State of West Virginia v. Keith D.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
_______________ FILED
April 9, 2015
released at 3:00 p.m.
No. 13-1123 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
KEITH D.,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Summers County
Honorable Robert A. Irons, Judge
Criminal Action Nos. 13-F-04 & 13-F-06
AFFIRMED
____________________________________________________________
Submitted: February 4, 2015
Filed: April 9, 2015
Matthew D. Brummond, Esq. Patrick Morrisey, Esq.
Deputy Public Defender Attorney General
Office of the Public Defender Derek A. Knopp, Esq.
Kanawha County Assistant Attorney General
Charleston, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the Respondent
JUSTICE BENJAMIN delivered the Opinion of the Court.
JUSTICE DAVIS and JUSTICE KETCHUM dissent and reserve the right to file
dissenting opinions.
SYLLABUS BY THE COURT
1. “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).
2. “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).
3. “Habitual criminal proceedings providing for enhanced or additional
punishment on proof of one or more prior convictions are wholly statutory. In such
proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in
part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
4. “The words ‘duly cautioned’ contained in the West Virginia
recidivist statute, Code, 61-11-19, as amended, with regard to former convictions and
sentences before a valid judgment can be imposed for an additional sentence as provided
i
in Code, 61-11-18, as amended, are fully complied with when the accused, after being
convicted of the substantive offense and before being sentenced thereon, is later brought
before the court in the same term and advised that the prosecuting attorney has filed a
written information informing the court of former convictions and sentences; and the
court then proceeds to advise the accused of the nature of each former offense and of the
time and place of each former sentence, and then after giving the accused an opportunity
to say whether he has any defense thereto, asks him if he is the same person as was
formerly convicted and sentenced. If he answers in the affirmative, appropriate sentence
may be pronounced in accordance with the statute.” Syl. pt. 4, State ex rel. Mounts v.
Boles, Warden, 147 W. Va. 152, 126 S.E.2d 393 (1962).
5. “A person convicted of a felony may not be sentenced pursuant to
W. Va. Code, 61-11-18, - 19 [1943], unless a recidivist information and any or all
material amendments thereto as to the person’s prior conviction or convictions are filed
by the prosecuting attorney with the court before expiration of the term at which such
person was convicted, so that such person is confronted with the facts charged in the
entire information, including any or all material amendments thereto. W. Va. Code, 61­
11-19 [1943].” Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987).
ii
Benjamin, Justice:
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
I. FACTUAL AND PROCEDURAL BACKGROUND
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
1
We wish to commend counsel for both parties for their preparation and excellent
oral arguments before this Court.
2
Because this case involves a minor victim of sex crimes who is related to the
petitioner, we use only the petitioner’s first name and last initial consistent with our
practice in cases involving minors and sensitive facts. See State ex rel. Dept. of H. S. v.
Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
1
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.
3
According to the prosecuting attorney, the victim’s mother was not present at the
hearing due to a medical emergency.
4
According to W. Va. Code § 61-11-18(c) (2000),
When it is determined, as provided in section nineteen
of this article, that such person shall have been twice before
convicted in the United States of a crime punishable by
confinement in a penitentiary, the person shall be sentenced
to be confined in the state correctional facility for life.
5
The relevant portion of W. Va. Code § 61-11-19 (1943), is set forth in Part III of
this Opinion.
2
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.
II. STANDARD OF REVIEW
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.
6
See infra Part III.
3
III. ANALYSIS
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
7
At the time that Harlow was decided, the portion of Rule 32 regarding the withdrawal
of guilty and nolo contendere pleas was located at subsection (d) of that rule.
4
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
5
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:
The distinction between “direct” and “collateral”
consequences of a plea, while sometimes shaded in the
relevant decisions, turns on whether the result represents a
definite, immediate and largely automatic effect on the range
of the defendant’s punishment.
Under West Virginia Code §§ 61-11-18 & 19, the
imposition of a life sentence is not definite, immediate and
largely automatic. The State not only retains the discretion to
decide when to pursue recidivist sentencing (or to decide not
to so proceed), but the separate nature of the recidivist
proceeding requires the State to satisfy a number of
requirements such as: (1) filing a written information, (2)
proving beyond a reasonable doubt that each penitentiary
offense, including the principal penitentiary offense, was
committed subsequent to each preceding conviction and
sentence, and (3) proving beyond a reasonable doubt to the
jury the identity of the defendant. . . .
