September 2002 Term
_____________
ANDREW MUGNANO,
v.
HOWARD PAINTER, WARDEN, MT. OLIVE
Appeal from the Circuit Court of Greenbrier County
AFFIRMED
Submitted: October 29, 2002
“Findings of fact made by a trial court in a post-conviction habeas corpus
proceeding will not be set aside or reversed on appeal by this Court unless such findings are
clearly wrong.” Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212
S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976).
Per Curiam:
This is an appeal by Andrew Mugnano, who is incarcerated in the State
Penitentiary for first degree murder and for malicious wounding, from a decision of the
Circuit Court of Greenbrier County denying him habeas corpus relief. In his pro se habeas
corpus petition, he claimed that the State of West Virginia had breached the plea agreement
which had resulted in his conviction and that his counsel at that time had failed to afford him
effective assistance of counsel by failing to object to the State's failure to comply with the
agreement. He also requested that the court appoint counsel to assist in the presentation of
his case. In denying the appellant habeas corpus relief, the circuit court, without appointing
counsel as requested, concluded that the appellant had failed to show adequate grounds for
relief. In the present proceeding, the appellant claims that the circuit court erred in failing
to appoint counsel to assist him in the preparation and presentation of his habeas corpus
claims and that the court erred in denying him a meaningful hearing on the question of
whether the plea agreement was breached and whether his trial attorney's performance was
deficient. The appellant was indicted
for murdering his wife, Theresa Mugnano, and for maliciously wounding her companion.
(See footnote 1) He
eventually entered into a plea agreement with the State of West Virginia whereby
he agreed to plead guilty, and the State agreed to remain mute as to the sentence
which he was to receive. The agreement specifically provided: 6 6.
FINAL DISPOSITION: The matter of sentencing is
within the sole discretion of the Court. The State has
made no representations or promises regarding a specific
sentence, and it will make no recommendation to the
Court regarding a specific sentence. This agreement
does not preclude the investigating officer from filing a
written, “official sentiment” with the Probation Officer
conducting the presentence investigation. Nor does this
agreement preclude the victim or victims from speaking
to the Court as set forth below. Furthermore, the State
reserves the right to:
A sentencing hearing was held on May 5, 2000, and at that hearing the
prosecutor stated: “One comment that Mr. Thompson [defense counsel] made is that, 15 or
18 years from now, Mr. Mugnano [the appellant] will be an old man, and I'd just like to say
that Theresa Mugnano will still be dead.” The appellant's attorney did not object to this, and
the circuit court sentenced the appellant to life in the penitentiary without mercy. In
imposing the sentence, the court noted that the appellant had failed to accept responsibility
for committing the crime and that a lesser sentence would depreciate the seriousness of the
offense.
The appellant believed that the prosecutor's comment relating to the fact that
Theresa Mugnano would still be dead in 15 to 18 years was a remark as to the sentence he
would receive and violated the State's plea agreement. As a consequence, the appellant
attempted to appeal his conviction to this Court on the ground that the prosecutor's remark
violated the plea agreement, and on the further ground that the sentence imposed was
unconstitutional. This Court refused to grant the appellant's appeal on April 3, 2001.
Subsequently, on May 9, 2001, the appellant filed the pro se habeas corpus
proceeding which gives rise to the present appeal. In it, he again asserted that the
prosecutor's remark relating to Theresa Mugnano still being dead in 15 to 18 years
constituted a comment on the sentence which he was to receive and violated his plea
agreement with the State. He also claimed that his trial counsel had provided him with
ineffective assistance of counsel when counsel failed to object to the prosecutor's remarks.
In conjunction with his pro se habeas corpus petition, the appellant requested that the trial
court appoint counsel to represent him during the habeas corpus proceeding.
Without ruling on the appellant's request for the appointment of counsel, the
Circuit Court of Greenbrier County denied the appellant's habeas corpus petition on May 31,
2001, relating to the appellant's claim that the State had breached its plea agreement, the trial
court stated:
In the present appeal, the appellant claims that the circuit court erred in failing
to appoint counsel to represent him during the habeas corpus proceeding and that the court
erred in finding that the State had not violated the plea agreement and implicitly finding that
he had received adequate representation of counsel.
As has previously been indicated, the appellant in the present proceeding
claims that the circuit court erred in failing to appoint counsel to assist him in prosecuting
his habeas corpus claims.
