Opinion
No. 17-0726
02-22-2019
Brandon Sherrod, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
(Kanawha County 13-P-415)
MEMORANDUM DECISION
Petitioner Brandon Sherrod, pro se, appeals the July 31, 2017, order of the Circuit Court of Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional Complex, by counsel Benjamin F. Yancey, III, filed a response in support of the circuit court's order. Petitioner filed a reply.
Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional Complex has changed and the superintendent is now Donnie Ames. The Court has made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure. Additionally, effective July 1, 2018, the positions formerly designated as "wardens" are now designated "superintendents." See W.Va. Code § 15A-5-3.
The 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 case arises out of the shooting death of James Williams, ("the victim"). The victim was shot through his kitchen window. Trial testimony showed that petitioner and his co-defendant were driven to the home where the victim was located, and the two then stood outside the kitchen window. When the victim entered the kitchen, petitioner and his co-defendant shot through the window. The co-defendant testified that he was only attempting to scare the victim, but that petitioner was deliberately aiming at the victim. The driver of the vehicle testified that, after petitioner and his co-defendant returned, petitioner noted that he had shot the victim and later laughed about it. The jury returned a verdict finding petitioner guilty of first-degree murder with a recommendation of mercy. Accordingly, the circuit court sentenced petitioner to a life term of incarceration with the possibility of parole.
In State v. Sherrod ("Sherrod I"), No. 11-1121, 2012 WL 5857302, at *1-2 (W.Va. November 19, 2012) (memorandum decision), petitioner appealed from his conviction, alleging that insufficient evidence existed to establish the element of premeditation to commit murder and that the circuit court erred in refusing to grant a mistrial following the improper testimony of a witness. This Court rejected the assignments of error and affirmed petitioner's conviction. Id. In rejecting petitioner's insufficiency of the evidence argument, the Court determined that a rational trier of fact could have reasonably found that (1) petitioner's friend put a "hit" on the victim; (2) petitioner brought a gun to the scene; (3) petitioner later noted that he had shot the victim and laughed about it; and, therefore, (4) petitioner planned the murder. Id.
The witness was asked whether petitioner looked the same as he had at the time of the shooting and answered that "petitioner actually looked healthier [since] his incarceration." Id. at *2.
In 2013, petitioner filed two petitions for a writ of habeas corpus which the circuit court dismissed by separate orders entered August 23, 2013, and February 5, 2014. In Sherrod v. Ballard ("Sherrod II"), Nos. 13-1141 and 14-0232, 2014 WL 4662484, at *4 (W.Va. September 19, 2014) (memorandum decision), this Court affirmed the dismissal of the first habeas petition, but reversed the dismissal of the second petition. The Court remanded petitioner's case to the circuit court for appointment of counsel and a hearing on his claim of ineffective assistance of counsel. Id. Accordingly, the circuit court appointed an attorney to represent petitioner, who filed an amended habeas petition on petitioner's behalf. At a May 18, 2017, evidentiary hearing, petitioner presented the testimony of his trial attorney and an expert regarding ineffective assistance of counsel. On July 31, 2017, the circuit court entered a comprehensive order denying petitioner's amended petition.
Petitioner now appeals the circuit court's July 31, 2017, order denying habeas relief. We apply the following standard of review in habeas appeals:
"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, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).
On appeal, petitioner asks this Court to address two claims "that were not raised in the circuit court." Respondent counters that we should decline to address those claims. We agree with respondent. Though petitioner argues that this Court has original jurisdiction to hear habeas claims, we note that this case arises under our appellate jurisdiction. Therefore, we decline to address issues not raised below because "[t]his Court will not pass on a non[-]jurisdictional question which has not been decided by the trial court in the first instance." Watts v. Ballard, 238 W.Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)).
The two claims not presented to the circuit court were that petitioner's trial attorney failed to object to testimony that petitioner was overheard threatening to kill a witness and that counsel failed to raise the issue on appeal in Sherrod I. --------
Having reviewed the July 31, 2017, "Findings of Fact, Conclusions of Law[,] and Final Order," we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to all of the remaining assignments of error raised in this appeal. Therefore, we conclude that the circuit court did not abuse its discretion in denying petitioner's habeas petition. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed. ISSUED: February 22, 2019 CONCURRED IN BY: Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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