to the family's testimony at the sentencing hearing. As such, the habeas court determined that petitioner failed to prove that her counsel had been ineffective. Petitioner appeals the December 6, 2018, order denying her petition for a writ of habeas corpus.

This Court reviews appeals of circuit court orders denying habeas corpus relief 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).

On appeal, petitioner first argues that the habeas court erred in finding that she was not denied a material term of her plea agreement. According to petitioner, she relied upon the State's verbal assertion that the victim's family supported the plea agreement's recommendation of life with mercy. In fact, her trial counsel testified at the omnibus hearing that he would not have recommended entering into the plea agreement absent the family's support. Petitioner relies upon contract principles to support her contention that the plea agreement should be voidable basedupon the family's testimony. Petitioner avers that the habeas court should have more seriously considered the parties' understanding of the family's support of the plea and her reliance upon their support in entering the plea agreement. We disagree.

We have long recognized that "[a]s a matter of criminal jurisprudence, a plea agreement is subject to principles of contract law insofar as its application insures a defendant receives that to which he is reasonably entitled." State ex rel. Brewer v. Starcher, 195 W. Va. 185, 192, 465 S.E.2d 185, 192 (1995). Regarding the interpretation of plea agreements, we have previously noted that

[a]ny ambiguities in a plea agreement will be construed against the State. Syl. pt. 3, in part, State ex rel. Thompson v. Pomponio, 233 W.Va. 212, 757 S.E.2d 636 (2014) (rejecting State's argument that language of plea agreement was ambiguous, and holding that any ambiguity must be construed against State). Nevertheless, a plea agreement should be read reasonably, without resort to strained or hyper-technical interpretation. See United States v. Larson, 78 Fed.Appx. 650, 655-56 (10th Cir. 2003); United States v. Little, 14 Fed.Appx. 200, 204 (4th Cir. 2001).

State v. Wilson, 237 W. Va. 288,...