          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2013 Term
                                                                  FILED

                                                               April 18, 2013

                                   No. 11-1777                 released at 3:00 p.m.
                                                               RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA
                           STATE OF WEST VIRGINIA,

                            Plaintiff Below, Respondent


                                        v.


                              JOHN ALAN BOYCE,

                            Defendant Below, Petitioner



                  Appeal from the Circuit Court of Kanawha County

                          Honorable Charles E. King, Judge

                            Criminal Case No. 91-F-209


                                   AFFIRMED



                             Submitted: April 10, 2013
                               Filed: April 18, 2013

Shawn D. Bayliss, Esq.                        Patrick Morrisey
Bayliss Law Offices                           Attorney General
Hurricane, West Virginia                      Benjamin F. Yancey, III, Esq.
Counsel for Petitioner                        Assistant Attorney General
                                              C. Casey Forbes, Esq.
                                              Charleston, West Virginia
                                              Counsel for the Respondent



The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT




              1. “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.”

Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).



              2. “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.”

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).



              3. “When a criminal defendant proposes to enter a plea of guilty, the trial

judge should interrogate such defendant on the record with regard to his intelligent

understanding of the following rights, some of which he will waive by pleading guilty: 1)

the right to retain counsel of his choice, and if indigent, the right to court appointed counsel;

2) the right to consult with counsel and have counsel prepare the defense; 3) the right to a

public trial by an impartial jury of twelve persons; 4) the right to have the State prove its

case beyond a reasonable doubt and the right of the defendant to stand mute during the

proceedings; 5) the right to confront and cross-examine his accusers; 6) the right to present

witnesses in his own defense and to testify himself in his own defense; 7) the right to appeal



                                                i
the conviction for any errors of law; 8) the right to move to suppress illegally obtained

evidence and illegally obtained confessions; and, 9) the right to challenge in the trial court

and on appeal all pre-trial proceedings.” Syl. Pt. 3, Call v. McKenzie, 159 W.Va. 191, 220

S.E.2d 665 (1975).



              4. “Where there is a plea bargain by which the defendant pleads guilty in

consideration for some benefit conferred by the State, the trial court should spread the terms

of the bargain upon the record and interrogate the defendant concerning whether he

understands the rights he is waiving by pleading guilty and whether there is any pressure

upon him to plead guilty other than the consideration admitted on the record.” Syl. Pt. 4,

Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975).



              5. “A trial court should spread upon the record the defendant’s education,

whether he consulted with friends or relatives about his plea, any history of mental illness

or drug use, the extent he consulted with counsel, and all other relevant matters which will

demonstrate to an appellate court or a trial court proceeding in habeas corpus that the

defendant’s plea was knowingly and intelligently made with due regard to the intelligent

waiver of known rights.” Syl. Pt. 5, Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665

(1975).




                                              ii
              6. “There are three components of a constitutional due process violation under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v.

Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable

to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been

suppressed by the State, either willfully or inadvertently; and (3) the evidence must have

been material, i.e., it must have prejudiced the defense at trial.” Syl. Pt. 2, State v.

Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).




                                            iii
Per Curiam:

              John Alan Boyce, defendant below, appeals from the November 29, 2011, re­

sentencing order of the Circuit Court of Kanawha County. Mr. Boyce was sentenced to life

in prison without mercy after he had pled guilty in 1992 to murder in the first degree.



              Mr. Boyce now contends that the plea should be vacated and the case

remanded for trial by claiming that the plea he tendered was not knowingly and intelligently

made. His argument turns on the reversal of the conviction by this Court of a co-defendant

who was tried separately months after Mr. Boyce pled guilty.1 The co-defendant’s

conviction was overturned because of an illegal arrest, thus making the confession obtained

from the co-defendant inadmissible. Mr. Boyce essentially argues that the co-defendant’s

confession was the basis for his own arrest, so knowledge of the questionable nature of the

circumstances under which the co-defendant’s confession was taken should have been

pointed out to him before he tendered his plea. He maintains that without this information

his plea could not have been knowingly and intelligently made.



