                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                      October 1, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0033 (Brooke County 12-F-4)                                         OF WEST VIRGINIA


Aaron Hartley,
Defendant Below, Petitioner

                                MEMORANDUM DECISION

        Petitioner Aaron Hartley, by counsel Patricia Kurelac, appeals the December 7, 2012,
sentencing order of the Circuit Court of Brooke County that sentenced petitioner to two
consecutive terms of incarceration of first degree robbery. The State of West Virginia, by
counsel Laura Young, filed a summary response. On appeal, petitioner alleges that the circuit
court violated his double jeopardy protections when it accepted his guilty pleas to two counts of
first degree robbery.

       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 entered the victims’ residence. He pointed a firearm at Elaine
Brindley and demanded money. Emanuel Brindley interrupted and a struggle ensued between
petitioner and Mr. Brindley. As a result, petitioner was indicted on one count of first degree
robbery against Mrs. Brindley, one count of burglary, one count of first degree robbery against
Mr. Brindley, and two counts of assault during the commission of a felony. In October of 2012,
petitioner pled guilty to two counts of first degree robbery pursuant to West Virginia Code § 61­
2-12(a)(1). As a condition of the plea agreement, the State dismissed the remaining charges. The
plea agreement also included a provision that stated as follows:

       The Defendant further agrees that he is forever waiving his right to challenge the
       validity of this plea agreement or to attempt to set aside or nullify any convictions
       herein obtained by habeas corpus action, in state or federal court, or to otherwise
       challenge the validity of his convictions in any legal proceedings of any nature in
       any court. It is the intention of the parties hereto that the Defendant’s convictions
       be permanent and final.

(Emphasis in original). Petitioner was sentenced to a term of incarceration of ten years on each
count of first degree robbery to be served consecutively.

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        On appeal, notwithstanding his plea agreement petitioner argues that the circuit court
violated his double jeopardy protections under the Fifth Amendment to the United States
Constitution and Article III, Section 5 of the West Virginia Constitution when it accepted his
guilty plea to two counts of first degree robbery. He argues that there was only one incident, thus
he is guilty of only one count of robbery.1

        It is well-established law in our State that a criminal defendant has the right to petition for
an appeal of his conviction. Nevertheless, “[a]n appeal ordinarily does not lie in a criminal case
from a judgment of conviction rendered upon a plea of guilty.” State v. Sims, 162 W.Va. 212,
215, 248 S.E.2d 834, 837 (1978). Furthermore, “A circuit court has no authority to vacate or
modify, sua sponte, a validly accepted guilty plea . . . .” Syl. Pt. 5, State ex rel. Brewer v.
Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995). As this Court stated in State v. Greene, 196
W.Va. 500, 505, 473 S.E.2d 921, 926 (1996), “[i]f any principle is well settled in this State, it is
that, in the absence of special circumstances, a guilty plea waives all antecedent constitutional
and statutory violations save those with jurisdictional consequences.” See also, Tollett v.
Henderson, 411 U.S. 258 (1973) (stating when a criminal defendant openly in court admits he is
guilty of the offense charged, “he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea,” but may
only “attack the voluntary and intelligent character of the guilty plea by showing that the advice
he received from counsel was” constitutionally deficient). A review of the record on appeal
presents no basis for setting aside his guilty pleas or the convictions. If petitioner believes that
the advice he received from counsel when entering into the plea agreement was constitutionally
deficient, such that his pleas were not voluntary, he is not foreclosed from filing a petition for
habeas corpus on that basis.

          For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: October 1, 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
1
    The “Sentencing Order” stated that

          [B]efore pronouncing sentence in this matter the Court did advise defense counsel
          that she should appeal on the defendant’s behalf the issue as to whether the
          defendant’s conviction for two counts of robbery, as opposed to one count of
          robbery is appropriate and that she should appeal Count Three as potentially being
          in violation of double jeopardy.


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