State v. Surber

Decision Date24 February 2012
Docket NumberNo. 11–0361.,11–0361.
Citation723 S.E.2d 851,228 W.Va. 621
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Donald SURBER, Jr., Defendant Below, Petitioner.
CourtWest Virginia Supreme Court


Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “When a defendant enters into a valid plea agreement with the State that is accepted by the trial court, an enforceable ‘right’ inures to both the State and the defendant not to have the terms of the plea agreement breached by either party.” Syllabus Point 4, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).

3. “The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution.” Syllabus Point 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

4. “A person accused of a crime may waive his constitutional right to assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly.” Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964).

5. “A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.” Syllabus Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

6. ‘The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case. The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se.’ State v. Sheppard, , 310 S.E.2d 173, 188 (1983) (citations omitted).” Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985).

7. “When an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused's choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.” Syllabus Point 7, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).

8. “A judge's decision to allow an accused to exercise his right to self-representation is reviewed under an abuse of discretion standard.” Syllabus Point 1, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).

9. “Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.” Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

10. “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

11. “The responsibility and burden of designating the record is on the parties, and appellate review must be limited to those issues which appear in the record presented to this Court.” Syllabus Point 6, In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999).

12. ‘An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment 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 judgment.’ Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).” Syllabus Point 2, WV Dept. of Health & Human Resources Employees Fed. Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004).

Nicholas Forrest Colvin, Esq., Law Office of Nicholas Forrest Colvin, PLLC, Martinsburg, WV, for Petitioner.

Christopher C. Quasebarth, Esq., Deputy Prosecuting Attorney, Berkeley County Prosecuting Attorney's Office, Martinsburg, WV, for Respondent.


This case is before this Court upon appeal of the sentencing order of the Circuit Court of Berkeley County entered on August 5, 2010. In that order, Donald Surber, Jr. (hereinafter the petitioner) was sentenced to: life without mercy for his conviction of first degree murder; life without mercy for his conviction of kidnaping; three to fifteen years for his conviction of attempted kidnaping; one to fifteen years for his conviction of burglary; one to ten years for his conviction of destruction of property; six months for his conviction of domestic assault; and five years for his conviction of attempted escape. The petitioner's convictions resulted from his plea of guilty to the above offenses on June 25, 2010. In this appeal, the petitioner asserts that his guilty pleas were not entered intelligently, knowingly, and voluntarily. He further contends that he did not knowingly and voluntarily waive his right to counsel; that his sentence was excessive; and that he received ineffective assistance of standby counsel. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court is of the opinion that the circuit court did not commit reversible error and, accordingly, affirms the decision below.


On June 15, 2009, the petitioner broke into the home of his ex-girlfriend, Katherine Sharp (hereinafter, “the victim”), and held her hostage, eventually stabbing and killing her during a thirty-six hour standoff with police. According to the petitioner, he and the victim had argued numerous times during the days preceding the incident. When the petitioner entered the victim's home on the day of the murder, another argument ensued. The petitioner hit the victim, who then yelled for her daughter, Torrey,1 to call 911 for help. Torrey called 911 and was able to escape through a window. When two state police officers arrived at the home, the petitioner told them he had a gun and that he was going to kill the victim if they did not leave. The police officers then contacted the petitioner by calling the victim's cell phone. The petitioner again informed the officers that if they did not stay away that he would kill her.

At his plea hearing, the petitioner said that he tied the victim's arms and legs and put a pillowcase over her head with an intent to smother and kill her. He did not kill her at that time and explained that:

She saw at that point I had a knife. I grabbed the knife and everything because I just got tired of the arguing and everything. I tied her up. She said that she didn't want me to stab her. She asked if she could take pills. She took a bunch of I want to say Xanax and a bunch of Ibuprofen I think it was. She had fell asleep at that point. I stabbed her.

The petitioner took responsibility for stabbing the victim stating he could have stopped at any point, but chose not to do so. He further explained at his plea hearing that as the night went on, he “tried to smother her again and [he] stomped on her chest with [his] foot” and then “drug her out of the bedroom.” He said he “was competent at the time but ... was just full of so much anger” that he could not stop himself from killing the victim. He said that after the victim was already dead he “just started cutting her and slicing her up.”

After being taken into custody, the petitioner cut his own wrists while in the shower. This resulted in jail staff wrapping the petitioner with a blanket and immediately transporting him to a local hospital where his wounds were treated. At the hospital, the petitioner attempted to escape and allegedly attempted to disarm a correctional officer. When the officers removed his handcuffs and shackles to allow him to get dressed, he began running down the crowded hospital hallway in an attempt to escape. He was captured after being shot in the shoulder by another officer.

Soon thereafter, attorneys Deborah Lawson and John Adams of the local public defender's office were appointed to represent the petitioner. On September 29, 2009, the petitioner sent an ex parte letter to the circuit court asking that he be allowed to represent himself. On October 20, 2009, the petitioner was indicted for first degree murder, kidnaping, attempted kidnaping, burglary, destruction of property, attempted escape, attempt to disarm an officer, attempted possession of a firearm by an inmate, and domestic assault.

During an April 12, 2010, bail hearing, and despite the advice of his counsel, the petitioner again told the circuit court that he wanted to represent himself and wanted to plead guilty to the charges against him. He explained that he wanted to do so because he did not want his children or the victim's children to go through further proceedings. He also indicated that his attorneys were trying to talk him out of pleading guilty. The circuit court deferred the petitioner's request...

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4 cases
  • State v. Larry A.H.
    • United States
    • West Virginia Supreme Court
    • 11 d4 Abril d4 2013
    ...than an assertion, does not preserve a claim.... Judges are not like pigs, hunting for truffles buried in briefs.” State v. Surber, 228 W.Va. 621, 723 S.E.2d 851, 863 (2012) (internal quotation marks and citations omitted). Our cases have held: [a]n appellant must carry the burden of showin......
  • State v. Davis
    • United States
    • West Virginia Supreme Court
    • 2 d3 Outubro d3 2013
    ...under an abuse of discretion standard.’ Syl. Pt. 1, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).” Syl. Pt. 8, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012). 2. “The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article II......
  • State v. White
    • United States
    • West Virginia Supreme Court
    • 23 d1 Maio d1 2016
    ...and understandingly.' Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964)." Syl. Pt. 4, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012). That said, this Court has also explained that a criminal defendant's right to self-representation is a qualified one......
  • State v. Garner
    • United States
    • West Virginia Supreme Court
    • 9 d1 Abril d1 2018
    ...argument; accordingly, he has failed to establish error in the admission ofthis testimony. See Syl. Pt. 12, in part, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012) ("An appellant must carry the burden of showing error in the judgment of which he complains."). For the foregoing reason......

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