              Having fully considered the parties’ briefs, argument, and the record

accompanying the appeal, we find no error and affirm the judgment of the lower court.




              1
                  See State v. Jones, 193 W.Va. 378, 456 S.E.2d 459 (1995).

                                             1

                        I. Factual and Procedural Background

              Mr. Boyce and Doug E. Jones were indicted on July 30, 1991, for the March

4, 1991, murder of Frank Stafford. Mr. Boyce entered a plea of guilty to murder in the first

degree on November 6, 1992, while Mr. Jones’s case proceeded to trial. The written plea

agreement offered Mr. Boyce by the State and signed by Mr. Boyce and both of his attorneys

was reviewed by the trial court at a plea hearing on November 6, 1992.



              The transcript of the plea hearing indicates that the entire proceeding lasted

sixty-five minutes during which time the trial court reviewed the plea, informed Mr. Boyce

of his rights, and questioned Mr. Boyce about his mental state and his understanding of the

plea. The trial court accepted the plea of guilty in 1992, after concluding that the predicate

standards essential for accepting a guilty plea were met. The record reflects that Mr. Boyce

also completed a guilty plea document at the hearing by signing each of the three pages

comprising the written plea while the judge explained the constitutional rights and

consequences of waiving them as detailed therein. The initial order sentencing Mr. Boyce

to life imprisonment without the possibility of parole was entered February 18, 1993.



              Mr. Jones’s case continued to proceed to trial which was held in May 1993.

The jury returned a verdict finding Mr. Jones guilty of being a principal in the second degree

to the first degree murder of Mr. Stafford. The jury recommended mercy and Mr. Jones was



                                              2

sentenced to life imprisonment with the possibility of parole. Mr. Jones appealed. The

conviction was reversed upon this Court finding that an illegal arrest had occurred due to

the extensive period of time that Mr. Jones was held in custodial detention during which the

police lacked probable cause to arrest. The confession given by Mr. Jones during the illegal

detention was also deemed inadmissible. State v. Jones, 193 W.Va. 378, 380, 456 S.E.2d

459, 461.



              No appeal of Mr. Boyce’s February 18, 1993, sentencing order was timely

filed, but Mr. Boyce eventually filed a pro se petition with this Court in 2010 seeking

habeas relief. By order dated October 27, 2010, this Court granted relief by ordering that

Mr. Boyce be re-sentenced for purposes of presenting his petition for appeal. Re-sentencing

orders enlarging the appeal period were entered by the lower court on February 16, 2011,

October 17, 2011, and November 29, 2011. Mr. Boyce’s appeal was filed with this Court

on December 22, 2011, asserting both procedural and constitutional error.



                                 II. Standard of Review

              This appeal is taken from a sentencing order which “[t]he Supreme Court of

Appeals reviews . . . under a deferential abuse of discretion standard, unless the order

violates statutory or constitutional commands.”    Syl. Pt. 1, in part, State v. Lucas, 201

W.Va. 271, 496 S.E.2d 221 (1997). As Mr. Boyce’s claims of reversible error are founded



                                             3

on procedural and constitutional grounds, we further note that “[w]here 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.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L.,

194 W.Va. 138, 459 S.E.2d 415 (1995).



                                      III. Discussion

              Mr. Boyce presents two grounds for relief, the first regarding procedural error

by the circuit court, and the second claiming constitutional error in the State’s failure to

provide exculpatory evidence. A more detailed explanation of each follows.



A. Procedural Error: Knowing and Intelligent Waiver

              According to Mr. Boyce, he could not have knowingly and intelligently

entered a plea of guilty because the circuit court did not make sure he was informed of the

possibility that Mr. Jones’s arrest could be deemed illegal on appeal, making any statement

the co-defendant made attendant to his arrest inadmissible. Mr. Boyce suggests that his own

arrest was solely based on information contained in Mr. Jones’s confession.



