State of West Virginia v. Smith ( 2021 )

FILED
October 29, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 19-0565 (Jackson County 18-F-28)
Antonio Lee Smith,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Antonio Lee Smith, by counsel Justin M. Collin, appeals the Circuit Court of
Jackson County’s September 19, 2018, order denying petitioner’s post-trial motions following his
convictions for wanton endangerment with a firearm or other deadly weapon, felon in possession
of a firearm, burglary, and assault. Respondent the State of West Virginia, by counsel Patrick
Morrisey and Benjamin F. Yancey III, filed a response to which petitioner submitted a reply.
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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
In October of 2017, petitioner was purportedly looking for a woman named Crystal who
owed him money. Petitioner drove to what he claims he believed was Crystal’s home, but the
homeowner, George Baldwin, told petitioner that he did not know Crystal. Petitioner left but later
returned, at which time he forced his way into Mr. Baldwin’s home at gunpoint and searched the
house. Petitioner was later identified as the perpetrator and was arrested.
Petitioner was convicted of wanton endangerment with a firearm or other deadly weapon,
felon in possession of a firearm, burglary, and assault following a jury trial in the Circuit Court of
Jackson County. Thereafter, petitioner filed a motion for post-verdict judgment of acquittal on the
charges of wanton endangerment and felon in possession of a firearm. By order entered on August
29, 2018, the circuit court denied that motion. In that order, the court noted that at the conclusion
of the presentation of the State’s case, petitioner argued that the State failed to present evidence
that the gun used in the commission of the alleged crimes was operational so no reasonable juror
could conclude that the evidence presented was sufficient to sustain a conviction. The circuit court
denied that motion, and at the conclusion of the trial, the jury deliberated and returned a verdict of
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guilty on all counts charged in the indictment. After setting forth the relevant legal standards, the
circuit court found that, having considered all of the evidence and testimony in the light most
favorable to the prosecution and crediting all inferences and credibility assessments the jury might
have drawn in favor of the prosecution, sufficient evidence was presented on which the jury could
find guilt beyond a reasonable doubt. The court noted, in particular, that “the victim in this case
offered substantial testimony based on his first-hand observation of the gun, describing it in detail,
and affirming on cross-examination his observation that the gun was what the State claimed it to
be.” The circuit court, therefore, denied petitioner’s motion.
Petitioner then filed a motion for a new trial on August 28, 2018. At the conclusion of the
arguments on that motion, petitioner voiced his displeasure with his attorney, Mark Plants, and
indicated that he intended to pursue claims of ineffective assistance of counsel. 1 During the
hearing, Mr. Plants moved to be relieved as counsel for petitioner based on a breakdown in
communication with petitioner such that petitioner would be prejudiced by his continued
representation by Mr. Plants. The circuit court took that matter under advisement. The State then
moved for a pre-sentence investigation (“PSI”), and that motion was also taken under advisement.
According to the circuit court’s September 19, 2018, “Order on Post-Trial Motions,” prior to the
conclusion of the hearing, petitioner orally raised
various other concerns, which the [c]ourt will construe and address as motions: (1)
a motion for post-conviction bond, to which the State noted its objection on the
record; (2) a motion for a new prosecutor to represent the State of West Virginia;
and (3) a motion for disclosure of various papers in the possession of Mr. Plants.
The circuit court directed Mr. Plants to deliver “all papers in his possession related to case number
18-F-28” to petitioner but took the other motions under advisement. In its resulting order, the
circuit court granted the State’s motion for a PSI and Mr. Plants’s motion to withdraw as counsel.
It then appointed new counsel for petitioner for purposes of sentencing in case number 18-F-28.
The circuit court sentenced petitioner to the following terms of incarceration: not less than
one nor more than ten years for burglary; five years for wanton endangerment involving a firearm
or other deadly weapon; one year for felon in possession of a firearm; and six months for assault.
The circuit court ordered that the sentences for wanton endangerment, burglary, and felon in
possession of a firearm be served consecutively; however, the assault sentence was to be served
concurrent to the felony charges. The circuit court’s sentencing order was entered on May 16,
2019.
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
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On November 6, 2019, petitioner filed a motion to stay proceedings in order to request a
new trial before the circuit court based upon newly discovered evidence, which was granted by
this Court. That evidence was petitioner’s discovery that Mr. Plants was an assistant or the elected
prosecutor when petitioner was convicted of and sentenced for a drug crime in Kanawha County.