The possible significance of a guilty verdict for
purposes of the habitual offender act is a classic example of a
conviction’s consequences that is collateral in the sense that
the consequence requires application of a legal provision
6
extraneous to the definition of the criminal offense and the
provisions for sentencing those convicted under it.
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) (concluding that “pursuant to
Appleby, the circuit court had no duty to inform petitioner about a possible recidivist
action because such an action was not a direct consequence of his guilty plea”).
The petitioner sets forth several reasons why this Court should not apply
Appleby to the facts of the instant case. First, the petitioner attempts to distinguish the
facts of Appleby from those of the instant case. For example, the petitioner notes that
Appleby was before this Court on a petition for a writ of prohibition instead of an appeal.8
8
The petitioner also refers to a footnote in Appleby in which this Court indicated
that the State informed the defendant of its intent to file a habitual offender information
as early as a bond hearing. Specifically at Appleby, 213 W. Va. at 512 n.6, 583 S.E.2d at809 n.6, this Court indicated:
We also note that the State says that it specifically
informed Mr. Appleby’s trial counsel that, if he was
convicted, the State would seek a recidivist sentence, and that
discovery was apparently provided to Mr. Appleby that
included a list of Mr. Appleby’s prior convictions. We
additionally note that at a bond hearing on October 31, 2001,
the Prosecuting Attorney told the trial judge, in the presence
of Mr. Appleby and counsel, “I do not believe that two to six
7
We see no merit in this argument. The distinguishing facts of Appleby
relied on by the petitioner did not control our analysis in that case. Rather, our analysis
and decision in Appleby was based on the rule that a criminal defendant does not have to
be advised of the possibility of habitual criminal proceedings prior to the entry of a guilty
plea because the filing of a habitual offender information is a collateral and not a direct
consequence of a guilty plea. When we apply that rule of law from Appleby to the facts of
this case, we conclude that the failure to inform the petitioner prior to his guilty plea that
a habitual offender information may be filed against him does not constitute error.
In a second challenge to the application of Appleby to the present case, the
petitioner asserts that “the legal theory underlying the . . . Appleby decision[] has recently
come under scrutiny and its continued validity is questionable[]” after the United States
Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The petitioner
mischaracterizes Padilla. The Supreme Court’s holding in Padilla is that “counsel must
inform her client whether his plea carries a risk of deportation.” Padilla, 559 U.S. at 374.
This holding was based on the Supreme Court’s recognition that “recent changes in our
is the maximum sentence he may be facing. And in fact, this
Court has often indicated that DUI three is an act of violence,
and I contend that there’s a possibility of a much steeper
sentence. . . .
The fact that this information is placed in a footnote means that it was not a factor in our
analysis in Appleby. It is axiomatic that “language in a footnote generally should be
considered obiter dicta which, by definition, is language ‘unnecessary to the decision in
the case and therefore not precedential.’ Black’s Law Dictionary 1100 (7th ed. 1999).”
State ex rel. Med. Assurance v. Recht, 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003).
8
immigration law have made removal nearly an automatic result for a broad class of
noncitizen offenders[,]” id. at 366, so that “[d]eportation as a consequence of a criminal
conviction is, because of its close connection to the criminal process, uniquely difficult to
classify as either a direct or collateral consequence.” Id. Because the Supreme Court’s
holding in Padilla deals specifically with deportation as a consequence of a guilty plea,
Padilla does not affect this Court’s holding in Appleby nor its underlying rationale. This
is because in Appleby we expressly found that a habitual offender proceeding is a
collateral consequence of a guilty plea.
Finally, the petitioner contends that Appleby represents a minority position
among the States, is bad policy, and should be overruled. According to the petitioner, it is
preferable to require the trial court or the prosecuting attorney to inform a defendant of
the prosecuting attorney’s plan to file a habitual offender information prior to a
defendant’s conviction.