              Mr. Boyce stresses that nothing in the transcript from the plea hearing sets

forth the extent of his trial counsels’ investigation of the co-defendant’s case and the

circumstances surrounding the co-defendant’s arrest and confession. He further notes that



                                              4

the State was not called upon and did not offer any information regarding these potential

problems in the co-defendant’s case. Mr. Boyce also maintains that the trial court should

have required Mr. Boyce to use his own words rather than simply respond with “yes” and

“no” answers to questioning during the plea colloquy. The State disagrees and asserts that

the plea colloquy was more than adequate under existing standards and that Mr. Boyce was

supplied with all necessary information under the law before entering his plea.



             The procedures and requirements governing the acceptance of guilty pleas are

contained in Rule 11 of the West Virginia Rules of Criminal Procedure (hereinafter “Rule

11”), in conjunction with the standards set forth in Call v. McKenzie, 159 W.Va. 191, 220

S.E.2d 665 (1975). The Rule 11 provisions most pertinent to our discussion follow:

                     (c) Advice to defendant. — Before accepting a plea of
             guilty or nolo contendere, the court must address the
             defendant personally and in open court and inform the
             defendant of, and determine the defendant understands, the
             following:
                     (1) The nature of the charge to which the plea is
             offered, the mandatory minimum penalty provided by law, if
             any, and the maximum possible penalty provided by law; and
                     (2) If the defendant is not represented by an attorney, that
             the defendant has the right to be represented by an attorney
             at every stage of the proceeding and, if necessary, one will be
             appointed to represent the defendant; and
                     (3) That the defendant has the right to plead not guilty
             or to persist in that plea if it has already been made, and that the
             defendant has the right to be tried by a jury and at that trial
             the right to the assistance of counsel, the right to confront and
             cross-examine adverse witnesses, the right against compelled
             self-incrimination, and the right to call witnesses; and


                                              5

                    (4) That if a plea of guilty or nolo contendere is accepted
             by the court there will not be a further trial of any kind, so that
             by pleading guilty or nolo contendere the defendant waives
             the right to a trial; and
                    (5) If the court intends to question the defendant under
             oath, on the record, and in the presence of counsel about the
             offense to which the defendant has pleaded, that the
             defendant’s answers may later be used against the
             defendant in a prosecution for perjury or false swearing.
                    (d) Ensuring that the plea is voluntary. — The court
             shall not accept a plea of guilty or nolo contendere without first,
             by addressing the defendant personally in open court,
             determining that the plea is voluntary and not the result of
             force or threats or of promises apart from a plea agreement.
             The court shall also inquire as to whether the defendant’s
             willingness to plead guilty or nolo contendere results from
             prior discussions between the attorney for the state and the
             defendant or the defendant's attorney.

(Boldface emphasis added). These predicate Rule 11 requirements to acceptance of a guilty

plea are similarly summarized in the following syllabus points of Call v. McKenzie:

                     3. When a criminal defendant proposes to enter a plea of
             guilty, the trial judge should interrogate such defendant on
             the record with regard to his intelligent understanding of
             the following rights, some of which he will waive by pleading
             guilty: 1) the right to retain counsel of his choice, and if
             indigent, the right to court appointed counsel; 2) the right to
             consult with counsel and have counsel prepare the defense; 3)
             the right to a public trial by an impartial jury of twelve persons;
             4) the right to have the State prove its case beyond a reasonable
             doubt and the right of the defendant to stand mute during the
             proceedings; 5) the right to confront and cross-examine his
             accusers; 6) the right to present witnesses in his own defense
             and to testify himself in his own defense; 7) the right to appeal
             the conviction for any errors of law; 8) the right to move to
             suppress illegally obtained evidence and illegally obtained
             confessions; and, 9) the right to challenge in the trial court and
             on appeal all pre-trial proceedings.


