                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                   November 21, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0997 (Mason County 10-F-36)                                           OF WEST VIRGINIA


Jacob Colby Spradlin,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Jacob Colby Spradlin, by counsel Dana F. Eddy and Lori Walker, appeals the
order of the Circuit Court of Mason County, entered on January 10, 2010, subsequent to which
he was sentenced to serve one to five years in the state penitentiary, followed by a term of fifty
years of supervised release as a registered sex offender, upon his entry of a plea of guilty to the
charge of sexual assault in the third degree.1 Petitioner filed this challenge to the legality of his
criminal conviction after he served his initial term of incarceration then had supervised release
discontinued for failure to comply with its terms, resulting in a sentence of a term of thirty years
in the state penitentiary by order entered on May 31, 2013. Respondent State of West Virginia
appears by counsel Laura Young.

       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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.2

       1
         Petitioner’s brief was filed by attorney Duane C. Rosenlieb of West Virginia Public
Defender Services. Mr. Rosenlieb has since left that agency, and Mr. Eddy and Ms. Walker, also
of West Virginia Public Defender Services, filed a motion for substitution of counsel on October
1, 2014, and a notice of appearance on October 6, 2014. The motion for substitution of counsel is
hereby granted.
       2
          Petitioner filed his “Motion for Abeyance” on September 12, 2014, arguing generally
that counsel reviewed the record and “became seriously concerned that [petitioner] may have
cognitive disabilities which would impair his ability to exercise his constitutional right to
participate in prosecuting his own appeal.” We note that petitioner’s motion is not supported by
citation to the record on appeal. In any event, petitioner’s mental status was adequately addressed
in the parties’ briefs, and a sufficient history of petitioner’s cognitive evaluations is contained in
the appendix record on appeal. Based on our thorough review of the record before us, we hereby
deny petitioner’s motion.
                                                  1

        Petitioner pled guilty by way of information,3 at the age of nineteen, in January of 2010
to sexual assault in the third degree based on conduct that occurred in 2004.4 (In exchange for his
plea, the State dismissed a juvenile petition that asserted petitioner committed sexual assault in
the second degree and attempted sexual assault in the third degree in 2008.5) During his plea
colloquy, petitioner affirmed that he understood the elements of the offense and the penalty. He
acknowledged past drug and mental problems, but denied being under the influence of drugs or
the care of a mental health physician. At the plea hearing, the court stated:

       Jacob Colby Spradlin, this information charges the felony offense of sexual
       assault in the third degree. Furthermore, it states that this occurred on the blank
       day of blank 2004 in Mason County, West Virginia, and you committed this
       offense by engaging in sexual intercourse with a person with the initials A.C.,
       who was less than sixteen years old and at least four years younger than you, and
       to whom you were not married, your being sixteen years or older. What is your
       plea to that charge?

Petitioner affirmed his plea of guilty, and inherently the court’s statement that he was “sixteen
years or older” at the time of the offense, though petitioner would have been thirteen years old



       3
          An “information” is a charging instrument “filed by the prosecutor in lieu of a
presentation of the case to the grand jury.” State v. Kimberly S., 233 W.Va. 5, __, 754 S.E.2d
581, 583 (2014). According to Rule 7(a) of the West Virginia Rules of Criminal Procedure, any
offense other than “[a]n offense which may be punished by life imprisonment . . . may be
prosecuted by information if the indictment is waived.” Petitioner acknowledged his waiver of
the indictment.
       4
           West Virginia Code § 61-8B-5 (“sexual assault in the third degree”) provides:

                  (a) A person is guilty of sexual assault in the third degree when:

              (1) The person engages in sexual intercourse or sexual intrusion with
       another person who is mentally defective or mentally incapacitated; or

               (2) The person, being sixteen years old or more, engages in sexual
       intercourse or sexual intrusion with another person who is less than sixteen years
       old and who is at least four years younger than the defendant and is not married to
       the defendant.

