Davis v. Ames, 17-0261

Ronald Davis, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 17-0261

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 19, 2019

(Jackson County 14-C-22)

MEMORANDUM DECISION

Petitioner Ronald Davis, by counsel Timothy P. Rosinsky, appeals the December 28, 2016, order of the Circuit Court of Jackson County denying his petition for writ of habeas corpus. Respondent Donnie Ames,¹ Superintendent, Mt. Olive Correctional Complex, by counsel Holly M. Flanigan, filed a response in support of the circuit court's order. On appeal, petitioner alleges that the circuit court erred in denying him habeas relief because he received ineffective assistance of counsel, the evidence presented was insufficient to sustain his conviction, he should have been granted a change of venue due to the fact that his trial was tainted by pretrial publicity, his sentences are excessive, and the State knowingly used perjured testimony.

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.

On September 23, 2010, petitioner barricaded the front door and windows of a home he shared with the victim, Carol Parsons, and set fire to the home. Ms. Parsons was inside and died as a result of the fire. Ms. Parsons's daughter and son-in-law lived beside the mobile home and reported that they heard pounding and a scream from Ms. Parsons's home on the night in question. The victim's son-in-law reported to police that he saw petitioner bend over on Ms. Parsons's front porch immediately before a ball of flames shot up over his head. Witnesses at the scene attempted to rescue Ms. Parsons but were unsuccessful. Several witnesses stated that while they attempted to rescue Ms. Parsons, petitioner watched, petted a dog, barked, laughed, and whittled wood. Healso stated to Ms. Parsons's family that night that he "burned her alive." When police arrived on the scene, petitioner gave inconsistent accounts of his whereabouts when the fire started. Petitioner was indicted on one count of first-degree murder and one count of first-degree arson. After a jury trial, by order entered on September 8, 2011, he was convicted and sentenced to life, without mercy, for first-degree murder and twenty years of incarceration for first-degree arson, said sentences to run consecutively. Petitioner filed a direct appeal, and this Court affirmed his convictions. See State v. Davis, 232 W. Va. 398, 752 S.E.2d 429 (2013).

Petitioner filed a pro se petition for writ of habeas corpus in the circuit court on February 24, 2014. He was appointed counsel and an amended petition was filed. Petitioner argued that his rights under the Sixth Amendment of the United States Constitution and Article III, Section 17 of the West Virginia Constitution were violated by the ineffective assistance of counsel, the evidence presented was insufficient to sustain his conviction, he should have been granted a change of venue because his trial was tainted by pretrial publicity, his sentences are excessive, and the State knowingly used perjured testimony. An omnibus hearing was held on November 11, 2016, and the circuit court denied petitioner habeas corpus relief by order entered on December 28, 2016. It is from this order that petitioner appeals.

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." 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).

Petitioner raises five assignments of error on appeal. First, he contends that he is entitled to habeas corpus relief due to ineffective assistance of counsel. Petitioner acknowledges that ineffective assistance of counsel claims are governed by the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a claim of ineffective assistance of counsel, petitioner must show that "(1) [c]ounsel'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, in relevant part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Poncho Morris, one of petitioner's trial attorneys, testified at the omnibus evidentiary hearing that when he was preparing for sentencing, he discovered that the forensic expert failed to test a certain ash mark on petitioner's boot. Petitioner asserts that this evidence could have been used to corroborate his defense that he was inside of the house when the fire started, and therefore, the first prong of Strickland has been met. He further contends that the evidence could possibly have introduced reasonable doubt, thereby satisfying the second prong of Strickland. Petitioner also alleges that he received ineffective assistance of counsel because his attorney failed to move for a change of venue due to pretrial publicity.

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

Miller, 194 W. Va. at 6, 459 S.E.2d at 117, syl. pt. 6. This Court "always . . . presume[s] strongly that counsel's performance was reasonable and adequate[,]" and

[t]he test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.

Id. at 16, 459 S.E.2d at 127. Certainly, with the benefit of hindsight, "one always may identify shortcomings, but perfection is not the standard for ineffective assistance of counsel." Id. at 17, 459 S.E.2d at 128.

We find that petitioner has failed to satisfy the first prong set forth in the Strickland test. The only evidence petitioner introduced to support his contention that his attorneys provided ineffective assistance was the testimony of Mr. Morris at the omnibus hearing. Mr. Morris stated that an ash mark on petitioner's boot should have been forensically tested. However, petitioner provided no evidence as to what the ash mark actually was or when it appeared on his boot. Further, the record indicates that, at trial, defense counsel attempted to discredit the fire investigation, as well as evidence of gasoline on petitioner's boot. Mr. Morris even argued during a motion for a new trial that the ash mark on petitioner's boot was evidence that he was inside the home when it caught fire. Petitioner also failed to show that he should have had a change of venue, as discussed further below. Based on the evidence, the circuit court concluded that petitioner failed to show that his counsel's performance was deficient under an objective standard of reasonableness. We agree.

Petitioner's second assignment of error, that the evidence presented was insufficient to sustain his conviction, is also without merit. Petitioner asserts that no one saw him in possession of a gas canister or any other accelerant on the night in question. He states that firefighters and police arrived shortly after the fire started and found no evidence of a container containing a fire accelerant. Petitioner contends that this, combined with the defense's fire expert's testimony that the fire started inside the house, is prima facie proof of reasonable doubt.

Claims regarding the sufficiency of evidence to support a criminal conviction are governed by syllabus point 3 of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), which states 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 circumstantial, in the light most favorable to theprosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that 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 verdict 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 the extent that our prior cases are inconsistent, they are expressly overruled.

Petitioner was convicted of one count of first-degree murder. West Virginia Code §61-2-1 provides that

[m]urder by poison, lying in

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