                                             6

                      4. Where there is a plea bargain by which the defendant
              pleads guilty in consideration for some benefit conferred by the
              State, the trial court should spread the terms of the bargain
              upon the record and interrogate the defendant concerning
              whether he understands the rights he is waiving by pleading
              guilty and whether there is any pressure upon him to plead
              guilty other than the consideration admitted on the record.

                       5. A trial court should spread upon the record the
              defendant’s education, whether he consulted with friends or
              relatives about his plea, any history of mental illness or
              drug use, the extent he consulted with counsel, and all other
              relevant matters which will demonstrate to an appellate court
              or a trial court proceeding in Habeas corpus that the defendant’s
              plea was knowingly and intelligently made with due regard to
              the intelligent waiver of known rights.

159 W.Va. at 191, 220 S.E.2d at 667 (emphasis added).



              It is readily apparent from the hearing transcript that the circuit court

conducted a thorough plea colloquy in this case, satisfying the requirements of Rule 11 and

Call v. McKenzie. At the conclusion of the hearing, the trial court noted that the hearing

lasted for approximately sixty-five minutes. During the course of the hearing, the terms of

the plea agreement were reviewed with Mr. Boyce, and his education, understanding of the

proceedings, and mental health status were discussed. Mr. Boyce indicated that he had

consulted with friends and family about the plea and had meetings with his counsel about

the plea agreement before deciding how he wished to plead. The lower court informed Mr.

Boyce of his constitutional rights and that pleading guilty would result in waiver of some

of those rights.


                                             7

              In response to the court’s inquiry about the factual underpinnings of the crime

to which the plea was being tendered, Mr. Boyce stated in his own words that he and Frank

Stafford were fighting when Mr. Boyce killed Mr. Stafford by “holding a shoe string around

Frankie’s throat” until he was dead. The transcript reflects that the prosecutor provided

additional facts as reflected in the following excerpt:

              It would be the State’s evidence, your Honor, that between
              10:00 p.m. on March 4th, 1991 and [] 1:00 a.m. on March 5th,
              1991, that the defendant and Doug Jones administered a beating
              to the victim, Frankie Stafford, off the side of the road on Davis
              Creek between Loudendale and Davis Creek; that, thereafter,
              they went to a home of an individual – they put Frankie Stafford
              in the trunk alive, although beaten, they drove to the home of an
              individual, Pam Parsons, where they washed blood off their
              hands and arms.

                      The witness, Pam Parsons, would testify that, upon
              leaving, Mr. Boyce asked for a wash rag to wipe the steering
              wheel off. We have that washcloth. It has the victim’s blood
              on it. Pam Parsons will also testify that she heard Frankie
              Stafford and had seen Frankie Stafford earlier that evening in
              the company of Mr. Jones and Mr. Boyce, and she heard him in
              the trunk begging to be let out. After that, sometime later that
              evening, the three people drove up Kirby Holler, which at the
              time was a very desolate place – it was more of a four-wheel
              drive trail, although they got up in Mr. Jones’ [sic] car which is
              a two-wheel drive car.

                     At that point, the State’s evidence would be that Mr.
              Boyce used his shoe string to strangle Frankie Stafford and that
              he was found with a shoe string around his neck, and his hands
              were bound behind him, and he was thrown over the side of this
              trail.




                                              8

                     The State would further have evidence that Mr. Boyce
              was later seen without his shoe strings by his brother as well as
              a couple of other witnesses.

The only clarification to the summary of the State’s evidence supplied by Mr. Boyce’s

counsel was that the car used in the commission of the crime was not Mr. Jones’s car but Mr.

Boyce’s.

              Although the record reflects that Mr. Boyce responded to numerous questions

with a “yes” or “no” answer, the circuit court frequently followed up such responses either

by rephrasing or asking if Mr. Boyce was sure of his response. Furthermore, the hearing

transcript shows that Mr. Boyce proved capable of providing longer responses when he

chose to do so during the course of the proceeding. It is clear from the record that all the

established requirements for accepting a guilty plea were met and the plea was knowingly

and intelligently made by Mr. Boyce.