According to petitioner’s motion, he was convicted in 2007 and sentenced in 2008. The circuit
court denied that motion by order entered on May 3, 2021.
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circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). With these standards in mind,
we turn to petitioner’s two assignments of error: (1) The State presented insufficient evidence that
petitioner possessed a firearm capable of expelling a projectile by means of an explosion; and (2)
Petitioner’s trial counsel, Mr. Plants, was an assistant prosecuting attorney and then the elected
prosecuting attorney in Kanawha County. While Mr. Plants was employed as a prosecutor,
petitioner was charged with both misdemeanors and felonies, and Mr. Plants failed to inform
petitioner of this potential conflict of interest.
As to the sufficiency of the evidence with regard to the firearm, petitioner contends that
wanton endangerment and felon in possession of a firearm require proof of a firearm as defined by
the Legislature in West Virginia Code § 61-7-2(11). 2 Petitioner asserts that the Legislature chose
to narrowly define “firearm” and the State failed to present sufficient evidence, beyond a
reasonable doubt, that petitioner possessed a firearm. Therefore, petitioner argues that his
convictions for these crimes must be reversed. Petitioner argues that even if the bore of his gun
“resembled the bore of a firearm, that does not prove beyond a reasonable doubt that the weapon
could expel the projectile by explosion.” Without citing any authority, petitioner alleges that by
narrowly defining “firearm,” the Legislature intended to punish crimes committed with such a
lethal weapon more severely than crimes committed with “families of firearms.” Petitioner further
asserts that committing a felony with a fake gun does not affect probation or parole eligibility and
notes that, similarly, wanton endangerment requires proof of a fully functional firearm to justify
the increased sentence. Without citing law, petitioner contends that absent such proof, only an
assault is committed. 3
This Court has held that
[t]he function of an appellate court when reviewing the sufficiency of the
2
Petitioner mistakenly references West Virginia Code § 61-7-2(12), but it appears that he
intended to reference West Virginia Code § 61-7-2(11) (2012), which provided: “‘Firearm’ means
any weapon which will expel a projectile by action of an explosion.”
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We remind petitioner of the mandates of Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure, which requires:
The brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
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evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime proved beyond a reasonable doubt.
Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Additionally, we held 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 the
prosecution 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.
Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3.
Upon our review of the record, we find that the State presented sufficient evidence at trial
showing that petitioner possessed a firearm capable of expelling a projectile by means of an
explosion. The State admits that the gun was never recovered, tested, or found to be operational
but points to testimony that demonstrated that petitioner used a real gun inside and outside of Mr.
Baldwin’s home. Mr. Baldwin testified petitioner had the gun pointed at him the entire time inside
of his home, agreeing that he got a good look at the gun. Mr. Baldwin described the gun as “an
automatic, maybe a 9 mm. I mean, nine inches long or so . . . going by the bore. [] I mean, you
know, I don’t know exactly what a 9 mm is, but it compared pretty close to a .38 or 30 something
caliber.” He also specifically stated that it appeared to be made of metal. On cross-examination,
petitioner’s counsel questioned Mr. Baldwin as to whether it was an actual gun, rather than a BB
gun, and Mr. Baldwin responded that “[i]t was a gun. It was a real gun. It wasn’t no BB gun. I
looked right down the barrel. It was not a BB gun.” When pressed on the issue of BB guns that
look like real guns, Mr. Baldwin was adamant that it was not possible the gun pointed at him was
anything other than a real gun. After hearing Mr. Baldwin’s testimony, the testimony of the other
witnesses, and being instructed by the trial court, the jury found, beyond a reasonable doubt, that
petitioner used a real gun—one capable of firing a real bullet—in carrying out the underlying
offenses of wanton endangerment with a firearm and felon in possession of a firearm. Further,
petitioner’s contention that he did not admit owning a firearm is disingenuous, as petitioner elected
not to testify at trial. Thus, we find no merit to petitioner’s first assignment of error.
Petitioner’s second assignment of error focuses on Mr. Plants’s involvement in petitioner’s
earlier criminal matters and the impact that involvement had in Mr. Plants’s representation of
petitioner in the underlying Jackson County criminal case. According to petitioner, his trial counsel
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failed to inform petitioner of a potential conflict of interest relating to counsel’s employment as an
assistant prosecutor and then elected prosecutor from at least 2008 until his removal from office
in 2014. 4 Petitioner contends that Mr. Plants undertook petitioner’s representation while laboring
under an actual conflict of interest that adversely affected his performance. He argues that not only
did Mr. Plants fail to timely inform petitioner of the potential conflicts, he failed to inform
petitioner of the potential conflict at any time so reversal is required.