              (b) Any person violating the provisions of this section is guilty of a felony
       and, upon conviction thereof, shall be imprisoned in a state correctional facility
       not less than one year nor more than five years, or fined not more than ten
       thousand dollars and imprisoned in a state correctional facility not less than one
       year nor more than five years.
       5
           Petitioner agreed to a transfer to adult status in order to enter his plea.
                                                     2

for most of 2004. In his statement in support of his guilty plea, petitioner had written, “When I
was 14 I had sexual relations w/ [A.C.]”6

        Petitioner was sentenced and committed to the custody of the Department of Corrections
for a term of one to five years with credit for time served, with that time to be followed by a
fifty-year term of supervised release. He completed his term of incarceration, and entered
supervised release. In March of 2013, the State filed a “petition for revocation of probation”
based on petitioner’s discharge from a program he was required to complete as a term of
supervised release, and his contact with a juvenile in contravention of release terms.7 The court
revoked his supervised release and imposed a thirty-year term of incarceration by order entered
on September 16, 2013. This appeal followed.

         On appeal, petitioner asserts three assignments of error: (1) that the plea he entered in
2010 was void because the circuit court failed to establish that petitioner was over the age of 16
at the time of the offense and, based on that failure, petitioner’s crime did not meet the statutory
definition of “third-degree sexual assault[;]” (2) that the circuit court plainly erred by failing to
inquire about petitioner’s mental health at the time his plea was taken, thereby failing to establish
competency; and (3) that petitioner has not waived or forfeited his right to object to the court’s
acceptance of his plea. Petitioner concedes in his brief that his third and final assignment of error
“is not strictly an assignment of error.” We therefore will consider the issue of waiver only
insofar as it may affect the first and second issues.

       We consider petitioner’s assignments of error in reverse order, beginning with his second,
in which he argues that the court failed to establish that he was competent to enter his plea. In
Syllabus Point 3 of State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), overruled on other
grounds by State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980), this Court held that
“[w]hether a formal inquiry as to the mental capacity or competency of a defendant should be
ordered is a question to be resolved within the sound discretion of the trial court.” We further
explained in State v. Sanders, 209 W.Va. 367, 379, 549 S.E.2d 40, 52 (2001)(citing Arnold, 159
W.Va. at 163, 219 S.E.2d at 925):

       Because a trial court is able to observe the demeanor of the defendant and
       consequently has a better vantage point than this Court to make determinations
       regarding mental competency, we will disturb a lower court’s ruling denying a
       psychiatric examination and related proceedings only where there has been an
       abuse of discretion.

       Mindful of this standard, we observe that West Virginia Code § 27-6A-2(a) provides:

       6
         It is undisputed that, in 2004, at the time of the charged offense, A.C. was under the age
of ten years old.
       7
          This was the second “petition for revocation of probation” filed by the State. As a result
of the earlier-filed petition, the court reinstated petitioner to “probation,” but added terms to the
original terms of his supervised release. The additional terms required that he enter and complete
a specific rehabilitative program.
                                                 3

       Whenever a court of record has reasonable cause to believe that a defendant in
       which an indictment has been returned, or a warrant or summons issued, may be
       incompetent to stand trial it shall, sua sponte or upon motion filed by the state or
       by or on behalf of the defendant, at any stage of the proceedings order a forensic
       evaluation of the defendant’s competency to stand trial to be conducted by one or
       more qualified forensic psychiatrists, or one or more qualified forensic
       psychologists. If a court of record or other judicial officer orders both a
       competency evaluation and a criminal responsibility or diminished capacity
       evaluation, the competency evaluation shall be performed first, and if a qualified
       forensic evaluator is of the opinion that a defendant is not competent to stand trial,
       no criminal responsibility or diminished capacity evaluation may be conducted
       without further order of the court. The initial forensic evaluation may not be
       conducted at a state inpatient mental health facility unless the defendant resides
       there.

