                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                      June 15, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0825 (Fayette County 07-F-140)                                        OF WEST VIRGINIA


Frank D.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Frank D., by counsel Jason D. Parmer, appeals the Circuit Court of Fayette
County’s July 25, 2014, order resentencing him to a cumulative term of fifteen to fifty years in
prison.1 The State, by counsel Derek A. Knopp, filed a response in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in denying his motion to withdraw
his guilty plea.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2007, petitioner was indicted on fifty-nine counts of sex-related crimes.
In June of 2010, the circuit court held a plea hearing at which petitioner pled guilty, pursuant to
Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987), to the following six felonies: one
count of second-degree sexual assault, in violation of West Virginia Code § 61-8B-4, and five
counts of first-degree sexual abuse, in violation of West Virginia Code § 61-8B-7.2 In exchange
for his plea, the State dismissed the remaining counts in the indictment. During the circuit court’s
thorough plea colloquy with petitioner, which included petitioner speaking with his counsel off
the record to clarify his understanding of the process, the circuit court explained to petitioner the
consequences of his plea, including his waiver of certain constitutional and statutory rights and

       1
         “We follow our past practice in . . . cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. W.Va. Dep’t of Human Serv. v. Cheryl M., 177 W.Va.
688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
       2
         In Kennedy, this Court held that circuit courts may accept a criminal defendant’s plea of
guilty despite a claim of innocence “if he intelligently concludes that his interests require a guilty
plea and the record supports the conclusion that a jury could convict him.” 178 W.Va. at 10, 357
S.E.2d at 43, Syl. Pt. 1.
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his potential maximum incarceration. Petitioner acknowledged that his plea was voluntary and
no one forced him to enter the same. However, petitioner disagreed with the State’s factual
description of the underlying events, and he met with his counsel off-the-record to discuss the
matter. Following that conference, petitioner’s counsel stated that petitioner admitted that the
State could present such evidence, but that he was not making an admission to it, pursuant to his
Kennedy plea. Petitioner’s counsel clarified that petitioner “indicated . . . after giving him several
chances to think about it, that he feels it’s in his best interest to go ahead and proceed with the
plea and to wrap this matter up, and I think he agrees that’s in his best interest to do that.” The
circuit court then asked petitioner if he agreed with counsel’s statement, and petitioner stated,
“[y]es.” Petitioner’s counsel also stated that he had received discovery and had “gone through all
of this with [petitioner].” He specifically stated that he reviewed with petitioner the victim’s
statements, including a video statement from the victim’s 2006 Child Advocacy Center (“CAC”)
interview, although he only received a transcript of that video the day before the plea hearing and
had not provided petitioner a copy of that transcript. In addition, petitioner’s counsel stated that
he was prepared to proceed to trial, “if [petitioner] should change his mind,” and petitioner
unequivocally agreed with that statement.

         In January of 2011, prior to sentencing, petitioner filed a motion to withdraw his guilty
plea, pursuant to Rule 32 of the West Virginia Rules of Criminal Procedure. At a hearing on that
motion, petitioner testified that he informed his counsel, during an off-the-record discussion at
the plea hearing, that they could take the case to trial and “beat it,” but his counsel “got upset”
and would “get mad as hell” if he withdrew his plea because they were unprepared for trial. He
further testified that his counsel failed to provide him with complete discovery prior to accepting
the plea offer. The circuit court denied petitioner’s motion based on the evidence presented at the
plea hearing. Petitioner was ultimately sentenced to ten to twenty-five years in prison for the one
count of second-degree sexual assault and one to five years in prison for each of the five counts
of first-degree sexual abuse. This appeal followed.

       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).

        On appeal, petitioner assigns error to the circuit court’s denial of his motion to withdraw
his guilty plea, pursuant to Rule 32 of West Virginia Rules of Criminal Procedure. In syllabus
point one of State v. Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986), we held that Rule 32 “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.’” While petitioner argues that the circuit court

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abused its discretion in denying his motion because his testimony satisfied the “just and fair
reason” requirement, the record clearly reflects that the evidence presented at the plea hearing
contradicted petitioner’s later testimony.

        Petitioner’s later testimony provided four reasons that support his request to withdraw his
guilty plea: (1) his counsel’s failure to provide him with the victim’s 2006 CAC statement; (2)
his disagreement with the State’s factual description of the underlying events; (3) coercion by his
counsel into accepting the plea; and (4) petitioner’s admitted innocence. Despite his later claims,
petitioner agreed with his counsel at the plea hearing that they were prepared for trial, if
necessary, and had reviewed discovery in the months prior to his plea. Petitioner further agreed
at the plea hearing that his counsel had reviewed with him the video of the victim’s 2006 CAC
statement. The testimony at the plea hearing also indicated that the State presented the factual
circumstances based upon the evidence it would present at trial, and petitioner acknowledged
that he was unwilling to admit to those facts. Petitioner’s failure to admit participation in those
crimes was sufficient reason to proceed pursuant to Kennedy; we cannot find, based on the
record before us, that it was a “fair and just reason” to set aside that plea. See Kennedy, 178
W.Va. at 10, 357 S.E.2d at 43 (stating that “[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 his interests require a guilty
plea and the record supports the conclusion that a jury could convict him.”). Petitioner’s claim
that he is innocent of the underlying crimes is also reflected in the decision to proceed pursuant
to Kennedy, and we cannot find in this matter that his claim of innocence alone required the
circuit court to grant his motion to withdraw his plea.

         Further, although he later claimed that his plea was involuntary because his counsel
“pressured” him into the agreement, petitioner acknowledged at the plea hearing that he desired
to move forward with the plea, which he claimed to enter voluntarily; further, he specifically
stated that he was not forced by any other person to enter the plea. The circuit court also
informed him at the outset of the hearing that “[i]f at any time before we finish this hearing you
change your mind and decide you don’t want to plead guilty, tell me, we’ll stop” and proceed to
trial the following day. Petitioner correctly indicates that he or his counsel stopped the
proceedings to speak off-the-record on two occasions, but, each time, petitioner continued with
the plea and agreed that the same was in his best interests, pursuant to Kennedy. Finally, we have
often explained that an appellate court will not weigh the credibility of witness testimony, as the
same is the exclusive function and task of the trier of fact. See State v. Guthrie, 194 W.Va. 657,
669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (providing that “[a]n appellate court may not decide
the credibility of witnesses or weigh evidence as that is the exclusive function and task of the
trier of fact.”). Based on the circumstances of this case, we find no reversible error in the circuit
court’s denial of petitioner’s motion based on the testimony and evidence presented at the plea
hearing in this matter.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.




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ISSUED: June 15, 2015

CONCURRED IN BY:

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




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