As this Court has found,
[c]onjecture and surmise will not suffice to brand counsel, appointed or retained,
ineffective in the representation of one accused of crime. Conflict of interest
precluding effective counsel must be established by the proponent. As was
recognized in United States v. Paz-Sierra, 367 F.2d 930 (2d Cir. 1966):
“Thus there is no reason to depart from our ‘position’ with respect to the
requirement that conflict of interest must be shown as a foundation for any claim
that joint representation was a deprivation of the right to counsel.” Id., at 933.
Accord, United States v. Dardi, 330 F.2d 316, 335 (2d Cir. 1964); United States v.
Bentvena, 319 F.2d 916, 937 (2d Cir. 1963); Gonzales v. United States, 314 F.2d
750 (9th Cir. 1963). The “conflict” to be established must be actual, and not merely
speculative or theoretical. See United States v. Lovano, 420 F.2d 769 (2d Cir. 1970),
where the rule was stated and applied:
“The rule . . . is that some specific instance of prejudice, some real conflict of
interest, resulting from a joint representation must be shown to exist before it can
be said that an appellant has been denied the effective assistance of counsel.
(Citations omitted)” Id., at 773.
“Appellants have done no more than suggest a theoretical conflict of interest and
have pointed to no specific prejudice to their cases.” Id., at 774.
State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 489-90, 212 S.E.2d 69, 75 (1975). Further,
“[t]o demonstrate an actual conflict, the defendant must identify specific evidence in the record
that suggests that his or her interests were compromised.” State ex rel. Dunlap v. McBride, 225 W.
Va. 192, 203, 691 S.E.2d 183, 194 (2010) (quoting State v. Larzelere, 979 So.2d 195, 208 (Fla.
2008)). In addition,
[p]ursuant to Rule 1.7(b) of the West Virginia Rules of Professional
4
In the fact section of his brief, petitioner states that after the verdict and during the
appellate process, he discovered that Mr. Plants was an assistant prosecutor when petitioner was
convicted of the predicate offense, that Mr. Plants was the elected prosecutor when the Circuit
Court of Kanawha County sentenced him to prison on that underlying offense, and that Mr. Plants
was the elected prosecutor when petitioner was charged with multiple other misdemeanors and a
felony in Kanawha County.
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Conduct, a lawyer may represent a client even though there appears to be a conflict
between the interests of the client and the lawyer him/herself if the lawyer
reasonably believes that his/her representation will not be affected thereby and if
the client, who has been informed of the conflict, agrees to continued
representation.
Syl. Pt. 3, State ex rel. Verizon W. Va., Inc. v. Matish, 230 W. Va. 489, 740 S.E.2d 84 (2013).
On August 7, 2018, petitioner signed a “Waiver of Potential Conflict of Interest,” which
provided that petitioner, having
been advised by my attorney, Mark Plants, of the existence of a potential conflict
of interest that he may have now or in the future due to his previous role as Kanawha
County Prosecuting Attorney during which time I was charged with a crime. Mr.
Plants has consulted with me and explained the implications of the common
representation including the risks and advantages involved. After considering the
risks and advantages, I hereby consent to the common representation.
In his post-trial motion, petitioner referenced Kanawha County criminal cases against him with
case numbers from 2008 through 2014, during which time Mr. Plants would have been in the
prosecutor’s office. Prior to trial, the circuit court engaged in a colloquy with Mr. Plants upon the
presentation of the waiver, and Mr. Plants stated that he had “not [sic] recollection of the [sic] any
of the cases.” He also advised the circuit court that he was not directly involved in the prosecution
of any of petitioner’s cases. According to the circuit court, petitioner then swore under oath that
he voluntarily and freely waived the conflict. On appeal, petitioner has not pointed to a single
document in the record evidencing Mr. Plants’s direct involvement in the prosecution of any of his
Kanawha County cases, and he has not alleged that any of his cases were high profile, which might
indicate that the elected prosecutor would necessarily be aware of the cases, even if not directly
involved. Importantly, petitioner does not allege that there was anything Mr. Plants did or should
have done but failed to do that in any way hampered petitioner’s defense. Therefore, we find that
the circuit court did not err in denying petitioner’s post-trial motion on this ground.
Affirmed.
ISSUED: October 29, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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