Rule 4(b) of the Rules Governing Post-Conviction Habeas Corpus Proceedings
in West Virginia provides that a circuit court is, after conducting an initial review of a post-
conviction habeas corpus petition, authorized to appoint counsel to represent the petitioner's
claims, provided the petitioner is an indigent. However, there is no requirement that a court,
in every instance, appoint counsel. Consistent with this, the Court held in Syllabus Point 1
of Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973): “A court having jurisdiction
over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a
hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits
or other documentary evidence filed therewith show to such court's satisfaction that the
petitioner is entitled to no relief.”
In the present case, the circuit court concluded that the appellant failed to show
or allege any ground for relief, which, if sufficiently developed, would entitle him to relief.
Specifically, the Court, which had the plea agreement, noted that in that agreement, the State
reserved the right to discuss the appellant's acceptance of responsibility and such other
matters as the nature and seriousness of the offense. The Court also essentially found that
the remark made by the prosecutor was made consistent with the rights reserved by the State
in the plea agreement and did not constitute a violation of the agreement.
This Court, after reviewing the record in this case, finds that while in the plea
agreement the State stated that it would not make a recommendation to the court regarding
a specific sentence, the State did not agree to remain wholly silent about the crime charged.
To the contrary, the State reserved the right to address the court with respect to the nature and
seriousness of the offense and the right to respond to statements made by or on behalf of the
appellant. The State also reserved the right to address the court regarding the appellant's
acceptance of responsibility.
This Court believes that the remark that Theresa Mugnano would still be dead
in 15 or 18 years was not a recommendation regarding a specific sentence. Rather, it was a
remark bearing on the nature and seriousness of the offense committed, and a remark made
in response to a comment by defense counsel. In essence, the Court believes that the remark
was proper and was not violative of the plea agreement. Obviously, if the remark did not
violate the agreement, defense counsel did not render ineffective assistance by failing to
object to it.
Since this Court has concluded that the claims encompassed in the habeas
corpus petition failed to show that the appellant is entitled to habeas corpus relief, given the
record in the appellant's criminal proceeding, this Court cannot conclude that the trial court
was clearly wrong in denying the appellant's habeas corpus petition and in refusing to
appoint counsel to assist the appellant in developing the claims contained in that petition.
For the reasons stated, the judgment of the Circuit Court of Greenbrier County
is affirmed.
No. 30618
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Petitioner Below, Appellant
CORRECTIONAL COMPLEX,
Respondent Below, Appellee
______________________________________________________
Honorable James J. Rowe, Judge
Civil Action No. 01-C-93(R)
_____________________________________________________
Filed: November 18, 2002
Richard H. Lorenson, Esq.
Public Defender Corporation
Lewisburg, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr.
Attorney General
Heather D. Foster
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER and ALBRIGHT dissent and reserve
the right to file dissenting opinions.
2 2.
RESOLUTION OF CHARGES: Defendant agrees to
plead guilty as charged in the indictment to one count of
the felony offense of murder in the first degree and one
count of the felony offense of malicious wounding.
6.a
(a) Inform the Probation Office and the Court of all
relevant facts and conduct;
6.b
(b) Address the Court with respect to the nature and
seriousness of the offense;
6.c (c)
Respond to questions raised by the Court;
6.d (d)
Correct inaccuracies or inadequacies in the presentence
report;
6.e (e)
Respond to statements made to the Court by or on behalf
of the Defendant which the State believes in good faith are inaccurate, misleading
or untrue;
6.f (f)
Advise the Court concerning the nature and extent of
Defendant's cooperation; and
6.g (g)
Address the Court regarding the issue of Defendant's
acceptance of responsibility.
After reviewing the plea agreement, however, this Court finds
that the State had specifically reserved the right to address this
Court regarding the issue of acceptance of responsibility.
Furthermore, the State had reserved the right to address other
issues, such as the nature and seriousness of the offense. In light
of the language of the plea agreement, this Court concludes that
the State did not violate the plea agreement. . . .
In Syllabus Point 1 of State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479,
212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976), this
Court held that: “Findings of fact made by a trial court in a post-conviction habeas corpus
proceeding will not be set aside or reversed on appeal by this Court unless such findings are
clearly wrong.” The Court has also indicated that a circuit court's final order and ultimate
disposition are reviewed under the abuse of discretion standard and that conclusions of law
are reviewed de novo. State ex rel. Hechler v. Christian Action Network, 201 W. Va. 71, 491
S.E.2d 618 (1997).
III.