                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Charmain T. Willis,

Petitioner Below, Petitioner                                                       FILED

                                                                              August 31, 2015
vs) No. 14-0445 (Fayette County 13-C-268)                                    RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Lori Nohe, Warden, Lakin
Correctional Center, Respondent Below,
Respondent

                               MEMORANDUM DECISION
       Petitioner Charmain T. Willis, by counsel Brandon S. Steele, appeals the Circuit Court of
Fayette County’s December 30, 2013, order denying her petition for post-conviction habeas
corpus relief.1 Respondent warden, by counsel Shannon Frederick Kiser, filed a response in
support of the circuit court’s order. On appeal, petitioner asserts that the circuit court erred in
denying her habeas petition because (1) her 2011 guilty plea was “unlawfully induced” where
her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2)
her 2009 trial counsel was constitutionally ineffective for several alleged deficiencies both before
and during trial;2 (3) “there were no African Americans on the jury, and . . . the State failed to
disclose favorable evidence”; (4) the circuit court made racially charged comments at petitioner’s
sentencing hearing on January 17, 2012; and (5) her sentence was constitutionally excessive or
more severe than expected.

        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 2008, petitioner was indicted on two counts of delivery of a controlled substance in
violation of West Virginia Code § 60A-4-401. Prior to trial, in a jury questionnaire sent to
potential jurors, Juror 16 indicated that he was African American. The jury trial commenced in
2009, and, at the conclusion of jury vior dire, the State used a peremptory strike to remove Juror


       1
        Petitioner’s counsel filed a brief in this matter pursuant to Anders v. California, 386 U.S.
738, (1967).
       2
         As explained below, a jury found petitioner guilty of two felony offenses in 2009, and
she pled guilty to a separate felony offense in 2011. Both the 2009 and 2011 convictions are at
issue in this appeal.


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16 from the jury panel. Petitioner challenged that strike on Batson grounds.3 In articulating race-
neutral grounds for the strike, the State explained that Juror 16 had voted to acquit another
criminal defendant weeks earlier and that an officer involved in petitioner’s case had made a
controlled drug purchase from Juror 16 within the last year. The circuit court denied petitioner’s
Batson challenge, and Juror 16 was stricken from the jury panel. During the State’s case-in-chief,
a confidential informant (“CI”) claimed that police “already had eight other purchases on
[petitioner].” The circuit court sustained petitioner’s objection to the statement and directed the
jury to disregard it. At the conclusion of the State’s case-in-chief, petitioner moved for judgment
of acquittal or, in the alternative, a mistrial based, in part, on the CI’s statement. The circuit court
denied the motions. The jury found petitioner guilty on both counts.

        In April of 2009, the circuit court sentenced petitioner to two consecutive prison terms of
one to fifteen years, but it suspended that sentence and imposed a three-year probationary term.
Only three months later, in July of 2009, petitioner’s probation officer filed a notice of probation
revocation alleging multiple violations of the alcohol and drug conditions of her probation.
Petitioner admitted to the allegation that she used cocaine, but, nevertheless, the circuit court
permitted her to return to probation with no additional terms or conditions.

        In 2011, petitioner was arrested for delivery of a controlled substance. Petitioner’s
probation officer filed a second notice of probation revocation based on that arrest, and, in
December of 2011, the circuit court held a joint plea and probation revocation hearing. Pursuant
to her plea agreement with the State, petitioner admitted that she violated her probation as
alleged, and she pled guilty to delivery of a controlled substance, by information.4 During her
plea colloquy with the circuit court, petitioner stated that she understood the consequences of her
guilty plea and the rights she was waiving by pleading guilty, and, with that understanding and
with advice of counsel, she still wished to plead guilty. Her signed plea agreement stated, in
relevent part, that

       [b]efore being called upon to enter any plea in this case, I fully understand the
       following . . . [t]hat I have a right to challenge in the [t]rial [c]ourt and on appeal
       all pre-trial proceedings, but by pleading guilty I waive all pre-trial defects with
       regards to, among others, my arrest, the gathering of evidence against me and
       prior confessions, as well as, all non-jurisdictional defects in this criminal
       proceeding.

She also signed a waiver of rights statement in which she stated that her trial counsel “to [her]
complete and total satisfaction, represented, advised and consulted with [her][.]” The circuit

       3
         See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecution’s purposeful
exclusion of members of jury panel due to race is constitutional violation where defendant
establishes prima facie case of the same and prosecution cannot articulate race-neutral
explanation for the exclusion).
       4
       Petitioner waived her right to a grand jury indictment in this matter, and the parties
proceeded by information. The State dismissed the felony offense as charged in September of
2011.
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court accepted petitioner’s admission that she violated the conditions of her probation and
accepted her guilty plea to the felony of delivery of a controlled substance.

        In January of 2012, the circuit court held a joint sentencing and dispositional probation
revocation hearing. For petitioner’s probation violation, the circuit court imposed her original
2009 sentence of two terms of one to fifteen years in prison. For the 2011 conviction, the circuit
court sentenced her to a third term of one to fifteen years in prison. All terms were ordered to run
consecutive to one another. Petitioner did not directly appeal her convictions or sentences.

         In October of 2013, petitioner filed a pro se habeas petition asserting three grounds: (1)
“unlawfully induced” plea in 2011 because her counsel failed to obtain an independent chemical
test of the alleged controlled substance; (2) ineffective assistance of trial counsel in 2009 due to
several alleged deficiencies both before and during trial; and (3) “there were no African
Americans on the jury, and . . . the State failed to disclose favorable evidence[.]” By order
entered on December 30, 2013, the circuit court denied her habeas petition. The circuit court
explained that petitioner’s grounds were either waived and/or lacked merit. This appeal followed.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

               [i]n 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, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (internal
citations omitted).

        On appeal, petitioner assigns error to allegedly “racially charged” comments made by the
circuit court at her sentencing hearing and to the amount of prison time she received as her
sentence for these offenses. However, in her argument to this Court, petitioner failed to include
“citations that pinpoint when and how the issues in the assignments of error were presented to
the lower tribunal.” W.Va. R. App. P. 10(c)(7). This Court has often held that it will not consider
issues raised for the first time on appeal. See In re Michael Ray T., 206 W.Va. 434, 444, 525
S.E.2d 315, 325 (1999) (stating that “a constant refrain of this Court is that we will not consider,
for the first time on appeal, a matter that has not been determined by the lower court from which
the appeal has been taken.”); see also Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334
(1971) (holding that “this Court will not decide nonjurisdictional questions which were not
considered and decided by the court from which the appeal has been taken.”). The record is
devoid of any evidence that petitioner included these issues in her habeas petition below or
otherwise placed these issues before the circuit court. Therefore, we decline to address these
issues on appeal.

       Petitioner’s remaining issues were raised in her habeas petition and were adequately
addressed by the circuit court in its final order. Upon our review and consideration of the circuit

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court’s final order, the parties’ arguments, and the record submitted on appeal, we find no error
or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s
decision to deny petitioner’s petition for writ of habeas corpus based on the three grounds raised
in this appeal. Having reviewed the circuit court’s order denying habeas relief, entered on
December 30, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings
of fact and conclusions of law as to these assignments of error. 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: August 31, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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