                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                      September 3, 2013

                                                                              RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs) No. 12-1000 (Berkeley County 11-F-120)                                      OF WEST VIRGINIA


Tirrell A. Morton,
Defendant Below, Petitioner



                                 MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Neil J. Zahradnik1, arises from an order entered September
7, 2012, in the Circuit Court of Berkeley County, wherein he was sentenced to a determinate term
of twenty years of incarceration to be served concurrently with a sentence of five to eighteen
years of incarceration. This sentence followed petitioner’s conviction, based upon a plea bargain,
for one count of first degree robbery and one count of second degree robbery. The State, by
counsel Christopher C. Quasebarth, has filed its response. On appeal, petitioner argues the circuit
court erred in denying his motion to withdraw his plea or, in the alternative, to find that the plea
was not entered voluntarily, knowingly, and intelligently, and was therefore invalid.

       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 briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In May of 2011, petitioner was indicted on charges of first and second degree robbery. On
June 8, 2012, three days prior to petitioner’s trial date, his trial counsel moved to withdraw from
further representation, citing “a complete breakdown in communication” with petitioner, among
other grounds. After a hearing on that date, the circuit court denied the motion by order entered
July 3, 2012. On June 11, 2012, petitioner entered into a plea agreement wherein he would enter
an Alford2 guilty plea in exchange for the determinate sentence of twenty years in the penitentiary

       1
         Petitioner was represented by Neil J. Zahradnik who filed the appeal. By order of August
15, 2013, counsel was permitted to withdraw from representation. By circuit court of August 30,
2013, Duane C. Rosenlieb, Jr appointed.
       2
         North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Under Alford, “[a]n accused
may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime, if he intelligently concludes that
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and five to eighteen years in the penitentiary to run concurrently. At the hearing to enter the plea
deal, the circuit court asked petitioner and his counsel a series of questions, including the
following:

       THE COURT: Do you understand you have the right to ask the Court to order that

       any confessions or property illegally obtained or seized cannot be used against

       you at trial?

       MR. MORTON: Yes, sir. . . .

       THE COURT: Do you understand that if you persist in your decision to plead

       guilty that you will be giving up all of these rights?

       MR. MORTON: Yes, sir. . . .

       THE COURT: Okay. Mr. Morton, you have been represented by Mr. Lambert

       who is here with you today; have you discussed fully with him your case and

       explained everything you know about it?

       MR. MORTON: Yes, sir.

       THE COURT: Has your attorney discussed with you the defenses that might be

       available to the charge and given you the benefit of advice?

       MR. MORTON: Yes, sir.

       THE COURT: Are you satisfied with his representation of you in this matter?

       MR. MORTON: Yes, sir. . . .

       THE COURT: Mr. Lambert, do you believe that Mr. Morton understands his

       rights, consequences of his plea; and that he voluntarily, intelligently, knowingly,

       and freely enters his plea today?

       MR. LAMBERT: Yes, Your Honor.

       THE COURT: Do you believe that the entry of the plea today is in the best

       interest of your client?

       MR. LAMBERT: Yes, Your Honor.

       THE COURT: Mr. Morton, do you agree with what Mr. Lambert has just told

       me?

       MR. MORTON: Yes, sir.


The State agreed not to file a recidivist action for this offense. On July 21, 2012, petitioner filed a
pro se motion for an emergency hearing, seeking to hold a hearing on evidence suppression. On
August 3, 2012, petitioner filed a pro se motion to withdraw his previously entered guilty plea.
On August 9, 2012, at the previously scheduled sentencing hearing, the circuit court denied
petitioner’s motion to withdraw his plea and his motion for an emergency hearing, and sentenced
him to a determinate term of twenty years of incarceration to be served concurrently with a
sentence of five to eighteen years of incarceration. Petitioner asserts that he should have been
permitted to withdraw his plea of guilty because he did not understand the rights he waived by
doing so.




his interests require a guilty plea and the record supports the conclusion that a jury could convict
him.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987).
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        A circuit court’s decision to deny a motion to withdraw a plea is reviewed for abuse of
discretion. Syl. Pt. 2, Duncil v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990). A circuit court
“may permit withdrawal of [a guilty] plea if the defendant shows any fair and just reason.” W.Va.
R. Crim. P. 32(e). To permit a withdrawal of a guilty plea based on an assertion of innocence, a
trial court should consider

        the length of time between the entry of the guilty plea and the filing of the motion
        to withdraw[,] . . . why the grounds for withdrawal were not presented to the court
        at an earlier point in the proceedings[,] and . . . whether the defendant maintained
        his innocence throughout the plea proceedings.

Id. at 179.

        “‘If the State will suffer substantial prejudice if the guilty plea is withdrawn prior
        to the time the sentence is imposed, this is a limiting factor which the court should
        consider in determining whether to grant the motion to withdraw the guilty plea.’
        Syllabus Point 3, State v. Olish, 164 W.Va. 712, 266 S.E.2d 134 (1980).” Syl. pt.
        2, State v. Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986)

Syl. Pt. 2, State v. Huff, 180 W.Va. 75, 375 S.E.2d 438 (1988).

        Before a guilty plea will be set aside based on the fact that the defendant was
        incompetently advised, it must be shown that (1) counsel did act incompetently;
        (2) the incompetency must relate to a matter which would have substantially
        affected the fact-finding process if the case had proceeded to trial; (3) the guilty
        plea must have been motivated by this error. Syllabus Point 3, State v. Sims, 162
        W.Va. 212, 248 S.E.2d 834 (1978).

Syl. Pt. 5, Duncil v. Kauffman, 183 W.Va. 175, 394 S.E.2d 870 (1990).

        Contrary to petitioner’s argument that he did not understand the rights he was waiving by
entering into a plea bargain, at the plea bargain hearing petitioner clearly stated that he understood
he was waiving his right to protest evidence, among other rights; that the plea was in his best
interest and freely entered; and that he fully discussed the case with his trial counsel. Therefore,
petitioner failed to provide a “fair and just reason” for his plea to be withdrawn, and we hold that
the circuit court did not abuse its discretion in denying petitioner’s motion to withdraw his plea.
Additionally, despite petitioner’s argument that there was a breakdown in communication so
severe that he could not have voluntarily, knowingly, and intelligently entered into the plea
bargain, he offers no evidence that counsel acted incompetently. We find that the circuit court did
not abuse its discretion in finding that petitioner knowingly, voluntarily, and intelligently entered
his plea bargain. Therefore, the circuit court’s sentencing order is hereby affirmed.

                                                                                            Affirmed.



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ISSUED: September 3, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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