State v. Keith D.
| Citation | 774 S.E.2d 502,235 W.Va. 421 |
| Decision Date | 09 April 2015 |
| Docket Number | No. 13–1123.,13–1123. |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. KEITH D., Defendant Below, Petitioner. |
| Court | Supreme Court of West Virginia |
Matthew D. Brummond, Esq., Deputy Public Defender, Office of the Public Defender, Kanawha County, Charleston, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Charleston, WV, for Respondent.
The defendant below and petitioner herein, Keith D., appeals the October 18, 2013, order of the Circuit Court of Summers County that sentenced him as a habitual offender to a prison term of life with mercy. After consideration of the assignment of error raised by the petitioner, we affirm the circuit court's order.1
Petitioner Keith D. was charged in a fourteen-count indictment with sex crimes involving his five-year-old stepdaughter.2 By a separate indictment, the petitioner also was charged with possession of a firearm by a prohibited person, i.e., a felon. The indictment charging the petitioner with possession of a firearm by a prohibited person stated that the petitioner had been convicted of voluntary manslaughter in 2004 in Cabell County.
The petitioner entered into a plea agreement with the State in which he pled guilty to one count of sexual assault in the third degree and to possession of a firearm by a prohibited person. In return, the State dismissed the remaining counts in the indictment alleging sex crimes against the petitioner's stepdaughter and agreed to remain silent on the issue of sentencing. The petitioner's guilty plea was taken by the circuit court in a July 19, 2013, hearing. During this hearing, the petitioner indicated that he wished to waive his right to a presentence report and asked that he be sentenced immediately. The prosecuting attorney opposed immediate sentencing stating her desire to delay sentencing until the victim's mother could be present.3 Consequently, the circuit court set the sentencing hearing for August 2, 2013.
On July 25, 2013, the State filed an information of prior convictions with the circuit court pursuant to W. Va.Code §§ 61–11–184 and 61–11–195 in which it alleged that the petitioner is the same person previously convicted of two prior felonies: grand larceny in November 1996 in the Circuit Court of Cabell County and voluntary manslaughter in February 2004 in the Circuit Court of Cabell County. The information requested that the petitioner be sentenced to the state correctional facility for life.
Thereafter, the petitioner moved to withdraw his guilty plea pursuant to W. Va. R.Crim. P. 32(e)6 on the basis that at the time he accepted the State's plea offer, he was not advised that his plea subjected him to a potential life sentence as a habitual offender. He also asserted that his counsel did not notify him that he could be sentenced as a habitual offender. The circuit court denied the petitioner's motion to withdraw his guilty plea. A jury subsequently found the petitioner guilty of being a habitual offender and he was sentenced to life in prison.
In this case, the petitioner argues that the circuit court erred in refusing to permit him to withdraw his guilty plea prior to sentencing. This Court has held:
Notwithstanding that a defendant is to be given a more liberal consideration in seeking leave to withdraw a plea before sentencing, it remains clear that a defendant has no absolute right to withdraw a guilty plea before sentencing. Moreover, a trial court's decision on a motion under Rule 32(d) of the West Virginia Rules of Criminal Procedure will be disturbed only if the court has abused its discretion.
Syl. pt. 2, Duncil v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990). A circuit court abuses its discretion “if it bases its ruling on an erroneous assessment of the evidence or an erroneous view of the law.” Cox v. State, 194 W.Va. 210, 218 n. 3, 460 S.E.2d 25, 33 n. 3 (1995). Accordingly, we are tasked with determining whether the circuit court abused its discretion when it denied the petitioner's motion to withdraw his guilty plea.
The petitioner's only assignment of error is that the circuit court erred in refusing to permit him to withdraw his guilty plea. According to Rule 32(e) of the West Virginia Rules of Criminal Procedure, in pertinent part, “[i]f a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea if the defendant shows any fair and just reason.” We previously have recognized that “Rule 32(d) of the West Virginia Rules of Criminal Procedure as it relates to the right to withdraw a guilty or nolo contendere plea prior to sentence permits the withdrawal of a plea for ‘any fair and just reason.’ ” Syl. pt. 1, State v. Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986).7
The crux of the petitioner's argument is that he has shown a fair and just reason for withdrawing his guilty plea: he did not know the State could seek a habitual offender sentence after he pled guilty with the understanding that he could receive no more than ten years in prison. For the following reasons, we find no merit to this argument.
The issue in this case is governed by this Court's decision in State ex rel. Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002). In Appleby, the petitioner, Mr. Appleby, pled guilty to both counts in the indictment against him: driving under the influence (“DUI”), third offense, and driving while on a revoked license, third offense, for DUI. At the hearing in which Mr. Appleby entered his plea, the trial court advised him that the maximum term of imprisonment for each of the offenses to which he pled guilty was one to three years, and that because the sentences could be imposed consecutively, the maximum sentence he could receive was incarceration for a term of two to six years. The trial court did not indicate that the State could initiate a habitual offender proceeding.
Thereafter, the State filed an information alleging that Mr. Appleby was a habitual offender in that he had three prior convictions for DUI, third offense, one unlawful assault conviction, and one felony conviction for driving on a revoked license for DUI, third offense. Mr. Appleby, if sentenced as a habitual offender, was subject to a life sentence with the opportunity for parole. The trial court denied Mr. Appleby's motion to dismiss the habitual offender information. Mr. Appleby then sought relief in prohibition in this Court.
Mr. Appleby argued before this Court that the trial court erred in, inter alia, not dismissing the habitual offender proceeding because when he pled guilty, the trial court informed him he would be facing only a maximum sentence of two to six years—not the possibility of a life sentence as a habitual offender. This Court rejected Mr. Appleby's argument based on two points of law. First, this Court found that when a defendant pleads guilty, the trial court must make him aware of only the direct consequences of his plea; not the collateral consequences of his plea. Specifically, we stated as follows:
The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty,....”
Appleby, 213 W.Va. at 511, 583 S.E.2d at 808, quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1365–66 (4th Cir.1973) (citations omitted). Second, we determined that a habitual offender proceeding is a collateral consequence of a guilty plea, explaining:
Appleby, 213 W.Va. at 511–512, 583 S.E.2d at 808–809 (citations omitted) (internal quotation marks omitted) (ital. omitted). Thus, this Court concluded in Appleby that the constitution does not “require[ ] that a criminal defendant be advised of the possibility of habitual criminal proceedings prior to the entry of a guilty plea.” Id. at 512, 583 S.E.2d at 809 (citation omitted). See also Gardner v. Ballard, No. 13–1301, 2014 WL 5546202, at *3 (W.Va. Nov. 3, 2014) (memorandum decision) ().
The petitioner sets forth several reasons why this Court should not...
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...remedy is available to petitioners who are no longer in custody.” Trujillo v. State, 310 P.3d 594, 598 (2013).16 See State v. Keith D., 235 W.Va. 421, 774 S.E.2d 502 (2015) (discussing Padilla in passing). See generally Eric Beckemeier, The Surprise Appearance of Padilla v. Kentucky: Practi......