State v. Dale F., 19-0738
| Decision Date | 26 April 2021 |
| Docket Number | No. 19-0738,19-0738 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Dale F., Defendant Below, Petitioner |
Petitioner Dale F., by counsel Scott A. Shough, appeals the July 29, 2019, order of the Circuit Court of Marion County that sentenced him following his guilty pleas to one count of incest and one count of first-degree sexual abuse.1 The State of West Virginia, by counsel Lara K. Bissett, filed a response in support of the circuit court's order.
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 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.
A grand jury indicted petitioner on two counts of second-degree sexual assault in violation of West Virginia Code § 61-8B-4(a)(1); two counts of sexual abuse by a parent, guardian, custodian, or person of trust in violation of West Virginia Code § 61-8D-5; and two counts of incest in violation of West Virginia Code § 61-8-12. The alleged victim was petitioner's daughter, M.F. Petitioner's trial was set for March 18, 2019.
On March 18, 2019, with the jury present and waiting, the circuit court held a plea hearing at petitioner's request. The trial court reviewed petitioner's six-count indictment, listing each count and its statutory penalty. The court then ensured that petitioner had received a copy of the indictment, that his counsel had reviewed the charges with him, and that petitioner fully understoodthe charges against him. The court also instructed petitioner on his right to a jury trial and explained (1) what would happen during such a trial, (2) petitioner's presumption of innocence, (3) the State's burden of proof, (4) the sentencing phase of trial, and (5) petitioner's right to appeal the verdict. Petitioner's counsel noted that he and petitioner had met together about a dozen times prior to trial to discuss petitioner's case and that he had advised petitioner of his rights. Thereafter, the court clerk read petitioner's indictment aloud and the court advised petitioner that if he entered a guilty plea, he would waive any pretrial and nonjurisdictional defects.
Following this discussion, the State noted that it was willing to let petitioner enter into a plea agreement pursuant to Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987),2 to one count of incest, as charged in Count 3 of the indictment, and to one count of first-degree sexual abuse, a lesser-included offense of sexual assault in the second degree as charged in Count IV of the indictment. The circuit court then explained the penalties for those crimes. Petitioner responded that he understood the penalties and that he had no questions in that regard. The court asked if petitioner intended to enter Kennedy pleas and petitioner answered, "Yes." The court then ensured that petitioner understood the nature of such pleas. The court also explained that the State would provide a factual basis for those pleas.
Regarding the voluntariness of his plea, petitioner stated that (1) he understood that by entering into the plea agreement his sentence might be substantially less than if he went to trial and was found guilty; (2) he was not threatened into making a plea; and (3) he made the decision to enter guilty pleas "freely, knowingly, intelligently[,] and voluntarily" and "on the advice of counsel." The circuit court then asked if petitioner was ready to enter his plea. In response, petitioner had a private discussion with his counsel in the courtroom, followed by a second private discussion with his counsel outside the courtroom. Thereafter, petitioner entered Kennedy pleas to one count of incest and one count of first-degree sexual abuse.
The trial court accepted petitioner's guilty pleas and reviewed each term of the written plea agreement with him. The terms provided, among other things, that petitioner would be required to register for life as a sexual offender and to serve a term of supervised release following his release from prison. The court established that petitioner had read the plea agreement before he signed it, and that petitioner's counsel had fully explained the terms of the agreement. The court highlighted that the plea agreement provided that petitioner could have no contact of any kind with the victim (his daughter) or any member of her immediate family. The court also explained that both the State and petitioner were bound by the plea agreement, but that petitioner's sentence rested entirely within the court's discretion. Petitioner stated that he understood those conditions and that he stillwished to enter into the plea agreement. Following this exchange, petitioner asked whether the victim could initiate contact with him when she is an adult. The State replied that it believed it was up to the victim to ask petitioner's supervisory authority to remove the restriction if she chose to do so. The trial court agreed, and petitioner then said that he wished to proceed with his plea agreement.
The trial court asked petitioner (1) whether he had received other promises or been given anything of value to get him to plead guilty; (2) whether anyone had threatened him or placed him in fear if he failed to plead guilty; (3) whether anyone induced him to plead guilty against his better judgment; and (4) whether he had any questions about his pleas, his rights, or anything else. Petitioner answered "No" to each of these questions. The trial court then asked petitioner if his guilty pleas were free and voluntary acts. Petitioner answered "Yes" to this question. Petitioner then testified that all of his answers had been truthful, that he had never suffered with or been treated for any mental illnesses, and that he understood all of the matters that the court had explained to him.
Thereafter, the State proffered the evidence it would have presented against petitioner at trial. The State asserted that the victim claimed that petitioner had engaged in non-consensual intercourse with her on March 5, 2017, and March 18, 2017, and that the details of the events were corroborated by phone records. The State also said that during petitioner's pre-trial incarceration, he had extensive communications with his sister and others in an effort to get the victim to recant her claim. Finally, the State claimed that petitioner threatened to physically assault witnesses if they testified against him and attempted to interfere with the proceedings.
The circuit court asked petitioner's counsel whether he could see any advantage to petitioner proceeding to trial. Counsel replied that it was in petitioner's best interests to enter into a plea agreement. Thereafter, the court found that: (1) the State established a basis in fact for petitioner's pleas; (2) petitioner's pleas were voluntarily, intelligently, and knowingly made with the mature advice of counsel; (3) petitioner was not coerced into entering into the plea agreement; (4) petitioner's entry of his guilty pleas was a reasonable effort to avoid the possibility of the significantly higher penalties following a trial; (5) by pleading guilty, petitioner knowingly consented to the possible imposition of a prison sentence despite his Kennedy pleas; and (6) there was a significant probability that a jury would convict petitioner of the six charges contained in his indictment. The court asked petitioner if he was satisfied with his counsel's representation, and petitioner answered in the affirmative. The court also explained the requirement that petitioner register as a sexual offender for the remainder of his life. The court then ordered that the case be sent to a probation officer for the preparation of a presentence investigation and report and adjourned the hearing.
Prior to sentencing, petitioner requested and received new counsel. Thereafter, at a May 20, 2019, sentencing hearing, petitioner's new counsel moved to continue the hearing given that the report from petitioner's court-ordered psychological evaluation had not yet been filed. Petitioner's counsel argued that the report would be helpful in determining whether petitioner was an appropriate candidate for alternative sentencing. The State opposed the motion on the grounds that (1) the victim had waited for a long time for this matter to be resolved; (2) petitioner was not a candidate for alternative sentencing given that, when he committed his crimes against M.F., hewas on parole for prior felony sex offenses against another daughter; and (3) petitioner is a registered sexual offender. The court denied the motion to continue, and the State called the victim to testify. However, before the victim could testify, petitioner moved to withdraw his guilty pleas. The State opposed the motion and argued that petitioner had entered his pleas; his trial counsel had performed exceptionally well; the court allowed petitioner to go off the record three times during the plea hearing to consult with his then-counsel; the court gave petitioner every opportunity to fully consider and evaluate each issue that arose prior to the entry of his pleas; and there was no factual or legal basis for the withdrawal of petitioner's pleas.
The court responded that when petitioner's new counsel was appointed, it set a deadline for the submission of any motion relevant to this proceeding, and that the deadline had passed without any motion being filed. Petitioner's counsel admitted that, after the deadline to file a motion had passed, petitioner told him that he wanted to withdraw his guilty pleas. Thus, counsel made the motion at the sentencing hearing. The State objected...
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