              While Mr. Boyce did not know that Mr. Jones’s confession would later be

overturned by this Court, that was not a fact in existence at the time Mr. Boyce decided to

enter his plea. No one at the hearing had that knowledge. Mr. Jones’s trial did not take

place until six months after Mr. Boyce entered his guilty plea in November 1992, and Mr.

Jones’s confession was not determined to be inadmissible by this Court until 1995. To

require that a criminal defendant must be informed of all possible bases upon which a co­

defendant’s case may later be overturned on appeal before a guilty plea may be accepted



                                             9

would serve as a serious disincentive to the State offering plea agreements and trial courts

accepting guilty pleas.



              We further find that whether Mr. Boyce’s arrest was based on information

obtained from Mr. Jones’s confession is irrelevant under the circumstances. Given the

reason that this Court determined in 1995 that the Jones confession was inadmissible would

not have served as a bar for law enforcement relying on the confession information to

establish probable cause to arrest Mr. Boyce in 1992. Also, there is nothing to suggest that

this was the sole basis for the arrest of Mr. Boyce as the State had witnesses and other

evidence linking Mr. Boyce to the crime.

              We find no basis to conclude that the circuit court committed procedural error

in accepting Mr. Boyce’s guilty plea after finding it was knowingly, voluntarily and

intelligently made.



B. Constitutional Error: Exculpatory Evidence

              Mr. Boyce next contends that his constitutional rights were violated when the

State failed to provide him with exculpatory evidence regarding the illegality of Mr. Jones’s

arrest and the resulting inadmissibility of the statement he made. Mr. Boyce maintains that

this was critical information having an affect on his decision to enter a plea of guilty. He

argues that the State has a continuing obligation to provide a criminal defendant with



                                             10

material evidence that is favorable to the accused’s defense pursuant to Brady v. Maryland,

373 U.S. 83 (1963) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).



              As to the merits of this claim, the State argues that the facts in this case do not

square with the elements constituting a due process violation pursuant to Brady and its

progeny.2



              The three components of a constitutional due process violation under Brady

and Hatfield as set forth in syllabus point two of State v. Youngblood, 221 W.Va. 20, 650

S.E.2d 119 (2007), are:

              (1) the evidence at issue must be favorable to the defendant as
              exculpatory or impeachment evidence; (2) the evidence must
              have been suppressed by the State, either willfully or
              inadvertently; and (3) the evidence must have been material,
              i.e., it must have prejudiced the defense at trial.



              In the present case, the State did not and could not have withheld evidence of

the illegality and inadmissibility of the arrest and confession of Mr. Jones before Mr. Boyce

tendered his guilty plea in February 1993. “Evidence is the demonstration of a fact; it



              2
               The State also averred that the merits of this error did not have to be reached
arguing both that Mr. Boyce lacked standing to assert the claim, and Mr. Boyce’s
unconditional guilty plea served to waive the nonjurisdictional matter at issue. Without
addressing the validity of these assertions, we proceed to examine the merits of Mr. Boyce’s
due process claim.

                                              11

signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or

point at issue, either on the one side or on the other.” 31A C.J.S. Evidence § 2 (2008). It

is axiomatic that a possibility, no matter how accurate a prediction it may turn out to be, is

not evidence until the circumstance comes into existence. The State simply could not have

suppressed evidence of a fact/circumstance/issue which did not exist at the time Mr. Boyce

entered his plea of guilty. Mr. Boyce’s plea was tendered and accepted in 1992, and this

Court did not declare Jones’s arrest as illegal and his confession inadmissible until State v.

Jones was decided in 1995. As no exculpatory evidence was withheld by the State, there is

no basis on which to proceed with a due process analysis pursuant to Brady and Hatfield.

No constitutional error exists under these facts.



                                      IV. Conclusion

              Finding no valid basis for the procedural or constitutional error asserted, the
November 29, 2011, sentencing order of the Circuit Court of Kanawha County is affirmed.


                                                                                   Affirmed.




                                             12

