STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
Brandon Sherrod, February 22, 2019
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 17-0726 (Kanawha County 13-P-415)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
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 Complex1, by counsel Benjamin F. Yancey, III, filed a
response in support of the circuit court’s order. Petitioner filed a reply.
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
1
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.
1
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 *l-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.2 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.
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).
2
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.
2
On appeal, petitioner asks this Court to address two claims “that were not raised in the
circuit court.”3 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)).
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
3
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.
3
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IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST·VIRGiNA' ~
STATE OF -wEST VIRGINIA, ex reI.
BRANDON SHERROD,
Petitioner,
v. Judge Charles E. King
Civil Action 13-P-415
DAVID BALLARD, WARDEN,
MOUNT OLIVE CORRECTIONAL CO:MPLEX,
Respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
Pending before this Court is the petitioner's amended petition for writ of habeas corpus.
Following a review of the entire underlying criminal file in Felony Indictment No. 10-F-185; a
review of the amended petition ~d supporting memorandum of law, and the response; a review
of the testimony and argument from the omnibus evidentiary hearing, as well as an examjnation
of the pertinent law, this Court makes the following findings of fact, conclusions of law and final
order.
I.
FINDINGS OF FACT
1. The petitioner, Brandon Sherrod, also known as "Young Gunna," was charged with:first
degree murder. He, and Michael Serrano, also known as "White Mike" were accused of murdering
James Williams, also known as "Baby Goon" by shooting him with a handgun on November 3,
2009. (Trial Transcript at 24,45.)
2. Rosemary Lacy, the victim's girlfriend, testified that she had a child with the victim and
that on November 3, 2009, she had accompanied the victim to court. The victim was involved in
1
a case in which he allegedly placed beer in a baby's bottle, and was charged with an offense. The
girlfriend contended it was ajoke. (Id at 107-108.) She described for the jury the victim' s friends
including Kevin Blount, ''Fifty''; Jose :M1randez, ''Homicide''; Ivan Marindez, "Gatti"; and
Brandon Sherrod. (Id at 109.)
3. The baby ip.volved in the 'Joke" was the child of Ebony WjJ]jarns and Jose Mirandez,
aka Homicide. (Id at 110.) James Williams, the victim, and Ebony were cousins. (Id) According
to Ms. Lacy, Ebony \¥i]Jjams became agitated during the preliminary hearing and made
threatening remarks. Those remarks included "'It's not fair" and "'I'm gomg to have somebody, you
know, do something to him, kill him." Homicide 'wasn't around; Ms. Lacy believed he was
incarcerated. (fd. at 111.)
4. After the hearing, Lacy and the victim returned home. They ordered Chinese food and
had dinner. The victim went mto the kitchen and Ms. Lacy heard gunshots. She grabbed her son,
who was in the kitchen with his father, and took the child upstairs. Ms. Lacy yelled back
downstairs, the victim did not respond. When she got back to the kitchen, she saw blood on the
back of his shirt. The victim was lying down, she flipped him over and after pulling up his shirt,
saw "the hole" (Id at 112.) Ms. Lacy tried to get the victim to the hospital, but the victim died.
(Id at 113.)
5. Patrolman Kapeluck was among the first to arrive at the crime scene. The victim was
lying partially in and partially out of a car; he did not appear to be bFeatbing. An ambulance came
and took him to the hospital. (Id. at 121-122.) It appeared as if the victim had been shot m the
kitchen. The window was damaged by what appeared to be bullet holes. The kitchen light was
on. (Id at 122-123.)
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6. Michelle Bailey was dating Kevin Blount, ''Fifty'' at the time of the murder. (Id. at 136.)
/
/ She knew Serrano, the petitioner, Homicide, and Gotti. as friends of Blount. She was told that while
the victim was babysitting Ebony and Homicide's baby, the baby drank: some beer from his bottle
and had to go to the hospital. (Id at 137.) Homicide' s group was '