        It is undisputed that petitioner did not request an evidentiary hearing pursuant to this
section. However, we have written:

       [S]ince the right not to be tried while mentally incompetent is subject to neither
       waiver nor forfeiture, a trial court is not relieved of its obligation to provide
       procedures sufficient to protect against the trial of an incompetent defendant
       merely because no formal request for such has been put forward by the parties. In
       other words, a trial court has an affirmative duty to employ adequate procedures
       for determining competency once the issue has come to the attention of the court,
       whether through formal motion by one of the parties or as a result of information
       that becomes available in the course of criminal proceedings.

Sanders, 209 W.Va. at 377, 549 S.E.2d at 50 (citations omitted). Petitioner does not argue herein
that he was incompetent at the time he entered his plea. Rather, he argues that the court was
aware that petitioner had a difficult and problematic history which should have “set off alarm
bells . . . regarding his mental status and ability to cognitively understand entering a plea[.]”
Petitioner further argues that “[t]he [c]ourt never even inquired about [his] history of mental
illness or psychiatric treatment, even though it was aware [of past treatment] and ordered him to
undergo three separate psychiatric evaluations.”

        At least one of the evaluations petitioner underwent was a competency examination.
Despite petitioner’s argument that the court failed to consider his mental status, the appendix
record on appeal contains a report of a psychological evaluation completed by psychologist
Kimberly D. Parsons of Clayman & Associates a little more than a month prior to the plea
hearing. The circuit court’s order for the evaluation is not included in the appendix record on
appeal, but the State represents that this evaluation was ordered by the court to determine
petitioner’s competency to stand trial, and petitioner does not dispute this representation. Indeed,
the purpose stated on the face of the report indicates that petitioner “was referred . . . to assist the
[c]ourt in determining competence to stand trial criminal responsibility as well as a risk
assessment as provided for in West Virginia Code [§ 27-6A-2(a).]” Petitioner does not

                                                   4

acknowledge the evaluation report in his brief or reply, and argues instead that the court “only
ordered an evaluation after accepting [petitioner’s] plea[.]” The date of the report, together with
its stated purpose, belies petitioner’s argument. Moreover, inasmuch as petitioner did not address
the report, he has offered no suggestion that his mental status changed in the short time that
elapsed between the psychological evaluation and the plea hearing.

        Though Ms. Parsons’ report details a troubled and disturbing history, including mental
health treatment beginning at age five and continuing throughout petitioner’s life, the report
notes that petitioner was “oriented to person, purpose, time, and place” and further notes “no
evidence of delusions, hallucination or further psychosis” on the date of the examination. Ms.
Parsons found petitioner functioned in the average range of intellectual ability, with no
demonstrated problems affecting his comprehension. Importantly, Ms. Parsons noted that
petitioner scored 94 out of a possible 100 points on the Georgia Court Competency Test,
“impl[ying] his ability to understand the courtroom concepts as measured by this instrument.”
Ms. Parsons concluded:

       Based upon the available data, [petitioner] appears to have the ability to
       understand his charges in a rational and factual manner. Additionally, he also
       demonstrated the ability to assist in his defense. He was able to identify his
       charges and provide a definition. He clearly discussed his current legal dilemma,
       the roles and duties of courtroom participants and his awareness of possible legal
       outcomes. . . .

       He did not provide data regarding [the crime to which he would plead guilty]
       during the interview, but during the testing he offered data designed to deflect
       blame and undermine the veracity of the allegations. This again, demonstrates his
       ability to appreciate the seriousness of his current legal predicament.

        Furthermore, the answers provided by petitioner in his written “Statement in Support of a
Plea[,]” filed on the date that petitioner’s plea hearing was conducted, demonstrate a clear
understanding of his situation and the charge to which he pled guilty.8 Upon receiving those
answers, the court conducted a thorough plea hearing at which the court had the opportunity to
observe petitioner’s demeanor. In consideration of the detailed report of Ms. Parsons and the
hearing conducted by the circuit court, we do not find that the court abused its discretion in
declining to order further examinations or proceedings to address petitioner’s competency.