We agree that it is preferable for a defendant to be advised of potential
habitual offender proceedings before he or she enters a guilty plea. As this Court opined
in Appleby, “we think that from a practical standpoint the better course of action for a
trial court is to advise a defendant about the possibility of recidivist proceedings being
instituted in every case where West Virginia Code § 61-11-18 might apply.” 213 W. Va.
at 512 n.7, 583 S.E.2d at 809 n.7 (citation omitted). However, this Court previously has
recognized that “[h]abitual criminal proceedings providing for enhanced or additional
9
punishment on proof of one or more prior convictions are wholly statutory. In such
proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in
part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
The Legislature set forth the procedure for habitual offender proceedings in
W. Va. Code § 61-11-19 (1943), in part, as follows:
It shall be the duty of the prosecuting attorney when he
has knowledge of former sentence or sentences to the
penitentiary of any person convicted of an offense punishable
by confinement in the penitentiary to give information thereof
to the court immediately upon conviction and before
sentence. Said court shall, before expiration of the term at
which such person was convicted, cause such person or
prisoner to be brought before it, and upon an information filed
by the prosecuting attorney, setting forth the records of
conviction and sentence, or convictions and sentences, as the
case may be, and alleging the identity of the prisoner with the
person named in each, shall require the prisoner to say
whether he is the same person or not. If he says he is not, or
remains silent, his plea, or the fact of his silence, shall be
entered of record, and a jury shall be impanelled to inquire
whether the prisoner is the same person mentioned in the
several records. If the jury finds that he is not the same
person, he shall be sentenced upon the charge of which he
was convicted as provided by law; but if they find that he is
the same, or after being duly cautioned if he acknowledged in
open court that he is the same person, the court shall sentence
him to such further confinement as is prescribed by section
eighteen [§ 61-11-18] of this article on a second or third
conviction as the case may be.
The statute clearly provides that the prosecuting attorney’s filing of an information
setting forth a defendant’s prior conviction or convictions is timely if it is filed in the
same term of the defendant’s current conviction and before sentencing for that
10
conviction. This code section does not require the trial court or the prosecuting attorney
to inform a defendant of the potential filing of habitual offender information prior to the
defendant’s conviction or guilty plea. In recognition of the specific procedure set forth in
W. Va. Code § 61-11-19, this Court held in syllabus point 4 of State ex rel. Mounts v.
Boles, 147 W. Va. 152, 126 S.E.2d 393 (1962), that
[t]he words “duly cautioned” contained in the West
Virginia recidivist statute, Code, 61-11-19, as amended, with
regard to former convictions and sentences before a valid
judgment can be imposed for an additional sentence as
provided in Code, 61-11-18, as amended, are fully complied
with when the accused, after being convicted of the
substantive offense and before being sentenced thereon, is
later brought before the court in the same term and advised
that the prosecuting attorney has filed a written information
informing the court of former convictions and sentences; and
the court then proceeds to advise the accused of the nature of
each former offense and of the time and place of each former
sentence, and then after giving the accused an opportunity to
say whether he has any defense thereto, asks him if he is the
same person as was formerly convicted and sentenced. If he
answers in the affirmative, appropriate sentence may be
pronounced in accordance with the statute.
More recently, we have held:
A person convicted of a felony may not be sentenced
pursuant to W. Va. Code, 61-11-18, -19 [1943], unless a
recidivist information and any or all material amendments
thereto as to the person’s prior conviction or convictions are
filed by the prosecuting attorney with the court before
expiration of the term at which such person was convicted, so
that such person is confronted with the facts charged in the
entire information, including any or all material amendments
thereto. W. Va. Code, 61-11-19 [1943].
Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987). In the instant case, the
requirements of W. Va. Code § 61-11-19 were fully complied with below. Further,
11
because habitual offender proceedings are statutorily created, this Court has no inherent
power to amend the legislatively-prescribed procedure for these proceedings. Finally, this
Court finds no reason to depart from the law as set forth in Appleby inasmuch as the
rationale supporting that law remains valid.
IV. CONCLUSION
This Court concludes that the trial court and the prosecuting attorney did
not have a duty under our law to inform the petitioner of the possibility of enhanced
sentencing under W. Va. Code §§ 61-11-18 and 6-11-19 before the petitioner entered his
guilty plea. Consequently, the circuit court did not abuse its discretion in denying the
petitioner’s motion to withdraw his guilty plea. Accordingly, the October 18, 2013, order
of the Circuit Court of Summers County that sentenced the petitioner as a habitual
offender to a prison term of life with mercy is affirmed.
Affirmed.
12