Stephen J. Tamburo III v. Karen Pszczolkoski, Warden

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Stephen J. Tamburo III, FILED Petitioner Below, Petitioner June 15, 2015 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 14-0287 (Morgan County 12-P-41) OF WEST VIRGINIA

Karen Pszczolkoski, Warden, Northern Correctional Center, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Steven J. Tamburo III, by counsel Nicolas Forrest Colvin, appeals the Circuit Court of Morgan County’s March 13, 2014, order denying his petition for writ of habeas corpus. Respondent Karen Pszczolkoski, Warden1, by counsel Benjamin F. Yancy, filed a response. On appeal, petitioner alleges that his constitutional rights were violated when the circuit court denied him habeas relief without holding an omnibus evidentiary hearing.

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 habeas court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In April of 2009, petitioner was indicted on fifteen counts of prescription drug fraud. In September of 2010, petitioner was indicted on one count of first-degree murder, one count of concealment of a deceased human body, three counts of forgery, and three counts of uttering. The State, thereafter, offered petitioner a plea agreement in December of 2010. Petitioner entered into an Alford plea agreement and pled guilty to first-degree murder.2 The plea agreement further stipulated that petitioner understood that his guilty plea would result in a life sentence with a recommendation of mercy and stipulated that, in exchange for the guilty plea, the State would 1 Pursuant to Rule 41(c) of the Rules of Appellate Procedure, we have substituted the respondent party’s name with Warden Karen Pszczolkoski because petitioner is currently incarcerated at the Northern Correctional Center. 2 North Carolina v. Alford, 400 U.S. 25 (1970). Under Alford, “[a]n accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that a jury could convict him.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987).

dismiss the remaining seven counts of the indictment and all fifteen counts from the April indictment. The habeas court sentenced petitioner to a life sentence with a recommendation of mercy in February of 2011.

On September 17, 2012, petitioner filed a pro se petition for writ of habeas corpus in the Circuit Court of Morgan County. Then on September 20, 2012, petitioner filed an amended petition for writ of habeas corpus alleging six grounds of error. He asserted that: (1) his plea was involuntary, (2) he was not mentally competent, (3) his trial counsel failed to assert an appeal, (4) the State made prejudicial statements to the habeas court, (5) that he received ineffective assistance of counsel, and (6) that his sentence was more severe than expected and excessive in nature.

In January of 2014, a status hearing was held on petitioner’s petition for writ of habeas corpus, during which the habeas court scheduled the matter for an omnibus hearing on March 14, 2014. On March 13, 2014, the habeas court denied petitioner’s petition for writ of habeas corpus without holding the previously scheduled omnibus hearing. The habeas court reviewed all of petitioner’s claims in detail and found that he was not entitled to relief and that there was no need for an omnibus evidentiary hearing. It is from the March 13, 2014, order that petitioner appeals.

This Court reviews appeals of habeas 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).

To begin, we find no error in the circuit court’s denial of petitioner’s petition for writ of habeas corpus without first conducting an omnibus evidentiary hearing. In support of his claim, petitioner argues that his counsel failed to provide him with effective assistance of counsel. Petitioner argues that the habeas court committed error in denying his petition for writ of habeas corpus without first conducting an omnibus evidentiary hearing on this ineffective assistance of counsel issue, thus depriving him of due process of law. We disagree.

Although petitioner asserts that his trial counsel was ineffective in representing him, he has not provided this Court with or articulated any analysis, argument, or facts to support his contention of how his trial counsel was ineffective. We have previously held that

“[a]n appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgement of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgement.”

Syl. Pt. 2, Benson v. AJR, Inc., 226 W.Va. 165, 698 S.E.2d 638 (2010) (quoting Syl. Pt. 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)). Mere allegations of ineffective assistance without more are insufficient for granting habeas corpus relief.3

Further, it is evident from West Virginia Code § 53-4A-7(a) that not every petitioner for habeas corpus relief is entitled to a full omnibus evidentiary hearing in every proceeding instituted under those provisions. Where the claims in the petition for relief are completely without substance or merit, the statute does not require a hearing at all and empowers the habeas court to deny the requested relief. Id. This is true for petitioner’s claims on appeal, as he does not articulate any analysis, argument, or supporting facts as to why his trial counsel was ineffective. Upon our review and consideration of the habeas court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the habeas court. Our review of the record supports the habeas court’s decision to deny petitioner post-conviction habeas corpus relief based on the ineffective assistance of counsel claim. Indeed, the habeas court’s order includes well-reasoned findings and conclusions as to petitioner’s claim of ineffective assistance of counsel. Given our conclusion that the habeas court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the habeas court’s findings and conclusions as they relate to petitioner’s claim of ineffective assistance of counsel and direct the Clerk to attach a copy of the habeas court’s March 13, 2014, “Order Denying Petition For Writ Of Habeas Corpus” to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: June 15, 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

3 The West Virginia Rules of Appellate Procedure Rule 6(b) requires that the record on appeal should be selectively abridged by the parties in order to permit the Court to easily refer to relevant parts of the record. Petitioner made allegations of ineffective assistance of counsel but he failed to include any selectively abridged parts of the record on appeal that were relevant to the claims of ineffective assistance of counsel.