        Having determined that there is no evidence that petitioner was not competent to
understand the charges against him or the proceedings below, we turn to petitioner’s first
assignment of error, in which he argues that his plea was void for the court’s failing to establish
all elements of the crime. In State v. Greene, 196 W.Va. 500, 505, 473 S.E.2d 921, 926 (1996),
this Court stated that “[i]f any principle is well settled in this State, it is that, in the absence of

       8
          Petitioner’s counsel assisted petitioner in completing this statement, noting that
petitioner was unable to read or write well. However, at the plea hearing, petitioner
acknowledged the help and affirmed that counsel read the questions to him. He further affirmed
that counsel recorded his answers correctly.
                                                  5

special circumstances, a guilty plea waives all antecedent constitutional and statutory violations
save those with jurisdictional consequences.”

        Petitioner argues that his signing of the plea agreement was not freely, voluntarily, and
intelligently done, as evidenced by the circuit court’s failure to discover the factual basis for the
plea, and further argues (without citation to authority) that the State failed to establish an act that
would bring him within the scope of the statute defining sexual assault in the third degree. We
understand his argument to attack the circuit court’s subject matter jurisdiction over the case
before it. Subject-matter jurisdiction refers to “‘the courts’ statutory or constitutional power to
adjudicate the case.’” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d
860 (2002)(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140
L.Ed.2d 210 (1998). See also Willis v. O’Brien, 151 W.Va. 628, 630-31, 153 S.E.2d 178, 180
(1967)(“Jurisdiction is a constitutional endowment of power to hear and determine a cause.
Thus, any court authorized by the Constitution, or a statute enacted pursuant thereto, to hear and
determine a cause involving a criminal act has jurisdiction thereof.”) Circuit courts in this state
are empowered with jurisdiction over “all crimes and misdemeanors.” W.Va. Const. art. VIII §
6; see also W.Va. Code § 51-2-2. Petitioner’s argument, it seems, would require a court to
ascertain the elements of each crime to which a defendant pleads to ensure that the court is not
divested of this jurisdictional authority.9

       9
          We note that petitioner did not challenge the sufficiency of the information, a charging
instrument that, like an indictment, has certain constitutional implications. The sufficiency of any
information is judged according to the same standards as an indictment. State v. Donald S.B., 184
W.Va. 187, 190, 399 S.E.2d 898, 901 (1990). “An indictment need only meet minimal
constitutional standards, and the sufficiency of an indictment is determined by practical rather
than technical considerations.” Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
“‘An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va.
R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair
notice of the charge against which he or she must defend; and (3) enables a defendant to assert an
acquittal or conviction in order to prevent being placed twice in jeopardy.” Syl. Pt. 6, State v.
Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).’” State v. Haines, 221 W.Va. 235, 236, 654
S.E.2d 359, 360 (2007). We also note, though no objections have been raised to the timeliness of
petitioner’s appeal:

               Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure provides
       that “[d]efenses and objections based on defects in the indictment or information
       (other than that it fails to show jurisdiction in the court or to charge an offense
       which objections shall be noticed by the court at any time during the pendency of
       the proceedings) must be raised prior to trial.” (Emphasis added). In addition, this
       Court has held:

                      Rule 12(b)(2) of the West Virginia Rules of Criminal
               Procedure requires that a defendant must raise any objection to an
               indictment prior to trial. Although a challenge to a defective
               indictment is never waived, this Court literally will construe an
               indictment in favor of validity where a defendant fails timely to
                                                  6
       Rule 11(f) of the West Virginia Rules of Criminal Procedure provides that
“[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon
such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”
However, we have explained:

       “[O]ne purpose of the requirement of Rule 11(f) is to ‘protect a defendant who is
       in the position of pleading voluntarily with an understanding of the nature of the
       charge but without realizing that his conduct does not actually fall within the
       charge.’” [State v. Bennett, 179 W.Va. 464, 467, 370 S.E.2d 120, 123] (quoting
       McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d
       418, 426 (1969)). While such purpose is obviously laudatory, this Court has never
       deemed it constitutionally necessary for a trial court to undertake the inquiry
       required by Rule 11(f). And other courts appear in general agreement that absent
       special circumstances “‘there is no constitutional requirement that a trial judge
       inquire into the factual basis of a plea.’” United States v. McGlocklin, 8 F.3d
       1037, 1047 (6th Cir.1993) (en banc), cert. denied, 511 U.S. 1054, 114 S.Ct. 1614,
       128 L.Ed.2d 341 (1994) (citation omitted). Rather, only when the defendant
       claims his factual innocence while pleading guilty, a situation not present in this
       case, is a court constitutionally required to undertake such a procedure. See North
       Carolina v. Alford, 400 U.S. 25, 37–39, 91 S.Ct. 160, 167–68, 27 L.Ed.2d 162
       (1970); see also Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983); Willett v.
       Georgia, 608 F.2d 538, 540–41 (5th Cir.1979).

State ex rel. Farmer v. Trent, 209 W.Va. 789, 796, 551 S.E.2d 711, 718 (2001). Because circuit
courts are not required to undertake the Rule 11(f) inquiry, the court’s jurisdiction does not rise
or fall on this laudatory task.



               challenge its sufficiency. Without objection, the indictment should
               be upheld unless it is so defective that it does not, by any
               reasonable construction, charge an offense under West Virginia
               law or for which the defendant was convicted.

       Syl. Pt. 1, Miller, 197 W.Va. at 592-93, 476 S.E.2d at 539-40. We explained the
       reason for this rule in State v. Palmer, 210 W.Va. 372, 376, 557 S.E.2d 779, 783
       (2001):

                       The purpose behind this rule is to prevent a criminal
               defendant from ‘sandbagging’ or deliberately foregoing raising an
               objection to an indictment so that the issue may later be used as a
               means of obtaining a new trial following conviction. See 4 Wayne
               R. LaFave et al., Criminal Procedure § 19.1(d), at 741 (2d
               ed.1999). The rule we announced in Miller now makes this
               stratagem extremely perilous.

State v. Chic-Colbert, 231 W.Va. 749, 757-58, 749 S.E.2d 642, 650-51 (2013).
                                                  7

        Petitioner, without maintaining his innocence, pled guilty to a crime as part of a plea
agreement in which the State agreed to reduce certain charges. The court’s role in accepting or
rejecting a guilty plea is not to make a formal adjudication of guilt beyond a reasonable doubt on
the charge to which the defendant is willing to plead. Rather, the court’s role, insofar as the
defendant is concerned, is to ascertain that the plea is voluntarily and intelligently made and that
the defendant understands its consequences and the constitutional rights he is waiving. Rule 11(f)
of the West Virginia Rules of Criminal Procedure; Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d
782 (1984). The court fulfilled its role in this case. Presumably, inasmuch as petitioner has not
challenged the charging instrument, the information pursuant to which he pled met the minimal
constitutional standards to provide the required notice about the crime charged. Furthermore, the
record before us reflects that, at the plea hearing, the court confirmed that petitioner reviewed the
charging instrument with counsel and understood “what the State would have to prove beyond a
reasonable doubt to convict [him] of [sexual assault in the third degree].”

        Immediately before taking petitioner’s plea, the court confirmed with petitioner the
details relevant to the elements of sexual assault in the third degree: “You committed this offense
by engaging in sexual intercourse with a person with the initials A.C., who was less than sixteen
years old and at least four years younger than you, and to whom you were not married, your
being sixteen years or older.” Petitioner agreed. At every juncture, petitioner affirmed his
understanding. We thus find that petitioner received adequate notice of the charge, and
voluntarily and intelligently pursued a bargain that inured to him.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

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




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